Ellis v. Estate of Ellis

2007 UT 77
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Aimee L. Ellis, 	No. 20060359
Plaintiff, Appellant,
and Cross-Appellee,
v.
The Estate of Steven Wade
Ellis, 	F I L E D
Defendant, Appellee,
and Cross-Appellant. 	September 21, 2007
---
Third District, Salt Lake
The Honorable L. A. Dever
No. 050901694
Attorneys: 	Kelly H. Macfarlane, Karra J. Porter, Salt Lake
City, for plaintiff
Stephen G. Morgan, Paul C. Farr, Salt Lake City,
for defendant
---
DURRANT, Justice:
INTRODUCTION
¶1 	Aimee Ellis sued her husband Steven Ellis’s estate (the
“Estate”) for personal injuries she suffered in a car accident as
a result of his negligence. 	We are presented with two issues on
appeal: 	first, whether the district court erred in ruling that
Mrs. Ellis’s negligence claim against her husband’s estate is
barred by the common-law doctrine of interspousal immunity and,
second, whether the district court erred in ruling that lay
affidavits established a genuine issue of material fact as to
whether Mrs. Ellis was mentally incompetent such that the statute
of limitations under Utah Code section 78-12-36 was tolled. 	We
reverse the district court’s decision as to the first issue, but
affirm its decision as to the second.

1 See Utah Code Ann. § 75-3-803(1)(a), (4)(b) (1993).
2 Utah Code Ann. § 78-12-36 (2002).
No. 20060359 	2
BACKGROUND
¶2 	On January 2, 2001, newlyweds Steven and Aimee Ellis
were driving in an automobile that was owned by Mrs. Ellis’s
parents. 	Mr. Ellis was driving the car on a honeymoon
snowmobiling trip with the permission of its owners. 	While
traveling near Shelley, Idaho, Mr. Ellis lost control of the
vehicle, crossed the center median into oncoming traffic, and
collided with a two-ton Mitsubishi truck. 	Mr. Ellis died in the
accident. 	For the purpose of this appeal, the Estate does not
contest that the accident was caused by his negligence.
¶3 	Mrs. Ellis was hospitalized for weeks with serious
injuries suffered in the accident, including a severe head
injury, numerous broken bones, internal injuries, and emotional
trauma. 	She filed a personal injury action against her husband’s
estate on January 27, 2005. 	Because her claim was brought more
than a year after Mr. Ellis’s death, the Estate’s liability was
limited to the extent of the decedent’s insurance coverage. 1
¶4 	The Estate filed a motion to dismiss on two separate
grounds. 	The Estate first argued that Mrs. Ellis’s claim was
barred by the doctrine of interspousal immunity. 	The district
court granted the Estate’s motion on this ground, holding that
interspousal immunity is abrogated in Utah only with respect to
intentional torts. 	Mrs. Ellis now appeals this decision.
¶5 	The district court denied the Estate’s motion with
respect to the Estate’s second argument that the statute of
limitations had run on Mrs. Ellis’s negligence claim. 	Mrs. Ellis
argued that she was “mentally incompetent” for a time sufficient
to toll the four-year statute of limitations period pursuant to
Utah Code section 78-12-36. 2 	In support of her position, Mrs.
Ellis filed her own affidavit and those of three family members,
which set forth observations that she was mentally incompetent
for a period of at least twenty-five days after the accident.
The district court determined that these lay affidavits were
sufficient to establish a genuine issue of material fact and send
the matter to a jury. 	The Estate now cross-appeals this
decision. 	We have jurisdiction pursuant to Utah Code section 78-
2-2(3)(j).

