¶1 FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON SEPTEMBER 7, 2023 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SEPTEMBER 7, 2023 ERIN L. LENNON SUPREME COURT CLERK
¶2 IN THE SUPREME COURT OF THE STATE OF WASHINGTON
¶3 BRUCE A. WOLF, as Personal Representative ) of the Estate of TIMOTHY JONES, deceased, ) No. 101477-5 ) Petitioner, ) ) v. ) En Banc ) STATE OF WASHINGTON, ) ) Respondent. ) Filed: September 7, 2023 _______________________________________)
¶4 MADSEN, J.—At issue in this case is the triggering event for the statute of
¶5 limitations on childhood sexual abuse actions. RCW 4.16.340(1)(c) provides, “All claims
¶6 or causes of action” based on childhood sexual abuse shall be commenced within “three
¶7 years of the time the victim discovered that the act caused the injury for which the claim
¶8 is brought.” (Emphasis added.) Timothy Jones’ estate (Estate) brought negligence and
¶9 wrongful death claims against the State. On cross motions for summary judgment, the
¶10 trial court concluded the statute of limitations for negligence claims begins when a victim
¶11 recognizes the causal connection between the intentional abuse and their injuries. The No. 101477-5
¶12court granted summary judgment for the State and dismissed the Estate’s claims as time
¶13barred. The Court of Appeals affirmed.
¶14 RCW 4.16.340(1) covers all claims arising from intentional childhood sexual
¶15abuse, including negligence claims against individuals and entities for failing to prevent
¶16alleged abuse. C.J.C. v. Corp. of Cath. Bishop of Yakima, 138 Wn.2d 699, 708-09, 985
¶17P.2d 262 (1999) (plurality opinion). By encompassing intentional and negligence claims,
¶18RCW 4.16.340 anticipates that multiple actors can be involved in childhood sexual abuse.
¶19Such a claim must be based on intentional conduct, but the act triggering the statute of
¶20limitations is the alleged wrongful action and resulting injury—in this case, the State’s
¶21negligence in protecting Timothy 1 from sexual abuse while in foster care.
¶22 No evidence has been presented that Timothy made the causal connection between
¶23that alleged act and his injuries until August or September 2017, and the Estate filed its
¶24claims on March 12, 2020, within RCW 4.16.340(1)(c)’s three-year time period.
¶25Accordingly, we reverse summary judgment and remand this case to the trial court for
¶26further proceedings consistent with this opinion.
¶27 BACKGROUND
¶28 Timothy was born to Jaqueline Jones in 1990. 2 In 2003, Jacqueline lost her home
¶29to foreclosure, and Timothy moved in with Price Nick Miller Jr., a family friend. A
¶301 For clarity, we refer to Timothy Jones and other members of his family by their first names. No disrespect is intended. 2 The facts are taken from the Estate’s complaint. No party disputes the alleged facts.
¶31 2 No. 101477-5
¶32month later, the Department of Children, Youth, and Families (DCYF) 3 was alerted that
¶33Miller was paying too much attention to children who were not his own. After
¶34investigating the report, DCYF removed Timothy from Miller’s home based on this
¶35inappropriate behavior.
¶36 Timothy was briefly returned to Jacqueline but was again removed due to
¶37suspected neglect. In November 2003, Timothy was placed in foster care and DCYF
¶38filed a dependency petition. In December 2003, Timothy’s counselor informed
¶39Timothy’s social worker that Miller had visited Timothy at his foster home even though
¶40the foster parents had been told Timothy was not to have outside contact. Timothy was
¶41then placed in a new foster home. The new foster father told Timothy’s counselor that
¶42Miller had visited the home, and the counselor noted that Miller had been present for at
¶43least two supervised visits between Timothy and Jacqueline. At another visitation,
¶44Timothy’s counselor told Miller to leave multiple times, but Miller remained hiding in
¶45the parking lot. DCYF staff expressed concerns that Miller appeared to be stalking
¶46Timothy.
