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Cikan v. ARCO Alaska12/16/2005
t's grant of summary judgment to ARCO.
In Hernandez-Robaina v. State, we focused on " n individual's mental capacity to understand his or her rights, not whether the individual actually understood or knew of those rights, the gravamen of mental incompetency under AS 09.10.140(a)(2)." Thus, it is the individual's capabilities - whether Cikan could know or understand her legal rights sufficiently well to manage her personal affairs and not whether she did know or understand them - that forms the test for tolling the statute of limitations due to mental incompetency. "The central question is whether the individual would be able to comprehend the concepts and ideas of which his or her rights consist if those matters were adequately communicated."
Cikan has failed to produce evidence demonstrating that she lacked the mental capacity to understand her rights during the relevant time period of December 1991-1993. As the superior court recognized, Dr. Wolf's affidavit did not state that Cikan was mentally incompetent or incapable of understanding her legal rights from the date of injury in 1991 until the running of the statute in 1993. And while I agree with the court that "a formal finding of incompetency by a medical expert" is not necessary to raise a genuine issue of material fact, Dr. Wolf's diagnosis of Cikan in 2000 with post-concussion symptoms does not raise a genuine issue of material fact as to whether Cikan could understand her rights from 1991-1993.
Moreover, the testimony of Cikan's lay witnesses relied on by the court focuses on her inability to function after 1995, the year that she filed the malpractice lawsuit against Kalamarides. For example, Jacqueline Sykes's testimony is that when she saw Christine in 1995, she was not the same person that she had been in earlier years: "Christine came to see me in 1995 in California and I hardly recognized her." And Tahni Warner Brotherton did not even meet Cikan until the summer of 1992, six months after her accident, and at that time Cikan "appeared to have her life together." Thus, according to Brotherton, after her accident Cikan "was employed at Alyeska Ski Resort and drove a nice car. The jewelry and furniture she owned was very tasteful and well kept." According to Brotherton, " ver the next few years I watched her lose all of this because she could no longer work or keep her life together."
Finally, there is nothing in the record that explains how Cikan could have filed her lawsuit against Kalamarides if she was mentally incompetent in 1995. She seems to misunderstand the Hernandez-Robaina test when she argues that her foolish strategy choice to sue Kalamarides should be viewed as a sign of her ongoing incapacity and maintains that " he very filing of that lawsuit shows my mental confusion four years after the accident."
Although the threshold showing necessary to preclude entry of summary judgment is extremely low, as evidenced by this court's holding in Meyer v. State, I cannot agree that Cikan has presented more than a "scintilla of contrary evidence" regarding her competency for the relevant 1991-1993 time period. The only evidence of Cikan's mental state during this period is the assessment of examining neurologist Dr. Kenneth Pervier, who concluded that in May 1993 Cikan's " ental status examination was entirely within normal limits" and " here is no evidence of a thought disorder." Given Cikan's utter lack of evidence of mental incompetency during the relevant period of December 1991-1993, I am unable to concur that the superior court should conduct a pretrial evidentiary hearing regarding Cikan's competency. I would affirm the superior court's grant of summary judgment and therefore I respec
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