Doe v. Roe

• Citation: 955 P.2d 951,191 Ariz. 313
• Decision Date: 07 April 1998
• Docket Number: No. CV-96-0526-PR,CV-96-0526-PR
• Parties: , 266 Ariz. Adv. Rep. 19 Jane DOE, a single person, Plaintiff-Appellant. v. John ROE and Jane Roe, husband and wife, Defendants-Appellees.
• Court: Supreme Court of Arizona

Page 951

955 P.2d 951

191 Ariz. 313, 266 Ariz. Adv. Rep. 19

Jane DOE, a single person, Plaintiff-Appellant. v. John ROE and Jane Roe, husband and wife, Defendants-Appellees.

No. CV-96-0526-PR.

Supreme Court of Arizona,

En Banc.

April 7, 1998.

Muchmore & Wallwork, P.C. by Margaret F. Dean, Nicholas J. Wallwork, Phoenix, for Jane Doe.

Renaud Cook & Drury, P.A. by Steven G. Mesaros, Diane L. Mihalsky, William W. Drury, Jr., Phoenix, for John Roe.

Broening Oberg Woods Wilson & Cass, P.C. by Jerry T. Collen, Terrence P. Woods and Thomas & Elardo by Neal B. Thomas, Phoenix, for Jane Roe.

OPINION

FELDMAN, Justice.

¶1 We granted review to determine how the statute of limitations applies to a case of delayed discovery attributable to alleged repressed memory of severe sexual abuse. Plaintiff claims that after many years she recalled the abuse but for a prolonged period was incapacitated to the point of being unable to assert her legal rights. We examine application of both the discovery rule and the tolling statute. We have jurisdiction pursuant to Ariz. Const. art. VI, § 5(3) and Ariz.R.Civ.App. 23.

FACTS AND PROCEDURAL HISTORY

¶2 Jane Doe (Plaintiff) alleges that her father sexually abused her during the years 1963 to 1970 when she was between the ages of eight and fifteen. Because of the trauma associated with the abuse, Plaintiff completely repressed all memory of the events.

¶3 Plaintiff alleges that until 1989, she regarded her mother and father as ideal parents and considered them her best friends. Plaintiff had never seen a therapist or required psychiatric treatment, although she did suffer from eating disorders. As an adult, Plaintiff had only sparse and vague memories of her childhood, except for time spent with her paternal grandparents, with whom she was very close. Plaintiff's paternal grandmother died in late 1988 and her paternal grandfather died in March 1989. A few months later, while watching a television program that examined the issue of incest, Plaintiff experienced a flashback memory of her father sexually assaulting her.

¶4 As a result, Plaintiff developed feelings of hysteria, even panic, and immediately sought counseling. In the first emergency therapy session, Plaintiff alluded to the flashback she experienced earlier that day. However, during the next six months of therapy (first weekly then twice per week), Plaintiff could not discuss any specific incidents of sexual abuse. During this period Plaintiff experienced feelings of guilt, shame, self-doubt, depression, suicidal ideation, and ultimately denial of her victimization. The therapist made a clinical diagnosis of depression and concluded that Plaintiff was in denial, resulting from her mental inability to cope with the shame and guilt associated with the abuse. This was demonstrated by the facts that Plaintiff spent that Christmas with her parents and was unable to remember earlier disclosures of memories of abuse in subsequent therapy sessions.

¶5 As her therapy continued, however, Plaintiff began to recall additional specific incidents of especially brutal sexual abuse perpetrated by her father, including being forced to watch pornographic movies, digital penetration, penetration with objects, and cunnilingus. Plaintiff also recalled an extremely disturbing memory of "acting out" behavior that was symptomatic of her abuse--an attempt at bestiality. The record does not indicate when, subsequent to July 1989, Plaintiff remembered specific incidents.

¶6 So devastating were the abusive events that Plaintiff's depression and suicidal ideation became more severe during the course of therapy. Consequently, she was referred to a psychiatrist who, among other things, prescribed anti-depressants. In June 1990, Plaintiff told her therapist graphic details of an especially heinous incident of sexual abuse. The following day, Plaintiff contacted her therapist to disclose that she had a .38 caliber pistol and was feeling dangerously suicidal. Plaintiff's therapist persuaded her to admit herself to a hospital for treatment, although Plaintiff initially failed to comprehend that she was being admitted to the psychiatric ward. In the hospital, Plaintiff was again incapable of discussing her memories of sexual abuse with her psychiatrist. Against medical advice, Plaintiff left the hospital. At this point, Plaintiff still remembered only a fraction of the seven-year series of sexually abusive events.