¶47 Timothy’s dependency case was dismissed in 2006, and he moved back in with
¶48Jacqueline. Later that year, Timothy told a counselor that Miller had abused him
¶49sexually, physically, and emotionally from 1998 to 2006. The counselor reported this
¶503 The Estate’s complaint refers to DCYF. The Estate explains that at the time the abuse occurred, child welfare services were conducted by the Department of Social & Health Services (DSHS). In 2018, child protective services were transferred from DSHS to DCYF. RCW 43.216.906. The Court of Appeals’ decision and supplemental briefing here refer to DCYF, DSHS, or the State interchangeably. We refer to DCYF as the agency responsible for Timothy’s dependency case and to the State as the party representing DCYF on appeal.
¶51 3 No. 101477-5
¶52abuse, and Miller was arrested. In 2008, Miller pleaded guilty to second degree child
¶53rape connected to his abuse of Timothy and second degree child molestation related to
¶54another child. Miller was sentenced to 119 months to life in prison.
¶55 In 2007 or 2008, Jacqueline sued Miller on Timothy’s behalf. The attorney did
¶56not advise Timothy or his mother that there may be a lawsuit against the State or that the
¶57State may be liable for allowing Miller’s abuse to occur. The case appears to have
¶58settled. No other information about the suit is included in the record.
¶59 In 2012, Timothy became romantically involved with Jimmy Acevedo. Sometime
¶60in mid-2017, and prompted by a news story about childhood sexual abuse, Timothy and
¶61Acevedo discussed whether Timothy may have a claim against the State. Acevedo
¶62recommended that Timothy consult a lawyer. In fall 2017, Timothy contacted a firm that
¶63began investigating Timothy’s case. On June 2, 2018, Timothy committed suicide.
¶64 Jacqueline was appointed personal representative of Timothy’s estate. She filed
¶65claims for negligence, negligent investigation, and wrongful death against the State on
¶66March 12, 2020. Jacqueline, Acevedo, and Timothy’s half-brother submitted
¶67declarations stating that Timothy had never told them or indicated he thought he had a
¶68claim against the State or held the State responsible for his abuse.
¶69 On September 3, 2020, Bruce Wolf was appointed as the successor personal
¶70representative for Timothy’s estate. The State then pleaded the affirmative defense that
¶71the Estate’s claims were barred by RCW 4.16.340’s statute of limitations.
¶72 4 No. 101477-5
¶73 The Estate filed for partial summary judgment, arguing that its claims were
¶74governed by RCW 4.16.340(1)(c) and that no evidence showed that Timothy discovered
¶75the link between the State’s negligence and his injuries. The State filed a cross motion
¶76for summary judgment, asserting that the Estate had the burden of proof to show its
¶77claims were timely and no such evidence was submitted. In response, the Estate filed a
¶78declaration from Dr. Gilbert Kliman, who presented “an expert psychiatric opinion” that
¶79Timothy could not be expected to independently know the connection between his
¶80damages and the State’s negligence. Clerk’s Papers at 111.
¶81 The parties disagreed as to which bore the burden of proof that Timothy knew of
¶82the connection between the alleged wrongful act and his injuries. The Estate argued that
¶83it was the State’s burden to prove the statute of limitations had run as an affirmative
¶84defense, while the State answered that the Estate had the burden to provide some amount
¶85of evidence to overcome summary judgment and had not done so—the inference created
¶86by the declarations was insufficient, according to the State.
¶87 The trial court agreed with the State. The court concluded that there must be some
¶88evidence that Timothy recognized his injuries within the statute of limitations. The court
¶89also ruled that the declarations were irrelevant because it was the plaintiff’s burden to
¶90show evidence that Timothy discovered his claim within three years. Based on the
¶91burden of proof for the statute of limitations, the trial court granted summary judgment
¶92for the State and denied the Estate’s motion.
¶93 5 No. 101477-5
¶94 The Estate appealed the dismissal of its claims via summary judgment and the trial
¶95court’s imposition of the burden of proof. Wolf v. State, 24 Wn. App. 2d 290, 292, 519
¶96P.3d 608 (2022). The Court of Appeals affirmed summary judgment in a split opinion.
