Doe v. Roe
| Decision Date | 08 August 1996 |
| Docket Number | No. 1,CA-CV,1 |
| Citation | 187 Ariz. 605,931 P.2d 1115 |
| Parties | Jane DOE, a single person, Plaintiff-Appellant, v. John ROE and Jane Roe, husband and wife, Defendants-Appellees. 94-0057. |
| Court | Arizona Court of Appeals |
We must determine whether the trial court erred in entering summary judgment against Appellant, Jane Doe, on the ground that the statute of limitations barred her cause of action against her parents, Appellees John and Jane Roe, for her father's alleged sexual abuse of Doe when she was a minor. 1 We view the facts favorably to Appellant and determine "de novo whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." Gonzalez v. Satrustegui, 178 Ariz. 92, 97, 870 P.2d 1188, 1193 (App.1993).
Jane Doe is the daughter of John and Jane Roe. Doe claims that beginning when she was about eight years old, and continuing until she was fifteen, her father sexually abused her. Doe also claims that this experience was so traumatic that as a child she developed psychological coping mechanisms which caused her to completely repress the memory of this abuse. Her first recollection was a "flashback" which occurred on July 10, 1989, when she was thirty four years old. This recollection was triggered by a television program discussing childhood incest and Doe realized she had been sexually abused by her father. Doe became extremely distraught as a result of this flashback and immediately sought psychological counseling.
Although Doe continued counseling from the date of the first flashback, she initially denied the validity of her memory of abuse and did not again discuss specifics of the abuse with her counselor until six months later. In May of 1990, Doe remembered additional incidents of abuse which she reported to her counselor in early June of 1990. These memories were so painful and created such strong feelings of shame and guilt that the next day Doe threatened suicide. The counselor arranged for Doe's admission to the psychiatric ward of a New York hospital, but Doe discharged herself against medical advice two days later on June 9, 1990. Doe then flew to visit her parents in Phoenix and confronted them for the first time with her accusations of abuse.
After Doe returned to New York, she continued in counseling. Because of the stress and the suicidal feelings she experienced as a result of her continuing recall of abuse, Doe quit her job in August of 1990, moved to Seattle, Washington, and continued counseling there. Doe attempted to include her parents in her counseling but they refused.
Doe filed this suit against her parents on May 13, 1992. The Roes moved for summary judgment on the ground that Doe's complaint was barred by the statute of limitations and the trial court agreed. Doe timely appealed.
In Arizona, a plaintiff must file suit for personal injuries within two years after the cause of action accrues. Arizona Revised Statutes Annotated ("A.R.S.") section 12-542 (1992). Because the alleged abuse in this case occurred when Doe was a minor, the limitations period was tolled until she reached age 18. A.R.S. § 12-502(A) (1992). However, Doe's complaint is prima facie untimely because she filed suit more than two years after her eighteenth birthday.
The statute would nevertheless not bar her action if Doe can establish some reason why the statute should not apply in the particular circumstances of this case. In this connection, Doe raises three grounds. She first argues that she was of unsound mind within the two year period before filing the action and A.R.S. section 12-502(A) (1992) tolled the statute until this disability was removed. She next argues that Roes are estopped from claiming the benefit of the statute of limitations since they caused her mental impairment. Finally, she argues that she did not "discover" the cause of action until less than two years before filing the action. The Roes dispute these assertions and additionally argue that Doe is attempting to tack the disabilities of minority, unsound mind, and "discovery" in violation of the anti-tacking statute, A.R.S. section 12-503 (1992).
Arizona law recognizes that a person who is of "unsound mind" at the time a cause of action accrues is under a legal disability, and the statute of limitations does not begin to run until removal of that disability. A.R.S. § 12-502(A). Doe argues that her father's abuse created a mental impairment which both caused her to repress the memory of the abuse and, when the memories surfaced, made her depressed, suicidal, and unable either to work or to pursue legal remedies against her father. Doe invites this court to adopt a broad definition of the term "unsound mind" which would include the mental impairment she describes.
