Mark D. Kamitomo, Note, Discovery Rule Application in Child Abuse Actions, 23 Gonz. L. Rev. 223, 226 (1988).
[PDF] [WestLaw] [LexisNexis]
DISCOVERY RULE APPLICATION IN CHILD ABUSE ACTIONS
THE DISCOVERY RULE MAY NOT BE APPLIED TO CIRCUMVENT THE STATUTE OF LIMITATIONS IN A CHILD-ABUSE CIVIL ACTION IN THE ABSENCE OF OBJECTIVE, VERIFIABLE EVIDENCE. Tyson v. Tyson, 107 Wash. 2d 72, 727 P.2d 226 (1986).
The fact that an intentional tort victim blocked the assault from his or her conscious memory during the entire term of the applicable statute of limitations is not a sufficient basis for applying the discovery rule to the cause of action.
In Tyson v. Tyson, the Washington Supreme Court refused to apply the discovery rule to a civil action brought by an alleged child abuse victim. Thus, her action was barred by the applicable statute of limitations. In reviewing past cases where the discovery rule was applied, the majority held that, in the absence of available, trustworthy, and objective verifiable evidence, the claims were too speculative and incapable of proof. Testimony of witnesses such as family and friends was untrustworthy because of the amount of time that had passed since the alleged assaults took place. Furthermore, this testimony was incapable of providing objective evidence that the acts had indeed occurred. Lastly, psychological and psychiatric testimony could not reduce, much less eliminate, the subjectivity of the plaintiff’s claim as these disciplines are too imprecise.
This note analyzes the Tyson decision in light of another jurisdiction’s approach and concludes that the history behind the discovery rule indicates it was inappropriately applied in Tyson…