¶98 The majority decision focused on the term “act,” which RCW 4.16.340(1) does
¶99not define but which is referenced in subsection (5). Id. at 305. In defining “childhood
¶100sexual abuse,” RCW 4.16.340(5) provides,
¶101 As used in this section, “childhood sexual abuse” means any act committed by the defendant against a complainant who was less than eighteen years of age at the time of the act and which act would have been a violation of chapter 9A.44 RCW or RCW 9.68A.040 or prior laws of similar effect at the time the act was committed.
¶102(Emphasis added.) The majority applied this definition to the term “act” in subsection
¶103(1)(c), interpreting the “act that caused the injury for which the claim is brought” to mean
¶104specifically the intentional conduct referenced in subsection (5). Wolf, 24 Wn. App. 2d at
¶105305-06. In short, the statute contained “no language . . . that suggests that a different
¶106‘act’ other than the childhood sexual abuse that caused the injuries may form the basis for
¶107calculating the running of the statute of limitations.” Id. at 306. The statute specifies
¶108“act” and not “claim,” therefore, the Court of Appeals concluded, when a victim knows
¶109subjectively of the causal connection between the intentional act of childhood sexual
¶110abuse and their injuries, the statute of limitations for all claims, including negligence,
¶111begins to run. Id. The record shows Timothy connected Miller’s abuse to his injuries by
¶1122008 after reporting the abuse, Miller’s guilty plea, and Jacqueline’s suit on Timothy’s
¶113 6 No. 101477-5
¶114behalf. Id. at 308-09. According to the majority, Timothy had made the required causal
¶115connection when he was a minor in 2006. Id. at 309.
¶116 The majority also noted that RCW 4.16.340(1)(c) was tolled until Timothy turned
¶11718 years old, which occurred in 2008; Timothy then had three years to bring suit against
¶118the State—in 2011. Id. Because the Estate filed its lawsuit in 2020, more than three
¶119years later, the majority held the statute of limitations expired and the Estate’s claims
¶120were untimely. Id. 4
¶121 Next, the Court of Appeals’ majority addressed the burden of proof. Id. at 311-13.
¶122At trial, the court granted the State’s motion for summary judgment on statute of
¶123limitations grounds, and as the moving party, it was the State’s burden to show the
¶124absence of a genuine issue of material fact. Id. at 313. It was therefore the State’s
¶125burden to present evidence showing RCW 4.16.340(1)(c)’s statute of limitations had run
¶126based on Timothy’s awareness of the link between abuse and injury. Id. The Court of
¶127Appeals then concluded that the State met its burden below. Id. No party challenges this
¶128conclusion.
¶129 The dissenting opinion agreed with the majority analysis of the burden of proof
¶130but disagreed with its interpretation of RCW 4.16.340(1)(c). Id. at 314, 318 n.13. In the
¶1314 The majority also rejected the State’s argument that the common law discovery rule applies to negligence claims under RCW 4.16.340. Wolf, 24 Wn. App. 2d at 309-10. Tort suits accrue when the act or omission occurs, but the common law discovery rule tolls this general rule until the plaintiff knows or through reasonable diligence should know the facts needed for a legal claim. Id. at 310. Because C.J.C., 138 Wn.2d at 714, held that .340 encompasses intentional and negligence claims, they are not subject to the common law rule. Id. at 311. Neither the State nor the Estate challenges this holding.
¶132 7 No. 101477-5
¶133dissent’s view, the term “act” in .340(1)(c) refers to the conduct of different tortfeasors,
¶134such as the negligent conduct of a third party causing the injury for which the claim is
¶135brought. Id. at 315. C.J.C. clarified that RCW 4.16.340 encompasses, as its plain
¶136language shows, all claims based on intentional childhood sexual abuse. 138 Wn.2d at
¶137709, 714. The Wolf dissent would have applied the reasoning in an unpublished Court of
¶138Appeals, Division One, case that considered RCW 4.16.340(1)(c) and C.J.C. to hold that
¶139the causal connection must include intentional conduct and injury as well as negligent
¶140conduct and injury. Wolf, 24 Wn. App. 2d at 316 (citing Kirchoff v. City of Kelso, No.
