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Cox v. City of Pullman

The Court of Appeals of Washington, Division Three
Feb 3, 2009
148 Wn. App. 1032 (Wash. Ct. App. 2009)


No. 26687-7-III.

February 3, 2009.

Appeal from a judgment of the Superior Court for Whitman County, No. 07-2-00038-9, David Frazier, J., entered November 20, 2007.

Affirmed by unpublished opinion per Korsmo, J., concurred in by Kulik, A.C.J., and Sweeney, J.

Dawn Heston sued the City of Pullman (City) nearly five years after a city bus driver began raping her and three years after the assailant had been sentenced for his crimes. The trial court found the suit was barred by the three year statute of limitations. We agree and affirm the dismissal of the action.


Ms. Heston is developmentally disabled and used the City of Pullman's Dial-A-Ride service to commute to work at her job at Palouse Industries. Randy Colby was a Dial-A-Ride bus driver employed by the City. In early 2004, Mr. Colby confessed to having sexual intercourse with Ms. Heston between 10 and 20 times during 2002. He pleaded guilty in July 2004, to one count of indecent liberties and three counts of third degree rape involving Ms. Heston and another developmentally disabled woman who used the Dial-A-Ride service. Ms. Heston was represented at the sentencing hearing by the same attorney who later filed the civil action against the City.

The second victim also was a plaintiff in the trial court proceedings, but is not involved in this appeal.

Counsel contacted Ms. Heston at Eastern State Hospital on December 17, 2006, and the next day the two signed a contingent fee agreement to pursue a claim against the City. Ms. Heston was unaware that she could sue the City until that point. A claim was filed with the City on December 19, and an amended claim was filed December 22. Suit alleging negligence on the part of the City was filed on February 21, 2007 by Ms. Heston individually. There was no guardian or guardian ad litem involved.

The City moved for summary judgment, seeking dismissal due to the statute of limitations. Ms. Heston responded that she was a vulnerable adult, incapable of understanding that she had a cause of action against the City, and that the statute of limitations was therefore tolled. She filed an affidavit from a social worker explaining that testing had shown she had an adaptive function level of 7 years, 8 months of age. The City objected to the affidavit and the trial court declined to consider it because the witness had not provided any foundation for her expertise in the area.

The trial court granted summary judgment, concluding that Ms. Heston had not established that she was incompetent either at the time the cause of action accrued or when the case was filed. Ms. Heston then appealed to this court.


This court reviews a summary judgment de novo, performing the same inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the light most favorable to the nonmoving party. Id. If there is no genuine issue of material fact, summary judgment will be granted if the moving party is entitled to judgment as a matter of law. Id.

The statute of limitations is an affirmative defense that must be proved by the defendant. Haslund v. City of Seattle, 86 Wn.2d 607, 620-621, 547 P.2d 1221 (1976). A plaintiff asserting an exception to the statute of limitations, however, bears the burden of proving that a tolling provision applies. Cannavina v. Poston, 13 Wn.2d 182, 190-191, 124 P.2d 787 (1942) (recognizing the burden of proof being on a party asserting partial payment as a rationale to toll the statute of limitations).

The parties here agree that the three year statute of limitations for personal injury governs this case. RCW 4.16.080(2). The parties disagree over whether the tolling provision of RCW 4.16.190(1) applies. That statute provides in part that: "if a person . . . be at the time the cause of action accrued . . . incompetent or disabled to such a degree that he or she cannot understand the nature of the proceedings, such incompetency or disability as determined according to chapter 11.88 RCW . . . the time of such disability shall not be a part of the time limited for the commencement of action." Chapter 11.88 RCW is the guardianship statute.

The application of RCW 4.16.190 to a negligence action was recently considered in Rivas v. Overlake Hospital Medical Center, 164 Wn.2d 261, 189 P.3d 753 (2008). There a woman filed suit three years and two days after losing a kidney during heart surgery. She claimed that she was incapacitated during four days spent in the Intensive Care Unit (ICU) following surgery so that the tolling provision made her action timely. Id. at 265. The Washington Supreme Court determined that there were factual issues presented that precluded summary judgment. In particular, the court concluded section 190 did not require the appointment of a guardian or the commencement of guardianship proceedings. Rather, the statute only incorporated the substantive provisions of chapter 11.88 RCW. Id. at 264, 270. The focus should be on the disabling conditions rather than what consequences they might have under the guardianship statute. Id. at 269.

The particularly relevant provision was found in RCW 11.88.010(1)(a), which provides in part that "a person may be deemed incapacitated as to person when the superior court determines the individual has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety." In Rivas, the plaintiff's condition while in the ICU was contested, with her expert witness and family members opining she was in no condition to do anything and the hospital contending her examination scores showed she was alert and competent. 164 Wn.2d at 265-266. Under those circumstances, the court found that a jury issue was presented on the question. Id. at 271.

Here, however, the facts do not present a jury question concerning capacity. Even if we consider the social worker's affidavit that had been excluded by the trial court, we find that Ms. Heston did not present sufficient evidence that she was incapacitated at the time her cause of action accrued in 2002. She lived on her own and held a job. She had no guardian. In 2006, even though residing at Eastern State Hospital, she entered into a contract with counsel on her own. She also signed the two claim forms submitted to the City and signed two declarations filed in the summary judgment motion. In short, even though Ms. Heston is developmentally disabled, she did not produce any evidence to show that she was incapacitated per RCW 11.88.010 at the time her action accrued in 2002.

Invoking the discovery rule, Ms. Heston does contend that she did not understand she had a cause of action against the City until she spoke with her lawyer in 2006. Washington tolls the statute of limitations during a period of time within which a party does not know the facts that give rise to a cause of action. Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992). A party's lack of understanding of her legal causes of action does not, however, toll the statute of limitations. The question presented is what facts she knew, not what the legal consequences of those facts were. Id. Indeed, if the test was legal knowledge, then most people could make the same claim. Id. Here, Ms. Heston knew in 2002 that what was occurring to her was wrong. That information was confirmed in 2004 when she spoke with authorities. The fact that she did not know she could sue the City until she spoke with an attorney in 2006 — the same attorney who represented her in the related criminal case in 2004 — is not a basis for tolling the claim. Her lack of legal knowledge of her ability to sue does not alter the fact that she had the factual basis for her claim back in 2002. Accordingly, the discovery rule does not toll the statute of limitations here.

Ms. Heston also asserts that the doctrine of equitable estoppel applies. She did not raise this claim in the trial court and there is simply no factual basis for us to consider the argument. RAP 2.5(a).

We agree with the trial court that Ms. Heston did not establish that she was able to invoke the incapacity tolling statute, RCW 4.16.190. Similarly, she did not show that she was unaware of the factual basis for a potential claim, so the discovery rule does not extend the time for filing suit. The summary judgment of dismissal was properly granted.

The trial court is affirmed.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

KULIK, A.C.J. and SWEENEY, J., concur.

Summaries of

Cox v. City of Pullman

The Court of Appeals of Washington, Division Three
Feb 3, 2009
148 Wn. App. 1032 (Wash. Ct. App. 2009)
Case details for

Cox v. City of Pullman

Case Details

Full title:JEANINE C. COX ET AL., Plaintiffs, DAWN M. HESTON, Appellant, v. THE CITY…

Court:The Court of Appeals of Washington, Division Three

Date published: Feb 3, 2009


148 Wn. App. 1032 (Wash. Ct. App. 2009)
148 Wash. App. 1032