Logerquist v. Danforth

• Citation: 188 Ariz. 16,932 P.2d 281
• Decision Date: 03 October 1996
• Docket Number: CA-CV,No. 2,2
• Parties: Kim E. LOGERQUIST, a single woman, Plaintiff/Appellant, v. John T. DANFORTH, M.D., and Mary Jean Danforth, husband and wife; John T. Danforth, M.D., P.C., Defendants/Appellees. 96-0046.
• Court: Arizona Court of Appeals

Page 281

932 P.2d 281

188 Ariz. 16

Kim E. LOGERQUIST, a single woman, Plaintiff/Appellant, v. John T. DANFORTH, M.D., and Mary Jean Danforth, husband and wife; John T. Danforth, M.D., P.C., Defendants/Appellees.

No. 2 CA-CV 96-0046.

Court of Appeals of Arizona,

Division 2, Department A.

Oct. 3, 1996.

Review Denied Feb. 26, 1997. ^*

[188 Ariz. 17] Turley & Swan, P.C. by Kent E. Turley, Phoenix, for Plaintiff/Appellant.

Teilborg, Sanders & Parks, P.C. by Frank A. Parks, Bruce Smith and Kari B. Bishop, Phoenix, for Defendants/Appellees.

OPINION

PELANDER, Presiding Judge.

The primary issue in this case is whether, and under what circumstances, the "discovery rule" should apply to delay commencement of the statute of limitations period when a plaintiff's claims are based on repressed memories of childhood sexual abuse. Concluding that such claims by plaintiff/appellant Kim Logerquist were time-barred, the trial court granted summary judgment for defendants/appellees. Plaintiff appeals from that judgment and from the trial court's subsequent denial of her motion for new trial. For the reasons stated below, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff was born on August 27, 1962. Defendant John Danforth, M.D. is a pediatrician who has practiced in Mesa, Arizona since 1965. Danforth saw plaintiff on four office visits between 1971 and 1973, when plaintiff was eight and ten years old: twice for an ear infection, once for a urinary tract infection and once for a rash. Plaintiff claims that Danforth sexually molested her during those visits. She also alleges that she first remembered these events sometime in September 1991 and that until that time she "unconsciously blocked and/or repressed the memories of said assaults in order to survive emotionally." In her deposition plaintiff testified that although she was unsure what triggered the memories, they occurred spontaneously when she was watching an old movie on television in September 1991. In the fall of 1991, plaintiff told two friends that her memories first surfaced while she was watching a commercial for children's medicine in which a pediatrician appeared.

Plaintiff has three distinct memories which underlie her present claims. On each occasion plaintiff was completely undressed and alone with Danforth in an examination room. In one memory, Danforth asks plaintiff's mother to leave the room. In the first memory, plaintiff recalls Danforth touching her inappropriately between the legs and inserting something cold into her vagina. In the second memory, plaintiff remembers feeling something inserted into her vagina and rectum and Danforth, after pulling out a large syringe, threatening to give her a big shot if she does not stop fussing. In the third memory, she remembers moving backwards on the table, feeling something inserted in her rectum and vagina, and being pulled down onto the table. ¹ Plaintiff's mother, who accompanied her to Danforth's office on three of the four visits, died in 1980. Danforth has denied plaintiff's allegations.

Plaintiff filed this action in September 1992, alleging various intentional torts, malpractice and breach of fiduciary duty. After the parties conducted considerable discovery, Danforth moved for summary judgment, primarily contending that plaintiff's claims were time-barred. ² The trial court granted the motion and later denied plaintiff's motion for new trial. This appeal followed.

STANDARD OF REVIEW

In reviewing the granting of summary judgment on statute of limitations grounds, we view the evidence in a light most favorable to the party against whom summary judgment was entered and independently review any questions of law relating to the statute of limitations defense. Owens v. City of Phoenix, 180 Ariz. 402, 405, 884 P.2d 1100, 1103 (App.1994); Zuck v. State, 159 Ariz. 37, 39, 764 P.2d 772, 774 (App.1988). We must determine de novo whether there are any genuine issues of material fact and whether the trial court erred in applying the law. United Bank of Arizona v. Allyn, 167 Ariz. 191, 805 P.2d 1012 (App.1990). Summary judgment is proper when the evidence presented by the party opposing the motion has so little probative value, given the required burden of proof, that reasonable jurors could not agree with the opposing party's conclusions. Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990). We will affirm if the trial court's disposition is correct for any reason. Zuck, 159 Ariz. at 42, 764 P.2d at 777.

DISCUSSION

Our supreme court has explained the rationale underlyingthe statute of limitations as

primarily for the protection of the defendant, and the courts, from litigation of stale claims where plaintiffs have slept on their rights and evidence may have been lost or witnesses' memories faded. This policy is sound and necessary for the orderly administration of justice. However, this policy may be outweighed "where the interests of justice require vindication of the plaintiff's rights."