¶14173666-3-I, slip op. at 10 (Wash. Ct. App. Oct. 12, 2015) (unpublished),
¶142https://www.courts.wa.gov/opinions/pdf/736663.pdf). The dissent characterized as a
¶143logical fallacy the majority’s conclusion that “act” means only intentional sexual abuse.
¶144Id. at 316-17. It made “little sense,” the dissent reasoned, to hold a cause of action
¶145against one tortfeasor accrued when the victim became aware of a separate injury caused
¶146by a different tortfeasor. Id. at 317. Instead, the injury in question is, for the purposes of
¶147the statute of limitations, the injury “‘for which the claim is brought.’” Id. (quoting RCW
¶1484.16.340(1)(c)).
¶149 The Estate sought review in this court, which we granted. We received amici
¶150curiae briefing in support of the Estate from the National Crime Victim Law Institute;
¶151Connelly Law Offices; and (as a group) the Washington Defender Association, Family
¶152Violence Appellate Project, Sexual Violence Law Center, and Legal Voice. 5
¶1535 The Estate moved to strike a portion of the State’s answer to amici curiae. The motion was passed to the merits, which is addressed below.
¶154 8 No. 101477-5
¶155 ANALYSIS
¶156 We review summary judgment orders de novo, considering the evidence and
¶157reasonable inferences in the light most favorable to the nonmoving party. Keck v.
¶158Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summary judgment is proper when
¶159no genuine issue of material fact exists and the moving party is entitled to judgment as a
¶160matter of law. Id.; CR 56(c).
¶161 The meaning of a statute is a question of law we review de novo. Lake v.
¶162Woodcreek Homeowners Ass’n, 169 Wn.2d 516, 526, 243 P.3d 1283 (2010) (citing
¶163Rozner v. City of Bellevue, 116 Wn.2d 342, 347, 804 P.2d 24 (1991)). “Our fundamental
¶164purpose in construing statutes is to ascertain and carry out the intent of the legislature.
¶165We determine the intent of the legislature primarily from the statutory language. In the
¶166absence of ambiguity, we will give effect to the plain meaning of the statutory language.”
¶167In re Marriage of Schneider, 173 Wn.2d 353, 363, 268 P.3d 215 (2011) (citations
¶168omitted). Plain meaning “is discerned from all that the Legislature has said in the statute
¶169and related statutes which disclose legislative intent about the provision in question.”
¶170Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 11, 43 P.3d 4 (2002).
¶171 At issue in this case is the triggering event for the statute of limitations for
¶172childhood sexual abuse claims in RCW 4.16.340. “An action accrues, generally
¶173speaking, when a party has the right to apply to a court for relief.” Gunnier v. Yakima
¶174Heart Ctr. Inc., P.S., 134 Wn.2d 854, 859, 953 P.2d 1162 (1998) (citing Malnar v.
¶175Carlson, 128 Wn.2d 521, 529, 910 P.2d 455 (1996)). Injury is one of the elements of a
¶176 9 No. 101477-5
¶177negligence cause of action. Id. “‘[U]ntil a plaintiff suffers appreciable harm as a
¶178consequence of negligence, [they] cannot establish a cause of action.’” Id. (quoting
¶179Gazija v. Nicholas Jerns Co., 86 Wn.2d 215, 219, 543 P.2d 338 (1975)).
¶180 Black’s Law Dictionary defines a “statute of limitations” as “[a] law that bars
¶181claims after a specified period; specif[ically] a statute establishing a time limit for suing
¶182in a civil case, based on the date when the claim accrued (as when the injury occurred or
¶183was discovered). • The purpose of such a statute is to require diligent prosecution of
¶184known claims, thereby providing finality and predictability in legal affairs and ensuring
¶185that claims will be resolved while evidence is reasonably available and fresh.” BLACK’S
¶186LAW DICTIONARY 1707 (11th ed. 2019). A statute of limitations is “‘designed to
¶187promote justice by preventing surprises through the revival of claims that have been
¶188allowed to slumber until evidence has been lost, memories have faded, and witnesses
¶189have disappeared.’” Id. (quoting Ord. of R.R. Telegraphers v. Ry. Express Agency, Inc.,
¶190321 U.S. 342, 348-49, 64 S. Ct. 582, 88 L. Ed. 788 (1944)).
