Tasha Ohnemus, Res/cross-appellant v. State Of Washington, App./cross-respondent

Filed
Washington State
Court of Appeals
Division Two
July 19, 2016
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
TASH OHNEMUS, No. 46944-8-II
Respondent/
Cross-Appellant,
v.
STATE OF WASHINGTON, PUBLISHED IN PART OPINION
Appellant/
Cross-Respondent.
LEE, J. — Tasha Ohnemus filed suit against the State alleging, among other things, that the
State was liable for Child Protective Services’s (CPS) negligent investigations into allegations that
her stepfather physically and sexually abused her and for her sexual exploitation by the State under
RCW 9.68A.100. The superior court granted the State’s summary judgment motion for dismissal
of the negligence claims, but denied the State’s summary judgment dismissal of the chapter 9.68A
RCW claims.
The State challenges the denial of its summary judgment motion to dismiss Ohnemus’s
claim under RCW 9.68A.100,1 arguing that the State cannot violate the statute and, even if it could,
1
The superior court denied the State’s summary judgment motion on this issue, so there remained
an issue to be tried in this case and the parties did not have an appeal as a matter of right.
Additionally, no motion for discretionary review of this issue was ever made to this court and no
order accepting discretionary review of this issue was ever entered by this court.
RAP 2.3 states:
(b) . . . discretionary review may be accepted only in the following circumstances:
No. 46944-8
that no facts exist to support such a claim. Ohnemus challenges the dismissal of her negligence
actions, arguing that an issue of material fact exists as to whether the discovery rule acted to toll
the RCW 4.16.080(2) statute of limitations and that she is alleging “more serious” injuries such
that she should still be able to bring a claim under RCW 4.16.340.
In the published portion of this opinion, we address the superior court’s denial of summary
judgment on Ohnemus’s claims under chapter 9.68A RCW. We hold as a matter of law, under the
facts of this case, that the State cannot violate RCW 9.68A.100, and therefore, the State is not
liable to Ohnemus for costs and fees under RCW 9.68A.130. In the unpublished portion of this
opinion, we affirm the superior court’s summary judgment dismissal of Ohnemus’s negligence
claims against the State. Therefore, we reverse the superior court’s denial of summary judgment
dismissal on Ohnemus’s chapter 9.68A RCW claims and affirm the superior court’s grant of
summary judgment dismissal to the State on Ohnemus’s negligence claims.
....
(4) The superior court has certified, or all the parties to the litigation have
stipulated, that the order involves a controlling question of law as to which there is
substantial ground for a difference of opinion and that immediate review of the
order may materially advance the ultimate termination of the litigation.
Here, the superior court did not certify that the issue involves a controlling question of law as to
which there is substantial ground for a difference of opinion or that immediate review of the order
denying summary judgment may materially advance the ultimate determination of the litigation.
Therefore, under RAP 2.3(b)(4), without a motion for discretionary review, a proper certification
from the superior court, or an order accepting discretionary review, this issue is not properly before
us. Nonetheless, we grant discretionary review of this issue sua sponte as it involves a controlling
issue of law that will materially advance the ultimate termination of the litigation. RAP 1.2(a).
2
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FACTS
In August 2012, Ohnemus filed suit against the State, alleging that the State, through CPS,
was negligent in its investigation of allegations that Ohnemus’s stepfather, Steven Quiles, sexually
abused her and for failing to remove her from the abuse after its 1996 and 1997 investigations.
One of Ohnemus’s causes of action was based on her claim that the State violated RCW
9.68A.100.2
In August 2014, the State filed a motion for summary judgment and sought dismissal of
Ohnemus’s claims. The superior court granted the State’s motion to dismiss Ohnemus’s
negligence claims, but denied the State’s motion to dismiss Ohnemus’s RCW 9.68A.100 claim.
On October 24, and on a joint motion by the parties, the superior court entered a partial
final judgment dismissing Ohnemus’s negligence claims with prejudice for purposes of CR 54(b),3
2
RCW 9.68A.100. Commercial sexual abuse of a minor.
3
CR 54(b) states:
Judgment Upon Multiple Claims or Involving Multiple Parties. When more
than one claim for relief is presented in an action, whether as a claim, counterclaim,
cross claim, or third party claim, or when multiple parties are involved, the court
may direct the entry of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination in the judgment, supported by
written findings, that there is no just reason for delay and upon an express direction
for the entry of judgment. The findings may be made at the time of entry of
judgment or thereafter on the courts own motion or on motion of any party. In the
absence of such findings, determination and direction, any order or other form of
decision, however designated, which adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties shall not terminate the action as to
any of the claims or parties, and the order or other form of decision is subject to
revision at any time before the entry of judgment adjudicating all the claims and
the rights and liabilities of all the parties.
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and certified the case for appellate review under RAP 2.3(b)(4).4 On review, the State challenges
the superior court’s denial of its motion for summary judgment to dismiss Ohnemus’s cause of
action under RCW 9.68A.100.
ANALYSIS
A. STANDARD OF REVIEW FROM SUMMARY JUDGMENT
We review summary judgment orders de novo, performing the same inquiry as the trial
court. Green v. A.P.C., 136 Wn.2d 87, 94, 960 P.2d 912 (1998). 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.” CR 56(c); Green, 136 Wn.2d at 94. We draw
all reasonable inferences from the facts in the light most favorable to the nonmoving party. Hisle
v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). 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, cert. denied, 493 U.S. 814 (1989).
B. CHAPTER 9.68A RCW
The State challenges the trial court’s denial of the State’s summary judgment motion to
dismiss Ohnemus’s claims under chapter 9.68A RCW, the Sexual Exploitation of Children Act
(SECA). Specifically, the State argues that dismissal is proper because the State is incapable of
violating RCW 9.68A.100. We agree.
4
As noted above, the superior court’s certification did not comply with RAP 2.3(b)(4).
However, because the controlling legal issues will materially advance the ultimate
termination of the litigation, we grant discretionary review. RAP 1.2(a).
4
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1. The State Cannot Violate RCW 9.68A.100
The State argues that it cannot violate RCW 9.68A.100. To date, no court has considered
this issue. We agree that as a matter of law, under the facts of this case, the State cannot violate
RCW 9.68A.100.
Consideration of this issue requires review of RCW 9.68A.100 to determine the legislative
intent. We review issues of statutory interpretation de novo. Erakovic v. Dep’t of Labor & Indus.,
132 Wn. App. 762, 768, 134 P.3d 234 (2006). First, we attempt to determine legislative intent by
examining the statute’s plain language. Id. Only if the plain language is ambiguous do we consider
other sources of statutory interpretation, such as legislative history. Id. In doing so, we avoid
interpretations that create an absurd result. Id.RCW 9.68A.100 is titled, “Commercial sexual abuse of a minor—Penalties—Consent
of minor does not constitute defense,” and states:
(1) A person is guilty of commercial sexual abuse of a minor if:
(a) He or she pays a fee to a minor or a third person as compensation for a
minor having engaged in sexual conduct with him or her;
(b) He or she pays or agrees to pay a fee to a minor or a third person pursuant
to an understanding that in return therefore such minor will engage in sexual
conduct with him or her; or
(c) He or she solicits, offers, or requests to engage in sexual conduct with a
minor in return for a fee.