3 See St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811
P.2d 194, 196 (Utah 1991) (stating that “the propriety of a
12(b)(6) dismissal is a question of law,” which appellate courts
review “under a correctness standard”).
4 See State v. Leyva, 951 P.2d 738, 741 (Utah 1997) (“A
lower court’s interpretation of binding case law presents a
question of law which we review for correctness.”).
5 Utah Code Ann. § 78-12-36 (2002).
6 616 P.2d 590 (Utah 1980).
3 	No. 20060359
STANDARD OF REVIEW
¶6 	The district court granted a motion to dismiss, which
presents a question of law that we review for correctness. 3
Moreover, the district court’s interpretation of prior precedent,
statutes, and the common law are questions of law that we review
for correctness. 4
ANALYSIS
¶7 	We are presented with two issues on appeal: 	first,
whether the common-law doctrine of interspousal immunity applies
to negligence claims and, second, whether lay affidavits
sufficiently establish a genuine issue of material fact as to
mental incompetency such that the statute of limitations under
Utah Code section 78-12-36 5 was tolled.
¶8 	We hold that interspousal immunity has been abrogated
in Utah with respect to all claims. 	In Stoker v. Stoker,6 we
explicitly held that the Legislature had abrogated interspousal
immunity by enacting the Married Women’s Act. 	Furthermore, we
hold that Mrs. Ellis established a genuine issue of material fact
as to whether she was mentally incompetent such that the statute
of limitations under Utah Code section 78-12-36 was tolled. 	We
now discuss both issues in turn.
I. 	INTERSPOUSAL IMMUNITY
¶9 	Our cases regarding the common-law doctrine of
interspousal immunity have traveled a tortuous path. 	As one
sister court noted, “Between 1954 and 1980, the Utah Supreme
Court twice reversed its interpretation of the governing statutes
on the subject, each time by a divided court; and since 1980 the
court has three times avoided deciding how its previous cases

7 Lucero v. Valdez, 884 P.2d 199, 205 (Ariz. Ct. App. 1994).
8 Stoker v. Stoker, 616 P.2d 590, 590-91 (Utah 1980)
(quoting Cooley’s Blackstone, Volume 1, Book 1, Chapter 15, page
290 (1879)).
9 See Utah Rev. Stat. § 1201 (1898).
No. 20060359 	4
should be read.” 7 	While our pre-1980 precedent was contradictory
and confusing, in that year we clearly held in Stoker that
interspousal immunity has been abrogated in Utah by the Married
Women’s Act.
¶10 	We will first discuss our prior cases that interpret
the Married Women’s Act and its application to interspousal
immunity. 	We will then briefly discuss (and dismiss) the
justifications for maintaining interspousal immunity.
A. 	Our Pre-Stoker Interspousal Immunity Precedent Presented
Various Interpretations of the Married Women’s Act
¶11 	Interspousal immunity derives from the common-law
concept of coverture. 	In Blackstone’s Commentaries on the Laws
of England, he describes a wife’s legal disabilities due to
coverture:
“By marriage, the husband and wife are one
person in law: 	that is, the very being or
legal existence of the woman is suspended
during the marriage, or at least is
incorporated and consolidated into that of
the husband; under whose wing, protection,
and cover, she performs every thing; . . .
and her condition during her marriage is
called her coverture. 	Upon this principle,
of an union of person in husband and wife,
depend almost all the legal rights, duties,
and disabilities, that either of them acquire
by the marriage.” 8
Thus, coverture arose because of the unity of husband and wife;
upon marriage, the husband and wife became one, and therefore,
the wife could neither sue that entity of which she was a part
nor enforce liabilities against third parties.
¶12 	In the revised statutes of 1898, the Utah Legislature
enacted the Married Women’s Act (the “Act”), 9 which enables wives
to sue and be sued, enforce liabilities, and take actions to

10 Utah Code Ann. § 30-2-4 (1998).
11 (Emphasis added.)
12 275 P.2d 696 (Utah 1954).
13 Id. at 697-98.
5 	No. 20060359
protect their rights “as if unmarried.” 10 	The pertinent parts of
the Act, left unchanged from their original enactment, are found
in Utah Code sections 30-2-2 and 30-2-4. 	Section 30-2-2 reads:
Contracts may be made by a wife, and
liabilities incurred and enforced by or
against her, to the same extent and in the
same manner as if she were unmarried.
Section 30-2-4 reads:
A wife may receive the wages for her
personal labor, maintain an action therefor
in her own name and hold the same in her own
right, and may prosecute and defend all
actions for the preservation and protection
of her rights and property as if unmarried.
There shall be no right of recovery by the
husband on account of personal injury or
wrong to his wife, or for expenses connected
therewith, but the wife may recover against a
third person for such injury or wrong as if
unmarried, and such recovery shall include
expenses of medical treatment and other
expenses paid or assumed by the husband. 11
¶13 	In Taylor v. Patten,12 we first considered whether
interspousal immunity was consistent with the Married Women’s
Act. 	In a 3-2 decision, we allowed a wife’s intentional tort
claim against her husband. 	We held that “[u]nder modern Husband
and Wife statutes, such as ours, [the] fiction [of coverture] has
been completely eliminated and the wife has been completely
emancipated from this inability to own, control and manage her
property, and from her inability to sue and be sued for the
protection of her property and personal rights.” 13 	In the lead
opinion, two members of the majority concluded as follows:
From the foregoing it is clear that the
legislature intended to establish the
separate identity of the husband and wife in

