Fila v. Spruce Mountain Inn

Fila v. Spruce Mountain Inn (2003-530); 178 Vt. 323; 885 A.2d 723

2005 VT  77

[Filed 05-Aug-2005]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2005 VT  77
    
                                No. 2003-530


  Virginia Fila                                   Supreme Court

                                                 On Appeal from
       v.                                   Washington Superior Court


  Spruce Mountain Inn and                   September Term, 2004 
  Candace Beardsley


  Alan W. Cook, J.

  Allison A. Ericson of Law Offices of Daniel M. Sedon, P.C., Chelsea, for
    Plaintiff-Appellant and Cross-Appellee.

  John Davis Buckley and Laura Q. Pelosi of Theriault & Joslin, P.C.,
    Montpelier, for  Defendant-Appellee Cross-Appellant.


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned

        
       ¶  1.  SKOGLUND, J.   Plaintiff Virginia Fila appeals from a
  superior court judgment in favor of defendants Spruce Mountain Inn (SMI)
  and Candace Beardsley.  Plaintiff contends that, in granting judgment as a
  matter of law in favor of defendants, the trial court: (1) applied an
  incorrect standard in determining whether plaintiff was incapacitated for
  purposes of tolling the statute of limitations; (2) erroneously ruled that
  the question of plaintiff's incapacity was an issue for the court rather
  than the jury to decide; and (3) mistakenly concluded that plaintiff failed
  to satisfy the standard for tolling the statute of limitations. We agree
  with the first two contentions, and therefore reverse and remand for
  further proceedings. 
        
       ¶  2.  Viewing the evidence in the light most favorable to the
  judgment, as we are required to do, Gero v. J.W.J. Realty, 171 Vt. 57, 59,
  757 A.2d 475, 476 (2000), the essential facts may be summarized as follows. 
  SMI is a residential facility for individuals with psychiatric problems
  who, in the words of its assistant director, "have had trouble living
  independently in the community."  Plaintiff entered the facility in
  December 1995.  She was twenty-three years old at the time, but already had
  a long history of psychiatric problems, including nine prior
  hospitalizations for mental illness.  SMI staff acknowledged that during
  her stay plaintiff was continually troubled by flashbacks, anxiety, and
  depression, and had at least one dissociative episode.   

       ¶  3.  Plaintiff testified that, in late December 1995, while in
  residence at SMI, she took an overdose of a prescribed sedative, and later
  awoke to find a male patient in her bed having sex with her.  Although the
  sexual relationship continued briefly thereafter, plaintiff testified that
  it was nonconsensual and that she did not remember the incidents clearly,
  suggesting that she was in a dissociative state most of the time. 
  Plaintiff reported the incidents to SMI staff, and the male resident was
  asked to leave, but plaintiff believed for many years thereafter that she
  was at fault for the alleged sexual assaults.  
   
       ¶  4.  Plaintiff discovered that she was pregnant in February 1996,
  and shortly thereafter was compelled to leave the residential program
  because of insurance problems.  She remained under SMI care, however, and
  SMI staff assisted plaintiff in finding an apartment in the community,
  arranging medical appointments, and managing her affairs.  Despite their
  assistance, plaintiff became depressed and suicidal and was hospitalized
  for a week to ten days in April 1996.  The following month, plaintiff left
  the SMI program.  Her departure was against medical advice, her case
  manager taking the view that outpatient therapy was insufficient to meet
  plaintiff's needs.
            
       ¶  5.  In September 1996, plaintiff moved with her mother and other
  family members to North Carolina, where she received substantial assistance
  from both her family and the state social services agency in obtaining
  obstetric care and parenting services for herself and her child.  Several
  months after the move, however, plaintiff again required involuntary
  hospitalization.  Indeed, over the next several years, plaintiff was
  periodically hospitalized on almost fifty separate occasions, an average of
  about once a month, during which times plaintiff's family assumed full
  responsibility for her child.     

