Osland v. Osland, 442 N.W.2d 907 (N.D. 1989). · Go Syfert
Search
Osland v. Osland, 442 N.W.2d 907 (N.D. 1989). Cases Citing This Book View Copy Cite
83 citation events (10 in the last 25 years) across 33 distinct courts.
Strongest positive: Mertz v. 999 QUEBEC, INC. (nd, 2010-03-24) · Strongest negative: Farris v. Compton (dc, 1994-12-29)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 24 distinct citers.
examined Cited "but see" Farris v. Compton (3×) also: Cited as authority (rule), Cited "see, e.g."
D.C. · 1994 · signal: but see · confidence high
Paul & Minneapolis, 513 N.W.2d 482, 486 (Minn.App.1994); Sanchez v. Archdiocese of San Antonio, 873 S.W.2d 87, 91 (Texas App.1994); E.J.M. v. Archdiocese of Philadelphia, 424 Pa.Super. 449 , 622 A.2d 1388, 1392 (1993) (the court, however, allowed suit to proceed under fraudulent concealment theory); see also Olsen, 865 P.2d at 1348 ; but see Osland, 442 N.W.2d at 909 ; Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 26-27 (1987).
discussed Cited "but see" E.J.M. v. Archdiocese of Philadelphia
pactcomplphilad · 1992 · signal: but see · confidence high
But see, Osland v. Osland, 442 N.W.2d 907, 909 (N.D. 1989); Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 27 (1987) (both applying the discovery rule in type one cases where the emotional trauma justifies tolling of the statute of limitations if plaintiff knew of abuse but did not understand its connection to later emotional and physical difficulties).
cited Cited "but see" Hildebrand v. Hildebrand
S.D. Ind. · 1990 · signal: but see · confidence high
Cf. Tyson v. Tyson, 727 P.2d at 227-229 ; but see Osland v. Osland, 442 N.W.2d at 909 .
examined Cited as authority (rule) Mertz v. 999 QUEBEC, INC. (4×)
N.D. · 2010 · confidence medium
We explained the application of the discovery rule in Wells: “In Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989), this Court said that generally the statute of limitations begins to run from the commission of the wrongful act giving rise to the cause of action.
discussed Cited as authority (rule) Dunford v. Tryhus (2×)
N.D. · 2009 · confidence medium
“However, under Section 28-01-25, N.D.C.C., if a person who is entitled to bring an action is under eighteen years old when the cause of action accrues the period of minority is not part of the time limited for the commencement of the action, and the statutory limitations period can be extended for not more than one year from that person’s eighteenth birthday.” Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989).
discussed Cited as authority (rule) Colosimo v. ROMAN CATH. BISHOP OF SALT LAKE
Utah · 2007 · confidence medium
NOTES [1] Colosimo v. Roman Catholic Bishop of Salt Lake City, 2004 UT App 436 , ¶ 20, 104 P.3d 646 . [2] State v. Warren, 2003 UT 36, ¶ 12 , 78 P.3d 590 . [3] Spears v. Warr, 2002 UT 24, ¶ 32 , 44 P.3d 742 . [4] Id. [5] Dowling v. Bullen, 2004 UT 50, ¶ 7 , 94 P.3d 915 . [6] Russell Packard Dev., Inc. v. Carson, 2005 UT 14, ¶ 20 , 108 P.3d 741 (internal quotation marks omitted). [7] Utah Code Ann. § 78-12-36 (2002) (indicating that "[i]f a person entitled to bring an action . . . is at the time the cause of action accrued, either under the age of majority or mentally incompetent and with…
discussed Cited as authority (rule) Colosimo v. Roman Catholic Bishop of Salt Lake City
Utah · 2007 · confidence medium
See, e.g., Ross v. Garabedian, 433 Mass. 360 , 742 N.E.2d 1046, 1048 (2001); Cosgriffe v. Cosgriffe, 262 Mont. 175 , 864 P.2d 776, 780 (1993); Osland v. Osland, 442 N.W.2d 907, 908-09 (N.D.1989); Oostra v. Holstine, 86 Wash.App. 536 , 937 P.2d 195, 197 (1997). .
cited Cited as authority (rule) RDO Foods Co. v. United Brands International, Inc.
D.N.D. · 2002 · confidence medium
Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989) (“Generally, the statute of limitations commences to run from the commission of a wrongful act giving rise to the cause of action.”).
discussed Cited as authority (rule) Daugherty v. Westminster Schools
11th Cir. · 1999 · confidence medium
Although courts in other jurisdictions have concluded that the discovery rule applies to all cases involving childhood sexual abuse, see, e.g., Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989), the Georgia Supreme Court has explicitly limited the discovery rule’s application “to cases of bodily injury which develop only over an extended period of time.” Corporation of Mercer Univ. v. National Gypsum Co., 258 Ga. 365 , 368 S.E.2d 732, 733 (1988) (quoting Lumbermen’s Mut.
discussed Cited as authority (rule) Daugherty v. Westminster Schools
11th Cir. · 1999 · confidence medium
Although courts in other jurisdictions have concluded that the discovery rule applies to all cases involving childhood sexual abuse, see, e.g., Osland v. Osland, 442 N.W.2d 907, 909 (N.D. 1989), the Georgia Supreme Court has explicitly limited the discovery rule’s application “to cases of bodily injury which develop only over an extended period of time.” Corporation of Mercer Univ. v. National Gypsum Co., 368 S.E.2d 732, 733 (Ga. 1988) (quoting Lumbermen’s Mut.
discussed Cited as authority (rule) Nolde v. Frankie (2×)
Ariz. Ct. App. · 1998 · confidence medium
See, e.g., Blackowiak v. Kemp, 546 N.W.2d 1 (Minn. 1996) (holding objective, reasonable person standard applies to delayed discovery rule with regard to claims for sexual abuse); D.P. v. M.J.O. and J.M.O., 266 Ill.App.3d 1029 , 203 Ill.Dec. 950 , 640 N.E.2d 1323 (1994) (holding discovery rule requires both knowledge of an injury and of its wrongful cause before statute of limitations begins to run); Byrne v. Bercker, 176 Wis.2d 1037 , 501 N.W.2d 402, 406 (1993) (holding cause of action accrued when victim became aware that she had been sübjected to incestuous assaults and that such assaults w…
discussed Cited as authority (rule) Sv v. Rv
Tex. · 1996 · confidence medium
See Farris v. Compton, 652 A.2d 49, 63-64 (D.C.1994); Callahan v. State, 464 N.W.2d 268, 273 (Iowa 1990); McCollum v. D'Arcy, 138 N.H. 285 , 638 A.2d 797, 799-800 (1994); Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Ault v. Jasko, 70 Ohio St.3d 114 , 637 N.E.2d 870, 873 (1994); Olsen v. Hooley, 865 P.2d 1345, 1349-1350 (Utah 1993); Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir.1986) (applying federal law); Ulibarri v. Gerstenberger, 178 Ariz. 151 , 871 P.2d 698, 705 (Ct. App.1993); Mary D. v. John D., 264 Cal. Rptr. 633 , 639 (Ct.App.1989), review dism'd, 275 Cal.Rptr. 380 , 800 …
discussed Cited as authority (rule) Peterson v. Huso
N.D. · 1996 · confidence medium
Accordingly, in Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989), we affirmed the use of the “discovery rule” to preclude application of the regular statute-of-limitations period to bar a sexual-abuse victim’s claim after the trial court found the victim was “unable to fully understand or discover her cause of action during the applicable statutory limitations period.” 1 Under the discovery rule, as we explained in BASF Corp. v. Symington, 512 N.W.2d 692, 695 (N.D.1994), the statute of “limitations period does not begin to run until the claimant knows, or with reasonable diligence …
discussed Cited as authority (rule) S.V. v. R.V.
Tex. · 1996 · confidence medium
See Farris v. Compton, 652 A.2d 49, 63-64 (D.C.1994); Callahan v. State, 464 N.W.2d 268, 273 (Iowa 1990); McCollum v. D’Arcy, 138 N.H. 285 , 638 A.2d 797, 799-800 (1994); Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Ault v. Jasko, 70 Ohio St.3d 114 , 637 N.E.2d 870, 873 (1994); Olsen v. Hooley, 865 P.2d 1345, 1349-1850 (Utah 1993); Simmons v. United States, 805 F.2d 1363, 1368 (9th Cir.1986) (applying federal law); Ulibarri v. Gerstenberger, 178 Ariz. 151 , 871 P.2d 698, 705 (Ct.App.1993); Mary D. v. John D., 264 Cal.Rptr. 633 , 639 (Ct.App.1989), review dism’d, 275 Cal.Rptr. 380 , 80…