14 Id.
15 Id. at 699.
16 Id. at 700.
17 384 P.2d 389 (Utah 1963).
18 Id. at 393.
19 Id. at 391-92.
20 Id. at 391.
No. 20060359 	6
all property and personal rights the same as
if they were not married. 	Giving these
statutes a liberal construction to effect
their objects and in the interest of justice
requires us to hold that a wife can sue and
be sued the same as if she were unmarried,
even for the recovery of damages from her
husband for intentional personal injury. 14
¶14 	Justice Crockett limited his concurrence to the facts
of the case--that the intentional tort occurred while the
parties’ divorce action was pending--and “reserv[ed] judgment as
to the more comprehensive proposition that such a suit could be
maintained at any time during the marriage relation.” 15 	Justice
Crockett discussed the two primary justifications for
interspousal immunity: 	the dangers of marital discord and
collusive lawsuits. 	He noted “that [these] factors upon which
the policy [of interspousal immunity] is based are either non-
existent, or at least not nearly so cogent during the
interlocutory period [of a pending divorce].” 16
¶15 	In Rubalcava v. Gisseman,17 a 4-1 decision, we
overruled Taylor and held that a wife could not sue her husband
for a negligent tort arising during their marriage. 18 	Writing
for the majority, Justice Crockett used some of the same
reasoning that he used in his concurrence in Taylor. 	In
Rubalcava, we acknowledged the continued relevance of the
underlying rationales for interspousal immunity. 19 	We agreed
with other courts “that it should be the purpose of the law to
protect family solidarity.” 20 	We also stated that “the
temptation to collusion exists; and this is increased when the
supposedly adverse parties are in the symbiotic relationship of

21 Id.
22 Id. at 391-92 (quoting Brown v. Gosser, 262 S.W.2d 480,
485 (1953) (Sims, C.J., dissenting)).
23 Id. at 393.
24 Taylor v. Patten, 275 P.2d 696, 697 (Utah 1954).
25 384 P.2d at 393. 	We stated as follows:
It is argued that this delineation of rights,
particularly [section 30-2-2], which
authorizes a wife to enforce her contracts;
and [section 30-2-4], which states that she
may “prosecute and defend all actions for the
preservation and protection of her rights and
property as if unmarried,” provide the
foundation for this action. 	However, careful
reading shows that with respect to
authorization in those two sections, the
former speaks only of contracts and the
latter is referring only to her wages and
property rights.
Id.
7 	No. 20060359
husband and wife.” 21 	Moreover, we stated that “to allow
interspousal actions ‘encourages raids on insurance companies
through unmeritorious claims which never would be instituted
where the husband did not carry liability insurance, thus
possibly raising insurance rates on thousands of honest persons
for the benefit of the fraudulent few.’” 22 	We also concluded
that the Married Women’s Act abolished interspousal immunity only
in contract and property cases, stating that had the Legislature
intended to abolish interspousal immunity in tort cases as well,
it would have done so explicitly. 23
¶16 	In Taylor, the majority emphasized that the broad
assertion in the first sentence of section 30-2-4 means that a
wife has a general right to prosecute “all actions” for the
preservation of her rights. 24 	But in Rubalcava, the majority
interpreted the first sentence as limited to actions concerning
wages and property. 25 	The majority also emphasized the reference
in the second sentence of section 30-2-4 to the wife’s right to
recover against a “third person,” concluding that the Legislature
had only intended to allow a wife to pursue a tort claim against

