The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER and JUSTICE BENJAMIN, deeming themselves disqualified,
did not participate in the decision of this case.
JUDGE JOHN T. MADDEN and JUDGE RUDOLPH J. MURENSKY, II, sitting by temporary assignment.
JUSTICE ALBRIGHT and JUDGE MADDEN dissent and reserve the right to file dissenting opinions.
Kimberly Merrill and Teresa Mayfield (hereinafter collectively referred to as Kimberly and Teresa), plaintiffs below and appellants herein, appeal an order of the Circuit Court of Kanawha County granting summary judgment in favor of the defendant below and appellee, the West Virginia Department of Health and Human Resources (hereinafter referred to as DHHR). (See footnote 1) Kimberly and Teresa have asserted various claims against DHHR arising from the services, or lack thereof, provided to them during their infancy by DHHR in relation to sexual abuse they suffered at the hands of their father. The Circuit Court of Kanawha County granted summary judgment based, in part, upon its conclusion that the discovery rule did not operate to toll the running of the statute of limitations in this case. We agree, and therefore affirm the circuit court's order.
motion for summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be
tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W. Va. 706, 421 S.E.2d 247 (1992).
Syl. pt. 2, Painter. In other words,
[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. pt. 4, Painter. Finally, we note that [t]he circuit court's
function at the summary judgment stage is not to weigh the evidence and determine
the truth of the matter, but is to determine whether there is a genuine issue
for trial. Syl. pt. 3, Painter.
If any person to whom the right accrues to bring any such personal action, suit or scire facias, or any such bill to repeal a grant, shall be, at the time the same accrues, an infant or insane, the same may be brought within the like number of years after his becoming of full age or sane that is allowed to a person having no such impediment to bring the same after the right accrues, or after such acknowledgment as is mentioned in section eight of this article, except that it shall in no case be brought after twenty years from the time when the right accrues.
W. Va. Code § 55-2-15 (1923) (Repl. Vol. 2000) (emphasis added).
Kimberly reached the age of majority on May 3, 1983, while Teresa turned eighteen
on March 11, 1987. Accordingly, unless the statute of limitations is extended
by operation of the discovery rule, their claims became time barred after May
3, 1985, and March 11, 1989 respectively.
Generally, a cause of action accrues (i.e., the statute of limitations begins to run) when a tort occurs; under the 'discovery rule,' the statute of limitations is tolled until a claimant knows or by reasonable diligence should know of his claim. Syl. pt. 1, Cart v. Marcum, 188 W. Va. 241, 423 S.E.2d 644 (1992). (See footnote 9) In West Virginia, two versions of the discovery rule have been developed:
studious observer will note that this Court stated one form of the discovery
rule in Cart v. Marcum, and then stated a
different, more lenient form of the discovery rule in Gaither v. City Hospital[, Inc., 199 W. Va. 706, 487 S.E.2d 901 (1997)] . . . .
. . . . [D]ecisions such as Keesecker[ v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997)] make clear that . . . Cart v. Marcum governs only those cases where the plaintiff is compelled to allege some deed by the defendant concealed the cause of action from the plaintiff.
Miller v. Monongalia County Bd. of Educ., 210 W. Va. 147, 153 n.3,
556 S.E.2d 427, 433 n.3 (2001). In determining whether the circuit court correctly
found that the evidence did not satisfy the elements of the discovery rule
in the instant case, we will address each version of the rule, beginning with
the version of the rule announced in Gaither.
[i]n tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
199 W. Va. 706, 487 S.E.2d 901 (1997). Considering each of these criteria,
we find no error in the circuit court's grant of summary judgment in favor
of DHHR under a Gaither analysis.
