# E.W. v. D.C.H.

> Montana Supreme Court · May 3, 1988 · 231 Mont. 481

URL: https://www.frixlaw.com/law-library/cases/8027707

## Case

- **Full name:** E.W. and D.W., and v. D.C.H., and
- **Court:** Montana Supreme Court
- **Decided:** May 3, 1988
- **Citations:** 231 Mont. 481; 45 State Rptr. 778; 754 P.2d 816; 9 A.L.R. 5th 1046; 1988 Mont. LEXIS 113
- **Precedential status:** Published
- **Opinion:** Dissent by Weber
- **Judges:** Gulbrandson, Harrison, Hunt, McDonough, Sheehy, Turnage, Weber
- **Cited by:** 57 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8027707

## How later opinions describe it (automated extraction)

- explaining that the total extent of damages need not be known

## Opinion text

MR. JUSTICE WEBER,
dissenting:
I would reverse the judgment dismissing the complaint. In my view, the plaintiffs have raised a valid argument for tolling the statute of, limitations under the discovery rule.
In Bennett v. Dow Chemical Co. (Mont. 1986), [ 220 Mont. 117 ,] 713 P.2d 992 , 43 St.Rep. 221 , this Court acknowledged that “a statute of limitations can be tolled until the plaintiff discovers the legal cause of his injury if equity so dictates.” Bennett, 713 P.2d at 995 . The Court cited Hornung v. Richardson-Merrill, Inc. (Mont. 1970), 317 F.Supp. 183 . In that case, the plaintiff had filed a tort claim in 1968 as a result of cataracts. Plaintiff’s damages were suffered prior to September 1963, but he argued that he did not know defendant’s product was the cause of his cataracts until within two years of the filing of the action in 1968. The court denied defendant’s motion for summary judgment, holding that plaintiff’s claim of lack of knowledge of the cause of his injury was a factual question which should go to trial. Hornung, 317 F.Supp. at 185 .
In her affidavit, EW states that her adult psychological problems have included nightmares, sexual dysfunction, difficulty in relationships with men, depression, suicide attempts, and drug and alcohol abuse. The essence of plaintiffs’ argument for applying the discovery rule is that, although EW was always aware that she had been molested as a child, and had suffered from psychological problems since late adolescence, she was not aware until 1983 that her adult psychological problems were likely a result of the sexual molestation she suffered as a child. Plaintiffs offered to prove that while EW had received psychological counseling for a number of years prior to 1983, it was not until 1983 that a counseling professional alerted her to the connection between her current problems and the childhood *490 molestation. It appears that the court properly could have applied the Bennett theory that the statute of limitations could be tolled prior to 1983, when plaintiffs discovered the legal cause of EW’s injury. I conclude that it would be appropriate to allow the plaintiff to present her facts to a trier of fact in order to determine whether or not the circumstances justify the tolling of the statute of limitations.
Since my view has not gained the support of the majority, I do agree with the majority’s suggestion that the legislature give its attention to special discovery rules for cases involving sexual abuse of children.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8027707. Public record. Not legal advice.