Starcher, J., concurring:
agree with the majority opinion's conclusion that the discovery rule tolls
the 2-year limitation period contained in W.Va. Code, 55-2-15 .
I write separately, however, to expand and clarify the majority's discussion
of how the discovery rule is to be applied. Specifically, I believe the majority
opinion jumped the gun in analyzing the plaintiff's case under
Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992). Instead, I believe
the case should have been analyzed under Gaither v. City Hospital, Inc.,
199 W.Va. 706, 487 S.E.2d
901 (1997), to reach the
We held in Keesecker v. Bird, 200 W.Va. 667, 682, 490 S.E.2d 754, 769 (1997) that there are four steps to determining if a claim is barred by a statute of limitation. The first step in analyzing any statute of limitation question is to determine the applicable statute. In the instant case, W.Va. Code, 55-2-15 mandated that an action for the injury caused to the plaintiff when she was a minor be filed within 2 years after . . . becoming of full age.
The second step in evaluating a statute of limitation question is to establish when the requisite elements of the alleged tort occurred, such that the cause of action 'accrued.' Keesecker, 200 W.Va. at 683, 490 S.E.2d at 770. In the instant case, the appellant was 14 at the time Donald McIntosh inflicted sexual abuse upon her -- and as the cause of action technically accrued at that time, we determine in the instant case that she should have filed any lawsuit by her 20th birthday.
The next step is to determine whether the plaintiff is entitled to the benefit of the ameliorative effects of the discovery rule. 200 W.Va. at 683, 490 S.E.2d at 770. The discovery rule tolls the statute of limitation until a claimant knows or by the exercise of reasonable diligence should know of his claim. Whether the discovery rule applies is determined, in tort actions, by the application of Syllabus Point 4 of Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997). (See footnote 1) The application of the discovery rule tolls the statute of limitations until a plaintiff, acting as a reasonable, diligent person, discovers the essential elements of a possible cause of action, that is, discovers duty, breach, causation and injury. Gaither, 199 W.Va. at 714, 487 S.E.2d at 909.
The last step in the statute of limitation analysis is to determine if the limitation period is tolled by some misconduct of the defendant. Keesecker, 200 W.Va. at 684, 490 S.E.2d at 771. This step is where the analysis espoused by Syllabus Point 3 of Cart v. Marcum (See footnote 2) -- relied upon by the majority opinion -- comes into play. In Cart v. Marcum, we recognized that in some circumstances causal relationships are so well established that we cannot excuse a plaintiff who pleads ignorance. In those instances where a cause of action against a defendant is patently obvious, and the plaintiff cannot claim that through the exercise of reasonable diligence they were unable to discover the existence of a cause of action, a higher burden of proof is placed on the plaintiff. The only way a plaintiff can toll the statute of limitation in such circumstances is to make a strong showing . . . that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury. Syllabus Point 3, Cart v. Marcum. (See footnote 3)
The analysis is that simple. A plaintiff should first determine the applicable statute of limitation, then when the cause of action truly accrued. If the lawsuit was filed after the time period specified in the statute, the plaintiff can assert the discovery rule as stated in Gaither v. City Hospital or, in wrongful death actions, in Bradshaw v. Soulsby. As a last resort, the plaintiff can allege some affirmative misconduct by the defendant prevented the plaintiff from knowing of the elements of their cause of action, as stated in Cart v. Marcum.
In the instant case, the majority opinion does not apply the analysis set forth in Keesecker. The majority opinion wholly bypasses the discussion of the discovery rule in Gaither, and applies the test set forth in Cart v. Marcum.
I would have made clear that, under the Gaither v. City Hospital analysis, the plaintiff did not know, nor could she have known, that the Monongalia County Board of Education knew of Mr. McIntosh's criminal proclivities but took no steps to protect the plaintiff and other schoolchildren similarly situated. In other words, applying Gaither v. City Hospital, the plaintiff knew, by her 20th birthday, that she had been injured at age 14. However, she did not know, nor should she have reasonably known, that the Board of Education knew of Mr. McIntosh's misconduct and had a duty to protect the plaintiff, but breached that duty by giving Mr. McIntosh unfettered, unsupervised access to the plaintiff and other children. She apparently also did not know, nor should she have reasonably known, that the school board's actions may have proximately caused her injuries. Accordingly, under the discovery rule, the plaintiff's cause of action was tolled until she discovered the Board of Education had a duty, breached that duty, and thereby proximately caused her injury.
With the proviso, as we stated in Keesecker, that the Gaither v. City Hospital analysis should be used before resorting to the Cart v. Marcum analysis when looking at cases under W.Va. Code, 55-2-15, I concur with the majority's opinion.