       ¶  6.  In October 2000, plaintiff moved with her mother and sister to
  New York.  Plaintiff testified that while in therapy there she came to
  understand that she had been sexually assaulted at SMI.  She contacted a
  lawyer and learned that she might have a claim against SMI.  In March 2001,
  she filed this action against SMI and its director, Candace Beardsley,
  alleging negligent supervision, among other claims.   Defendants thereafter
  moved for summary judgment, asserting that plaintiff's claim was barred by
  the three-year statute of limitations.  Although plaintiff agreed that the
  cause of action had accrued in late January 1996, and that the statute of
  limitations would normally have expired in January 1999, she asserted in
  opposition to the motion that the statute had been tolled from the date of
  accrual to the end of October 2000 under 12 V.S.A. § 551(b), which provides
  that "the time during which [a] person is insane shall not be taken as part
  of the time limited for the commencement of [an] action." (FN1)   
   
       ¶  7.  The trial court (Judge Cheever) denied defendants' motion for
  summary judgment, as well as a subsequent motion to reconsider, on the
  ground that genuine issues of material fact remained in dispute.  At the
  close of plaintiff's case, however, the trial court (Judge Cook) granted
  defendants' motion for judgment as a matter law, ruling that the question
  of whether plaintiff was insane within the meaning of the statute was for
  the court rather than the jury to decide; that there was "no evidence in
  this case that she has ever, for example, been psychotic or delusional or
  suffered from any of the major mental illnesses;" and that despite
  plaintiff's frequent hospitalizations, her actions and decisions were not
  those of a person "who is floridly mentally ill," and did not support her
  assertion of the tolling provision.  The court therefore dismissed
  plaintiff's negligence claim as time-barred, and allowed the trial to
  proceed on plaintiff's remaining fraud claims.  The jury reached a deadlock
  on those claims, however, and the court declared a mistrial.  Plaintiff has
  appealed on the statute of limitations issue.  Defendants have
  cross-appealed two of the court's evidentiary rulings.  We address the
  claims in turn. 
   
       ¶  8.  Plaintiff first contends the trial court applied an erroneous
  standard of "insanity" under § 551.  We agree.  This Court has held that
  the definition of "insanity" under § 551 is whether a person's "mental
  disability makes him unable to manage his business affairs or estate, or to
  comprehend his legal rights and liabilities"  Goode v. State, 147 Vt. 646,
  646, 514 A.2d 322, 322 (1986) (mem.).  Numerous other states apply an
  equivalent standard.  See, e.g., Storm v. Legion Ins. Co., 665 N.W.2d 353,
  370-71 (Wis. 2003) (noting "consensus definitions in other states" for
  determining whether statute of limitations should be tolled typically
  include "the inability to manage one's own personal affairs" or an
  inability  to "protect one's legal rights").  Although the trial court here
  made passing reference to plaintiff's ability "to make decisions about her
  life," the record discloses that it focused principally on the absence of
  evidence of a "major mental illness" or "psychosis" or other evidence
  normally associated with the higher standard for criminal insanity. 
  Accordingly, we conclude the trial court applied an erroneous legal
  standard in determining that plaintiff was not "insane" for purposes of
  tolling the statute of limitations under § 551. 

       ¶  9.  Plaintiff next contends the trial court erred in ruling that
  the question of  plaintiff's insanity under 12 V.S.A. §  551 was an issue
  for the court rather than a jury to decide.  We agree that the court erred. 
  It is well settled in Vermont that factual questions relating to the
  tolling of a statute of limitations are for the jury to decide.  See
  Galfetti v. Berg, Carmolli & Kent Real Estate Corp., 171 Vt. 523, 526, 756,
  A.2d 1229, 1232 (2000) (mem.) (determination of when plaintiff actually
  discovered or should have discovered injury is generally a factual
  determination for jury); Lillicrap v. Martin, 156 Vt. 165, 172, 591 A.2d 41, 44 (1989) (question of when injury was or reasonably should have been
  discovered is generally one of fact for jury to determine); Monti v.
  Granite Sav. Bank & Trust Co., 133 Vt. 204, 209, 333 A.2d 106, 109 (1975)
  ("Whether or not the defendants' claim of a bar of the action by the
  statute of limitations had merit, as well as whether or not there was
  actual or constructive fraud, were both questions of fact which would have
  to be decided by the jury."); In re Delligan's Estate, 111 Vt. 227, 289, 13 A.2d 282, 289 (1940) (holding that court erred in failing to properly
  instruct jury on statute of limitations).   
   
