A.O. ET AL., Appellants, v. PUGET SOUND SOCIAL SERVICES ET AL., Respondents.

No. 36723-8-II.The Court of Appeals of Washington, Division Two.
August 26, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-13693-1, Bryan E. Chushcoff, J., entered August 10, 2007.

Affirmed by unpublished opinion per Houghton, J., concurred in by Bridgewater and Quinn-Brintnall, JJ.

HOUGHTON, P.J.

A.O. and his mother S.O.[1] appeal the trial court’s orders granting summary judgment to the State of Washington and Puget Sound Social Services (Puget Sound) on their negligence claims. A.O. argues that the trial court erred in dismissing his claims. We affirm.

FACTS[2]

Puget Sound operated the Deschutes Children’s Center (DCC), a state-licensed private group home for boys with behavioral problems. Patsy Blackstock served as DCC’s program director during a portion of A.O.’s stay there.

A.O., born September 26, 1977, suffered from numerous conditions during childhood, including Reye’s Syndrome, Tourette’s Syndrome, attention deficit hyperactivity disorder, and other behavioral and learning problems. At age nine, A.O. was expelled from school. Through an arrangement with A.O.’s school, S.O. met with Child Protective Services regarding his behavior problems. According to S.O., Child Protective Services intervened to find A.O. a professional placement because she could not properly care for him.

On April 15, 1988, at age 10, A.O. became a resident at DCC.[3] He remained there until August 15, 1989. A.O. described his time at DCC as “out of control” in that inattentive staff permitted residents to act without consequences. Clerk’s Papers (CP) at 55.

A.O. also submitted evidence that during his stay, Blackstock engaged in unusual sexualized activities with residents, encouraged sexual behavior, and created an overly permissive environment that resulted in increased sexualized activity and sexual tension among residents. Of particular note was an incident on June 7, 1988, involving Blackstock, a group of residents, and a carrot (the carrot incident).[4]

Some time after the carrot incident, another DCC resident raped A.O, and a second resident forced A.O. to perform oral sex. A.O. recalled that both of these residents were present during the carrot incident. A.O. reported the rape to his mother, who initially thought he was lying, but she later reported the rape to Blackstock and Puget Sound’s executive director. A.O. also reported the rape to Blackstock.

After leaving DCC, A.O. continued to suffer from psychological and psychiatric conditions throughout his life. He attested that his memories of the sexual assaults at DCC and related fears and anxiety have haunted him since. He maintains that his psychological pain is overwhelming and that it has caused him to act out angrily and to have suicidal and homicidal thoughts. He also attested that he attributed his drug and alcohol addictions to the abuse. In 1995, clinicians diagnosed A.O. with paranoid schizophrenia, bipolar disorder, attention deficit disorder, and obsessive compulsive disorder.

On November 9, 2005, A.O. sued Puget Sound based on its negligent hiring, retention, supervision, reporting, and training of DCC staff. He alleged that he suffered the rape and other abuse as a direct result of the sexually charged environment Blackstock created. On February 16, 2006, A.O. amended his complaint, adding claims against the State for negligent licensing and placement.

On June 8, 2007, the State moved for summary judgment. It argued that the statute of limitations barred the claims and that it did not owe A.O. a duty nor could he prove that it proximately caused his injuries.

On June 22, A.O. filed a written declaration in response to the summary judgment motion. In it, he stated that “I did not know that I could bring a lawsuit for the harms that I suffered at Deschutes. It wasn’t until I heard about the OK Boys Ranch in 2005,[[5] ] that I made the connection that it would be possible to bring a lawsuit.” CP at 74-75.

Also in response to the motion, A.O. filed a declaration of Jon Conte, Ph.D., dated June 15, 2007. Dr. Conte examined A.O. regarding the psychological impact of the DCC abuse incidents, and he concluded that A.O. had symptoms consistent with Post Traumatic Stress Disorder (PTSD), a condition not previously diagnosed. A.O. further attested that before 2007, he was unaware that he suffered from PTSD.

On July 6, the trial court granted the State’s motion for summary judgment. In ruling on the motion, the trial court noted that DCC was not a state agency but only a state-licensed facility, saying that “even if we get by the statute of limitations and the duty argument — and I think those are marginal for the plaintiff, here, at best — I don’t see how there’s remotely proximate cause from what the State did here or didn’t do.” Report of Proceedings (RP) (July 6, 2007) at 18, 27-28.

