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Leonard v. England6/7/1994
insanity exception or the discovery statute, we address only whether plaintiff was incompetent within the meaning of Section 35A-1101(7) "at the time the cause of action accrued." See generally Note, Adult Survivors of Childhood Sexual Abuse and Statutes of Limitations: A Call for Legislative Action, 26 Wake Forest L. Rev. 1245 (1991); Gary M. Ernsdorff & Elizabeth F. Loftus, Let Sleeping Memories Lie? Words of Caution About Tolling the Statute of Limitations in Cases of Memory Repression, 84 J. Crim. L. & Criminology 129 (1993) (states have either allowed or rejected tolling statutes of limitations in adult survivor's claims based on childhood sexual abuse through "insanity" exceptions or discovery statutes while some states have addressed the issue through legislation).
Plaintiff argues that Dr. Humphrey's affidavit represents a "competent and unchallenged expert opinion that [plaintiff] was until April 1990, less than one year prior to filing of this claim, an incompetent adult for purposes of the tolling of the statute of limitations," and that summary judgment for defendant was improper. We agree. Section 35A-1101(7), the relevant section in this case, provides that
"Incompetent adult" means an adult or emancipated minor who lacks sufficient capacity to manage his own affairs or to make or communicate important decisions concerning his person, family, or property whether such lack of capacity is due to mental illness, mental retardation, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury or similar cause or condition.
N.C.G.S. ยง 35A-1101(7) (1987). Dr. Humphrey states that plaintiff was, until 25 April 1990, mentally ill and suffering from post-traumatic stress syndrome, causing her to repress memories of abuse and to lack "sufficient capacity to make or communicate important decisions regarding her legal rights, her person and property, including, specifically, the decision to file suit for damages for childhood abuse." This uncontradicted evidence fully supports the classification of plaintiff as "incompetent" within the meaning of Section 35A-1101(7) at all times from the date of the alleged abuse until 25 April 1990, which necessarily includes the date of accrual of the cause of action. See Bryant v. Thalhimer Bros., Inc., 113 N.C. App. 1, 13, 437 S.E.2d 519, 526 (1993) (action for emotional distress does not accrue until distress manifests itself). Therefore, because plaintiff filed her complaint within three years after 25 April 1990, the date her incompetency terminated, her claim is not barred by the statute of limitations. The order of the trial court granting summary judgment for the defendant on the basis of the statute of limitations is accordingly
Reversed.
Chief Judge ARNOLD and Judge MCCRODDEN concur.
Disposition
Reversed.
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