The first of the three elements necessary to trigger the running of the statute of limitations under Gaither is that the plaintiffs either know, or by the exercise of reasonable diligence, should know that they have been injured. In their response to DHHR's summary judgment motion and in their brief to this Court, Kimberly and Teresa indicate that their injury was DHHR's failure to protect them by timely removing them from their father's home. Notably, however, failure to protect does not describe an injury. Rather, it relates to the duty of DHHR that was claimed to have been breached in this case. Based upon the totality of the arguments set forth by Kimberly and Teresa, we surmise that the injury of which they complain is their continued exposure to sexual abuse at the hands of their father that occurred subsequent to the point in time when, they contend, DHHR should have removed them from the home, and the physical and psychological injuries that resulted therefrom.
We find no material question of fact exists in this case with respect to Kimberly's and Teresa's knowledge of their injury. In separate affidavits attached to the plaintiffs' response to DHHR's motion for summary judgment, both Kimberly and Teresa made the statement I was sexually abused by my father, Albert Kirchmar, from the earliest age that I can remember. They both further stated, [d]uring my childhood, I reported the abuse on a number of occasions to people in my life who I felt were figures of authority, including the representatives of the agency that is now called the West Virginia Department of Health and Human Resources. Without question, then, both Kimberly and Teresa have demonstrated that they knew they were being sexually abused by their father, and that the sexual abuse continued after they reported the same to individuals they considered to be figures of authority. Moreover, each woman further explained that her resulting physical and emotional injuries had existed throughout her adulthood: throughout my adulthood, I suffered extreme physical and emotional pain as a result of this continued sexual abuse. I have had a difficult time trying to form positive trusting relationships, very low self-esteem, aggravated difficulty in terms of education and career, and a great deal of personal anxiety. Teresa alone made the additional comment that she had attempted suicide on two occasions. Based upon these statements in their affidavits, there is simply no genuine issue of material fact with respect to whether Kimberly and Teresa knew of their injury when they reached adulthood, as they have demonstrated plainly that they have been aware of their injuries their entire adult lives.
The next factor that must be present to trigger the running of the statute of limitations under Gaither is that the plaintiff knew or by the exercise of reasonable diligence should have known the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty. With respect to this factor, Kimberly and Teresa argue that, prior to their therapy, they did not know that DHHR owed them a duty of protection or that DHHR had breached that duty. This argument, however, misapprehends the second factor of Gaither. The second Gaither factor is the identity of the wrongdoer, not knowledge of the duty owed. In fact, it has been established that a lack of knowledge of a legal duty owed will not toll the statute of limitations. See Hays v. City & County of Honolulu, 81 Hawai'i 391, 399, 917 P.2d 718, 726 (1996) ([P]laintiff's lack of knowledge regarding a legal duty, the breach of which may have caused the plaintiff injury, will not justify application of the discovery rule.). We find this principle particularly persuasive where the alleged tortfeasor is a public agency whose duties are established by statute. See, e.g., Ormiston v. Nelson, 117 F.3d 69, 72 n.5 (2d Cir. 1997) (Mere ignorance of the law is, of course, insufficient to delay the accrual of the statute of limitations.); Miller v. Pacific Shore Funding, 224 F. Supp. 2d 977, 986 (D. Md. 2002) (The discovery rule, in other words, applies to discovery of facts, not to discovery of law. Knowledge of the law is presumed.); Bluitt v. Houston Indep. Sch. Dist., 236 F. Supp. 2d 703, 718 (S.D. Tex. 2002) (It is well established that mere ignorance of the law for any reason, including lack of counsel, does not toll a statute of limitations.); Orlikow v. United States, 682 F. Supp. 77, 84 (D.D.C. 1988) (In United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979), a medical malpractice case, the Supreme Court held that the plaintiff's ignorance of his legal rights did not constitute the 'blameless ignorance' for which tolling is applied. Neither does ignorance of the law ordinarily toll the statute of limitations. (additional citation omitted)); Greene v. Team Props., Inc., 247 Ga. App. 544, 546, 544 S.E.2d 726, 728 (Ga. Ct. App. 2001) ([I]gnorance of the law offers no legal excuse for failing to file an action within the applicable statute of limitation.), overruled on other
