Allen v. State

Citation118 Wn.2d 753,826 P.2d 200
Decision Date26 March 1992
Docket NumberNo. 58144-4,58144-4
PartiesBeverly ALLEN, as Personal Representative, Petitioner, v. The STATE of Washington, et al, Respondents.
CourtWashington Supreme Court

Castle, Schnautz, Hilfer & Leemon, P.S., Stephen P. Schnautz, Seattle, for petitioner.

Kenneth O. Eikenberry, Atty. Gen., Rene D. Tomisser, Asst., Olympia, for respondents.

JOHNSON, Justice.

Beverly Allen sued the State for paroling two men who later murdered her husband. The trial judge ruled on summary judgment that Allen's suit was barred by the 3-year statute of limitations and dismissed the action. Allen had argued that her cause of action was timely under the discovery rule. The Court of Appeals upheld the summary judgment dismissal, and we affirm. Allen did not file her suit within 3 years of the date when she should have discovered the essential elements of her cause of action.

On December 18, 1979, a masked gunman entered the Yorktown Restaurant in Tacoma and fired shots around the room. Three people were killed, including Stephen Allen, and three others were injured. Stephen Allen and his wife, Beverly, had traveled to Tacoma from their home in Mount Vernon to attend a reunion of former co-workers from Western State Hospital.

Stephen's wife, Beverly, was not at the restaurant, but she was told of the murder later that night. When she talked to the police, they did not know who had fired the shots and thus could not tell her who was responsible for the murder.

Beverly Allen returned to the family home in Mount Vernon shortly thereafter, still not knowing who had killed her husband. She remained in contact with the Pierce County Sheriff's Office for the next few months, but all she could find out was that they were still working on the case and had not yet learned the gunman's identity. The record does not indicate how many times she called during this time period, although Beverly Allen herself says the contact during this period "wasn't ... real intense". She stopped calling when the detective assigned to the case was transferred from the office. Beverly Allen believed the detective had not been replaced.

In May 1982, a Pierce County jury found John Frederick Anderson and Robert Stratton guilty of the Yorktown murders. 1 At the time of the murders, Stratton and Anderson were on parole, having been conditionally discharged from supervision.

According to Beverly Allen and members of her family, they were unaware at this time that her husband's killers had been identified and convicted. 2 Beverly Allen's father who also lives in Mount Vernon, maintains he did not learn of the convictions until late 1983, when he received in the mail a number of newspaper clippings describing the trial. Most of the articles contained in the record were printed in the Tacoma News Tribune. One short article, however, was written by a national wire service and appeared in the Seattle Post-Intelligencer, a newspaper of general circulation around the Puget Sound region. Additionally, a longer article was in the Northwest Weekend, a newspaper apparently based in or around Mount Vernon. 3 Three of the articles, including the article from the Northwest Weekend, stated both Stratton and Anderson had previous homicide convictions. The article in the Northwest Weekend indicated the reporter had unsuccessfully tried to contact Beverly Allen to get her reaction.

The record reflects Beverly Allen's father knew of the articles but decided not to show the articles to her because "[t]he holidays have always been an especially difficult time for Bev and her family since Steve was killed." Clerk's Papers, at 36-37.

In March 1984, Beverly Allen's son, Troy, discovered the articles while visiting his grandparents. Troy showed the articles to an attorney in May 1984, who suggested to Troy there might be a cause of action against the State for the manner in which it paroled Steve Allen's killers.

Troy did not immediately tell his mother about the articles or his discussions with the attorney "because she was trying so hard to put the murders behind her and I did not want to upset her." Clerk's Papers, at 47.

Troy's attorney arranged for further investigation and then told Troy of the State's role in paroling the men who killed his father. It appears, however, that Beverly Allen was not told of the results of this investigation until September 1985, some 18 months after Troy first saw the articles.

On October 9, 1985, Beverly Allen filed a wrongful death action against the State on behalf of herself and her children. The complaint alleges the State negligently paroled Stratton and Anderson.

The State moved for summary judgment to dismiss the action based on the 3-year statute of limitations. The trial court granted the motion, reasoning that Beverly Allen should have discovered her cause of action in May 1982, when the newspaper articles describing the trial and the killers' previous homicide convictions were printed.

Beverly Allen appealed to the Court of Appeals, which affirmed. The Court of Appeals did not directly address whether the discovery rule applied in this case, reasoning even if that rule were applied, it would only postpone the accrual of her cause of action until May 1982, and her complaint was not filed within 3 years of that date. Allen v. State, 60 Wash.App. 273, 803 P.2d 54, review granted, 117 Wash.2d 1001, 815 P.2d 265 (1991).

Allen obtained review in this court. We must decide whether application of the discovery rule saves Allen's cause of action from being barred by the statute of limitations.

An appellate court reviews a summary judgment de novo. The appellate court, like the trial court before it, analyzes whether any genuine issues of material fact exist and whether one party is entitled to judgment as a matter of law. CR 56(c); Central Wash. Bank v. Mendelson-Zeller, Inc., 113 Wash.2d 346, 351, 779 P.2d 697 (1989).

Wrongful death actions are governed by the 3-year statute of limitations. White v. Johns-Manville Corp., 103 Wash.2d 344, 348, 693 P.2d 687, 49 A.L.R.4th 955 (1985) (applying the "catchall" 3-year statute of limitations of RCW 4.16.080(2) for wrongful death claims). Consequently, a wrongful death action must be brought within 3 years of the date when the action accrues. See RCW 4.16.005. Under the discovery rule, 4 a cause of action accrues when the plaintiff knew or should have known the essential elements of the cause of action: duty, breach, causation and damages. See Gevaart v. Metco Constr., Inc., 111 Wash.2d 499, 501, 760 P.2d 348 (1988); White, 103 Wash.2d at 348, 693 P.2d 687.

The discovery rule requires a plaintiff to use due diligence in discovering the basis for the cause of action. Reichelt v. Johns-Manville Corp., 107 Wash.2d 761, 772, 733 P.2d 530 (1987); White, 103 Wash.2d at 353-54, 693 P.2d 687; Gevaart, 111 Wash.2d at 502, 760 P.2d 348. In other words, the discovery rule will postpone the running of a statute of limitations only until the time when a plaintiff, through the exercise of due diligence, should have discovered the basis for the cause of action. A cause of action will accrue on that date even if actual discovery did not occur until later.

The key consideration under the discovery rule is the factual, not the legal, basis for the cause of action. The action accrues when the plaintiff knows or should know the relevant facts, whether or not the plaintiff also knows that these facts are enough to establish a legal cause of action. Were the rule otherwise, the discovery rule would postpone accrual in every case until the plaintiff consults an attorney. Reichelt, 107 Wash.2d at 769, 733 P.2d 530; Gevaart, 111 Wash.2d at 502, 760 P.2d 348.

The record reflects that Beverly Allen's attempts to discover the facts surrounding her husband's death were minimal. She kept in touch with the Pierce County Sheriff's Office for only a few months after her husband's death in 1979, and even by her own account that contact was not intensive. The record reveals she made no other attempt to discover what happened to her husband until 1985 when the facts were presented to her by her son and his attorney. Under the facts of this case, we conclude due diligence was not exercised.

Moreover, Allen could have discovered her cause of action during May 1982 even though she did not stay in contact with Pierce County authorities. In that month, her husband's murderers were convicted in a trial which received considerable attention in local newspapers. Many of the articles written about the trial appeared in a newspaper published in Tacoma, where Allen had previously lived and where ...

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