(2) Commercial sexual abuse of a minor is a class B felony punishable under
chapter 9A.20 RCW.
(3) In addition to any other penalty provided under chapter 9A.20 RCW, a
person guilty of commercial sexual abuse of a minor is subject to the provisions
under RCW 9A.88.130 and 9A.88.140.
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(4) Consent of a minor to the sexual conduct does not constitute a defense
to any offense listed in this section.
(5) For purposes of this section, “sexual conduct” means sexual intercourse
or sexual contact, both as defined in chapter 9A.44 RCW.
In order to violate this statute, the State would need to have either “engaged in sexual
conduct” with a minor, or negotiated for or solicited to “engage in sexual conduct with a minor.”
RCW 9.68A.100. Thus, to violate the statute, the State would have to be able to “engage in sexual
conduct.” RCW 9.68A.100.
The statute defines “sexual conduct” as “sexual intercourse or sexual contact, both as
defined in chapter 9A.44 RCW.” RCW 9.68A.100(5). RCW 9A.44.010 states that “sexual
intercourse”:
(1) . . . (a) has its ordinary meaning and occurs upon any penetration,
however slight, and
(b) Also means any penetration of the vagina or anus however slight, by an
object, when committed on one person by another, whether such persons are of the
same or opposite sex, except when such penetration is accomplished for medically
recognized treatment or diagnostic purposes, and
(c) Also means any act of sexual contact between persons involving the sex
organs of one person and the mouth or anus of another whether such persons are of
the same or opposite sex.
RCW 9A.44.010(2) states that “sexual contact” means “any touching of the sexual or other
intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third
party.”
Based on the plain language of the statute, the State cannot engage in “sexual intercourse”
or “sexual contact” because the State is incapable of “penetration,” the State does not have “sex
organs,” nor anything that could “contact” another’s “sex organs,” nor could anyone be “the same
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or opposite sex” as the State. RCW 9A.44.010(1)(a)-(c), (2). Being incapable of “sexual
intercourse” or “sexual contact,” the State is thereby incapable of “engag[ing] in sexual conduct.”
RCW 9.68A.100; RCW 9A.44.010(1), (2).5
Because “having engaged in,” or the intent to “engage in,” “sexual conduct with a minor,”
is a requisite to being found guilty under RCW 9.68A.100, and the State is incapable of such
conduct, we hold that, under the facts of this case, the State cannot violate RCW 9.68A.100.
Therefore, the State is entitled to dismissal of Ohnemus’s causes of action brought under RCW
9.68A.100 as a matter of law.6
2. Ohnemus Not Entitled To Costs And Fees
The State argues that Ohnemus is not entitled to the costs and fees under RCW 9.68A.130
because her cause of action brought under RCW 9.68A.100 fails as a matter of law. We agree.
RCW 9.68A.130 states, “A minor prevailing in a civil action arising from violation of this
chapter is entitled to recover the costs of the suit, including an award of reasonable attorneys’
fees.” Because the only violation of the chapter that Ohnemus alleges is a violation of RCW
9.68A.100 and we hold as a matter of law that the State cannot violate RCW 9.68A.100, Ohnemus
is not entitled to costs and fees under RCW 9.68A.130.
5
We do not render an opinion as to whether the State could be held liable as an accomplice
under RCW 9.68A.100.
6
The State also argues that it cannot violate RCW 9.68A.100 because it is not a “person” and it is
incapable of forming criminal intent. Given our holding that the State cannot engage in sexual
conduct with a minor, and therefore the State cannot violate RCW 9.68A.100, we do not reach
these arguments.
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Under the facts of this case, the State cannot violate RCW 9.68A.100 as a matter of law.
Therefore, we reverse the superior court’s denial of summary judgment dismissal on Ohnemus’s
chapter 9.68A RCW claims.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2.06.040, it is so ordered.
In the following unpublished portion of this opinion, we address Ohnemus’s cross-appeal
of the trial court’s dismissal of her negligence claims. We hold that the discovery rule does not
toll the statute of limitations because Ohnemus knew, or should have known through the exercise
of due diligence, the factual basis for her current cause of action against the State more than three
years prior to the August 2012 filing. We also hold that Ohnemus’s claim under RCW
4.16.340(1)(c) was properly dismissed because the record does not support an inference that she
suffered an injury qualitatively different from other harms connected to the abuse, nor does the
record support an inference that Ohnemus failed to make a causal connection between the
defendant’s conduct and the injuries she sustained. Therefore, we affirm the superior court’s
summary judgment dismissal of Ohnemus’s negligence claims.
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ADDITIONAL FACTS
A. FACTUAL HISTORY
1. 1996 Investigation
On April 24, 1996, when Tasha Ohnemus was eight years old and in the third grade, three
of her friends told their school counselor that Ohnemus’s stepfather, Steven Quiles, was physically
and sexually abusing Ohnemus. The school counselor reported this information to Child
Protective Services (CPS), which is an agency within the Department of Social and Health Services
(DSHS). The CPS report summarized the complaint as stating that three fifth grade girls reported
to the counselor that Ohnemus, then eight years old, “was being both sexually and physically
abused.” Clerk’s Papers (CP) at 86. The girls reported seeing bruises on Ohnemus’s “‘arms, legs
and back’ area,” and that her stepfather, Steven Quiles, would hit Ohnemus “‘with a bat or whip’”
if she was late getting home. CP at 86. The girls also reported that Quiles showed Ohnemus
explicit magazines and required her to perform oral sex on him. The counselor stated to CPS that
Ohnemus had been suspected of telling lies in the past, but the explicit nature of the allegations
and her young age made it a “delicate” situation. CP at 87. The CPS report concluded by noting
that a copy was sent to the Mason County Sheriff’s Office.
On April 26, CPS worker Karen Thompson interviewed Ohnemus at school with the school
counselor. Thompson noted that Ohnemus was clean, dressed appropriately, and willing to talk.
Ohnemus told Thompson that Quiles was “mean to her, won’t let her talk on the phone,” and gave
her long spankings with a “‘stick’ or ‘pipe’.” CP at 402. Ohnemus also told Thompson that “she
had found ‘disgusting’ magazines in” Quiles’s closet, that he “‘watches disgusting movies’,” and
she described him masturbating. CP at 402. However, Ohnemus said Quiles “had never touched
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her ‘private parts’ or made her touch his.” CP at 402. Finally, Ohnemus told Thompson that while
she had no fear of returning home, she wanted to be taken away from Quiles because he yelled and
restricted her contact with friends.
Thompson called Ohnemus’s mother later that day and informed her of the interview, what
was said, and that CPS would be willing to provide for Ohnemus’s day care until the end of the
school year. Thompson subsequently left messages at the Quiles’s family home on April 30, and
on May 1, regarding DSHS’s willingness to pay for day care arrangements. On May 2, Ohnemus’s
mother called Thompson to say day care had been arranged and the family was not interested in
receiving financial assistance.