26 Id. (“Since the husband and wife are the only two persons
mentioned, the authorization of the wife to recover ‘against a
third person’ can only reasonably be interpreted as against
someone other than the husband.”).
27 Id.
28 616 P.2d 590 (Utah 1980).
29 Id. at 592.
30 Id.
31 Id. at 593 (Crockett, C.J., dissenting).
32 Id. at 591 (emphasis added).
No. 20060359 	8
a third party and not against her husband. 26 	We held that “[w]e
are unable to find in this section, either expressly or by
implication, any authority for the wife to sue her husband in
tort.” 27
B. 	Stoker Abrogated Interspousal Immunity
¶17 	In Stoker v. Stoker,28 we reversed field once again,
concluding that a wife may bring an intentional tort claim
against her husband. 29 	We turned to the same statutes we had
analyzed twice before and reaffirmed the interpretation we had
made in the Taylor lead opinion. 30 	Justice Crockett, in his
dissent in Stoker, reiterated the Rubalcava argument that the
Legislature had abrogated interspousal immunity only in contract
and property cases and had left interspousal tort immunity
intact. 31 	But the three members of the Stoker majority expressly
rejected this analysis:
[Section 30-2-4] authorizes [a wife] to
prosecute and defend all actions for the
preservation and protection of her rights and
property, as if unmarried. 	It speaks of
rights and of property in the disjunctive,
and, all actions for the preservation and
protection of her rights would certainly
include a right to be free from an
intentional tort of her husband. 32

33 Id.
34 Id.
35 Id.
9 	No. 20060359
¶18 	In Stoker, we noted that the Married Women’s Act was
enacted with full knowledge of article I, section 11 of the Utah
Constitution, 33 which reads as follows:
All courts shall be open, and every
person, for an injury done to him in his
person, property or reputation, shall have
remedy by due course of law, which shall be
administered without denial or unnecessary
delay; and no person shall be barred from
prosecuting or defending before any tribunal
in this State, by himself or counsel, any
civil cause to which he is a party.
We also noted that the Married Women’s Act was enacted with full
knowledge of article IV, section I, 34 which reads as follows:
The rights of citizens of the State of Utah
to vote and hold office shall not be denied
or abridged on account of sex. 	Both male and
female citizens of this State shall enjoy
equally all civil, political, and religious
rights and privileges.
¶19 	Furthermore, we stated that the Married Women’s Act is
in derogation of the common law. 35 	As a result, its provisions
are to be liberally construed pursuant to Utah Code section
68-3-2, which provides:
The rule of the common law that statutes
in derogation thereof are to be strictly
construed has no application to the statutes
of this state. 	The statutes establish the
laws of this state respecting the subjects to
which they relate, and their provisions and
all proceedings under them are to be
liberally construed with a view to effect the
objects of the statutes and to promote
justice. 	Whenever there is any variance
between the rules of equity and rules of

36 Utah Code Ann. § 68-3-2 (2004).
37 Stoker, 616 P.2d at 591.
38 Id. (emphasis added).
39 884 P.2d 199 (Ariz. Ct. App. 1994).
40 Id. at 205.
No. 20060359 	10
common law in reference to the same matter
the rules of equity shall prevail. 36
We continued, “To read into our Married Women’s Act, a
proscription against a wife suing her husband, would be to
construe it so strictly as to add a provision which the
legislature did not put there.” 37
¶20 	Ultimately, in Stoker we held that
[t]he old common law fiction [of coverture]
is not consonant with the realities of today.
One of the strengths of the common law was
its ability to change to meet changed
conditions. 	Here, the Legislature did not
wait for the common law to change, it made
the change for it; and did so at a time when
a great many of Utah’s sister states were
enacting, or had previously enacted, Married
Women’s Acts. 	Our holding today reaffirms
the Legislative abrogation of Interspousal
Immunity. 38
C. 	Interspousal Immunity Has Been Abrogated with Respect to All
Claims
¶21 	We now reiterate our Stoker analysis and hold that the
common-law doctrine of interspousal immunity has been abrogated
with respect to all claims. 	We agree with the Arizona Court of
Appeals, which deftly discussed our precedent in Lucero v.
Valdez,39 that “the rationale the Stoker court articulated in
rejecting the doctrine of interspousal immunity applies equally
to negligence cases as to cases of intentional torts.” 40 	In
Stoker, we held that under the Married Women’s Act “all actions
for the preservation and protection of [a wife’s] rights would
certainly include a right to be free from an intentional tort of