       ¶  10.  Indeed, this common law principle may be gleaned from some of
  the earliest reported cases in Vermont.  See, e.g., Smith v. Hubbard, 1
  Tyl. 142, 144 (1801); Hayes v. Morse, 8 Vt. 316, 318 (1836); Hackett v.
  Kendall, 23 Vt. 275, 277 (1851); Stearns v. Adm'r of Stearns, 32 Vt. 678,
  680 (1860); Sprague v. Ainsworth, 40 Vt. 47, 50 (1867); Smith v. Town of
  Franklin, 61 Vt. 385, 387 (1889).  The rule, currently codified in 12
  V.S.A. § 551, that a statute of limitations is tolled during the period
  when a person is legally incompetent or insane is also of longstanding
  vintage under the common law.  Lincoln v. Norton, 36 Vt. 679, 680 (1864);
  Chamberlin v. Estey, 55 Vt. 378, 382 (1883); Kumar v. Hall, 423 S.E.2d 653,
  658 (Ga. 1992) (citing R. Pound, The History of the Common Law 444 (1913);
  2  H. Wood, A Treatise on the Limitation of Actions at Law and in Equity
  §239, at 578 (2d ed. 1893).
   
       ¶  11.  It is hardly surprising, therefore, that whether a person is
  legally incompetent or insane for purposes of tolling the statute has also
  long been considered a question of fact to be determined by the jury.  See,
  e.g., Tracy v. Atherton, 36 Vt. 503, 506-07 (1864) (recognizing principle
  that party's infancy, if found by the jury to exist at time defendant's use
  of property began, would toll time for adverse possession akin to tolling
  of statute of limitations); Clark's Ex. v. Trail's Adm'r, 58 Ky. (1 Met.)
  35 40-41 (1858) (in determining whether statute of limitations was tolled
  due to plaintiff's "disability of unsoundness of mind," decision "[w]hether
  or not [plaintiff] had been restored to his right mind, was a question of
  fact exclusively for the determination of the jury"); Steelman v. Steelman,
  16  N.J.L. 66, 71 (1837) ("Whether Francis Steelman was under such a degree
  of mental incapacity as would save his claims from being barred, under the
  proviso, in favor of persons insane, in the statute of limitations, was a
  question of fact."); Burnham v. Mitchell, 34 Wis. 117, 134-35 (1874)
  (upholding charge to jury on question of whether party was legally insane
  within  meaning of statute of limitations); see generally 3 J. Story,
  Commentaries on Equity Jurisprudence as Administered in England and America
  § 1788, at 397 (14th ed. 1918) (in determining asserted "idiocy or lunacy"
  of party, "[t]he inquisition is always had and the question tried by a
  jury, whose unimpeached verdict becomes conclusive upon the fact").   

       ¶  12.  We have interpreted the right to jury trial under chapter I,
  article 12 of the Vermont Constitution (FN2) to guarantee the right to
  those types of controversies that would have been tried to a jury at the
  time of the adoption of the constitution.  Hodgdon v. Mt. Mansfield Co.,
  160 Vt. 150, 155, 624 A.2d 1122, 1125 (1992).  It is clear from the cases
  and authorities cited above that a party's asserted insanity for purposes
  of tolling the statute of limitations falls within this category of
  questions traditionally reserved to the jury.  Accordingly, assuming that
  sufficient evidence was adduced to raise a factual issue, we conclude that
  plaintiff here was entitled to have the question of her competence under §
  551 resolved by the jury. (FN3)
   
       ¶  13.  Despite the trial court's errors in deciding this issue, the
  question nevertheless remains whether, as our dissenting colleague
  maintains, we may affirm the judgment on the ground that no reasonable jury
  could have found for plaintiff on the issue of her capacity to bring suit
  under § 551.  See Gero, 171 Vt. at 59, 757 A.2d  at 476 (judgment as a
  matter of law may be granted where there is no legally sufficient
  evidentiary basis for a reasonable jury to find for the nonmoving party).
  In resolving this question, we must view the evidence "in the light most
  favorable to the nonmoving party, excluding the effect of any modifying
  evidence."  Id. (quotations omitted).  If there is any evidence that
  "fairly and reasonably supports the nonmoving party's claim," including
  "every reasonable inference that may be drawn from the evidence," the
  granting of judgment as matter of law would be improper.  Lockwood v. Lord,
  163 Vt. 210, 212, 657 A.2d 555, 557 (1994). 