On July 24, Puget Sound moved for summary judgment. On August 10, the trial court heard Puget Sound’s motion and A.O.’s motion for reconsideration of its order dismissing the State. The trial court ruled that A.O.’s claims were time-barred, stating, “It did not seem to me that necessarily PTSD was a claim of any new symptom or injury however; rather, it is[/]was a new characterization of long-standing symptoms. . . . [B]y 1995, plaintiff had related all of them to sexual abuse. Recurring symptoms of the same kind do not extend the statute of limitations.” RP (Aug. 10, 2007) at 14, 16.

The trial court granted Puget Sound’s motion for summary judgment and denied A.O.’s motion for reconsideration. A.O. appeals.

ANALYSIS

We review summary judgment orders, performing the same inquiry as the trial court. Atherton Condo. Apartment-Owners Ass’n Bd. of Dir. v. Blume Dev. Co., 115 Wn.2d 506, 515-16, 799 P.2d 250 (1990). We may affirm the trial court’s order on any basis that the record supports. LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989).

Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”[6] CR 56(c). We draw all reasonable inferences from the facts in the light most favorable to the nonmoving party. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004).

We first address A.O.’s contention that the trial court erred in finding his claims time-barred. He asserts that RCW 4.16.340
tolls the statute of limitations for a plaintiff’s discovery of a new injury attributable to childhood sexual abuse. He argues that Conte’s declaration showed that A.O.’s PTSD and other psychological trauma were new injuries he suffered from the abuse. He further asserts that the State and Puget Sound failed to meet their burden of demonstrating that he had already connected all injuries to the abuse more than three years before filing his claim.

RCW 4.16.340(1)(c) permits a victim to bring a claim for damages suffered as a result of childhood sexual abuse “[w]ithin three years of the time the victim discovered that the act caused the injury for which the claim is brought.”[7] The limitations period is determined according to the victim’s knowledge.[8] Cloud ex rel. Cloud v. Summers, 98 Wn. App. 724, 734, 991 P.2d 1169 (1999).

A.O. filed his original claims in November 2005. The State and Puget Sound moved for summary judgment on June 8 and July 24, 2007, respectively. According to Conte’s June 15, 2007 declaration, he diagnosed A.O. with PTSD that same month, and A.O. attested that before Conte’s diagnosis, he was unaware that he had PTSD. A.O. filed Conte’s declaration after the State sought dismissal of his claims and years after filing his original claims.

A.O. also attested that he knew he had developed multiple psychological disorders over time but he did not know that he could bring a lawsuit until he “heard about the OK Boys Ranch in 2005 [case] . . . [and] made the connection that it would be possible to bring a lawsuit.” CP at 74-75. S.O. testified that A.O. wanted to file suit

because he was talking to people about what happened to him . . . and other people knew about the OK Boys Ranch . . . [and told him] . . . [that] sounds like the same kind of place and you should look into it because what happened to you was wrong, people should be held responsible and you can’t have a normal life so you might as well look into something, start asking questions.

CP at 178-79.

That a plaintiff newly discovers he may file a lawsuit for ongoing injuries he long ago attributed to childhood sexual abuse is not the “connection” between abuse and resulting injury envisioned by the special tolling statute.[9] A.O. fails to show a genuine issue of material fact that his PTSD was a new injury rather than a new diagnosis for symptoms he had long suffered and had already connected to his childhood abuse.

Generally, an affidavit containing an admissible expert opinion on an ultimate issue of fact is sufficient to create a genuine issue precluding summary judgment. J.N., a minor, By and Through Hager v. Bellingham Sch. Dist. No. 501, 74 Wn. App. 49, 60-61, 871 P.2d 1106 (1994).

But Conte’s declaration demonstrates only that A.O.’s PTSD was new in the sense that no clinician had ever diagnosed his ongoing symptoms as such. Conte also attested that A.O.’s other mental illnesses “cumulatively, and possibly each diagnosable condition independently, had rendered [A.O.] unable to function in a socially appropriate manner, and also unable to maintain employment since 1995” and that the late diagnosis of PTSD was likely attributable to an emphasis on A.O.’s “more pronounced psychological disorders” and his angry demeanor, as opposed to a manifestation of new symptoms not previously suffered or never before connected to the abuse. CP at 78-79.