grounds by Tiismann v. Linda Martin Homes Corp., 279 Ga. 137, 610 S.E.2d 68 (2005); People v. Lander, 215 Ill. 2d 577, 588, 831 N.E.2d 596, 603, 294 Ill. Dec. 646, 653 (2005) (It is well settled that all citizens are charged with knowledge of the law. . . . Ignorance of the law or legal rights will not excuse a delay in filing a lawsuit. (citations omitted)); Moreland v. Aetna U.S. Healthcare, Inc., 152 Md. App. 288, 297-98, 831 A.2d 1091,1096 (Md. Ct. Spec. App. 2003) (The discovery rule, in other words, applies to discovery of facts, not to discovery of law. Knowledge of the law is presumed. . . . Ignorance of the rights it grants and protects does not toll the statute of limitations. (internal citations and quotation omitted)); Lynch v. Dial Fin. Co. of Ohio No. 1, Inc., 101 Ohio App. 3d 742, 747, 656 N.E.2d 714, 718 (Ohio Ct. App. 1995) (Even if, arguendo, the discovery rule did apply to statutory claims, it would apply to the discovery of facts, not to the discovery of what the law requires.).
In order to toll the statute under the discovery rule as announced in Gaither, it is not the legal duty owed that must have escaped knowledge by Kimberly and Teresa, but rather the identity of the tortfeasor. In their affidavits that were attached to Kimberly and Teresa's response to DHHR's first motion for summary judgment, both women made identical statements asserting I did not know what entity DHHR representatives were with when I was a child . . . . However, a review of their deposition testimony demonstrates that Kimberly and Teresa have long known the identity of those who they contend caused them harm. In this regard, when Kimberly was asked during her deposition about her recollection of a home visit by Kaaren Ford, a social service worker for DHHR, Kimberly stated:
I have a recollection of someone coming to the home, to the trailer, and all of us sitting around a table, a kitchen table, my mother and my father, my sister and my brother, myself and this other person.
I knew that she was someone of an agency or something. . . .
Kimberly additionally testified that she had some, though incomplete, recollections of various meetings at which a social worker identified as Ms. Randolph was present. (See footnote 10) Furthermore, when Kimberly was asked if she had any reason to dispute the accuracy of a note prepared by Ms. Randolph regarding portions of a meeting Kimberly was unable to recall, she responded that I do have reason, because I felt like I was let down then, and I don't know if I trust everything in these notes. (Emphasis added). This statement clearly indicates that Kimberly recalled the involvement of Ms. Randolph in 1982 and that, at that time, she felt that she had been let down. She also remembered that there was a court proceeding where Ms. Randolph was present, and she remembered being placed in foster care. (See footnote 11) Finally, however, and most significantly, Kimberly testified that in June of 1984, after she had reached the age of adulthood and learned that her sister Teresa was being sexually assaulted by their father, Kimberly called DHHR and reported her sister's abuse: (See footnote 12)
we begin, it's my understanding _ and I'll show it to you out of my notebook
here _ on 6-18-84 there's a referral for Child Protective Services; and I think
we've established that on 6-18-84, thereabouts, you actually called Health and
Human Resources and reported that your sister was being sexually abused by your
father. Your name is redacted, which is _ but I believe we established you were
the one more likely than not that made the call, correct?
Q. Okay, so in June of 1984 you reported to the DHHR that your sister was being sexually abused, correct?
Kimberly also stated that, after reporting her sister's abuse, she spoke with different social workers regarding her sister and her own prior sexual abuse. (See footnote 13)
Teresa's testimony likewise established that it was Kimberly who had reported Teresa's abuse to DHHR:
Q. . . . Do you recall your sister reporting to the DHHR that your father was sexually abusing you?
A. Yes, I remember
Teresa also testified that she remembered Brenda Morgan, a DHHR social worker
assigned to her case, very well and recalled having lots of meetings with Ms.