       ¶  14.  In addressing this question, we note at the outset that the
  trial court-while ostensibly ruling on a motion for judgment as a matter of
  law-did not purport to find that there was insufficient evidence to submit
  to the jury.  Rather, having determined that the question of plaintiff's 
  alleged incapacity was for the court to decide, it engaged as the presumed
  trier of fact in a weighing  of the conflicting evidence, ultimately
  concluding that plaintiff had failed to carry her burden of demonstrating
  that she was insane, albeit under an erroneous legal standard. Viewed as a
  presumptive jury question, however, the trial court's findings and the
  record as a whole leave no doubt that plaintiff had adduced sufficient
  evidence to submit the issue to the jury at the close of her case.  
   
       ¶  15.  To be sure, the evidence and findings disclose that most of
  the basic facts were  undisputed. What was disputed was the meaning and the
  reasonable inferences to be derived from those facts relative to
  plaintiff's capacity to manage her business affairs or comprehend her legal
  rights. See Davidson v. Baker-Vander Veen Constr. Co., 192 N.W.2d 312, 318
  (Mich. Ct. App. 1971) ("[E]ven if there is no dispute concerning the
  underlying historical facts, it is ordinarily for the trier of fact to
  decide a question requiring an appraisal of the reasonableness or quality
  of a person's behavior or actions . . . .").  Indeed, the trial court here
  prefaced its findings by noting the difficulty of summarizing several days
  of extensive testimony.  It found, however, that several facts were clear. 
  It was apparent that plaintiff had experienced regular periods of emotional
  crisis for the better part of her adult life, had been diagnosed with a
  personality disorder, had suffered from severe depression, and had engaged
  in suicidal ideation. Plaintiff's care providers at SMI attested that
  plaintiff had a history of extreme depression and sexual abuse, had
  attempted suicide prior to her admission, had been treated with
  electroconvulsive therapy, and had been diagnosed with a borderline
  personality disorder. The same providers also testified that, while a
  patient at SMI, plaintiff had experienced dissociative episodes and, on one
  occasion, had cut herself with a razor and failed to remember the incident. 
  Further, during the several years after she left SMI, plaintiff testified,
  and the court found, that she had been hospitalized as often as once or
  twice a month, for periods ranging from three to ten days, for a total of
  135 days, and had not held a job.  
   
       ¶  16.  As the dissenting opinion observes, and the court here found,
  there was also evidence suggesting that plaintiff was not insane under the
  Goode standard.  She had received social security disability benefits and
  lived for a period of time in an apartment after she left SMI; she
  contacted an ob/gyn in North Carolina when she moved there with her family;
  she cared periodically for her child; and she enrolled for about a month in
  a nursing program where she received good grades. Yet there was evidence
  suggesting that such apparent "independence" was misleading. SMI staff
  acknowledged that they had assisted plaintiff in finding the apartment,
  applying for housing assistance, setting up and accompanying her to
  physician's appointments after plaintiff became pregnant, and helping her
  with other basic skills that she lacked.  Plaintiff testified that her
  disability benefits were arranged for her by her father and treating
  physicians, and that her family had helped her obtain substantial social
  services in North Carolina, without which she would not have been able to
  care for her child. Plaintiff further explained that she had spent about a
  month in a nursing program learning to make beds and wash patients, but
  left the program after a very short enrollment because of stress.  As for
  plaintiff's repeated post-SMI hospitalizations (estimated at fifty), the
  trial court found-and the dissent apparently agrees-that their significance
  is limited to proof of incapacity during the actual time spent in hospital
  (about four and one half months).  This assumes, however, that plaintiff
  immediately regained competence at the end of each hospitalization and
  maintained it until the next, whereas an equally plausible inference from
  such frequent commitments is that plaintiff was experiencing chronically
  incapacitating mental distress resulting in continual crises.  See
  Lockwood, 163 Vt. at 212, 657 A.2d  at 557 (party opposing motion for
  judgment is "entitled to every reasonable inference" from record evidence). 
   
       ¶  17.  The question before us, however, is not whether plaintiff
  proved at trial that she was incapable of managing her affairs.  The
  question is whether, viewed in the light most favorable to plaintiff,  and
  disregarding the effect of any modifying evidence, she adduced sufficient
  evidence for a reasonable jury to find in her favor on the question. 
  Brueckner, 169 Vt. at 122, 730 A.2d  at 1090.  There is no doubt, in our
  view, that plaintiff met this standard.  Viewed in the light most favorable
  to plaintiff, and including the benefit of every reasonable inference, the
  record evidence summarized above would allow a reasonable jury to find that
  plaintiff was not able to manage her affairs from the period of her
  residence at SMI in December 1995 until late 2000, when plaintiff
  acknowledges that her mental health began to improve.  Therefore, a jury
  could have found that the statute of limitations was tolled during this
  period, and that the complaint, filed in March 2001, was timely.  