On May 29, Thompson and a detective with the Mason County Sheriff’s Office interviewed
Ohnemus. Ohnemus told them that Quiles had burned the magazines and cut up the videotape.
She disclosed nothing else during the interview. The same day Thompson made an unannounced
visit to the Quiles’s home. She told them of that day’s interview with Ohnemus, told them that
law enforcement would not be pursuing the case further, told them to call if they needed further
services, and cautioned Quiles to close his door when he was involved in private matters. Quiles
and Ohnemus’s mother told Thompson that the girls would be in day care over the summer and
the next school year.
CPS closed the investigation, finding the case “unfounded according to [the] child.” CP at
410. In her deposition for the present action, Ohnemus said she did not recall if the school
counselor and a social worker interviewed her, nor did she remember if a social worker and a law
enforcement officer interviewed her.
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2. 1997 Investigation
On April 24, 1997—a year later, to the day—the same school counselor reported an
allegation that Quiles had physically abused one of Ohnemus’s sisters, Elizabeth, using a board
with nails in it. The counselor asked Ohnemus and Ohnemus’s younger sister, Kayla, about the
incident; both confirmed that Quiles had punished their sister Elizabeth using a board with nails in
it. Elizabeth told the counselor that her “dad never hit anybody.” CP at 426. There were no
allegations of sexual abuse. In her report, the counselor noted that the Quiles family had been
reported the year before.
On May 1, a different CPS worker, Robert Kyler, met individually with Elizabeth and
Ohnemus. Elizabeth denied any abuse, and said time out was the only form of punishment she
received. Ohnemus told Kyler that she was punished with time out, but all the other kids got
spanked. She also told Kyler that Elizabeth got spanked with a metal pipe with nails in it, and that
Elizabeth was afraid of Quiles. Ohnemus gave no indications that any physical or sexual abuse
was directed towards her.
On May 6, Kyler interviewed Ohnemus’s mother to discuss the allegation of Quiles
physically abusing Elizabeth. Ohnemus’s mother supported Ohnemus’s story, except Ohnemus’s
mother contended that Quiles’s use of a pipe was accidental. Ohnemus’s mother stated she was
not concerned about her daughters being around Quiles, and that she was interested in family
counseling services but was concerned about what Quiles’s response would be.
Family Preservation Services (FPS) initiated in-home counseling shortly thereafter. From
FPS, Kyler later learned that the children had been enrolled in counseling and a day care program,
and that the children would be going to New York to stay with Quiles’s parents.
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3. 2001 Request for Services
In June 2001, Ohnemus’s mother contacted DSHS and asked for Family Reconciliation
Services (FRS) because Ohnemus, who was 14 years old at the time, was not following house rules
and was antagonizing the other children. CPS was not involved in this request and the records
from this request do not reference the 1996 or 1997 CPS investigations. The case was closed in
September 2001.
4. 2002 Request for Services
On April 23, 2002, Ohnemus’s mother contacted DSHS again and asked for a Youth-at-
Risk assessment of Ohnemus. Her mother complained that Ohnemus had been returned by
sheriff’s deputies after running away from home over the weekend and continued to not follow
family rules. Ohnemus’s mother wanted the DSHS worker to make the assessment using the notes
from the family counseling sessions conducted in 2001. The DSHS worker told Ohnemus’s
mother that he would need to conduct a visit with them and would prefer to have a family
counseling session before creating a Youth-at-Risk assessment. CPS was similarly not involved
in this request, and the records from this request do not reference the 1996 or 1997 CPS
investigations; but, the 2001 request is discussed. Ohnemus’s mother refused a meeting between
the family and the DSHS worker. The case was closed in April 2002.
5. 2002 Disclosure of Abuse
On May 9, 2002, Ohnemus, almost 15 years old and in the 9th grade, and her sister
disclosed to another school counselor that they had been sexually molested and exploited by
Quiles. CPS was notified the same day, and CPS then notified the Mason County Sheriff’s Office.
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CPS removed all of the girls from the house and placed them with Division of Children and Family
Services (DCFS).
Ohnemus was interviewed by a Mason County Sheriff’s detective and a CPS worker on
May 16, 2002. During the interview, Ohnemus described Quiles groping Ohnemus, requiring her
to perform oral sex on him, and recording her naked for child pornography trades on the internet.
She also described Quiles’s nonsexual physical abuse of her. Ohnemus told the police and CPS
that the abuse had been going on since she was in fourth or fifth grade.
Quiles was arrested and pleaded guilty to third degree rape of a child, two counts of first
degree incest, second decree child molestation, possession of depictions of a minor engaged in
sexually explicit conduct, and sexual exploitation of a minor. He was sentenced to 10 years in
prison.
6. July 2002 Inpatient Care
In July 2002, Ohnemus voluntarily entered an inpatient treatment facility. She was
suffering from persistent suicidal thoughts, “recurrent and intrusive recollections and flashbacks”
of Quiles’s abuse, post-traumatic stress disorder (PTSD), and major depression “without psychotic
features.” CP at 193-94. Five days after being admitted, Ohnemus was discharged and “was noted
to be quite improved and felt ready to be discharged home.” CP at 186-87.
7. March-April 2003 Inpatient Care
On March 24, 2003, Ohnemus was admitted to the Adolescent Treatment Unit at Kitsap
Mental Health Services for expressing suicidal thoughts. Her depression decreased during her
stay, and on April 15, 2003, Ohnemus was “deemed stable for discharge” as a least restrictive
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alternative. CP at 273. Ohnemus’s discharge diagnosis included chronic PTSD and depressive
disorder not otherwise specified.
8. August 2003 Inpatient Care
On August 1, 2003, Ohnemus was detained during her outpatient therapy session for not
following the rules of her least restrictive alternative program. She was subsequently admitted for
the second time to the Adolescent Treatment Unit, and as her intake paperwork noted, this was her
third inpatient admission for psychiatric problems. There, Ohnemus reported that she was re-
experiencing the past trauma of her father’s sexual abuse in the form of “recurrent nightmares”
and “distressing, recurrent, intrusive thoughts, images, and recollection of her past abuse,” which
“caused [her] to experience intense psychologic and physiologic reactivity.” CP at 267.
On August 7, 2003, Ohnemus had a one-on-one session with a professional at the Adult
Treatment Unit. The handwritten notes from that session contained the following:
CT [Ohnemus] did talk about the abuse she’s experienced starting in the 2nd grade.
Also talked about being “very angry” @ CPS and “hating” them for not believing
her allegations and allowing the abuse to continue “so much longer.” She reported
they told her she was “just trying to get attention.”
CP at 584. On August 8, Ohnemus was discharged.
9. May 2005 Ohnemus turns 18
Ohnemus was born on May 24, 1987. On May 24, 2005, Ohnemus turned 18 years old.
10. March 2006 Counseling
On March 16, 2006, Ohnemus sought counseling through Kitsap Mental Health Services.