Morgan. (See footnote
The deposition testimony of Kimberly and Teresa clearly demonstrates that, sometime during the period when they and their family were involved with DHHR (which was prior to their reaching the age of majority), they became aware of DHHR and the identity of specific social workers who were assigned to them by DHHR. In particular, they were able to specifically identify Ms. Randolph and Ms. Morgan, and, after reaching age eighteen, Kimberly was able to contact DHHR to report that her sister was being abused. Accordingly, there is simply no genuine issue of material fact with respect to whether Kimberly and Teresa knew of the identity of the tortfeasor in this case, as they have demonstrated plainly that they have possessed this knowledge their entire adult lives. (See footnote 15)
The third and final element of Gaither requires
Kimberly and Teresa to establish that they neither knew nor by the exercise of
reasonable diligence, should have known that the conduct of DHHR had a causal
relation to their physical and emotional injuries. Kimberly and Teresa essentially
argue that, prior to intensive therapy, they did not comprehend the causal connection
between their injuries and the actions of DHHR during the time in which they
were being sexually abused by their father. (See
footnote 16) However, the only
evidence presented to the circuit court on this issue by Kimberly and Teresa was their respective affidavits. In this regard, Kimberly stated in her affidavit:
adults, both my sister and I sought counseling and therapy for severe emotional
problems, difficulty maintaining relationships and severe depression which we
learned through therapy stemmed from the past physical, sexual and emotional
abuse by my father.
8. The therapy helped me remember more fully the incidents of sexual assault by my father; and to discover the fact that the DHHR was involved.
9. During the therapy in early to mid-2000, I mentioned to my counselor, Melanie Rogers, that I had been in foster care. This triggered her to realize that the Department of Health and Human Resources had been involved, and she thought it would be helpful for me to review the DHHR records concerning my case.
. . . .
13. I did not discover until after I underwent therapy and reviewed the DHHR records on October 2, 2000 that the DHHR failed to protect my sister and I from my father and that this failure caused the damages we have suffered and continue to suffer. . . .
Teresa's affidavit contained paragraphs identical to paragraphs 7 and 8 of Kimberly's affidavit, and further stated:
did not discover until after I had a conversation with my sister Kimberly after
she had reviewed the DHHR records on October 2, 2000 that the DHHR failed to
protect my sister and I from my father and that this failure caused the damages
we have suffered and continue to suffer. . . .
The record does not contain any corroborating affidavits from any counselors who treated Kimberly or Teresa, nor do Teresa and Kimberly direct our attention to any other evidence in the record supporting their allegations of the reasonableness of a delay of over seventeen years for Kimberly, (See footnote 17) and more than thirteen years for Teresa, (See footnote 18) in discovering the causal connection between their injuries and the actions of DHHR. This Court has repeatedly explained that the party opposing summary judgment must satisfy the burden of proof by offering more than a mere 'scintilla of evidence,' and must produce evidence sufficient for a reasonable jury to find in a nonmoving party's favor. Painter v. Peavy, 192 W. Va. 189, 192-93, 451 S.E.2d 755, 758-59 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). (See footnote 19)
Moreover, we have explained that self-serving assertions without factual support in the record will not defeat a motion for summary judgment. Williams v. Precision Coil, Inc., 194 W. Va. 52, 61 n.14, 459 S.E.2d 329, 338 n.14 (1995). See also Dunn v. Watson, 211 W. Va. 418, 421, 566 S.E.2d 305, 308 (2002) (same, citation omitted); Coleman v. Sopher, 201 W. Va. 588, 612, 499 S.E.2d 592, 616 (1997) (same). Indeed, we have elaborated that
movant's burden is only [to] point to the absence of evidence supporting
the nonmoving party's case. Latimer v. SmithKline & French Laboratories,
919 F.2d 301, 303 (5th Cir. 1990). . . . If the movant . . . make[s]
this showing, the nonmovant must go beyond the pleadings and contradict the showing
by pointing to specific facts demonstrating a trialworthy issue. To
meet this burden, the nonmovant must
identify specific facts in the record and articulate the precise manner in
which that evidence supports its claims. As to material facts on which
the nonmovant will bear the burden at trial, the nonmovant must come forward
with evidence which will be sufficient to enable it to survive a motion for
directed verdict at trial. If the nonmoving party fails to meet this burden,
the motion for summary judgment must be granted. See Nebraska v.