       ¶  18.  The several cases on which defendants and the dissenting
  opinion rely do not support a contrary conclusion, as each involved factual
  circumstances or a legal standard critically distinguishable from the case
  at bar. (FN4)  More on point are cases such as Harrington v. County of
  Ramsey, 279 N.W.2d 791 (Minn. 1979), where the plaintiff filed an untimely
  complaint for medical malpractice that allegedly occurred while she was
  involuntarily committed in the state psychiatric hospital.  The plaintiff
  was subsequently released and recommitted over the next several years, but
  also married and divorced, had a child, and obtained temporary employment. 
  Although the trial court concluded that plaintiff's periods of apparent
  capacity to work, marry, and engage in daily transactions defeated any
  tolling claim, the Supreme Court of Minnesota reversed, finding that a
  "genuine issue existed as to plaintiff's sanity"based on plaintiff's
  multiple intermittent commitments for mental illness, suicide attempts, and
  chronic depression.  Id. at 796-97; see also Adkins v. Nabors Alaska
  Drilling, Inc., 609 P.2d 15, 25 (Alaska 1980) (observing that the "fact
  that Adkins could actively work for sometime after the accident, travel,
  obtain workmen's compensation benefits and retain an attorney might support
  an inference that Adkins was not 'insane,' but this is an issue to be
  decided at trial"); Doe, 955 P.2d  at 965 (holding that evidence of the
  plaintiff's "ability to manage any of her daily affairs" does not
  conclusively negate a tolling claim based on insanity where other credible
  evidence showed that the plaintiff had experienced suicidal ideation,
  required  therapy and institutionalization, was unable to work, and was in
  denial about her alleged sexual abuse); Bestwina v. The Village Bank, 767 P.2d 338, 340 (Mont. 1989) (plaintiff's pursuit of social security and
  worker's compensation benefits "does not conclusively establish an absence"
  of mental illness sufficient to toll the statute of limitations where other
  evidence showed that plaintiff had been hospitalized at least six times for
  depression and that drug and electroconvulsive therapy had been
  ineffective).    
               
       ¶  19.  These cases are noteworthy not because they necessarily
  support plaintiff's particular claim under the statute, but because they
  show the rich variety of circumstances in which such claims may arise, and
  which can only fairly be resolved by the trier of fact unless the evidence
  unequivocally fails to support the claim.   Although the dissent would hold
  that the evidence is so one-sided that we may preempt the jury's proper
  role in this case, the record does not-in our view -support such a
  conclusion.  Whatever our opinion of its ultimate persuasive value, the
  evidence at the very least was sufficient to submit to a jury.  Therefore,
  the trial court judgment must be reversed, and the matter remanded for
  further proceedings. 
   
       ¶  20.  Defendant SMI has raised two additional claims on
  cross-appeal as alternative grounds for affirmance.  First, SMI contends
  the court erred in denying its motion for summary judgment and motion for
  judgment as a matter of law based on plaintiff's failure to adduce expert
  evidence in support of its claim that SMI provided negligent supervision. 
  The issue was not, however, raised in the motion for summary judgment, and
  SMI has adduced no persuasive authority to support the proposition that
  expert evidence was required to show the level of care required of a
  residential care facility to protect its residents from rape.  See, e.g.,
  Zuniga v. Healthcare San Antonio, Inc., 94 S.W.3d 778, 783 (Tex. App. 2002)
  (action for negligent supervision by patient who was raped by another
  resident while involuntarily committed in state psychiatric hospital did
  not involve medical treatment or require expert evidence); Virginia S. v.
  Salt Lake Care Ctr., 741 P.2d 969, 972 (Utah Ct. App. 1987) (observing that
  in negligence action by disabled teenager who was raped while patient at
  nursing home "there are no medical technicalities involved that call for
  expert testimony to determine whether the nursing home breached its
  standard of care"); see also Mast v. Magpusao, 225 Cal. Rptr. 689, 691-92
  (Cal. Ct. App. 1986) (action for negligent failure to protect nursing home
  resident from assault by fellow resident did not require expert evidence to
  establish standard of care); Juhnke v. Evangelical Lutheran Good Samaritan
  Soc'y, 634 P.2d 1132, 1136-37 (Kan. Ct. App. 1981) (guardian's action
  against nursing home for negligent failure to protect ward from assault by
  fellow patient involved standard of care within common knowledge and
  experience of lay jurors and did not require expert evidence); Commercial
  Distribs., Inc. v. Blankenship, 397 S.E.2d 840, 845 (Va. 1990) (expert
  testimony not required in negligent supervision action by representative of
  mentally ill resident of licensed home for adults who committed suicide);
  McGraw v. St. Joseph's Hosp., 488 S.E.2d 389, 396 (W. Va. 1997) (expert
  testimony not "mandatory"to support patient's action against hospital for
  negligent supervision that allowed patient to fall).