¶7 After leaving the hospital, Plaintiff traveled to her parents' residence in Phoenix and confronted them with general accusations of sexual abuse. Her mother did not question the truth of the allegations but only apologized for having allowed the abuse to happen. When Plaintiff confronted her father, he said he had been expecting her accusations, admitted his behavior was inappropriate, and apologized. Few specific details of the abuse were discussed. Nonetheless, this conversation with her parents, albeit versed in the most general terms, was the first time Plaintiff was able to discuss her memories of sexual abuse with anyone other than her therapist.

¶8 Plaintiff returned to New York to continue her therapy and attempted to resume her position as vice president for NASDAQ trading at a large and prestigious brokerage firm. Memories of sexual abuse continued to surface, rendering Plaintiff incapable of performing her duties. In September 1990, she left her job and moved to Seattle where she continued treatment. The vast majority of her memories of sexual abuse were recovered while she was in Seattle. The impact of the surfacing memories incapacitated Plaintiff emotionally, to the extent that she could not even attempt to seek employment. The continuing recollections of sexual abuse adversely affected Plaintiff in other ways as well. For instance, her depression continued, and she required medications to enable her to sleep, mitigate depression, and relieve her irritable bowel syndrome. During this period, however, Plaintiff was finally able to disclose facts about her abuse to persons other than her therapists and abusers, as evidenced by her discussing the ordeal with close friends. Some time before June 1991, Plaintiff contacted an attorney to ascertain the limitations period with respect to her damages claim.

¶9 In November 1991, Plaintiff asked her parents to participate in her therapy sessions. They refused, responding in a November 20 letter, "[We] cannot help you work all this out. We did the best job we could at the time, we know we made mistakes and we apologize, but that's all we can do.... I am certain you are having pain, as you say, in this process, but nothing can be accomplished by digging up the past." Plaintiff's parents did not deny the abuse at any time before this action was filed on May 13, 1992.

¶10 In her action, Plaintiff asserted claims against her father for the abuse and against her mother for negligence in failing to protect her. On motion for summary judgment, her father denied the abuse allegations, questioned the possibility of repressed memory of abuse, and argued "the court need not consider the legitimacy or the credibility" of Plaintiff's allegations because the statute of limitations had run. Applying the discovery rule, but holding that discovery occurred as of the date of the first flashback on July 10, 1989, the trial judge granted summary judgment in the parents' favor.

¶11 A divided court of appeals affirmed. Doe v. Roe, 187 Ariz. 605, 931 P.2d 1115 (App.1996). The majority rejected Plaintiff's claim that her parents were estopped from claiming the benefit of the statute of limitations because they caused her mental impairment. Citing Ulibarri v. Gerstenberger, 178 Ariz. 151, 871 P.2d 698 (App.1993), the court then said that in addition to abuse, Plaintiff had to show her parents committed some affirmative act of concealment or induced her to refrain from filing the action. 187 Ariz. at 608, 931 P.2d at 1118. The court held the discovery rule applied to claims of repressed memory, but the two-year statute of limitations began to run for all incidents of abuse from the date of the first memory, July 10, 1989, or at the latest within six months thereof, under an "investigate and discover standard." Id. at 609-10, 931 P.2d at 1119-20. Finally, the court held that under Florez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996), Plaintiff's claim for tolling the statute of limitations due to the disability of unsound mind failed because she was able to manage her daily affairs. 187 Ariz. at 608, 931 P.2d at 1118.

¶12 Dissenting, Judge Lankford argued that whether the discovery rule preserves these claims is a question of fact for the jury. Reasoning that each incident of abuse gives rise to a separate cause of action, the dissent also concluded that the statute of limitations on Plaintiff's claims against her father should run from the discovery of the separate incidents of abuse. The May 1992 complaint was timely, therefore, as to the incidents recalled on and after May 13, 1990. Id. at 614, 931 P.2d at 1124. As for the implication that Plaintiff did not exercise due diligence to investigate and discover the nature and extent of her injuries, Judge Lankford noted, "These efforts [through psychiatric counseling] were so traumatic that plaintiff became suicidal and required psychiatric hospitalization. How much more diligent could plaintiff have been than this?" Id. at 615, 931 P.2d at 1125.

DISCUSSION

¶13 We granted review on the following issues: (1) whether summary judgment is precluded by genuine factual questions whether Plaintiff discovered or should have discovered her cause of action more than two years before she filed suit, and (2) whether the statute of limitations period was tolled by Plaintiff's mental impairment.

¶14 We must determine, therefore, how the discovery rule and the tolling provisions of the statute of limitations are to be applied when a plaintiff alleges that her...