A.O. otherwise acknowledged that he was aware of all injuries claimed, and he had connected those injuries to the abuse he suffered long before 2002, more than three years before he filed his claims. Specifically, A.O.’s written declarations and deposition testimony were that (1) he never forgot the abuse he suffered at DCC; (2) he was aware of his diagnoses of multiple psychological disorders and symptoms that had developed over time; and (3) by 1995, he connected those symptoms, including paranoia, suicidal and homicidal thoughts, drug and alcohol abuse, schizophrenia, bipolar disorder, fear, and anxiety, to the abuse. Because A.O. admitted he had “discovered that the act caused the injury” he now alleges more than three years before he brought his negligence claims, we affirm the trial court’s summary judgment order for the State[10] and P. S. Social Services on the ground that A.O.’s claims were time-barred.[11] RCW 4.16.340(1)(c).

Affirmed.

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

Bridgewater, J., Quinn-Brintnall, J., concur.

[1] We treat A.O.’s and S.O.’s claims the same for purposes of our analysis. See Cloud ex rel. Cloud v. Summers, 98 Wn. App. 724, 734, 991 P.2d 1169 (1999). For simplicity, we hereafter refer to the claims only as A.O.’s.
[2] We “view the facts and reasonable inferences in the light most favorable to the nonmoving party.” Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108
(2004).
[3] Although in her deposition S.O. testified that she believed she no longer had custody of A.O. after his placement at DCC, the record indicates that the superior court never held a dependency hearing. Rather, S.O. voluntarily placed A.O. at DCC by signing a placement agreement, and she never relinquished legal custody. S.O. also brought A.O. home from DCC on weekends.
[4] According to Blackstock, while she was addressing misbehavior by some DCC residents, one resident threw a carrot at her, and she engaged in a playful wrestling match with him that escalated to several residents wrestling with her in a sexual manner. In an attempt to keep a “light atmosphere,” Blackstock held pieces of carrot near her genital region for the residents to grab and also flashed her breasts at them. CP at 5. Blackstock herself reported the incident to her direct supervisor and to a state licensor. Puget Sound terminated Blackstock’s employment on December 29, 1988.
[5] The news media had been reporting on various adults who brought claims for abuse suffered at the OK Boys Ranch, a group home.
[6] In demonstrating disputed material facts, the nonmoving party “may not rely on speculation, argumentative assertions that unresolved factual issues remain, or in having its affidavits considered at face value.” Seven Gables Corp. v. MCG/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.3d 1
(1986).
[7] RCW 4.16.340 also initially tolls such actions until the victim reaches 18 years old. Cloud, 98 Wn. App. at 734.
[8] A.O. asks us to hold that for the defense to prevail on an RCW 4.16.340 statute of limitations issue at summary judgment, it must submit an expert opinion that the victim connected all injuries to the abuse more than three years before filing his claim. We decline to do so. Such a rule would be improper because the victim’s subjective knowledge of his injuries determines the special limitations period. See Cloud, 98 Wn. App. at 734.
[9] We note that this case differs from Korst v. McMahon, 136 Wn. App. 202, 208-11, 148 P.3d 1081 (2006), where we held that the victim’s letter to her sexually abusive father, stating that she resented him for abusing her and that the pain from the abuse had never left her, insufficiently demonstrated that she had causally connected her injuries to the abuse more than three years before filing her claim. Here, health care providers diagnosed A.O. with paranoid schizophrenia, bipolar disorder, and obsessive compulsive disorder in 1995. Further, A.O. attested that, by the mid-1990s, he had causally connected all of his injuries to the abuse he suffered at DCC, including paranoia, suicidal and homicidal thoughts, depression, anger, distrust, drug and alcohol abuse, fear, anxiety, and negative memories.
[10] Although the trial court did not dismiss A.O.’s claims against the State based on a time-bar ground, we may affirm the trial court on any ground based in the record. LaMon v. Butler, 112 at 200-01.
[11] Because we hold A.O.’s claims time-barred, we do not reach his arguments that the State owed him a duty of care as a child placed in a state licensed group home facility or that the State and Puget Sound proximately caused his abuse by negligent investigation and oversight of DCC staff.

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