Ohnemus reported that she suffered from PTSD and was having extended periods of deep
depression that were followed by periods of increased energy and money spending.
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11. October 2007 Doctor Visit
In early October 2007, Ohnemus consulted a doctor complaining of, among other ailments,
insomnia and stress from going through a recent divorce. She told the doctor that she suffered
from PTSD and bipolar disorder, that she had been sexually abused, and that she had “been tried
on 17 different psychotropic medications” with minimal effect. CP at 279.
By the end of October, she was presenting with “significant flashbacks of the sexual abuse,
anxiety in social situations, nightmares, difficulty with sleep, isolated, weepy affect easily, mood
swings, decreased energy level and interest in activities, using marijuana for pain management and
helping her appetite increase.” CP at 301; see also CP at 286 (presenting concerns of “[s]ignificant
flashbacks of previous trauma, anxiety in social situations, nightmares, difficulty with sleep and
appetite, weepy affect at times, mood swings, decreased energy level or interest in activities,
physical pain impacting performance and mood”). The doctor’s progress notes from October 31,
2007, state that Ohnemus “reports that she tried to tell CPS and social workers about [Quiles’s]
sexual abuse. [Quiles] was finally caught and prosecuted . . . . [Ohnemus] had to testify in court.”
CP at 300.
12. November 2007 through September 2008
From the beginning of November 2007 through the end of September 2008, Ohnemus had
eight doctor visits to monitor the progression of, among other things, her PTSD and bipolar
disorder. She self-reported having had approximately 10 inpatient stays. She also continued to
suffer from severe flashbacks, mania, paranoia, and nightmares. During this time, on May 24,
2008, Ohnemus turned 21.
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13. Sporadic Counseling and Treatment from 2009 through 2013
Ohnemus received counseling sporadically at Kitsap Mental Health and Harrison Medical
Center from 2009 through 2013.
a. 2009 and 2010
In July 2009, Ohnemus sought inpatient care, citing thoughts of suicide, flashbacks to the
years of sexual abuse, and suffering from PTSD and bipolar disorder. Ohnemus told the social
workers at the inpatient care facility that “she was sexually abused from ages 5-15 y/o and has
PTSD because of this.” CP at 175. In January 2010, Ohnemus told her counselor that she was
molested by Quiles “from age 6-15,” and she told the counselor that:
I had an abortion 2 months after [Quiles’s] trial because it was his . . . . [M]y friends
gave me my yearbook and everything that people wrote was about what had
happened . . . and I didn’t want to deal with it . . . I think I have been in survivor
mode since then.
CP at 207.
b. 2011
Ohnemus brought Social Security forms to counseling sessions in 2011, and the counselor
helped her complete the forms. During a June 2011 counseling session, Ohnemus reported to her
counselor that she had retained a new lawyer to help her file a crime victim’s claim for the abuse
she suffered from Quiles.
i. Social Security Administration Claim
Ohnemus filed her claims for Social Security Disability benefits on April 28, 2011 and on
May 5, 2011. On the Social Security Disability forms, Ohnemus identified bipolar disorder, PTSD,
personality disorder, and anxiety as the physical or mental conditions that limited her ability to
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work. Ohnemus stated on the forms that she had been to the emergency room at Harrison Medical
Center “at least once a year for PTSD, anxiety, [and] suicidal thoughts.” CP at 338 (some
capitalization omitted). She said that Harrison Medical Center treated her with psychotherapy
medication, and referred her to Kitsap Mental Health. Ohnemus reported that she had received
more than one inpatient stay for PTSD at Kitsap Mental Health and was currently being seen there
for her PTSD and bipolar disorder. On the form, Ohnemus added:
[I] had PTSD due to being raped and molested by my stepdad from age 5 to 15. It
is very [h]ard to deal with because he video taped me naked and put it on the
computer so [a] lot of people I grew up with have seen me on the computer. He
was arrested on 6 [c]ounts of sexual felonies in 2002. After everything came out
into the open was when [I] was first admitted into inpatient treatment at KMH
[Kitsap Mental Health].
CP at 341(some capitalization omitted). The Social Security Administration disapproved her claim
on October 25, 2011, noting, among other things, that Ohnemus was “being treated for a mood
disorder and PTSD, with notes showing an improvement in symptoms with medication.” CP at
328.
ii. Crime Victim’s Claim
By August of 2011, Ohnemus reported to her counselor that she had learned that she could
receive “about $150k in crime victim benefits” and “because of this [Ohnemus] got a huge amount
of information about her step father [sic].” CP at 213. Ohnemus’s declaration in support of the
present action states that in the summer of 2011 she “obtained [Quiles’s] criminal/police
investigation file from 2002 regarding his conduct with me and my sister.” CP at 481. She said
she obtained this file as part of her crime victim’s claim application. In her declaration, she
described the file as follows:
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It contained a lot of information I had not seen or known about, including the 1996
and 1997 intakes by CPS; witness statements, together with the interview
transcripts from me and my sister; the statement by my mother identifying me in
some of the photos from my father’s computer; and the pages of information about
his computer.
CP at 481. Ohnemus’s declaration also states that she told her counselor at Kitsap Mental Health
that the discovery of this new information was causing her to feel overcome by despair.
The counselor’s notes do not reflect that Ohnemus reported any change in her emotions, or
any new distresses, attributed to reopening her crime victim’s claim. However, the counselor
submitted a declaration stating that Ohnemus was affected by the information she obtained such
that “she needed intensive treatment,” and that “[s]he was unaware of the extent of her injuries.”
CP at 485. In her own declaration, Ohnemus stated that she has “just started to realize and come
to terms with the notion that I might never fully recover from my injuries.” CP at 482.
c. 2012 and 2013
Days before her 25th birthday in May 2012, Ohnemus went to Harrison Medical Center
and requested inpatient care, again complaining of severe flashbacks and anxiety. At that time,
she described her condition as “very anxious with chest pain[,] having flashbacks to when she was
sexually molested from ages 5-15 and having thoughts of wanting to hurt herself.” CP at 164-65.
Harrison Medical Center contacted Kitsap Mental Health, who sent a mental health professional
to meet with Ohnemus. The notes from this meeting state that Ohnemus “has a history of severe
childhood sexual abuse by her step father [sic] . . . [and] is overwhelmed with frequent flashbacks
and nightmares related to childhood trauma.” CP at 231. Further, Ohnemus reported that “she’s
‘just overwhelmed and needs to be taken care of.’” CP at 231. In August 2012, Ohnemus filed
the present action against the State.
18
No. 46944-8
Ohnemus returned to Harrison Medical Center in April 2013, complaining of flashbacks
“related to a lawsuit against CPS for reported sexual abuse that happened during her childhood.”
CP at 162. Harrison Medical Center contacted Kitsap Mental Health and arranged an appointment
for Ohnemus at Kitsap Mental Health for the next morning. No record of a visit to Kitsap Mental
Health the following morning exists in the record on appeal.