The Arizona Supreme Court has recently decided this issue adversely to Doe's position. In Florez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996) that court held that the disabling psychological effects of child abuse do not constitute an "unsound mind" under section 12-502(A) where the victims were able to function on a day-to-day basis and manage their ordinary affairs. There is no meaningful distinction between the arguments presented in Florez and those presented by Doe in this matter. Moreover, the record here discloses that even more so than the victims in Florez, Doe was able to manage her affairs and understand her legal rights. She graduated from college, supported herself, worked as a stock-trader, and was promoted to a vice president position, a position she held at the time her memories surfaced. Following her first memory, she continued to support herself and work at her job until she voluntarily quit and moved to Seattle. In Seattle, she managed to budget her savings and do whatever else was necessary to support herself while she continued her therapy for her psychological problems. We conclude that there is no genuine issue of material fact that Doe was not of "unsound mind" for purposes of tolling the statute of limitations. See also Annot., Posttraumatic Syndrome as Tolling Running of Statute of Limitations, 12 A.L.R.5th 546 (1993); Annot., Running of Limitations Against Action for Civil Damages for Sexual Abuse of Child, 9 A.L.R.5th 321 (1993).
Doe suggests that because her father's action caused her mental impairment he should be estopped from asserting the statute of limitations. To claim estoppel or equitable tolling in this context, Doe must show her parents committed some positive act, in addition to the claimed abuse, that either concealed Doe's cause of action or induced her to forbear from filing suit. Ulibarri v. Gerstenberger, 178 Ariz. 151, 162, 871 P.2d 698, 709 (App.1993); see Smith v. Smith, 830 F.2d 11 (2d Cir.1987) (); Bowser v. Guttendorf, 373 Pa.Super. 402, 541 A.2d 377 (1988) (); Snyder v. Boy Scouts of America, 205 Cal.App.3d 1318, 253 Cal.Rptr. 156 (1988) (). On our examination of the record, we find no evidence to support Doe's suggestion of estoppel.
Arizona follows the rule that "a plaintiff's cause of action does not accrue until the plaintiff knows or, in the exercise of reasonable diligence, should know the facts underlying the cause [of action]." Gust, Rosenfeld & Henderson v. Prudential Ins. Co., 182 Ariz. 586, 588-89, 898 P.2d 964, 966-67 (1995); Kenyon v. Hammer, 142 Ariz. 69, 76 n. 6, 688 P.2d 961, 968 n. 6 (1984); Kowske v. Life Care Centers of America, Inc., 176 Ariz. 535, 537, 863 P.2d 254, 256 (App.1993); Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 252, 482 P.2d 497, 501 (1971). Arizona has not yet had occasion to determine whether the discovery rule should apply where the allegation is that childhood sexual abuse caused repressed memory of the abuse, thereby postponing knowledge of the abuse into adulthood. The better reasoned authorities from other jurisdictions indicate that the rule should apply. See, e.g., Ault v. Jasko, 70 Ohio St.3d 114, 637 N.E.2d 870 (1994) (); Mary D. v. John D., 264 Cal.Rptr. 633 (App.1989), review dismissed, 275 Cal.Rptr. 380, 800 P.2d 858 (Cal.1990) (same); Olsen v. Hooley, 865 P.2d 1345 (Utah 1993) (); Johnson v. Johnson, 701 F.Supp. 1363 (N.D.Ill.1988) (); 2 see also, Note, Tolling the Statute of Limitations in Actions Brought by Adult Survivors of Childhood Sexual Abuse, 33 Ariz. L.Rev. 427 (1991); Annot., Emotional or Psychological "Blocking" or Repression as Tolling Running of the Statute of Limitations, 11 A.L.R.5th 588 (1993).
Arizona does not look with favor on the defense of the statute of limitations, Insurance Co. of North America v. Superior Court, 166 Ariz. 82, 86, 800 P.2d 585, 589 (1990), and the discovery rule developed as a tool to mitigate the harshness of applying the statute to a plaintiff who could not have known any of the facts underlying the cause of action. Gust,...
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