Brooks v. Southern Pacific Co., 105 Ariz. 442, 444, 466 P.2d 736, 738 (1970), quoting Burnett v. New York Cent. R. Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1055, 13 L.Ed.2d 941 (1965). See also Ritchie v. Grand Canyon Scenic Rides, 165 Ariz. 460, 464, 799 P.2d 801, 805 (1990).

In determining whether a particular claim is time-barred, four factors must be examined: "(1) when did the plaintiff's cause of action accrue; (2) what is the applicable statute of limitations period; (3) when did the plaintiff file his [or her] claim; and (4) was the running of the limitations period suspended or tolled for any reason?" Taylor v. State Farm Mut. Auto. Ins. Co., 182 Ariz. 39, 41, 893 P.2d 39, 41 (App.1994), vacated in part on other grounds, 185 Ariz. 174, 913 P.2d 1092 (1996). There is no dispute about factors (2) and (3) in this case, but the pivotal issues center on factors (1) and (4).

A personal injury action such as this must be "commenced and prosecuted within two years after the cause of action accrues, and not afterward." A.R.S. § 12-542. Due to plaintiff's minority status at the time of the alleged torts, the two-year limitations period normally would begin to run on her eighteenth birthday. A.R.S. § 12-502(A). Thus, unless the statute of limitations was tolled or otherwise extended, plaintiff was required to file suit by no later than August 27, 1982. She filed this action on September 11, 1992.

A. UNSOUND MIND

Plaintiff contends that her claims are tolled, and therefore not time-barred, because she was of "unsound mind" under A.R.S. § 12-502(A) (1992). ³ "Unsound mind" means that a person is "unable to manage his affairs or to understand his legal rights or liabilities." Allen v. Powell's Int'l, Inc., 21 Ariz.App. 269, 270, 518 P.2d 588, 589 (1974). Our supreme court recently addressed the meaning of "unsound mind" in cases in which the plaintiffs argued that post-traumatic stress disorder resulting from past childhood sexual abuse constituted "unsound mind," thereby tolling the statute of limitations under § 12-502(A). Florez v. Sargeant, 185 Ariz. 521, 917 P.2d 250 (1996). In rejecting that argument, the court applied the Allen test and stated:

The focus of the unsound mind inquiry is on a plaintiff's ability to manage his or her ordinary daily affairs. It does not focus on the plaintiff's ability to pursue the subject matter of the litigation at issue.

Id., 185 Ariz. at 525, 917 P.2d at 254. The court noted that "[i]f there is hard evidence that a person is simply incapable of carrying on the day-to-day affairs of human existence, then the statute is tolled [, but] [o]therwise it is not." Id., 185 Ariz. at 526, 917 P.2d at 255. Because the evidence demonstrated that both plaintiffs could function on a day-to-day basis and understood the nature of their legal rights, the court concluded that they were not of "unsound mind." Id.

Similarly, plaintiff presented insufficient evidence in this case to support a finding that she was incapable of managing her daily affairs or of understanding the nature of her legal rights. She has pursued an education in nursing and has held jobs in the health care field. Repressed memory due to childhood sexual abuse is an insufficient basis in itself for concluding that she was of "unsound mind," and therefore the limitations period was not tolled under § 12-502(A). See Lovelace v. Keohane, 831 P.2d 624 (Okla.1992).

B. DISCOVERY RULE

Plaintiff alternatively contends that she timely filed this action because her claim did not accrue until September 1991. Determination of a claim's accrual date may implicate the so-called "discovery rule." That common law rule, if sufficient evidence supporting its application is presented, may delay commencement of the time period within which suit must be filed. Under the discovery rule, a cause of action accrues "when the plaintiff knew or by the exercise of reasonable diligence should have known of the defendants' conduct and therefore the statute of limitations does not begin to run until that time." Mayer v. Good Samaritan Hosp., 14 Ariz.App. 248, 252, 482 P.2d 497, 501 (1971). See also Vega v. Morris, 184 Ariz. 461, 463, 910 P.2d 6, 8 (1996). In other words, "the claim is barred two years from when the plaintiff knew or should have knownfacts giving rise to the claim." Anson v. American Motors Corp., 155 Ariz. 420, 424, 747 P.2d 581, 585 (App.1987).

The burden of establishing that the discovery rule applies to delay the statute of limitations rested on plaintiff. Ulibarri v. Gerstenberger, 178 Ariz. 151, 155, 871 P.2d 698, 702 (App.1993); Cooney v. Phoenix Newspapers, Inc., 160 Ariz. 139, 141, 770 P.2d 1185, 1187 (App.1989). "Once the defendant has established a prima facie case entitling him to summary judgment [on a statute of limitations defense], the plaintiff has the burden of showing available, competent evidence that would justify a trial." Ulibarri, 178 Ariz. at 156, 871 P.2d at 703.

Arizona courts have applied...