¶191 RCW 4.16.340(1) is a special statute of limitations that applies to civil actions for
¶192injuries resulting from childhood sexual abuse. B.R. v. Horsley, 186 Wn. App. 294, 299,
¶193345 P.3d 836 (2015). The provision states,
¶194 (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 the later of the following periods: (a) Within three years of the act alleged to have caused the injury or condition;
¶195 10 No. 101477-5
¶196 (b) Within three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by said act; or (c) Within 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. .... (5) As used in this section, “childhood sexual abuse” means any act committed by the defendant against a complainant who was less than eighteen years of age at the time of the act and which act would have been a violation of chapter 9A.44 RCW or RCW 9.68A.040 or prior laws of similar effect at the time the act was committed.
¶197RCW 4.16.340. The legislature found that victims of childhood abuse may not be able to
¶198understand or connect past abuse and emotional harm or damage until many years later.
¶199LAWS OF 1991, ch. 212, § 1. Victims may be aware of injuries related to childhood
¶200sexual abuse, but more serious injuries may be discovered many years later. Id. These
¶201findings were prompted in part to reverse this court’s decision in Tyson v. Tyson, 107
¶202Wn.2d 72, 727 P.2d 226 (1986), and the line of cases stating that “discovery of any injury
¶203whatsoever caused by an act of childhood sexual abuse commences the statute of
¶205 C.J.C. explained the legislature’s response to Tyson. In Tyson, the court held the
¶206discovery rule did not apply to intentional tort claims where the plaintiff had suppressed
¶207the memory of the abuse during the period of the statute of limitations. C.J.C., 138
¶208Wn.2d at 706 n.4 (citing Tyson, 107 Wn.2d at 79). By enacting RCW 4.15.340,
¶209lawmakers ensured that the discovery of an earlier, less serious injury should not affect
¶210the time period to bring claims based on injuries discovered later. LAWS OF 1991, ch.
¶211 11 No. 101477-5
¶212212, § 1. In other words, the memory of harm for a childhood abuse victim may reveal
¶213itself at different points in time. As long as the predicate of that harm is the childhood
¶214sexual abuse, RCW 4.16.340 provides a mechanism for redress.
¶215 Lawmakers intended RCW 4.16.340 to provide a “broad and generous application
¶216of the discovery rule to civil actions for injuries caused by childhood sexual abuse . . .
¶217who too often were left without a remedy under” prior statutes of limitations. C.J.C., 138
¶218Wn.2d at 712. This special statute of limitations tolls civil claims based on intentional
¶219childhood sexual abuse. The time limit does not begin to run when a victim discovers an
¶220injury, rather the statute of limitations focuses on when a victim discovers the causal link
¶221between abuse and injury for which the suit is brought. Korst v. McMahon, 136 Wn.
¶222App. 202, 208, 148 P.3d 1081 (2006) (citing RCW 4.16.340(1)(c)). This is because the
¶223legislature specifically anticipated that victims may know they are suffering emotional
¶224harm but may not be able to understand the connection between those symptoms and the
¶225abuse. Id.
¶226 Subsection (c) generally applies in two instances. First, when a victim is aware of
¶227the abuse and that they suffered harm as a result, but the victim discovers a new and
¶228qualitatively different injury from the abuse. Carollo v. Dahl, 157 Wn. App. 796, 801,
¶229240 P.3d 1172 (2010). Second, when the victim is aware of the abuse and injury but
¶230discovers a causal connection of which they were previously unaware between the
¶231wrongful act and the harm. Hollmann v. Corcoran, 89 Wn. App. 323, 334, 949 P.2d 386
¶232(1997).
¶233 12 No. 101477-5
¶234 Here, the parties dispute what “act” triggers the three-year statute of limitations for
¶235negligence claims based on childhood sexual abuse. The State contends the victim’s
¶236connection between the intentional act and injury begins the clock for all claims and
¶237urges us to affirm the Court of Appeals’ majority opinion. The Estate argues that the
¶238victim’s connection between the negligent conduct and resulting harm is the triggering
¶239event, in accordance with the dissent. We agree with the Estate.