       ¶  21.  Second, SMI contends the court erred in denying its motion in
  limine to preclude plaintiff from claiming that another resident of SMI was
  the father of her child.  SMI claims that the only admissible evidence of
  parentage was genetic testing under the parentage statutes, but SMI offers
  virtually no authority or persuasive reasoning to show why these statutes
  and the evidentiary standards set forth therein would apply outside the
  context of a parentage action.  Accordingly, we discern no error requiring
  reversal on this basis.

       The judgment is reversed, and the matter remanded for further
  proceedings consistent with the views expressed herein.

        
                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice  


------------------------------------------------------------------------------
                                 Dissenting


       ¶  22.  REIBER, J., dissenting.   I agree with the majority that the
  trial court applied an erroneous definition of "insanity" under 12 V.S.A. §
  551.  I respectfully disagree, however, with the majority's holding that
  the trial court erred as matter of law when it held that insufficient
  evidence existed to send the issue to the jury under Vermont Rule of Civil
  Procedure 50.  Other than the periods of hospitalization, plaintiff did not
  submit enough evidence to warrant consideration by the jury.  To the
  contrary, the record demonstrates that she understood legal issues
  involving paternity, child support, Medicaid, and adoption; made doctor
  appointments; found an apartment; and attended a community college.  I
  agree with the majority that the standard here for the trial court to apply
  was whether plaintiff's disability made her unable to manage her affairs or
  to comprehend her legal rights.  Goode v. State, 147 Vt. 646, 514 A.2d 322
  (1986) (mem.) (Goode I).  But, because the evidence here was insufficient
  to require the trial court to submit the issue to the jury, I would affirm.

       ¶  23.  In reviewing the decision of the trial judge on the Rule 50
  motion, and applying the correct standard to the evidence submitted by
  plaintiff at trial, the majority draws an inference of disability from
  plaintiff's periods of hospitalization and concludes that this evidence was
  sufficient to warrant submission of the question of insanity to the jury. 
  Although plaintiff is entitled to every reasonable inference drawn from the
  record, Lockwood v. Lord, 163 Vt. 210, 212, 657 A.2d 555, 557 (1994), any
  inference we make must be based on the evidence in the record and cannot be
  based on speculation.  See McGreevy v. Daktronics, Inc., 156 F.3d 837,
  840-41 (8th Cir. 1998) ("A reasonable inference is one which may be drawn
  from the evidence without resort to speculation.  When the record contains
  no proof beyond speculation to support the verdict, judgment as a matter of
  law is appropriate." (internal quotations omitted)).  In reviewing a Rule
  50 motion, therefore, we cannot assume facts that are not in the record,
  nor can we make unreasonable inferences.
   
       ¶  24.  Here, while there was testimony regarding plaintiff's periods
  of hospitalization, the inference that plaintiff was unable to manage her
  business affairs or estate, or to comprehend her legal rights and
  liabilities while not hospitalized, is based on speculation.  In the
  aggregate, plaintiff was hospitalized four and one-half months over four
  years.  It was not disputed at trial that plaintiff was not competent
  during these periods.  For the remaining time, plaintiff had the burden of
  introducing sufficient evidence of insanity to warrant the trial court
  submitting the issue to the jury.   Without additional evidence, the
  hospitalizations alone were insufficient to support inferences of insanity
  for the periods of non-hospitalization.  The majority asserts that the
  periods of hospitalization create an "equally plausible inference" of
  chronic distress affecting plaintiff's competency during the time when she
  was not in the hospital.  Ante, at ¶ 16.  However, without more, such
  equivalency is insufficient to sustain plaintiff's burden on this record. 
  Without other evidence, such as opinion testimony, plaintiff's time in the
  hospital is insufficient proof by itself to create the inference that she
  was insane during the periods of non-hospitalization. 
   