Ohnemus’s attorneys retained clinical psychologist Steve Tutty as an expert witness in this
case. Tutty submitted a declaration stating that in 2013 Ohnemus’s treatment began to include an
“anti-psychotic psychotropic medication,” which, he said, indicates Ohnemus is receiving “more
significant and long term medical care than previously received.” CP at 489. He concluded, “It
appears Ms. Ohnemus is only now aware of the full extent of her injuries.” CP at 489.
B. PROCEDURAL HISTORY
Ohnemus’s August 2012 suit alleged that the State through CPS, was negligent in its
investigation and for failing to remove her from the abuse after its 1996 and 1997 investigations.
It also alleged claims under 18 U.S.C. § 2252,7 18 U.S.C. § 2255.8 In August 2014, the State filed
a motion for summary judgment, asserting that Ohnemus’s negligence claims were barred by the
statute of limitations and that she failed to state a claim under 18 U.S.C. § 2252 and § 2255.
On September 12, 2014, the superior court granted the State’s motion for summary
judgment as to Ohnemus’s “childhood sexual abuse claims” and her “claim under 18 U.S.C.
7
18 U.S.C. § 2252. Certain activities relating to material involving the sexual exploitation of
minors.
8
18 U.S.C. § 2255. Civil remedy for personal injuries.
19
No. 46944-8
§ 2252 and § 2255.”9 CP at 610. Ohnemus challenges the superior court’s dismissal of her
negligence claims related to her childhood sexual and physical abuse.
ANALYSIS
A. STATUTE OF LIMITATIONS—CLAIMS DISMISSED ON SUMMARY JUDGMENT10
Ohnemus argues the superior court erred in dismissing her negligence claims relating to
her sexual and physical abuse because issues of material fact remain. Specifically, Ohnemus
argues that issues of fact exist as to when she discovered, or should have discovered, her claims
for the State’s 1996 and 1997 investigations, and as to when she discovered “more serious injuries”
ostensibly attributable to the State’s investigations. Br. of Resp’t/Cross-Appellant at 2.
9
The September 12 order did not address the superior court’s decision on Ohnemus’s physical
abuse claims. After reconsideration, the superior court clarified its September 12 order to grant
summary judgment dismissal of Ohnemus’s negligence claims related to her childhood sexual
and physical abuse.
10
The superior court’s partial final judgment granting summary judgment dismissal of Ohnemus’s
negligence claims related to her sexual and physical abuse are properly before us pursuant to RAP
2.2(d). Under RAP 2.2(d):
In any case with multiple parties or multiple claims for relief, . . . an appeal may be
taken from a final judgment that does not dispose of all the claims . . . as to all the
parties, but only after an express direction by the trial court for entry of judgment
and an express determination in the judgment, supported by written findings, that
there is no just reason for delay. . . . In the absence of the required findings,
determination and direction, a judgment that adjudicates less than all the claims . .
. or adjudicates the rights and liabilities of less than all the parties, is subject only
to discretionary review until the entry of a final judgment adjudicating all the
claims, . . . rights, and liabilities of all the parties.
Here, the superior court found that there is no just reason for delay in entering final
judgment and that “the statute of limitations question . . . involve[s] [a] controlling question of law
to which there is substantial ground for a difference of opinion.” CP 679-80. Thus, under RAP
2.2(d), the order on partial final judgment permits Ohnemus to appeal the superior court’s
summary judgment dismissal of her negligence claims.
20
No. 46944-8
First, we hold that Ohnemus’s failure to exercise due diligence when she knew or should
have known the factual basis for her cause of action is fatal to her assertion that the discovery rule
tolled her claim until 2011. Second, we hold that Ohnemus’s claim under RCW 4.16.340(1)(c)
was properly dismissed because the record does not support an inference that she suffered an injury
qualitatively different from other harms connected to the abuse, nor does the record support an
inference that Ohnemus failed to make a causal connection between the defendant’s conduct and
the injuries she sustained.
1. RCW 4.16.080(2) and the Discovery Rule
Ohnemus contends that her August 2012 complaint is not time-barred by RCW
4.16.080(2)’s three year statute of limitations because, under Washington’s “discovery rule,” her
cause of action did not accrue until 2011 when she obtained the 2002 investigation file on Quiles’s
arrest. Br. of Resp’t/Cross-Appellant at 21-22. We disagree and hold that Ohnemus’s negligence
claims are barred by the three year statute of limitations in RCW 4.16.080(2).
a. Legal Standard
RCW 4.16.080(2) places a three year limit on a person’s ability to file a claim for injuries.
Green, 136 Wn.2d at 95. Generally, the statute of limitations begins to run “at the time the act or
omission causing the tort injury occurs.” Clare v. Saberhagen Holdings, Inc., 129 Wn. App. 599,
602, 123 P.3d 465, review denied, 155 Wn.2d 1012 (2005). However, under RCW 4.16.190(1), if
the person entitled to bring an action under RCW 4.16.080 is under the age of 18 at the time his or
her cause of action would otherwise accrue, the statute of limitations would not begin running until
the person reaches the age of 18.
21
No. 46944-8
Another mechanism for tolling the accrual of a cause of action and its attendant statute of
limitations is the “discovery rule.” “Under Washington’s discovery rule, a cause of action does
not accrue until a party knows or reasonably should have known the essential elements of the
possible cause of action.” Clare, 129 Wn. App. at 602; see also Green, 136 Wn.2d at 95 (stating
the same). The “should have known” language under Washington’s discovery rule requires the
prospective plaintiff to exercise “due diligence in discovering the basis for the cause of action”
after he or she is “‘placed on notice.’” Clare, 129 Wn. App. at 603 (quoting Green, 136 Wn.2d at
96); see also Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992) (“The discovery rule requires
a plaintiff to use due diligence in discovering the basis for the cause of action.”).
The discovery rule does not require the plaintiff to understand all of the legal consequences
of his or her cause of action. Green, 136 Wn.2d at 95. Thus, the cause of action accrues and the
attendant statute of limitations begins to run “when the plaintiff knows or should know the relevant
facts, whether or not the plaintiff also knows that these facts are enough to establish a legal cause
of action.” Allen, 118 Wn.2d at 758.
A due diligence inquiry means “[t]he plaintiff is charged with what a reasonable inquiry
would have discovered.” Green, 136 Wn.2d at 96; Clare, 129 Wn. App. at 603. Whether due
diligence has been exercised is normally a question of fact, but can be determined as a matter of
law when reasonable minds could reach only one conclusion. Clare, 129 Wn. App. at 603. “The
plaintiff bears the burden of proving that the facts constituting the claim were not and could not
have been discovered by due diligence within the applicable limitations period.” Id.; see accord
Allen, 118 Wn.2d at 760.
22
No. 46944-8
In short, once Ohnemus suffered ““some appreciable harm’” allegedly caused by the
State’s negligence, the discovery rule only tolls the statute of limitations until Ohnemus
discovered, or “through the exercise of due diligence, should have discovered, the basis for the
cause of action” against the State. Clare, 129 Wn. App. at 603 (quoting Green, 136 Wn.2d at 96).
