Garrett v. Raytheon Co.

When does the statute of limitations begin to run for injuries suffered as a result of radiation exposure? We conclude that it begins to run when the plaintiff is exposed to radiation and an injury occurs. This was the trial court’s conclusion when it held the plaintiff’s claim was barred by the statute of limitations. We agree and affirm.

On February 17,1978, appellant (plaintiff below) filed suit against defendants General Electric Corporation, Western Electric Company, Inc., Raytheon Company, P. R. Mallory Company, Inc., General Electric Company, Inc., American Telephone and Telegraph Company and South Cehtral Bell Telephone Company, Inc.

In his complaint he alleges in “COUNT ONE” the following:

“3. Plaintiff Jerry Kenneth Garrett states that prior to 1955, Defendants and each of them so negligently and carelessly designed, manufactured, fabricated, installed, repaired and maintained certain radar systems, component parts of radar systems, and installations of certain radar systems so as to cause said systems to be in a dangerous and defective condition. As a result of the aforesaid dangers and defective condition, said units emitted dangerous radiation.

“4. From, on or about 1955 until on or about 1957, Plaintiff Jerry Kenneth Garrett was exposed to massive doses of the aforesaid dangerous radiation without Plaintiffs’ knowledge and without Plaintiffs’ consent. As a direct and proximate result of said exposure to said radiation, Plaintiffs sustained injuries and damages as set forth in Paragraphs 5 and 6 hereof.

“5. Plaintiff Jerry Kenneth Garrett suffered the following injuries and damages, to-wit: Plaintiff’s hair fell out, his hair was caused to turn white, his facial and body hair was caused to fall out. His aging process has been materially altered. He has incurred reasonable expenses for the services of physicians, nurses, medicines, roentgenologists, and other related medical expenses, in a presently unascer-tained amount as the same are still being incurred. His risk of contracting cancer and leukemia have been greatly increased. His sexually active years have been materially shortened. Plaintiff has suffered humiliation, embarrassment, mental pain, anguish, anxiety, shock, and other injuries not presently diagnosed, the nature and extent of which Plaintiff will add by amendment when ascertained.

“6. Plaintiff Claudell Weathers Garrett claims loss of services, loss of consortium, and the loss of companionship of her husband who suffered the injuries and damages set forth in the previous paragraph hereof.

“7. Plaintiffs had no knowledge of the hazardous, dangerous, and defective condition of the aforesaid radar systems and of the harmful effects of radiation during the period of exposure. Plaintiffs did not know of the potential adverse medical effects of radiation exposure until the condition of Jerry Kenneth Garrett was diagnosed in March, 1977, when for the very first time, Plaintiff Jerry Kenneth Garrett was advised for the Very first time that his rapidly deteriorating condition was due to said radiation exposure.

“WHEREFORE PREMISES CONSIDERED, Plaintiff Jerry Kenneth Garrett demands judgment in the sum of $500,000.00 .. . ..”

Count Two is in wantonness. Count Three is under the Alabama Extended Manufacturer’s Liability Doctrine; Count Four alleges strict liability, while Count Five alleges negligence, wilfulness and wantonness; and Count Six avers that defendants negligently, wilfully and wantonly withheld information from plaintiff that the radar systems presented hazards.

Defendant Raytheon, appellee here, filed a motion to dismiss upon grounds of failure to state a claim upon which relief can be granted and the statute of limitations.

The trial court granted the motion to dismiss making the finding in compliance with Rule 54(b) whereupon plaintiff Garrett appealed.

The very basic and long settled rule of construction of our courts is that a statute of limitations begins to run in favor of the party liable from the time the cause of action “accrues.” The cause of action “accrues” as soon as the party in whose favor it arises is entitled to maintain an action thereon.

“We have held that the statute begins to run whether or not the full amount of damages is apparent at the time of the first legal injury. In Kelly v. Shropshire, 199 Ala. 602, 75 So. 291, 292 (1917), the rule was stated as follows:

“ ‘If the act of which the injury is the natural sequence is of itself a legal injury to plaintiff, a completed wrong, the cause of action accrues and the statute begins to run from the time the act is committed, be the actual damage [then apparent] however slight, and the statute will operate to bar a recovery not only for the present damages but for damages developing subsequently and not actionable at the time of the wrong done; for in such a case the subsequent increase in the damages resulting gives no new cause of action. Nor does plaintiff’s ignorance of the tort or injury, at least if there is no fraudulent concealment by defendant, postpone the running of the statute until the tort or injury is discovered.’