¶240 RCW 4.16.340(1) states explicitly that “[a]ll claims or causes of action” based on
¶241intentional childhood sexual assault must be brought within a three-year period.
¶242(Emphasis added.) Guided by the expansive scope of .340(1), C.J.C. held that the statute
¶243applies to all tort claims based on childhood sexual abuse, including negligence actions.
¶244138 Wn.2d at 709. RCW 4.16.340(1)’s broad language is critical to its interpretation.
¶245See id. at 708-09 (“Subsection (1) of RCW 4.16.340 controls the scope of the statute’s
¶246applicability.”). Because the statute encompasses all claims and causes of actions
¶247stemming from childhood sexual abuse, it anticipates that other actors can be involved,
¶248namely the direct perpetrator and third parties.
¶249 This recognition—that multiple tortfeasors can be sued under .340—clarifies
¶250subsection (c). RCW 4.16.340(1)(c) states that a victim must bring a claim based on
¶251childhood sexual abuse “[w]ithin three years of the time the victim discovered that the act
¶252caused the injury for which the claim is brought.” (Emphasis added.) For a negligence
¶253suit, the “act” in subsection (c) thus refers to the third party’s conduct causing the injury
¶254for which a victim seeks damages in tort. Determining when the three-year period begins
¶255 13 No. 101477-5
¶256for such claims is a question of fact: when the victim made the causal connection
¶257between the negligent act and the resulting injury. RCW 4.16.340(1)(c).
¶258 The State and the Court of Appeals’ majority opinion read the term “act” too
¶259narrowly. When a victim experiences intentional childhood sexual abuse, they may not
¶260know other tortfeasors were involved. Many years later, when the victim becomes aware
¶261of that involvement, they would be precluded from seeking redress because they knew of
¶262the direct abuse and did not bring a suit against a different tortfeasor within three years.
¶263Subsection (c), unlike subsection (b), does not contain language requiring that a victim
¶264“reasonably should have discovered that the injury or condition was caused by said act.”
¶265RCW 4.16.340(1)(b). Yet the State’s interpretation would impose such a requirement.
¶266Where the legislature omits language from a statute, this court will not read language into
¶267it. State v. Cooper, 156 Wn.2d 475, 480, 128 P.3d 1234 (2006).
¶268 Moreover, the State’s reading of the term “act” throughout RCW 4.16.340 to mean
¶269only the intentional sexual abuse implies that no third-party negligence claim is available.
¶270This plainly contradicts the plain meaning of RCW 4.16.340(1) and C.J.C., which makes
¶271clear that childhood sexual abuse actions include intentional and negligent tort claims.
¶272The State also cites to RCW 4.16.340(2) as supporting its narrow definition of “act.”
¶273That provision allows a victim to elect “an act,” rather than establishing a specific “act in
¶274a series of continuing sexual abuse or exploitation incidents caused the injury complained
¶275of, but may compute the date of discovery from the date of discovery of the last act by
¶276the same perpetrator.” RCW 4.16.340(2) explicitly applies to acts of intentional abuse.
¶277 14 No. 101477-5
¶278For such claims brought under .340(1)(c), .340(2) provides flexibility for a victim in
¶279pleading their intentional tort claim. RCW 4.16.340(2) does not control the meaning of
¶280“act” in .340(1)(c). Subsection (1)(c) does not contain the same modifying language as
¶281subsection (2), that states the “act in a series of continuing sexual abuse . . . may compute
¶282the date of discovery from the date of discovery of the last act by the same perpetrator
¶283which is part of a common scheme or plan of sexual abuse or exploitation.” (Emphasis
¶284added.)
¶285 Knowledge of the intentional abuse is a prerequisite, it is the predicate conduct on
¶286which all claims must be based under .340. But a victim’s specific knowledge of an
¶287intentional act says nothing about the conduct of other tortfeasors. Considering the plain
¶288language of the statute, which encompasses all claims or suits based on childhood sexual
¶289abuse, it would make little sense for a separate claim regarding the actions of one
¶290tortfeasor to accrue based on knowledge of a different tortfeasor. See Wolf, 24 Wn. App.