cited Cited as authority (rule) Dattoli v. Yanelli
D.N.J. · 1995 · confidence medium
Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989).
discussed Cited as authority (rule) Blackowiak v. Kemp
Minn. Ct. App. · 1995 · confidence medium
See, e.g., Callahan v. State, 464 N.W.2d 268, 273 (Iowa 1990) (reversing summary judgment and concluding that whether plaintiff knew of the injury and when that knowledge was obtained is a fact question); Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989) (ruling that trial court did not erroneously strike a statute of limitations defense because emotional trauma rendered plaintiff unable to fully understand her cause of action during the applicable limitations period); Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 27 (Wisc.App.1987) (reversing grant of motion to dismiss and concluding that …
cited Cited as authority (rule) Olsen v. Hooley
Utah · 1993 · confidence medium
But see Simmons v. United States, 805 F.2d 1363,1367-68 (9th Cir.1986); Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23 (Wis.Ct.App.1987).
cited Cited as authority (rule) Doe a v. Coffee County Board of Education
Tenn. Ct. App. · 1992 · confidence medium
Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 26 (Ct.App.1987); Evans v. Eckelman, 216 Cal.App.3d 1609 , 265 Cal.Rptr. 605, 610 (1990); Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989).
discussed Cited "see" Stratmeyer v. Stratmeyer (2×)
S.D. · 1997 · signal: accord · confidence high
Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 27 (App.1987) (citations & internal quotations omitted); accord Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989) (affirming trial court’s application of discovery rule where “the severe emotional trauma experienced by [plaintiff] resulted in her being unable to fully understand or discover her cause of action during the applicable statutory limitations period.”); see Ann Marie Hagen, Note, Tolling the Statute of Limitations for Adult Survivors of Childhood Sexual Abuse, 76 IowaLRev 355 (1991) (calling for statutory reform and pointing out…
cited Cited "see" Seto v. Willits
Pa. Super. Ct. · 1994 · signal: see · confidence high
See Osland v. Osland, 442 N.W.2d 907 , 909 *351 (N.D.1989); Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 27 (1987).
cited Cited "see" BASF Corp. v. Symington
N.D. · 1994 · signal: see · confidence high
See Osland v. Osland, 442 N.W.2d 907 (N.D.1989).
cited Cited "see" Lemmerman v. Fealk
Mich. Ct. App. · 1993 · signal: see · confidence high
See Osland v Osland, 442 NW2d 907, 909 (ND, 1989), citing Tyson (Pearson, dissenting), 80.
cited Cited "see" Baily v. Lewis
E.D. Pa. · 1991 · signal: see · confidence high
See Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 27 (1987).
discussed Cited "see, e.g." Doe v. Roe (2×)
Ariz. · 1998 · signal: see also · confidence medium
It is at that point the limitations period began to run.” Id. at 1350 ; see also Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989); Hammer v. Hammer, 142 Wis.2d 257 , 418 N.W.2d 23, 27 (Wis.App.1987).
Rebecca OSLAND, Plaintiff, Appellee and Cross-Appellant,
v.
John OSLAND, Defendant, Appellant and Cross-Appellee
Civ. 870391.
North Dakota Supreme Court.
Jul 17, 1989.
442 N.W.2d 907
Lies, Bullís, Grosz & Graham, Wahpeton, for plaintiff, appellee, and cross-appellant; argued by Richard W. Grosz., Kragness & Sandberg, Ltd., Wahpeton, for defendant, appellant, and cross-appel-lee. Submitted on briefs by A.W. Stokes.
Gierke, Erickstad, Vande Walle, Levine, Meschke.
Cited by 56 opinions  |  Published
GIERKE, Justice.'