41 Stoker, 616 P.2d at 591 (emphasis added).
42 Lucero, 884 P.2d at 205.
43 Id.
44 Id. (emphasis in Lucero) (quoting Rubalcava v. Gisseman,
384 P.2d 389, 392 (Utah 1963)).
45 Stoker, 616 P.2d at 592.
46 See Forsman v. Forsman, 779 P.2d 218, 220 (Utah 1989)
(applying California law rather than determining the
applicability of the wife’s negligence claim against her husband
under Utah law); Noble v. Noble, 761 P.2d 1369, 1375 (Utah 1988)
(“In Stoker, this Court held that [interspousal immunity] had
been abrogated with respect to intentional torts. 	We have never
had occasion to decide whether this abrogation extended to
negligence claims, and we do not do so in this case. 	It is
unnecessary for us to reach that question because our disposition
of [the wife’s] intentional tort action makes it a certainty that
she will have a remedy for her injuries.” (internal citation
omitted)); State Farm Mut. Auto. Ins. Co. v. Mastbaum, 748 P.2d
1042, 1044-45 (Utah 1987) (Zimmerman, J., concurring) (“Inasmuch
(continued...)
11 	No. 20060359
her husband.” 41 	Thus, as the Lucero court noted, one “cannot
escape the paraphrase that ‘all actions for the preservation and
protection of a married woman’s rights’ would equally include a
right to be free from a husband’s negligent tort.” 42
¶22 	Further, neither Rubalcava nor Stoker “attributes any
merit to the distinction . . . between negligence and intentional
tort claims.” 43 	Indeed, even “the Rubalcava majority pointedly
rejected such a distinction, stating: 	‘[N]o basis can be found
[in our statutes] for any distinction between intentional or
unintentional torts. 	Under [our statutes] the plaintiff either
has a right to bring an action in tort, or she does not.’” 44
¶23 	Finally, in Stoker, after reversing course from
Rubalcava and reaffirming Taylor, we made this broad, clear
statement: 	“Our holding today reaffirms the Legislative
abrogation of Interspousal Immunity.” 45 	Stoker was meant to be
our final pronouncement on the subject–-interspousal immunity was
now dead in Utah as to all claims. 	Because we stopped short in
subsequent cases of stating that Stoker’s holding applies to
negligence claims as well, however, the Estate now argues that
Stoker is limited to its facts. 46 	But in each of these cases, it

46 (...continued)
as there are no grounds for reversing the instant case, I think
it unnecessary for us to decide at this juncture whether [Stoker]
abrogated interspousal immunity with respect to actions grounded
in negligence as well as those grounded in intentional torts.”).
47 See Lucero, 884 P.2d at 205.
48 Hatch v. Hatch, 148 P. 1096, 1100 (Utah 1915).
No. 20060359 	12
was unnecessary to reach the issue. 	We reject the Estate’s
attempt to limit Stoker.
¶24 	In sum, because we rejected in Rubalcava and Stoker any
distinction, for the purposes of interspousal immunity, between
negligent and intentional torts, and because in Stoker we
rejected interspousal immunity for reasons that apply equally to
negligent and intentional torts, we conclude that interspousal
immunity has been abrogated in Utah with respect to all claims. 47
D. 	The Justifications for Interspousal Immunity Are Meritless
¶25 	Our determination to reaffirm Stoker’s rejection of
interspousal immunity as to tort claims is based on our
conclusion that the two primary rationales used to justify
interspousal immunity--marital discord and collusion–-are
ultimately without merit. 	We briefly discuss these rationales
below.
1. 	Marital Discord
¶26 	We observed long ago that the “[u]nity of man and wife
can never be created by law, but by nature; and where there is
discord, no legal rules can create harmony.” 48 	Moreover, the New
Jersey Supreme Court has stated as follows:
Courts can claim no penetrating insight by
which to fathom the impact of an interspousal
law suit or gauge its effect upon the
strength or fragility of a marriage. 	The
threat to domestic harmony posed by a legal
action between spouses is an imponderable;
the cohesiveness of a marriage may be
jeopardized as much by barring a cause of
action as allowing it.
Furthermore, “the marital couple is not
an independent entity with a mind and heart