       ¶  25.  The cases relied upon by the majority illustrate this point. 
  In Harrington v. County of Ramsey, 279 N.W.2d 791, 796-97 (Minn. 1979), the
  court held that genuine issues of material fact existed regarding the
  plaintiff's insanity.  Unlike the present case where plaintiff introduced
  no evidence of mental disability for her time outside the hospital, the
  plaintiff in Harrington introduced an affidavit from a doctor stating that 
  her disorder made her unable to institute a legal claim.  In Doe v. Roe,
  955 P.2d 951, 964 (Ariz. 1998), another case relied upon by the majority,
  the court required "hard evidence" of the plaintiff's condition.  Doe
  involved a plaintiff who delayed bringing a case due to allegedly having
  repressed her memory of severe sexual abuse.  In holding that genuine
  issues of material fact existed regarding whether the plaintiff had an
  unsound mind and was unable to understand her legal rights, the court
  reviewed and relied on scientific literature that explained how sexual
  abuse could cause a person, like the plaintiff, to repress memories and
  prevent her from even knowing that such events took place.  Id. at 956-58,
  965, 968.  Here, plaintiff submitted no opinion evidence to support her
  claim that she was insane while not hospitalized.  To the contrary, the
  proof at trial, described below, demonstrates that she was aware of her
  circumstances and the choices available to her even while she was a patient
  at SMI.  See Nolde v. Frankie, 964 P.2d 477, 483 (Ariz. 1998) (holding
  that, based on Doe, plaintiffs' claim of insanity could not withstand
  summary judgment because plaintiffs' and experts' affidavits regarding
  plaintiffs' abilities to manage their affairs and to understand their legal
  rights were merely conclusory, and plaintiffs made no other claim to
  justify the delay in filing). 

       ¶  26.  The record reveals the following facts.  First, plaintiff
  provided the sole testimony regarding her claimed mental illness for the
  periods of non-hospitalization between her discharge from SMI in October
  1996 to March 7, 2001.  Alone, her testimony is insufficient to create a
  question of fact under the Goode I standard.  See Goode v. State, 150 Vt.
  651, 652, 553 A.2d 142, 143 (1988) (mem.) (noting that plaintiff's only
  evidence was his own testimony, and in light of the evidence, plaintiff
  failed to meet his burden of proof).  Second, plaintiff testified that she
  suffered from depression, yet provided no other evidence to confirm her
  self-diagnosis.  Moreover, depression does not necessarily rise to the
  level of insanity.  See Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)
  (discussing equitable tolling under the Rehabilitation Act and concluding
  that the plaintiff's statement that she was suffering from "paranoia, panic
  attacks, and depression" was insufficient); Swartz v. Berkshire Life Ins.
  Comp., No. 99 CIV. 9462, 2000 WL 1448627, at *5 (S.D.N.Y. Sept. 28, 2000)
  (stating that severe depression does not rise to the level of insanity for
  purposes of New York's tolling provision).  Finally, in 1998, plaintiff was
  competent enough to enroll for one month in a nursing program at a
  community college.
   
       ¶  27.  In addition, at trial there were facts adduced surrounding the
  time she was hospitalized that reflect that plaintiff understood her
  rights.  While plaintiff resided at SMI in 1996, she discussed the legal
  consequences of establishing paternity, abortion, adoption, and child
  support.  At trial, her case manager at SMI testified that "[s]he was an
  adult and she was competent" but that she "was vulnerable to making poor
  decisions on her own behalf."  While at SMI, plaintiff was able to find,
  and later to live in, an apartment, contact social workers, arrange doctor
  appointments, and comprehend the legal consequence of serving a minor
  alcohol when her case manager informed her about the child's father
  suspension from SMI.

       ¶  28.  In light of the foregoing, an inference of insanity is not
  supported under our standard for periods of non-hospitalization arising out
  of the times during which plaintiff was hospitalized.  Our standard of
  review requires us to determine whether plaintiff adduced sufficient
  evidence, drawing every reasonable inference in her favor.  Our Court and
  the trial court, however, can make inferences only based upon evidence in
  the record and cannot assume facts.  Here, plaintiff failed to meet her
  burden of proof because she submitted insufficient evidence of her
  condition during her periods of non-hospitalization, and we cannot make the
  inferential leap for her.  For failure to sustain her burden, I would
  conclude that her negligence claim against SMI is time barred. 