John Osland appealed from a district court judgment awarding his daughter, Rebecca, damages for assault and battery involving acts of sexual abuse by John against Rebecca. On appeal John asserts that the trial court erred in striking his statute of limitations defense and that Rebecca failed to prove that she was sexually abused. Rebecca filed a cross-appeal asserting that the trial court erred in its determination of damages. We affirm.

The alleged acts of sexual abuse occurred when Rebecca was between the ages of ten and fifteen. This action was commenced during February 1985 when Rebecca was twenty-two years old. John raised as a defense the two-year statute of limitations, under Section 28-01-18(1), N.D. C.C., for assault and battery actions. John asserts that the trial court erred in striking this defense.

Generally, the statute of limitations commences to run from the commission of a wrongful act giving rise to the cause of action. See Fox v. Higgins, 149 N.W.2d 369 (N.D.1967), cert. denied, 389 U.S. 873, 88 S.Ct. 160, 19 L.Ed.2d 153 (1967). However, under Section 28-01-25, N.D.C.C., if a person who is entitled to bring an action is under eighteen years old when the cause of action accrues the period of minority is not part of the time limited for the commencement of the action, and the statutory limitations period can be extended for not more than one year from that person’s eighteenth birthday. Thus, the limitations period for bringing this action was extended, under Section 28-01-25, N.D.C.C., to Rebecca’s nineteenth birthday, because she was a minor when the alleged wrongful acts occurred,

Although Rebecca did not bring this action until she was twenty-two years old, she asserted that it should not be barred by the statute of limitations because the discovery rule should be applied to extend the limitations period. The trial court agreed. The court found that Rebecca had suffered “severe emotional trauma” from the sexual abuse and that she “was not able to fully understand or discover her cause of action during the applicable statutory time period....” Applying the discovery rule to toll the statute of limitations until Rebecca was reasonably able to discover her cause[*909] of action, the trial court concluded that Rebecca’s commencement of this action was within the limitations period.

The discovery rule, when applicable, tolls the statute of limitations until the plaintiff knows, or with reasonable diligence should know, that a potential claim exists. Wall v. Lewis, 393 N.W.2d 758 (N.D.1986). This is a fact question which, when made by the trial court, will not be set aside on appeal unless clearly erroneous. See Wall, id. at 761; Rule 52(a), N.D.R.Civ.P.

John asserts that the discovery rule is not applicable in this case. In support of his position, John cites Tyson v. Tyson, 107 Wash.2d 72, 727 P.2d 226 (1986). In that case the plaintiff alleged that the defendant sexually abused her, resulting in emotional trauma which entirely repressed her memory of the events until, years after the statute of limitations had expired, therapy triggered her knowledge of the sexual abuse and her recognition that the abuse caused emotional problems for her in adulthood. The plaintiff asserted that it would be unfair to preclude her claim because she was unable to discover her cause of action during the applicable limitations period.

The Washington Supreme Court stated in Tyson that the discovery rule should be applied “only when the risk of stale claims is outweighed by the unfairness of precluding justified causes of action.” Tyson, supra, 727 P.2d at 228. The court concluded that because the plaintiffs claim was based upon “a subjective assertion that wrongful acts occurred and that injuries resulted” and not upon objective verifiable evidence, it was inappropriate to apply the discovery rule to allow the plaintiffs claim to go forward.

We refuse to apply the rationale of Tyson to this case. We agree with Justice Pearson, dissenting in Tyson, that concern about the availability of objective evidence should not preclude application of the discovery rule. Tyson, supra, 727 P.2d at 231; see also Hammer v. Hammer, 142 Wis.2d 257, 418 N.W.2d 23 (Ct.App.1987).

The trial court found that the severe emotional trauma experienced by Rebecca resulted in her being unable to fully understand or discover her cause of action during the applicable statutory limitations period. Having reviewed the record, we cannot conclude that the trial court’s finding in this regard is clearly erroneous. Accordingly, we agree with the trial court’s application of the discovery rule in this case and its conclusion that Rebecca’s action is not barred by the statute of limitations.

John also asserts on appeal that Rebecca failed to meet her burden of proving that she was sexually abused. The trial court expressly found that Rebecca suffered an assault and battery in the form of sexual abuse by John. The trial court’s findings of fact will not be set aside on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P. A finding is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Martinson Bros. v. Hjellum, 359 N.W.2d 865 (N.D.1985). Having reviewed the record in this case, we are not convinced that the trial court made a mistake in its finding that Rebecca was sexually abused by John.

The trial court awarded Rebecca $12,000 damages plus costs and disbursements.

Rebecca asserts that the trial court erred in not awarding her punitive damages. The trial court’s refusal to award punitive damages will not be overturned on appeal unless the trial court abused its discretion and thereby effected an injustice. Amerada Hess Corp. v. Furlong Oil & Minerals Co., 348 N.W.2d 913 (N.D.1984). Giving considerable weight to the trial court’s determination, we are not persuaded that the trial court abused its discretion in denying Rebecca’s request for punitive damages.

Rebecca also asserts that the damage award is inadequate and does not expressly include an amount for emotional distress. The trial court’s determination as[*910] to the amount of damages is a finding of fact which will not be set aside on appeal unless it is clearly erroneous. F-M Potatoes, Inc. v. Suda, 259 N.W.2d 487 (N.D.1977). We will not interfere with an award of damages unless it is so excessive or inadequate as to be without support in the evidence. Radspinner v. Charlesworth, 369 N.W.2d 109 (N.D.1985). We are not convinced that the trial court made a mistake in setting the amount of damages in this case.

The judgment is affirmed.

ERICKSTAD, C.J., and VANDE WALLE, LEVINE and MESCHKE, JJ., concur.