McCollum v. D'Arcy

638 A.2d 797, 138 N.H. 285, 1994 N.H. LEXIS 16
CourtSupreme Court of New Hampshire
DecidedMarch 15, 1994
DocketNo. 92-601
StatusPublished
Cited by27 cases

This text of 638 A.2d 797 (McCollum v. D'Arcy) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCollum v. D'Arcy, 638 A.2d 797, 138 N.H. 285, 1994 N.H. LEXIS 16 (N.H. 1994).

Opinion

THAYER, J.

This is an interlocutory appeal from a ruling of the Superior Court (Mohl, J.) denying the defendants’ motion to dismiss in a civil sexual assault case. We affirm and remand.

The plaintiff, Jill McCollum, now fifty years old, is the natural daughter of defendants George and Elizabeth D’Arcy, now in their eighties. She alleges that the defendants repeatedly engaged in forced sexual contact with her from early childhood until 1956, when [286]*286she was thirteen years old. The plaintiff also alleges that the defendants abused her verbally, including threats by her mother to lock her in a closet if she disclosed the sexual acts to anyone.

As a result of the defendants’ acts, the plaintiff maintains, she has suffered emotional and psychological trauma virtually all her adult life. Although the alleged sexual abuse ceased over thirty-five years ago, the plaintiff asserts that she repressed all memory of it from the time it occurred until June 1990, when she began experiencing flashback episodes triggered by her attendance at a therapy workshop on child abuse. Only at that time did the plaintiff allegedly connect the physical assaults she suffered as a child with the psychological injuries she has suffered as an adult. Because of this delayed discovery, the plaintiff did not initiate her suit until December 1991.

The motion to dismiss before us, in this interlocutory appeal, was limited to the issue that the suit was time-barred. The trial court denied the motion, concluding that the statutory formulation of the discovery rule, RSA 508:4,1 (Supp. 1993), applies to the facts at bar. By the defendants’ accepting the plaintiff’s factual allegations as true only for purposes of the motion, the trial court found that the date of discovery occurred after July 1, 1986, the effective date of RSA 508:4,1, and that the case was brought well within the statute’s prescribed three-year limitations period. The trial court also ruled that the “fraudulent concealment” doctrine articulated by this court in Lakeman v. LaFrance, 102 N.H. 300, 156 A.2d 123 (1959), provides additional common law precedent for tolling the statute of limitations in the case at bar.

In this interlocutory appeal from the denial of the defendants’ motion to dismiss, the defendants present three questions for our review: (1) whether the plaintiff’s claim is barred by the applicable statute of limitations; (2) whether the doctrine of fraudulent concealment is applicable to this case; and (3) whether the discovery doctrine should be applied in repression cases when there is no corroborative evidence of the sexual abuse.

This court first developed the discovery rule as a method of tolling the statute of limitations “to facilitate the vindication of tort victims’ rights.” Heath v. Sears, Roebuck & Co., 123 N.H. 512, 523, 464 A.2d 288, 294 (1983). Under the common law discovery rule, “a cause of action does not accrue until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered both the fact of his injury and the cause thereof.” Id. at 523-24, 464 A.2d at 294. In determining whether to apply the common law discovery rule, a court must identify, evaluate, and weigh against each other [287]*287the parties’ competing interests. Rowe v. John Deere, 130 N.H. 18, 23, 533 A.2d 375, 377 (1987); Raymond v. Eli Lilly & Co., 117 N.H. 164, 170, 371 A.2d 170, 174 (1977); Shillady v. Elliot Community Hosp., 114 N.H. 321, 325, 320 A.2d 637, 639 (1974).

We have held that the common law discovery rule applies in cases of medical malpractice to toll the running of the statute of limitations until “the patient learns or in the exercise of reasonable care and diligence should have learned” of the presence of a foreign object left in the patient’s body. Shillady, 114 N.H. at 324, 320 A.2d at 639. Over the years, this court has extended the application of the common law discovery rule to cases other than medical malpractice. See, e.g., French v. R.S. Audley, Inc., 123 N.H. 476, 464 A.2d 279 (1983) (timber trespass); Raymond v. Eli Lilly & Co. supra (drug products liability); McKee v. Riordan, 116 N.H. 729, 366 A.2d 472 (1976) (attorney malpractice).