49 Merenoff v. Merenoff, 388 A.2d 951, 959 (N.J. 1978)
(quoting Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)).
50 Id.
51 W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 122, at 903 (5th ed. 1984).
52 See Farmers Ins. Exch. v. Call, 712 P.2d 231, 235 (Utah
1985); Malan v. Lewis, 693 P.2d 661, 674 (Utah 1984).
53 712 P.2d 231 (Utah 1985).
54 Id. at 236.
13 	No. 20060359
of its own, but an association of two
individuals each with a separate intellectual
and emotional makeup.” 49
¶27 	We agree that “the choice to sue, or not to sue, should
be that of the parties to the marriage.” 50 	It is difficult to
see how barring compensation for an injury--which bar could
itself lead to financial, physical, or emotional distress--will
strengthen or protect a marriage. 	Indeed, it is “doubtful that
peace and harmony of the home can be preserved or restored by
refusing to redress a palpable wrong or to compensate a genuine
injury.” 51
2. 	Collusion
¶28 	We have previously rejected the notion that the
potential for collusion is a sufficient rationale for prohibiting
certain kinds of litigation. 52 	In Farmers Insurance Exchange v.
Call,53 we held that a household exclusion clause in an
automobile insurance policy is contrary to statutory requirements
and public policy. 54 	We stated that
we are not persuaded that the collusion
rationale . . . remains an adequate
justification for the household exclusion
clause. 	In [Malan], this Court determined
that the Utah Guest Statute is
unconstitutional and found the collusion
rationale to be insufficient to deny coverage
to innocent guest passengers injured in
automobile accidents. 	In addition, the risk
of collusion in intrafamily litigation has
never been accepted by this Court as grounds

55 Id. at 235.
56 Id. (quoting Nocktonick v. Nocktonick, 611 P.2d 135, 142
(Kan. 1980)). 	Along these same lines, the California Supreme
Court stated as follows:
It would be a sad commentary on the law if we
were to admit that the judicial processes are
so ineffective that we must deny relief to a
person otherwise entitled simply because in
some future case a litigant may be guilty of
fraud or collusion. 	Once that concept were
accepted, then all causes of action should be
abolished. 	Our legal system is not that
ineffectual.
Klein v. Klein, 376 P.2d 70, 73 (Cal. 1962). 	Further, the
Nebraska Supreme Court stated as follows:
To adopt such a view requires the blanket
assumption that our court system is so ill-
fitted to deal with such litigation that the
only reasonable alternative to allowing
husband-wife tort litigation is to summarily
deny all relief to this class of
litigants. . . . We ought not deny what
should be due the many for fear that the
judicial process cannot weed out the spurious
claims of a few.
Imig v. March, 279 N.W.2d 382, 385 (Neb. 1979).
No. 20060359 	14
for endorsing the parent-child immunity
doctrine, which has likewise never been
established by the legislature. 55
¶29 	In Call, we adopted the following rationale from the
Kansas Supreme Court:
“The possibility of collusion exists to a
certain extent in any case. 	Everyday [sic]
we depend on juries and trial judges to sift
evidence in order to determine the facts and
arrive at proper verdicts. 	Experience has
shown that the courts are quite adequate for
this task. 	In litigation between parent and
child, judges and juries would naturally be
mindful of the relationship and would be even
more on the alert for improper conduct.” 56

57 E.g., Bishop v. Nielsen, 632 P.2d 864, 865 (Utah 1981)
(holding that parent-child immunity does not exist in Utah).
58 Utah Code Ann. § 78-12-25 (2002).
59 Id. § 78-12-36.
60 The statute reads “mentally incompetent and without a
guardian.” 	Id. (emphasis added). 	Thus, the tolling statute will
not operate if a person is mentally incompetent but has a legal
guardian. 	In this case, Mrs. Ellis was of the age of majority
and no guardian had been appointed for her.
15 	No. 20060359
This reasoning, which we have applied in allowing parent-child
lawsuits, 57 applies equally to lawsuits between husband and wife.
II. 	STATUTE OF LIMITATIONS
¶30 	Mrs. Ellis was required to file her negligence claim
within four years pursuant to the general statute of limitations,
section 78-12-25. 58 	Mrs. Ellis’s cause of action accrued on
January 2, 2001, but she did not file her negligence claim until
January 27, 2005, twenty-five days after four years had elapsed.
¶31 	The Estate argues that Mrs. Ellis’s claim should be
barred. 	Ellis responds that the statute of limitations was
tolled by section 78-12-36, which tolls the statute if a person
is “mentally incompetent.” 59 	Section 78-12-36 reads:
If a person entitled to bring an action,
other than for the recovery of real property,
is at the time the cause of action accrued,
either under the age of majority or mentally
incompetent and without a legal guardian, the
time of the disability is not part of the
time limited for the commencement of the
action. 60
¶32 	In support of her position, Mrs. Ellis filed four
affidavits--one from her mother, two from her sisters, and one
from herself. 	The affidavits state that Mrs. Ellis was mentally
incompetent for a period of at least twenty-five days after the
automobile accident. 	They describe Mrs. Ellis’s serious
condition and her inability to take care of herself after the
accident. 	The district court determined that these lay
affidavits were sufficient to establish a genuine issue of
material fact and send the matter to a jury. 	We agree.