“Nor do the cases cited to us by appellant Home modify this rule. Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925) (flooding of basement causing rusting of heating plant) and West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909) (underground mining causing subsidence of surface land) merely state the well established rule that the statute will not begin to run until some injury occurs which gives rise to a maintainable cause of action.

“Reviewing the facts in this cause, we find that, as a result of the open space left in the roof, rainwater poured into the freezer and office of Schloss & Kahn on November 11, 1968; ice had to be removed with sledge hammers and shovels before the freezer could be used; the entire office had to be repainted; and finally, ice was discovered in the walls on December 17, 1968. Even without any subsequent damage, Schloss & Kahn as of December 17, 1968, at the latest, had suffered legal injury from the alleged negligent acts of November 8, so as to entitle it to maintain a cause of action against the third-party defendants. The statute of limitations began to run at that time.”

Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So.2d 468, 473 (1973).

The class of cases exemplified by Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925), and West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909), expresses the same rule although in a different context, and the basic principle is the same. Thus, there are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff’s injury only comes as a result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action “accrues,” and the statute of limitation begins to run, “when, and only when, the damages are sustained.” Over sixty years ago, Justice Sayre so expressed it in his opinion for the Court in Kelly, et al. v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).

In West Pratt Coal plaintiff’s upper soil cracked open and settled down several years after mining had taken place beneath the surface. Plaintiff brought suit within one year after the soil settled. In stating that the statute had not run, the Court held that the plaintiff had nothing of which to complain until the enjoyment of the lot was interfered with by the settling of the soil, i. e., no cause of action had “accrued” until that time.

In Kelly, supra, this Court held that the statute of limitations had run against a plaintiff who sought damages more than six years after he had contracted with a surveyor to survey and map certain property and who, plaintiff claimed, had negligently mapped it. The Court held that plaintiff’s ignorance of the injury, when there was no fraudulent concealment, did not postpone the running of the statute until the injury was discovered.

The same rule has long been followed in this state with reference to medical malpractice. In Hudson v. Moore, 239 Ala. 130, 194 So. 147 (1940), this Court held, in an opinion authored by Justice Bouldin, that neither difficulty of ascertainment nor ignorance of the cause of action will toll the statute of limitations unless superinduced by fraud. In Hudson v. Moore, plaintiff sought damages in 1938 for an alleged negligent act in 1923 of leaving a gauze sponge in a patient’s body after a gall bladder operation. The court held the statute had run.

As recently as 1972, this Court, in Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972), held that an action for malpractice for leaving in a bulldog clamp after surgery was governed by the medical malpractice statute of limitations, Act No. 766, Acts of Alabama, 1953, page 1027 [then found at Tit. 7, § 25(1), Code of Alabama 1940 (Recompiled 1958)]. That act specified a limitation of two years. The jury found for the defendant and on appeal the contention was made that there was error in the court’s charge that if the jury were reasonably satisfied that'the leaving of a clamp in the plaintiff’s body was unintentional, the two year statute of limitations would apply and their verdict would be for the defendant. This Court held, in an opinion authored by Justice Maddox, that the evidence in the case was clear to the conclusion that the cause of action was governed by the two-year statute of limitations and that the giving of the charge, if error, was harmless.

It was noted in Sellers v. Edwards, supra, “ * * * that the Legislature has the inherent power to determine the date and time within which an action may be brought unless the time fixed is clearly arbitrary or unreasonable.” (Emphasis added.)

Thus, in Alabama the so-called “Discovery Rule” has been specifically rejected by this Court in medical and professional malpractice suits. Moreover, the legislature has adopted specific statutes of limitations with respect to the medical profession, as well as the engineering and architectural professions, and we have held that the enactment of such legislation is within the inherent power of the legislature. We cannot reject such long settled and mature authority out of hand.