Wyoming, 507 U.S. 584, 590, 113 S. Ct. 1689, 1694, 123 L. Ed. 2d
317, 328 (1993); Lujan v. National Wildlife Federation, 497 U.S. 871,
884, 110 S. Ct. 3177, 3186, 111 L. Ed. 2d 695, 713 (1990).
Powderidge Unit Owners Ass'n v. Highland Props., Ltd., 196 W. Va. 692, 699, 474 S.E.2d 872, 879 (1996) (emphasis added). In this case, Kimberly and Teresa have utterly failed to provide any supporting affidavits to corroborate their self-serving statements, and have further failed to identify specific facts in the record and articulate the precise manner in which that evidence supports [their] claims of delay in discovering the causal connection between their injuries and DHHR's actions. Id. Accordingly, they have not established the existence of a genuine issue of material fact with respect to their knowledge of a causal connection between their injury and DHHR's actions.
Kimberly and Teresa have failed to establish the existence of a genuine question of material fact with respect to any of the factors set out in Syllabus point four of Gaither. (See footnote 20) Summary judgment is appropriate where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove. Syl. pt. 4, Painter. (See footnote 21) Because the statute of limitations was not tolled under Gaither, Kimberly and Teresa were required to bring their cases within two years of turning eighteen. Their claims were not filed within that period and, therefore, summary judgment was proper under a Gaither analysis.
Mere ignorance of the existence of a cause of action or of the identity of the wrongdoer does not prevent the running of the statute of limitations; the discovery rule applies only when there is a strong showing by the plaintiff that some action by the defendant prevented the plaintiff from knowing of the wrong at the time of the injury.
Syl. pt. 3, Cart. Thus, under Cart, Kimberly and Teresa are required to make a strong showing that some action by DHHR prevented them from knowing of the wrong at the time of their injury. In Miller v. Monongalia County Board of Education, 210 W. Va. 147, 556 S.E.2d 427, this Court additionally held that
Fraudulent concealment requires that the defendant commit some positive act tending to conceal the cause of action from the plaintiff, although any act or omission tending to suppress the truth is enough.
Syl. pt. 3, id.
Before this Court, Kimberly and Teresa argue that an omission on the part of DHHR prevented them from knowing of their claims. Specifically, Kimberly and Teresa contend that there was unrefuted evidence that the Appellants had difficulty in acquiring their records from the DHHR once they were requested and that, had such delay not occurred, the statute of limitations would have been preserved. . . . Even when the records were produced by DHHR, there is a substantial factual issue as to whether all their records were provided. The Petitioners [Kimberly and Teresa], in their affidavits submitted in opposition to the Motion for Summary Judgment both maintained that it was not until they sought the assistance of counsel that a process began which eventually provided them with copies of all of their records. Further, . . . the Petitioners contend that they were entitled to full information about their case which was never provided them by any of those who bore a fiduciary obligation to them.
The best that we are able to discern from this argument is that Kimberly and
Teresa assert that if DHHR had not delayed in turning over the requested records, the
statute of limitations would have been preserved. This argument has no
merit. It is undisputed that no records were requested from DHHR until sometime
in the year 2000, long after the expiration of the statute of limitations.
As our Gaither analysis above demonstrates, Kimberly and Teresa possessed
knowledge of the critical facts necessary to bring their lawsuit at the time
they each turned eighteen. Thus, any facts that may have been revealed in the
requested DHHR records were irrelevant to tolling the statute of limitations. (See
footnote 22) Accordingly, the circuit court did not err in granting