61 821 P.2d 1139 (Utah 1991).
62 Id. at 1141.
63 Id. at 1142 (quoting McCarthy v. Volkswagen of Am., Inc.,
435 N.E.2d 1072, 1075 (N.Y. 1982)).
64 Id. (alterations in O’Neal)(quoting 51 Am. Jur. 2d
Limitation of Actions § 182 (1970)). 	In O’Neal, we also
discussed a definition of mental incompetence from the probate
code, which makes it somewhat easier to determine that a person
is competent. 	Id.; see In re Boyer, 636 P.2d 1085, 1089 (Utah
1981). 	We noted that this “competency determination focused on a
person’s ability to care for his or her personal safety and
provide basic human needs such as food, shelter, and clothing.”
(continued...)
No. 20060359 	16
A. 	Lay Affidavits Are Sufficient To Create a Genuine Issue of
Material Fact as to “Mental Incompetence” Under Section 78-12-36
¶33 	In O’Neal v. Division of Family Services,61 we
discussed the application of section 78-12-36 as to mental
incompetency:
The Utah legislature has recognized that the
mechanical application of statutorily fixed
limitations periods may unjustly penalize
people who are unable to bring or maintain an
action because of disability. 	To address
this problem, the legislature has provided
for the tolling of statutes of limitations
during a plaintiff’s disability. 62
We continued, “Tolling statutes based on mental incompetency are
enacted to relieve from the strict time restrictions people ‘who
are unable to protect their legal rights because of an overall
inability to function in society.’” 63 	Ultimately, we held:
In determining what sort of lack of ability
and capacity to protect one’s legal rights
qualifies for disability protection, courts
generally hold that a person is incompetent
for the purposes of a provision tolling a
statute of limitations “when the disability
is of such a nature to show him [or her]
unable to manage his [or her] business
affairs or estate, or to comprehend his [or
her] legal rights or liabilities.” 64

64 (...continued)
O’Neal, 821 P.2d at 1142.
65 293 F. Supp. 2d 219 (E.D.N.Y. 2003).
66 Id. at 223-24 (internal quotation marks and citations
omitted).
67 O’Neal, 821 P.2d at 1142.
17 	No. 20060359
¶34 	The Estate argues that expert testimony, medical
records, or a medical diagnosis identifying a specific condition
or disability must be submitted to show mental incompetency under
section 78-12-36. 	The Estate contends that the lay affidavits
from Mrs. Ellis’s family members are inadmissible because they
are insufficient to show mental incompetency. 	We disagree.
¶35 	The Estate relies on Columbo v. United States Postal
Service,65 which noted that
[t]he question of whether a person is
sufficiently mentally disabled to justify
tolling of a limitation period is . . .
highly case-specific. 	The burden lies with
the party seeking tolling to provide that it
is appropriate. 	Because mental illnesses are
as varied as physical illnesses . . . [a]
conclusory and vague claim, without a
particularized description . . . is
manifestly insufficient to justify any
further inquiry into tolling. 66
The Estate argues that Mrs. Ellis has not provided a
“particularized description” of her disability, which must
inc`lude a specific medical diagnosis. 	But the statement in
Columbo refers to “mental illnesses,” while in this case we are
dealing solely with the legal definition of mental incompetency
that we discussed in O’Neal. 	And Mrs. Ellis’s affidavits do
describe with particularity her legal disability after the
accident.
¶36 	For example, in O’Neal we considered nonmedical
evidence to determine that O’Neal was not mentally incompetent so
as to toll the statute of limitations. 67 	We noted that from 1977
until 1986, O’Neal was able to care for his personal safety and
provide himself with necessities such as food, shelter, medical