Thus, we must determine if Ohnemus, viewing all inferences in a light most favorable to her, has
established a question of fact as to whether she did not discover, and could not have discovered
through the exercise of due diligence, the facts giving rise to her negligence claims more than three
years before she filed her complaint on August 15, 2012. See Hisle, 151 Wn.2d at 860; Clare, 129
Wn. App. at 603. We hold that summary judgment dismissal of Ohnemus’s negligence claims
was proper because reasonable minds could not differ in concluding that she knew or should have
known the factual basis for her current cause of action against the State more than three years prior
to the August 2012 filing of this lawsuit.
b. Statute of limitations not tolled by discovery rule
Ohnemus claims that the State conducted negligent investigations in 1996 and 1997, and
she suffered harm therefrom. Because Ohnemus was under 18 years old in 1996 and 1997, the
statute of limitations on that claim was tolled until her 18th birthday in May 2005. RCW
4.16.190(1); Clare, Wn. App. at 602. For the limitations period to be tolled further requires
application of the discovery rule. Green, 136 Wn.2d at 95.
Ohnemus points out that the State and various social workers were involved in 1996, 1997,
2001, and 2002, and the medical notes from 2003 and 2007, do not indicate which involvement or
involvements Ohnemus was referring to in her 2003 or 2007 counseling sessions. However, even
when the facts are viewed in a light most favorable to Ohnemus, the record demonstrates that the
23
No. 46944-8
only State involvement that Ohnemus could have been referencing in her 2003 and 2007
counseling sessions were the 1996 and 1997 investigations.
The 2003 medical note was recorded while Ohnemus was going through inpatient care in
the Adolescent Treatment Unit at Kitsap Mental Health Services, and on the progress note her
counselor wrote:
CT [Ohnemus] did talk about the abuse she’s experienced starting in the 2nd grade.
Also talked about being “very angry” @ CPS and “hating” them for not believing
her allegations and allowing the abuse to continue “so much longer.” She reported
they told her she was “just trying to get attention.”
CP at 584. Then, in a progress note made in October 2007, her therapist noted that that Ohnemus
“reports that she tried to tell CPS and social workers about [Quiles’s] sexual abuse. [Quiles] was
finally caught and prosecuted . . . . [Ohnemus] had to testify in court.” CP at 300.
Neither medical note could be referencing the State’s involvement in 2001 nor 2002. The
State’s involvement in 2001 consisted of Family Reconciliation Services at the request of
Ohnemus’s mother because Ohnemus was being “assaultive towards her sisters” and not following
the house rules. CP at 593. At that time, Ohnemus told the social worker that she did fight with
her sisters, she attended school regularly and did well, had no criminal history, and “doesn’t feel
that there is a big problem at home.” CP at 591. The social worker noted that the “[f]amily
members were guarded during all sessions and participation was very limited by both adults and
children,” but that Ohnemus “did attempt to participate during some of the sessions,” asking to be
closer to her mother to talk about personal and emotional issues. CP at 596. There is no indication
that Ohnemus made, or attempted to make, any allegation of abuse by Quiles to the State during
the 2001 involvement for which she could later be angry at the State for not acting upon.
24
No. 46944-8
Similarly, the State’s involvement in April 2002 was a response to Ohnemus’s mother
requesting Family Reconciliation Services. However, this time the State did not meet with
Ohnemus or anyone else in the family because Ohnemus’s mother refused to allow the social
worker to meet with the family or ask questions.11 Thus, Ohnemus could not be referring to the
State’s involvement in 2002 as a time when she tried to tell CPS about Quiles’s abuse because she
never had any interaction with the State at the time, nor is there anything in the record to indicate
she knew the State had been contacted by her mother.
Ohnemus attempts to discredit the medical notes from 2003 and 2007 by calling them
“hearsay entries” that Ohnemus did not write nor endorse. Reply Br. of Resp’t/Cross-Appellant
at 4. But Washington courts have affirmed a summary judgment dismissal of a RCW 4.16.080(2)
claim based entirely on a single isolated entry in a medical record. Clare, 129 Wn. App. at 604.
Also, even if the medical notes are “hearsay,” they are admissible as statements for purposes of
medical diagnosis or treatment. ER 803(a)(4).
Ohnemus argues that she had no reason to inquire into whether the State caused her harm
because Quiles’s abuse was another “facially logical explanation” for her damages. Reply Br. of
Resp’t/Cross-Appellant at 6-7. Ohnemus is correct that where a plaintiff knows of another
“facially logical explanation” for her injuries, she is not required as a matter of law to seek out
additional causes of her suffering. Lo v. Honda Motor Co., 73 Wn. App. 448, 456, 869 P.2d 1114(1994); Winbun v. Moore, 143 Wn.2d 206, 219, 18 P.3d 576 (2001).
11
The next 2002 involvement was in May of 2002, where Ohnemus and her sister disclosed the
abuse and were taken into protective custody.
25
No. 46944-8
However, the record here shows that at least by her doctor’s visit on October 31, 2007,
more than three years before filing the instant action, Ohnemus knew that the State had a duty to
protect her from Quiles, that she believed the State breached that duty by not protecting her, and
that she suffered his abuse “‘so much longer’” because of the State’s failure to protect her. CP at
584. Thus, while she clearly understood that one facially logical explanation for the harm she
suffered was Quiles’s abuse, the record is also clear that she had formulated a second facially
logical explanation that the reason she suffered more of the abuse was because the State allegedly
failed to protect her. Her failure to investigate the validity of the second explanation renders her
claim barred by expiration of the statute of limitations.
Ohnemus next argues that a plaintiff must have a factual basis for a claim before the statute
of limitations is triggered. Again, Ohnemus correctly states the law, but is incorrect in how it
applies to her case.
Ohnemus cites Webb v. Neuroeducation, Inc., P.C., 121 Wn. App. 336, 88 P.3d 417 (2004).
There, a father sued a psychologist for malpractice and the issue was when the father should have
known of the psychologist’s alleged malpractice. Id. at 344. The father had submitted a
declaration in 1998 stating that he “‘believe[d]’” or “‘strongly believe[d]’” that his son had been
coached into fearing him by the mother and psychologist. Id. at 340-41. On appeal, the court held
that Webb did not “have a factual basis for his opinions and grounds for his complaint” until he
received the Guardian ad Litem report in 1999, and that his “belief allegations” in his 1998
declaration were “necessarily speculative” as they were “guess[es] at things he clearly could not
know” because the psychologist refused to speak to him. Id. at 344.
26
No. 46944-8
Here, in contrast, Ohnemus’s belief that the State had breached its duty to her was based
on facts she clearly could, and did, know. Specifically, that she had tried to tell CPS about Quiles’s
abuse, and that she was angry at CPS for not believing her and allowing the abuse to continue “so
much longer.” CP at 584. Thus, the reasoning that preserved the plaintiff’s claim in Webb does
not preserve Ohnemus’s claim.12
The record shows Ohnemus actually knew of the State’s 1996 and 1997 involvement, and
shows that in 2003 and 2007 she was frustrated by CPS’s failure to remove her from the abuse
pursuant to the 1996 and 1997 investigations. Therefore, she then knew, or through the exercise
of due diligence should have known, all of “the essential elements of the possible cause of action”
more than three years prior to filing this action. Clare, 129 Wn. App. at 602.