¶2912d at 317.
¶292 The expansive scope of .340(1) makes clear that the three-year statute of
¶293limitations applies to the act causing the injury for which a claim is brought. That is, for
¶294claims of intentional sexual abuse, the statute of limitations runs when the victim makes
¶295the causal connection between the intentional act and resulting injury. For claims of
¶296third-party negligence based on intentional sexual abuse, the statute of limitations runs
¶297when a victim makes the causal connection between the third party’s negligent act and
¶298 15 No. 101477-5
¶299resulting injury. 6 This interpretation furthers the underlying purpose of RCW 4.16.340—
¶300to provide broad protection for victims of childhood sexual abuse and generously apply
¶301the rules of discovery to “all” tort claims, both intentional and negligent, for which the
¶302gravamen of the claim is the childhood sexual abuse. RCW 4.16.340(1); C.J.C., 138
¶303Wn.2d at 709-10, 712.
¶304 We hold that pursuant to the plain language of RCW 4.16.340(1)(c), a negligence
¶305claim accrues when a victim recognizes the connection between a third party’s wrongful
¶306conduct and the victim’s resulting injury. Because the statute is plain on its face, it is
¶307unambiguous and an unambiguous statute is not subject to judicial construction. Am.
¶308Cont’l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004).
¶309 No party challenged the Court of Appeals’ conclusion that it was the State’s
¶310burden to show that .340(1)(c)’s statute of limitations period had expired. The State did
¶311not present this evidence. Rather, the Estate alleged that by mid- to late-2017, Timothy
¶312had contacted a law firm to investigate whether he had a claim against the State for
¶313allowing his abuse at Miller’s hands. The declarations from Jaqueline, Jimmy Acevedo,
¶314and Timothy’s half-brother state that prior to 2017, Timothy never indicated he
¶315connected his injuries to the State or believed he had any claim against the State. 7
¶3166 An unpublished case from Division One employed a similar analysis. In Kirchoff, the Court of Appeals held that a negligence claim accrues under RCW 4.16.340(1)(c) when the victim subjectively understands the connection between the third-party’s conduct and resulting injuries. No. 73666-3-I, slip op. at 10; see also M.L. v. Craigslist, Inc., No. C19-6153 BHS-TLF, 2022 WL 1210830 (W.D. Wash. Apr. 25, 2022) (court order) (adopting Kirchoff’s interpretation of .340(1)(c)). 7 The Estate also argued that the “trial court erred” in its treatment of the declarations. Pet. for Rev. at 26 & n.11. The trial court stated that it did not matter whether it considered the
¶317 16 No. 101477-5
¶318 The Estate filed this lawsuit in March 2020, less than three years from the time
¶319Timothy apparently made a connection between the State’s actions and his injuries.
¶320Accordingly, the Estate’s claims were timely filed. Therefore, we reverse the grant of
¶321summary judgment for the State and remand the case for further proceedings.
¶322 The Estate also moved to strike portions of the State’s response to amici. The
¶323State answered and the Estate submitted a reply. The motion was passed to the merits.
¶324The Estate asks us to strike the State’s reference to a Department of Enterprise Services
¶325study because it was not presented to the trial court. We decline to do so.
¶326 Appellate courts will consider “only evidence and issues called to the attention of
¶327the trial court.” RAP 9.12. “The purpose of this limitation is to effectuate the rule that
¶328the appellate court engages in the same inquiry as the trial court.” Wash. Fed’n of State
¶329Emps., Council 28, AFL-CIO v. Office of Fin. Mgmt., 121 Wn.2d 152, 157, 849 P.2d
¶3301201 (1993) (citing Southcenter View Condo. Owners Ass’n v. Condo. Builders, Inc., 47
¶331Wn. App. 767, 736 P.2d 1075 (1986) (factual allegations raised in appellate brief did not
¶332preclude summary judgment where unsupported in trial court record)). There is no
¶333dispute the State did not submit the study to the trial court.
