explaining plaintiff need only understand that a wrong occurred and have a reason to connect that wrong to a “particular ‘who’ in such a way that a reasonable person would be on notice to investigate whether the injury might result 5 STROJNIK v. BRNOVICH, et al. Decision of the Court from fault”
How later courts described this case
- explaining plaintiff need only understand that a wrong occurred and have a reason to connect that wrong to a “particular ‘who’ in such a way that a reasonable person would be on notice to investigate whether the injury might result 5 STROJNIK v. BRNOVICH, et al. Decision of the Court from fault”
- explaining accrual did not begin when the victim first began to recall repressed memories that she did not believe were real because plaintiffs are not required to file complaints when they “subjectively believe[] [the facts] to be false or unbelievable”
- holding that cause of action accrues when plaintiff knew or should have known that he was injured by a defendant’s negligent act
- stating a statute of limitation begins to run when the plaintiff possesses “a minimum requisite of knowledge sufficient to identify that a wrong occurred and caused injury”
Written by the judges who cited it.
The opinion
MARTONE, Justice,
concurring in the judgment.
¶ 56 Because there are genuine issues of fact as to when Doe discovered her cause of action, and whether the statute of limitations was tolled because she was of unsound mind, I join the court in concluding that summary judgment was inappropriate in this ease. I thus join in the court’s judgment. Because the court’s opinion, however, goes quite beyond what is necessary to decide the case, and because it reflects a revised view of Florez v. Sargeant, 185 Ariz. 521 , 917 P.2d 250 (1996) (Feldman, C.J., dissenting), I cannot join the court’s opinion.
I. The Frye Issue
¶57 As the court notes, the defendants were willing to assume for the purposes of their motion for summary judgment that the theory of repressed memory is legitimate. Ante, at ¶ 15. In light of this concession, this case affords us no opportunity to discuss the validity or invalidity of repressed memory. We should take this as a given and move on to see whether there are factual disputes. The parties, of course, have not briefed the issue and thus anything we say about it would be dicta indeed.
¶ 58 The court further notes that it neither addresses nor decides the Frye issue, ante, at ¶ 15, but nevertheless discusses selected fragments of some of the literature, ante, at ¶¶ 18-27, and actually announces its view on the scientific debate as though the issue were before us. Ante, at ¶ 26.
¶ 59 In my view, we should not indulge in substantive scientific inquiry, even in cases in which the Frye issue is squarely presented. State v. Hummert, 188 Ariz. 119, 127-28 , 933 P.2d 1187, 1195-96 (1997) (Martone, J., concurring). But it is all the more inappropriate to discuss the legitimacy of a scientific theory in a case in which the scientific issue is not even presented. Nothing that appears in the court’s opinion on this issue came from the parties, and I have no way of knowing whether what the court says is more right than wrong. Because the repressed memory discussion is dicta, when the Frye issue is properly presented on remand, neither the parties nor the trial court will be bound by the majority’s resolution.
II. The Factual Dispute and Florez
¶ 60 I agree with the court that the discovery rule applies to this case. I also agree that there is a genuine issue of material fact with respect to when the plaintiff discovered her claim. So, too, there is a genuine issue of material fact over her ability to have managed her affairs within the meaning of Florez , such that even after she did discover the claim, significant tolling occurred. That is all this case is about and it could have been simple enough to say that. Instead, the court tries to explain Florez , in a case in which there is no need to do so.
¶ 61 In Florez, we adopted the traditional rule that our court of appeals had already adopted in Allen v. Powell’s International Inc., 21 Ariz.App. 269, 270 , 518 P.2d 588, 589 (1974). We acknowledged that “unsound *332 mind,” meant that a person is unable to manage his affairs or to understand his legal rights. Florez, 185 Ariz. at 525 , 917 P.2d at 254 . People who are unable to manage their affairs or to understand their legal rights are typically protected in the law. For example, we generally conclude that they are unable to make wills, A.R.S. § 14-2501 (1995), and are often in need of the protection of guardians or conservators, A.R.S. § 14-5401(2)(a)(Supp.l997). But it is a failing of cognition, not volition. That is why we said that the “focus of the unsound mind inquiry is on a plaintiffs ability to manage his or her ordinary daily affairs. It does not focus on the plaintiffs ability to pursue the subject matter of the litigation at issue.” Florez, 185 Ariz. at 525 , 917 P.2d at 254 . We said that the existence of hard evidence that a person was incapable of carrying on the day-to-day affairs of human existence was necessary to a finding of unsound mind within the meaning of the statute. This was because “[tjhese are empirical facts easily verifiable and more difficult to fabricate than a narrow claim of inability to bring the action.” Id. at 526 , 917 P.2d at 255 . Drawing upon the views of the Supreme Court of Michigan, and the Report of the Council on Scientific Affairs of the American Medical Association, we concluded that this was a wise place to draw the line so that questions of cognition would not be confused with questions of volition. The best guide to whether somebody can understand his legal rights is how that person behaves, not what that person says he or she cannot do. Whether one is able to manage one’s affairs is a sure guide to whether one is able to understand one’s legal rights.
¶ 62 Contrary to what we said in Florez , the court now says that “the court of appeals limited its focus to whether Plaintiff was able to manage her daily affairs and ignored any relevance of the alternative inquiry into her ability to pursue the action — the second part of the Allen test.” Ante, at ¶ 48. But the second part of the Allen test, as we have seen, is whether a person can understand his or her legal rights, not whether that person has the ability to pursue the action. For example, one could understand the right to make a will, but be incapable of confronting the issue of death. This is a failure of will [as it turns out, in both senses] not a failure to understand. Again, it is a question of cognition, not volition. Indeed, as the court discusses this matter, ante, at ¶¶ 48-52, sprinkled throughout are correct references to the “second part” as an ability to understand legal rights, not an ability to pursue an action. This will no doubt cause confusion and thus, in its effort to explain Florez in a case in which no explanation is necessary, the court creates an enormous uncertainty which will have to be resolved in a future case.
¶ 63 As the court acknowledges, ante, at ¶ 43, one of the claims in Florez did involve repressed memory. Florez, 185 Ariz. at 523 , 917 P.2d at 252 (“he claims to have remembered these incidents,” “Gomez moved for summary judgment on the statute of limitations defense arguing that it was tolled because ... (3) his memory was repressed”). The Florez holding, thus, was squarely intended to apply in all settings, including those in which there is a claim of repressed memory.
III. Final Thoughts
¶ 64 Judicial self-restraint, deciding only what we must and what is before us, greatly increases the prospect of our doing more good than harm. Our task here is quite simple. We assume, without deciding, the legitimacy of repressed memory. We agree with the court of appeals that the discovery rule applies. Summary judgment is inappropriate because there is a fact issue regarding discovery. Summary judgment is inappropriate because, under Florez , there is a fact issue about Doe’s ability to carry on her day-to-day affairs after remembering the events. The court’s approach, however, ensures that we have not seen the last of this issue.