The essential elements for a tort claim are duty, breach, causation, and damages. Green,
136 Wn.2d at 95. Ohnemus’s statements in 2003 and 2007 establish that she recognized the State
had a duty to protect her, that she believed the State breached that duty, that she believed the State’s
breach caused the abuse to continue; and that she recognized the continued abuse caused her
damage. A due diligent pursuit of her belief that the State had breached its duty to protect her
would have included her obtaining Quiles’s investigation file and the subsequent information in
which her current claim is rooted. Green, 136 Wn.2d at 96 (“The plaintiff is charged with what a
12
Ohnemus asserted in her deposition that she did not remember the interviews with the school
counselor and social worker that occurred in 1996 and in 1997. This, however, does not create an
issue of material fact because: (1) self-serving testimony need not be taken at face value when
reviewing summary judgment; but more importantly, (2) she remembered CPS’s involvement, and
her attempts to tell them of the abuse in 2003, when she 16, and in 2007, when she was 20. Thus,
she was on inquiry notice at least in 2007 to investigate why CPS had not intervened and if they
had been negligent in failing to intervene.
27
No. 46944-8
reasonable inquiry would have discovered.”). We hold that Ohnemus’s failure to exercise due
diligence when she knew or should have known the factual basis for her cause of action is fatal to
her assertion that her negligence action did not accrue until 2011 based on the discovery rule.
2. RCW 4.16.340(1)(c)
Ohnemus assigns error to the trial court’s summary judgment dismissal of her claims
brought under RCW 4.16.340.13 Ohnemus argues that a genuine issue of material fact exists as to
whether she “recently discovered injuries that are significantly more serious than she previously
knew.” Br. of Resp’t/Cross-Appellant at 42. We affirm the trial court’s dismissal of Ohnemus’s
claim under RCW 4.16.340(1)(c) because the record does not support an inference that she suffered
an injury qualitatively different from other harms connected to the abuse, nor does the record
support an inference that Ohnemus failed to make a causal connection between the defendant’s
conduct and the injuries she sustained.
The State argues that RCW 4.16.340 does not apply to the State because the State did not
perpetrate any acts of childhood sexual abuse against Ohnemus. But RCW 4.16.340 encompasses
13
RCW 4.16.340 provides that:
(1) All claims or causes of action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of childhood sexual
abuse shall be commenced within . . .
....
(c) . . . three years of the time the victim discovered that the act caused
the injury for which the claim is brought:
PROVIDED, That the time limit for commencement of an action under this
section is tolled for a child until the child reaches the age of eighteen years.
28
No. 46944-8
causes of action sounding in negligence against parties who did not themselves perpetrate acts of
childhood sexual abuse but who failed to protect child victims or otherwise prevent the abuse.
C.J.C. v. Corp. of the Catholic Bishop of Yakima, 138 Wn.2d 699, 708, 985 P.2d 262 (1999). Here,
Ohnemus claims the State was negligent in failing to protect her against further sexual abuse by
Quiles. Thus, the State’s assertion that RCW 4.16.340 does not apply to the State fails.
Under RCW 4.16.340, a claim based on childhood sexual abuse may be brought within
three years of the time the victim discovers the causal connection between the wrongful act and
her injury. At issue in this appeal is subsection (1)(c). This subsection applies where the victim
is aware of the abuse and aware that she suffered harm as a result, but discovers a new and
qualitatively different injury attributable to the abuse. Carollo v. Dahl, 157 Wn. App. 796, 801,
240 P.3d 1172 (2010). It also applies where the victim is aware of the abuse and aware of her
injury, but discovers a causal connection, of which she was previously unaware, between the
wrongful act and her harm. Id.; Hollmann v. Corcoran, 89 Wn. App. 323, 325, 949 P.2d 386(1997).
Ohnemus contends that the issue of material fact is “whether [she] has recently discovered
injuries that are significantly more serious than she previously knew.” Br. of Resp’t/Cross-
Appellant at 42. Therefore, it appears that she is arguing that her claim falls into the first
application, by claiming she has discovered new injuries and arguing to this court that it should
not follow the Carollo court’s precedent. See Carollo, 157 Wn. App. at 801. However, we address
both applications of subsection (1)(c).
29
No. 46944-8
a. “Qualitatively Different” Injury
A claim of childhood sexual abuse may be brought within three years of the time that the
victim discovers an injury that is “qualitatively different from other harms connected to the abuse
which the plaintiff had experienced previously.” Id. “[M]ore severe manifestations of a prior
injury” are not qualitatively different and are not within the purview of subsection (1)(c). Id. at
803.
In Carollo, 157 Wn. App. at 798, the plaintiff was molested as a teenager by a camp
counselor. In 1988, he sought counseling for the emotional difficulties he was having. Id.
Through that counseling, he learned that his childhood sexual abuse was likely the source of his
difficulties. Id. He received counseling again in 1995, at which time he was diagnosed with post-
traumatic stress disorder resulting from the molestation. Id. He also suffered from depression,
flashbacks, and nightmares. Id. at 798-99. In 2008, he filed suit after his symptoms became “much
worse” and he became unable to function at his job. Id. at 799. The new symptoms included
regular nightmares, memory loss, dissociative periods, panic disorder, major anxiety, major
depressive disorder, and agoraphobia. Id. His counselor said the new symptoms were related to
the childhood sexual abuse and that it “is not common or expected that new symptoms will occur
or to see increases in symptoms like those exhibited by” the plaintiff. Id.. Division Three of this
court held that Carollo was merely “claiming that the severity of his most recent symptoms should
entitle him to the more lenient provisions of the discovery of harm provision in the statute” not
that he had only recently connected his emotional harm to childhood sex abuse. Id. at 802.
Therefore, the court dismissed the suit as time barred. Id. at 803.
30
No. 46944-8
Ohnemus asks us to disregard Division Three’s holding in Carollo because she argues that
it alters the legislature’s intent. We decline her request.
Carollo does not alter the legislative intent in looking for a different injury attributable to
the abuse. In fact, the Carollo court noted the legislative findings of intent attached to RCW
4.16.340 and addressed the argument that Ohnemus now makes to this court.
In revising RCW 4.16.340, the legislature attached six findings of intent, of which
Ohnemus highlights findings (4) and (5). LAWS OF 1991, ch. 212, § 1.. Findings (4) and (5) state:
(4) The victim of childhood sexual abuse may be unable to understand or
make the connection between childhood sexual abuse and emotional harm or
damage until many years after the abuse occurs.
(5) Even though victims may be aware of injuries related to the childhood
sexual abuse, more serious injuries may be discovered many years later.