¶334declarations—“the statement that he never mentioned [a claim against the State] creates an inference of knowledge—that, therefore, he never mentioned it; therefore, he didn’t have it—I think that’s stacking inference on inference, and I don’t think it satisfies, what I believe, is the plaintiff’s burden here which is to show some amount of evidence that he only discovered his claim . . . within three years.” Verbatim Rep. of Zoom Proc. (May 28, 2021) at 18-19. The trial court tied its ruling on the declarations’ inferences about Timothy’s knowledge to its erroneous ruling on the burden of proof. The Court of Appeals held the burden falls on the State to show the statute of limitation expired, which the State has not satisfied. Therefore, the trial court did not explicitly rule on the admissibility of the declarations. Whether an inference is sufficient under .340(1)(c) is a question to be resolved in the trial court.
¶335 17 No. 101477-5
¶336 The 2020 study was authored by the state risk manager and was “provided to
¶337illustrate judicial, legislative, and economic facts as to the number of claims made against
¶338the State and the results thereof. The study is directed to the Director of the Office of
¶339Financial Management, as well as two sitting legislators . . . [and] is also part of the
¶340legislative record relating to RCW 4.16.340.” State of Wash. Resp. to Pet’r’s Mot. To
¶341Strike at 3. As the State points out, the study is not an allegation about the facts of the
¶342underlying case—Timothy’s claim against the State—which would be inappropriate for
¶343our review. Moreover, the State is responding to amici, and this court may, but usually
¶344does not, reach arguments raised by amicus. State v. Duncan, 185 Wn.2d 430, 440, 374
¶345P.3d 83 (2016).
¶346 Rather, the State’s use of the study is essentially a policy argument about how the
¶347childhood sexual abuse statute has been interpreted in the past and its concern that a
¶348different interpretation risks opening the floodgates of litigation. We have recognized
¶349that courts can take notice of “‘legislative facts’—social, economic, and scientific facts
¶350that ‘simply supply premises in the process of legal reasoning.’” Wyman v. Wallace, 94
¶351Wn.2d 99, 102, 615 P.2d 452 (1980). Courts may take notice of scholarly words,
¶352scientific studies, and social facts. Id. We deny the Estate’s motion to strike.
¶353 Finally, the Estate renews its request for costs on appeal. As in the Court of
¶354Appeals below, the Estate provides no support for its request, but RAP 14.2 allows for an
¶355award of costs to the substantially prevailing party on review. Wolf, 24 Wn. App. 2d at
¶356313-14 (citing Hurley v. Port Blakely Tree Farms LP, 182 Wn. App. 753, 774-75, 332
¶357 18 No. 101477-5
¶358P.3d 469 (2014) (“[The party] makes no argument as to why attorney fees under RAP
¶35918.1 are proper. Therefore, [the party] is entitled only to an award of allowable costs and
¶360expenses under RAP 14.2 and 14.3.”)). Because we agree with the Estate’s interpretation
¶361of RCW 4.16.340(1)(c)) and reverse the trial court’s grant of summary judgment to the
¶362State, we grant the Estate’s request for appellate costs.
¶363 CONCLUSION
¶364 Under the plain language of RCW 4.16.340(1)(c), the period within which a
¶365victim must bring a claim begins when the victim connects the wrongful conduct of a
¶366third party to the victim’s injury. As the party arguing the affirmative defense that the
¶367statute of limitations has run, the State bears the burden of proof. The State offered no
¶368evidence that Timothy made any connection between the State’s actions and his injuries.
¶369The Estate alleged evidence that Timothy did not make such a connection until 2017, and
¶370it brought the current case in 2020—within RCW 4.16.340(1)(c)’s three-year period.
¶371Accordingly, we reverse the trial court’s grant of summary judgment dismissing the
¶372Estate’s claims and remand to the trial court for further proceedings consistent with this
¶373opinion. We also deny the motion to strike and grant costs to the Estate.
¶374 19 No. 101477-5
¶375 ___________________________________
¶376WE CONCUR:
¶377_______________________________ ________________________________
¶378_______________________________ ________________________________
¶379_______________________________ ________________________________
¶380_______________________________ ________________________________ Bender, J.P.T.
¶381 20