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Lovelace v. Keohane2/11/1992
on, all facts stated in the complaint must be accepted as true and a plaintiff receives the benefit of all inferences from those facts. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir. 1987). The case should be dismissed only if a plaintiff can prove no set of facts which would provide relief. Id.
Lovelace set out sufficient facts to state a cause of action. She should have been allowed to present evidence to the trier of fact concerning when she knew or should have known of the priest's sexual abuse and its injurious effect.
II.
The majority's holding is inconsistent with the policy considerations behind application of the discovery rule. The majority notes the Washington Supreme Court's conclusion that the "discovery rule should be adopted only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action." Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226, 228 (1986). However, it fails to realize that the policy considerations articulated in Tyson weigh in favor of applying the discovery rule to this case.
In Tyson, the plaintiff alleged that her father had sexually assaulted her from the time she was three years old until age eleven. She further alleged that the sexual assaults caused her to repress any memory of the acts until she entered psychotherapy fifteen years later. Through therapy, she claimed to remember the alleged acts and filed her complaint within one year.
The Tyson court noted that the purpose of statutes of limitation are to avoid the evidentiary problems inherent in stale claims. Id. 727 P.2d at 227. It reviewed cases in which it had applied the discovery rule and observed:
Because of the availability and trustworthiness of objective, verifiable evidence in the above cases, the claims were neither speculative nor incapable of proof. Since the evidentiary problems which the statute of limitations is designed to prevent did not exist or were reduced, it was reasonable to extend the period for bringing the actions.
Id. at 228.
The proposed evidence in Tyson, however, consisted solely of testimony from the plaintiff, family and friends, school teachers, and treating psychologists. After describing psychology as an imprecise discipline, the court reasoned:
It is proper to apply the discovery rule in cases where the objective nature of the evidence makes it substantially certain that the facts can be fairly determined even though considerable time has passed since the alleged events occurred. Such circumstances simply do not exist where a plaintiff brings an action based solely on an alleged recollection of events which were repressed from her consciousness and there is no means of independently verifying her allegations in whole or in part.
Id. at 229. Thus, the "subjectivity" of Tyson's claim persuaded five of the nine justices to refuse to apply the discovery rule. In response, the Washington Legislature amended its statute of limitations to provide a person in Tyson's situation the benefit of the rule.
Lovelace, however, is not relying solely on her recollection of previously repressed events. She claims to have a taped admission from the priest in which he relates the sexual abuse. Yet, the majority refuses to apply the discovery rule despite the presence of objective verifiable evidence that minimizes the risk that her claim is stale. The trier of fact should be allowed to hear evidence of her claim along with evidence concerning her knowledge of the injury and its cause.
The set of facts Lovelace alleges would clearly satisfy the Tyson court's "objective verifiable evidence" test. These
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