                                       _________________________________
                                       Associate Justice
    

         
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                                  Footnotes



FN1.  Section 551 provides in its entirety as follows:

      (a)  When a person entitled to bring an action specified in this
    chapter is a minor, insane or imprisoned at the time the cause of
    action accrues, such person may bring such action within the times
    in this chapter respectively limited, after the disability is
    removed.

      (b)  If a person entitled to bring an action specified in this
    chapter becomes insane after the cause of action accrues but
    before the statute has run, the time during which the person is
    insane shall not be taken as a part of the time limited for the
    commencement of the action.


FN2.  This provision states: "That when any issue in fact, proper for the
  cognizance of a jury is joined in a court law, the parties have a right to
  trial by jury, which ought to be held sacred." Vt. Const. ch. I, art. 12.

FN3.  Although we have not previously addressed the issue, we note that
  numerous courts from other states have reached the same conclusion. See,
  e.g., Doe v. Roe, 955 P.2d 951, 965 (Ariz. 1998); Terry v. Sullivan, 58 P.3d 1098, 1101 (Colo. Ct. App. 2002); Morris v. Sloan, 1997 ME 179, ¶ 2,
  n.3, 698 A.2d 1038; Riley v. Presnell, 565 N.E.2d 780, 788 (Mass. 1991);
  Makarow v. Volkswagen of Am., Inc., 403 N.W.2d 563, 565-66 (Mich. Ct. App.
  1987); Storm v. Legion Ins. Co., 665 N.W.2d 353, 371 (Wis. 2003).  
  Although some courts appear to have concluded otherwise, their rationale
  suggests that they characterize the issue as a preliminary question to a
  basic legal issue.  See e.g., Roe v. Gelineau, 794 A.2d 476, 481 (R.I.
  2002) (noting that trial court may need to decide "certain preliminary
  facts before moving on to decide the question of law," namely whether
  plaintiff had "unsound mind" sufficient to toll statute of limitations);
  see also Shillady v. Elliot Cmty. Hosp., 320 A.2d 637, 639 (N.H. 1974)
  (holding that underlying factual issues relating to tolling of statute of
  limitations under discovery rule involve traditionally legal or "equitable
  considerations" best decided by trial court); Lopez v. Swyer, 300 A.2d 563,
  567 (N.J. 1973) (observing that "application of the statute of limitations
  is ordinarily a legal matter" and opining that fact questions relating to
  accrual of statute of limitations under discovery rule "can better be done
  by a judge than by a jury").  While we have also recognized that
  preliminary questions underlying such legal issues such as choice of law,
  jurisdiction, and competency of witnesses are properly the province of the
  court, Amiot v. Ames, 166 Vt. 288, 294, 693 A.2d 675, 679 (1997), as
  discussed above we have  consistently held that decisive factual questions
  relating to the discovery of an injury and the tolling of the statute of
  limitations are to be decided by a jury.  Our conclusion here is consistent
  with this  principle.

FN4.  Boos v. Runyon, 201 F.3d 178, 184-85 (2d Cir. 2000) involved a claim
  for equitable tolling under federal law, which was rejected by the court
  based on the inadequacy of the plaintiff's bare assertion that he suffered
  from paranoia, panic attacks, and depression.  Plaintiff's troubled mental
  health history in the instant case was corroborated by others, as was her
  need for assistance in managing her daily affairs, and plaintiff's
  testimony concerning her multiple hospitalizations was undisputed. 
  Although Todish v. CIGNA Corp., 206 F.3d 303, 305-06 (3d Cir. 2000), which
  involved a plaintiff with a history of mental health difficulties and
  several hospitalizations, is superficially similar to the case at bar, the
  evidence of the plaintiff's overall resilience and capacity to manage her
  affairs was overwhelming.  During the period in question, she had
  personally applied for social security benefits three times, sought
  reconsideration of one denial of benefits and later retained counsel to
  appeal, applied to and was accepted into law school, applied for disability
  benefits, worked as a teacher in three community colleges, and completed
  most of the requirements for a Master's degree.  The facts here are
  obviously distinguishable.  Finally, Swartz v. Berkshire Life Ins. Co., No.
  99 Civ. 9462, 2000 WL 1448627, at *4 (S.D.N.Y. Sept. 28, 2000), involved
  the application of a different standard of insanity under New York law,
  which the court there described as "quite narrow" and requiring a "severe
  impairment of the plaintiff's ability to think and function."