LAWS OF 1991, ch. 212, § 1. Ohnemus highlights findings (4) and (5) as evidence that the
legislature did not intend for the injuries that are “more serious” than the injuries that the victim
was aware of before be “qualitatively different” injuries. Br. of Resp’t/Cross-Appellant at 37, 41-
42. The plaintiff in Carollo made the same argument, and Division Three addressed that argument
as follows:
While Mr. Carollo is correct that the Legislature sought to liberalize the statute of
limitations in favor of victims of childhood abuse, it did impose limits. Adopting
his interpretation of the statute would be a substantial expansion, if not an outright
repeal, of those limits. The proper body to make such changes is the Legislature.
Although legislative finding number five, concerning later discovery of harm,
might be read to support the contention that new symptoms related to a prior PTSD
diagnosis result in a new cause of action, a more reasonable reading of the finding
is that the Legislature sought to give causes of action for different injuries
discovered at different times rather than applying to more severe manifestations of
a prior injury. In any event, legislative findings are not operative law and cannot
be used in jury instructions. In re Det. of R.W., 98 Wn. App. 140, 145, 988 P.2d
1034 (1999). A jury faced with the question of whether, prior to 2005, Carollo
31
No. 46944-8
connected his psychological difficulties with the abuse by Dahl could reach only
one conclusion: he did. Thus, summary judgment was appropriately granted.
Carollo, 157 Wn. App. at 803.
Here, Ohnemus states in her declaration that she has “just started to realized and come to
terms with the notion that I might never fully recover from my injuries.” CP at 482. Her therapist
states that since Ohnemus obtained the 2002 report on Quiles, Ohnemus “needed intensive
treatment” because Ohnemus had been “unaware of the extent of her injuries.” CP at 485. And,
the psychologist Ohnemus’s attorneys retained to examine Ohnemus determined that the “anti-
psychotic psychotropic medication” Ohnemus began taking in 2013 indicated that she was
receiving “more significant and long term medical care than previously received,” and that it
appeared “Ohnemus is only now aware of the full extent of her injuries.” CP at 489.
None of these statements alleges or indicates that Ohnemus is suffering from an injury that
is different from the injuries she has suffered for many years. Moreover, her medical records show
that she has suffered from PTSD, bipolar disorder, depression, anxiety, flashbacks, and various
other conditions since at least 2002, and that by October 2007 she had already “been on a variety
of psychotropic medications.” CP at 301; see also CP at 193-94 (2002), 267 (2003), 272-73
(2003), 205 (2006), 279 (2007), 286 (2007), 296 (2007), 300-01 (2007), 303-10 (2007-2008), 176-
75 (2009-2010). Thus, the record does not support an inference that Ohnemus suffered an injury
“qualitatively different from other harms connected to the abuse” from which she previously
suffered. Carollo, 157 Wn. App. at 801. Accordingly, we affirm the summary judgment dismissal
of Ohnemus’s negligence claims under RCW 4.16.340.
32
No. 46944-8
b. “Causal Connection” to a Previously Known Injury
RCW 4.16.340(1)(c) also applies when a victim discovers the causal link between the
wrongful act and her injury. Carollo, 157 Wn. App. at 803; Hollmann, 89 Wn. App. at 325. When
the victim discovers the causal link is a subjective determination. 14 Korst v. McMahon, 136 Wn.
App. 202, 207-08, 148 P.3d 1081 (2006); Hollmann, 89 Wn. App. at 325; Cloud ex rel. Cloud v.
Summers, 98 Wn. App. 724, 734, 991 P.2d 1169 (1999).
In Hollmann, 89 Wn. App. 323, Division Three of this court reversed the dismissal of the
plaintiff’s claim as time-barred. When he was a child, the plaintiff had been abused by an adult.
Id. at 328. He had not repressed memories of the abuse, but did not realize how the abuse was
related to his injuries until he was an adult. Id. The plaintiff had blamed himself for the abuse and
perceived himself as a willing participant in the relationship he had with his adult abuser. Id. As
an adult, the plaintiff had received counseling for PTSD, depression, and self-image problems, but
his counselor testified that he did not understand the connection between his symptoms and the
abuse. Id. It was not until the plaintiff entered therapy again years later that he realized that he
had been victimized by his abuser and he understood that his injuries of PTSD and depression
14
RCW 4.16.340(1)(b) begins to run when the victim “discovered or reasonably should have
discovered that the injury or condition was caused by said act.” However, RCW 4.16.340(1)(c)
omits the phrase “or should have discovered.” This omission is consistent with the legislature’s
finding of intent that the “victim of childhood sexual abuse may be unable to understand or make
the connection between childhood sexual abuse and emotional harm or damage until many years
after the abuse occurs.” LAWS OF 1991, ch. 212, § 1. Thus, RCW 4.16.340(1)(c) does not impose
the duty of discovery upon the plaintiff, like RCW 4.16.080 does. Korst, 136 Wn. App. at 207-
08; Hollmann, 89 Wn. App. at 334.
33
No. 46944-8
were causally connected to the abuse. Id. at 329. Thus, Division Three held that the statute of
limitations was tolled.
In Korst, 136 Wn. App. 202, the plaintiff sued her parents for damages caused by sexual
abuse by her father. In 1995, the plaintiff wrote her father a letter acknowledging his mistreatment
of her. Id. at 204. Seven years later, the plaintiff began counseling and learned that being abused
by her father was probably the cause of her problems. Id. at 204-05. A clinical psychologist
diagnosed her with PTSD due to her father’s sexual abuse of her. Id. She filed suit and the trial
court granted the defense’s motion for directed verdict, reasoning that the letter she wrote to her
father in 1995 showed that she must have connected her abuse with her injuries at that time. Id. at
205. This court reversed, stating, “The letter simply indicates that she resented her father for
sexually abusing her, not that [the plaintiff] understood the effects of that abuse.” Id. at 209.
Here, the record shows that in 2003 and in 2007, Ohnemus expressed resentment towards
the State for its failure to remove her from the abuse. The record also shows that Ohnemus
believed that the abuse continued “so much longer” because of the State’s failure to act on the
allegations. CP at 584. The record further shows that Ohnemus connected the abuse she was
subjected to as a child to the injuries she currently suffers from more than three years prior to filing
the current suit against the State. Thus, unlike the plaintiffs in Hollmann and in Korst, Ohnemus
understood that her injuries were caused by the abuse she suffered. Ohnemus further understood
that she suffered more abuse because the State did not remove her from Quiles’s home. Therefore,
we hold that Ohnemus had made “the causal connection between the defendant’s act,” in this case
the State’s alleged negligent investigation, “and the injuries for which the claim is brought.”
34
No. 46944-8
Hollmann, 89 Wn. App. at 334. Accordingly, we affirm the trial court’s summary judgment
dismissal of Ohnemus’s claims for sexual and physical abuse as time-barred.
We reverse the superior court’s denial of summary judgment dismissal of Ohnemus’s
claims under RCW 9.68A, and we affirm the superior court’s summary judgment dismissal of
Ohnemus’s negligence claims.
Lee, J.
We concur:
Worswick, P.J.
Johanson, J.
35