The difference between our land subsiding cases, such as Corona Coal, and the instant case is that no injury occurred at the time of the mining in the Corona Coal case while in the instant case the damage must have occurred at the time of exposure else defendant would not be liable. It is simply that all the progressive nature of the injury has not made itself manifest at the time of the last exposure. But, we have held that the statute begins to run “whether or not the full amount of damages is apparent at the time of the first legal injury” or not. Home Insurance Co. v. Stuart-McCorkle, Inc., supra.

As Mr. Justice Faulkner’s dissent correctly states, the statute begins to run from the date of injury. See Brotherhood of Locomotive Firemen & Enginemen v. Hammett, 273 Ala. 397, 140 So.2d 832 (1962).

In Garren v. Commercial Union Insurance Co., 340 So.2d 764 (Ala.1976), we defined “date of injury” for statute of limitations purposes to be the day on which the plaintiff was last exposed to the damages which injured her. Justice Faulkner points out that this definition was derived from the workmen’s compensation act. It is incorrect, however, to assume that this ipso facto changes the definition of “date of injury” for non-workmen’s compensation cases.

Section 25-5-117 (Code 1975) provides:

“ * * * The date of the injury shall mean, for all purposes of this article, the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed to the hazards of the disease.” ^

This provision was enacted in 1971. See Act No. 668, Acts of the Legislature 1971, vol. II, p. 1379.

The injury in this case occurred on the date or dates of exposure. This is not a case where an injury did not occur until it made itself manifest by its symptoms. Among our cases, continuous tort cases are significant in the limitation of actions context. It was thus that in American Mutual Liability Insurance Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677 (1938), this Court held that recovery for a continuous tort could be had only for those damages which occurred within the period of limitations. See also Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937). The cause of action was, therefore, not barred by the statute of limitations until one year after the last day on which the plaintiff was exposed to the dangerous conditions which caused the injury. Minyard v. Woodward Iron Co., 81 F.Supp. 414 (N.D.Ala.), aff’d, 170 F.2d 508 (5th Cir. 1948). This was, and is, the rule in all cases concerning continuous torts in Alabama.

In the recent cases of Harig v. Johns-Manville Products Corp., [1978, Court of Appeals of Maryland] 394 A.2d 299, and Raymond v. Eli Lilly & Co., 371 A.2d 170 (N.H.1977), it was noted in the opinions that the courts in those states had already recognized the “Discovery Rule” before it was extended to products liability cases. Although both are well reasoned opinions, they are based on those states’ recognition of a rule which has been specifically rejected by Alabama courts for the past 60 years.

It may be that Alabama’s rejection of the “Discovery Rule” is contrary to the weight of opinion generally. However, as this Court is committed to the proposition that the legislature has the inherent power to establish statutes of limitation, we have no other alternative than to leave it to the legislature to abrogate this rule and adopt a more equitable one should it see fit, so that a plaintiff’s claim will not be barred when he has no way to ascertain that he has been damaged by a deleterious substance because the result has not manifested itself until the statute of limitations has run.

Of course, Alabama does recognize that a fraudulent concealment by a defendant tolls the running of the statute until the tort or injury is discovered or could have been discovered by due diligence. Although plaintiff purports to make an effort to allege fraud in Count Six, the allegations fall far short of the requirements of Rule 9, A.R.C.P., that fraud be alleged “with particularity.” For instance, the count fails to allege that the failure to disclose was material — that defendant knew the hazards were harmful to plaintiff — that they permitted him nevertheless to be exposed to the hazards — which he did not discover nor could he have discovered with reasonable diligence until the statute had run.

It is thus that we hold that the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiff’s ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered. If plaintiff was not injured in 1955-1957, then defendant committed no negligent act at that time which resulted in injury and defendant would not be liable. If plaintiff did become injured or damaged at that time, then the statute of limitations has run.

To reach the result espoused by the dissenters, however laudatory and attractive it may appear to be, would require overruling dozens of Alabama cases and departing from well-established principles of law laid down over the past 60 years. Moreover, and more importantly perhaps, it would result in usurping the inherent power of the legislature.

AFFIRMED.

TORBERT, C. J., and MADDOX, AL-MON and EMBRY, JJ., concur.

FAULKNER, JONES, SHORES and BEATTY, JJ., dissent.