The legislature, through an amendment of RSA 508:4, I, codified the discovery rule for almost all personal actions arising on or after July 1, 1986. The statute, as amended, provides:

“Except as otherwise provided by law, all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.”

RSA 508:4, I (Supp. 1993).

Prior to its amendment, RSA 508:4,1, merely established that personal actions, other than for slander or libel, must be brought within six years of the time they “accrued.” See RSA 508:4, I (1983). In typical tort actions, ascertaining the time of accrual is relatively easy because the harm and its cause occur simultaneously. See McKee, 116 N.H. at 730, 366 A.2d at 473. In cases where the harm surfaces long after the cause, however, the time of accrual remained difficult to determine. As the statute did not define “accrual,” this court employed the common law discovery rule to extend the time of accrual. See, e.g., Shillady, 114 N.H. at 324, 320 A.2d at 639 (cause of action for leaving foreign object in patient’s body accrues when patient learns or reasonably should have learned of its presence).

[288]*288We have never addressed the issue of applying the common law discovery rule to a civil sexual assault case, but find no reason why it should not apply. It makes no difference that the alleged abuse occurred prior to the 1986 amendment of RSA 508:4, I, and prior to our 1974 articulation of the common law discovery rule. See Shillady, 114 N.H. at 324, 320 A.2d at 639. In Shillady, we explicitly recognized that the discovery rule applies where the defendant’s physical actions occurred in 1940, yet the plaintiff did not learn of the causal connection between the defendant’s actions and the ensuing harm until 1970. Id. at 322, 320 A.2d at 637-38. Thus, as the factual circumstances in Shillady illustrate, the common law discovery rule applies to operative facts dating back at least as far as 1940. Furthermore, “it is the general common law rule that appellate decisions in civil cases operate retroactively.” Stanley v. Walsh, 128 N.H. 692, 693, 517 A.2d 1189, 1190 (1986).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Michael L. McLaughlin v. J. Martin McLaughlin
Supreme Court of New Hampshire, 2025
Maness v. Gordon
325 P.3d 522 (Alaska Supreme Court, 2014)
Dobe v. Commissioner, New Hampshire Department of Health & Human Services
791 A.2d 184 (Supreme Court of New Hampshire, 2002)
Moriarty v. Garden Sanctuary Church of God
534 S.E.2d 672 (Supreme Court of South Carolina, 2000)
McCreary v. Weast
971 P.2d 974 (Wyoming Supreme Court, 1999)
Moriarty v. Garden Sanctuary Church of God
511 S.E.2d 699 (Court of Appeals of South Carolina, 1999)
Doe v. Roe
955 P.2d 951 (Arizona Supreme Court, 1998)
Keshishian v. CMC Radiologists
698 A.2d 1228 (Supreme Court of New Hampshire, 1997)
State v. Hungerford
697 A.2d 916 (Supreme Court of New Hampshire, 1997)
Doe v. Archdiocese of Milwaukee
565 N.W.2d 94 (Wisconsin Supreme Court, 1997)
Logerquist v. Danforth
932 P.2d 281 (Court of Appeals of Arizona, 1996)
Fothergill v. Seabreeze Condominiums at Hampton Ass'n
677 A.2d 696 (Supreme Court of New Hampshire, 1996)
Taylor v. Litteer
D. New Hampshire, 1996
S.V. v. R.V.
933 S.W.2d 1 (Texas Supreme Court, 1996)
Cummings v. Bartlett
D. New Hampshire, 1996
Conrad v. Hazen
665 A.2d 372 (Supreme Court of New Hampshire, 1995)
Glines v. Bruk
664 A.2d 79 (Supreme Court of New Hampshire, 1995)
Farris v. Compton
652 A.2d 49 (District of Columbia Court of Appeals, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
638 A.2d 797, 138 N.H. 285, 1994 N.H. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccollum-v-darcy-nh-1994.