68 Id.
69 Id.
70 Id.
71 Id.
72 823 P.2d 1064 (Utah 1992).
No. 20060359 	18
care, and clothing. 68 	We noted that he received his general
education degree and attended classes at Utah Technical
College. 69 	He also worked at a number of odd jobs while living
with his mother or roommates. 70 	Finally, we noted that, since
1981, O’Neal lived either alone or with a roommate and worked at
Rocky Mountain Helicopters, where he was promoted from driving a
truck to negotiating the recovery of warranty damages from
suppliers for the failure of covered parts. 71 	This nonmedical,
nonexpert evidence went directly to O’Neal’s mental competency
under section 78-12-36–-his ability to “manage his business
affairs or estate” or “to comprehend his legal rights or
abilities.” 	In addition, this evidence showed his ability to
care for himself and provide necessities such as food, shelter,
and clothing. 	Thus, O’Neal illustrates that we will consider lay
evidence in regard to a person’s alleged disability under the
tolling statute; expert testimony, medical records, and a medical
diagnosis, while potentially helpful, are not necessary under the
statute or any of our previous cases. 	Indeed, we agree with
Mrs. Ellis that “mental incompetency” under section 78-12-36 is a
legal disability that is addressed by precisely the testimony she
proferred with respect to her family’s affidavits. 	As a result,
we affirm the district court’s decision, which held that there
was a genuine issue of material fact as to Mrs. Ellis’s mental
incompetency so as to toll the statute of limitations under
section 78-12-36.
B. 	A Party May File Suit at any Time During the Limitations
Period or After the Limitations Period if It Was Properly Tolled
¶37 	The Estate argues that, even if Mrs. Ellis could
establish mental incompetency for a period of twenty-five days,
her action would be barred because she still had over three and
one-half years to bring her claim and failed to do so.
Accordingly, the Estate relies on Atwood v. Sturm,72 arguing that
it stands for the proposition that because Ellis failed to file
after she had (1) notice of her claim and (2) a reasonable three-
and-one-half-year opportunity to bring that claim, her lawsuit
should be dismissed. 	We disagree.

73 Id. at 1065.
74 Id.
75 Id.
19 	No. 20060359
¶38 	In Atwood, we held that section 78-12-36 did not toll
the applicable statute of limitations where the plaintiff was
initially in the hospital for two weeks. 73 	We stated as follows:
Clearly, plaintiff does not come within
[section 78-12-36]. 	While plaintiff was
prevented from obtaining legal advice or
pursuing any action during his
hospitalization, nevertheless, he had the
balance of the four-year period to bring this
action. 	He learned in the spring of 1988
that he had a potential lawsuit and had a
number of months thereafter to file his
action; the initial two-week hospitalization
at the beginning of the four-year period was
inconsequential in affecting his legal
rights. 74
In Atwood, we held that the plaintiff was not mentally
incompetent under section 78-12-36. 75 	Thus, the tolling statute
did not even apply, and the initial two-week stay in the hospital
became inconsequential in our analysis. 	Moreover, the language
we used in Atwood does not stand for the proposition that once a
person has notice of a claim and a realistic opportunity to
pursue that claim, she cannot delay in bringing her claim. 	Such
reasoning contradicts the plain language of our statutes of
limitations. 	In Mrs. Ellis’s case, she had the balance of the
four years to bring her negligence claim, regardless of whether
she had notice of her claim and an opportunity to pursue it more
than three and one-half years earlier.
CONCLUSION
¶39 	The common-law doctrine of interspousal immunity has
been abrogated in Utah with respect to all claims; therefore, we
reverse the district court’s grant of summary judgment. 	But we
affirm the district court’s decision that the lay affidavits
presented sufficient evidence to establish a genuine issue of
material fact as to Mrs. Ellis’s mental incompetency so as to
toll the statute of limitations under Utah Code section 78-12-36.

No. 20060359 	20
Accordingly, we remand to the district court for further
proceedings.
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¶40 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.