Alston v. Hormel Foods Corp., S-05-1488.
| Decision Date | 20 April 2007 |
| Docket Number | No. S-05-1488.,S-05-1488. |
| Parties | Karen B. ALSTON, Appellant, v. HORMEL FOODS CORPORATION, Appellee. |
| Court | Nebraska Supreme Court |
Betty L. Egan and Kylie A. Wolf, of Walentine, O'Toole, McGuillan & Gordon, Omaha, for appellant.
James L. Quinlan and Kristin A. Crone, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.
The plaintiff in this appeal was allegedly injured by exposure to smoke and odors. She was first exposed to the alleged hazards in 1990 or 1991, her medical condition was diagnosed by 1996, and she was last exposed to the alleged hazards in November 1999. She did not file her complaint against the alleged tort-feasor until October 2003. The issue presented in this appeal is when the 4-year statute of limitations1 began to run on the plaintiff's tort claim. The plaintiff asks this court to adopt the "continuing tort doctrine" and conclude that the statute of limitations began to run, not from the date of the injury or her discovery of the injury, but from her last exposure to the alleged hazard.
Karen B. Alston, the plaintiff, began working for the U.S. Department of Agriculture (USDA) as a meat inspector in September 1988, and held that position until November 1999. In 1990 or 1991, she was assigned to the Hormel Foods Corporation (Hormel) plant in Fremont, Nebraska. In her deposition, Alston stated that while she was working at the Hormel site, "on the kill floor there was an excessive amount of smoke, there w[ere] excessive amounts of odor coming from the smokehouse, which I feel played a tremendous part in my health problems." Alston said that the smoke and odor aggravated her asthma and exacerbated her lower airway reactivity. Alston said it was "almost impossible to breathe in that establishment." Alston claimed that because of her respiratory problems, she also suffered from depression.
In May 1996, Alston was hospitalized for her condition. She was suffering from significant wheezing, shortness of breath, and dyspnea on exertion and was treated with intravenous fluids, intravenous steroids, and aerosol treatments. The principal diagnosis included acute exacerbation of asthmatic bronchitis and allergic rhinitis. Alston was discharged after 3 days in the hospital and was prescribed oral and aerosol medications.
Alston missed work in November 1997 because of exacerbation of her asthma. In March 1999, Alston completed and filed an application for immediate retirement from her USDA employment. In her application, Alston wrote that she had become disabled from her position in approximately April 1995. She wrote about her condition at length and stated, among other things, that her disease interfered with the performance of her duties because "[t]he work environment bring[s] on asthma conditions which [result] in a secondary condition." Alston also wrote that "[t]he final results are moderate depression, shortness of breath, extreme frustration and complete fatigue." She had used her sick leave and annual leave because, she wrote, she "[had] to leave [her] position when the environment [became] intolerable." She characterized the restrictions on her activities, among others, as avoiding "humid conditions, to avoid vapors, smoke, fumes and to avoid industrial environments."
In November 1999, Alston's doctor wrote a letter to Alston's attorney stating that Alston had "significant asthma which is exacerbated by her environmental exposure at her place of employment." In December 1999, an allergy and asthma specialist opined in a letter to Alston's attorney that Alston's "current symptoms seem to show a lack of any significant improvement in terms of symptom control" and his "suspicion" was that
Alston filed a complaint against Hormel in the district court on October 23, 2003. The record shows that Alston terminated her employment at Hormel in November 1999. Alston alleged in her complaint that excessive smoke and odor periodically reached the kill floor where Alston worked, Hormel had notice of the smoke and odor, and Alston's asthma was exacerbated by the smoke and odor. Alston alleged that Hormel had a duty to provide Alston with a safe place to work and breached that duty by causing, allowing, or failing to prevent the smoke and odor from reaching the kill floor. Hormel alleged an affirmative defense of the statute of limitations and filed a corresponding motion for summary judgment.
The district court concluded that Alston was aware she was affected by disabling conditions in her work environment as early as April 1995 or 1996 and that she was certainly aware of the nature and extent of her injuries by March 1999, when she applied for retirement. Thus, the court concluded that the 4-year statute of limitations began to run on Alston's claim no later than March 1999, and her complaint, filed in October 2003, was time barred. The court entered summary judgment for Hormel, and Alston appeals.
Alston assigns that the district court erred in sustaining Hormel's motion for summary judgment.
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.2 In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.3
Section 25-207 provides that a tort action, described as "an action for an injury to the rights of the plaintiff, not arising on contract," "can only be brought within four years." It has generally been stated that a statute of limitations begins to run as soon as the claim accrues, and an action in tort accrues as soon as the act or omission occurs.4 But while § 25-207 provides no exception for causes of action that are not discovered before the statute of limitations expires,5 we have held that in certain categories of cases, the statute of limitations begins to run on the date when the party holding the claim discovers or, in the exercise of reasonable diligence, should have discovered the existence of the injury.6
In this case, Alston argues that because she alleged that Hormel engaged in a course of continuing tortious conduct, the statute of limitations ran from her last exposure to the alleged hazard, which was less than 4 years before she filed her complaint. But it is not disputed that Alston discovered or should have discovered the effect of Hormel's alleged conduct more than 4 years prior to the filing of her complaint. Hormel argues that Alston's claim accrued when she discovered or should have discovered her injury; thus, Hormel asserts that Alston's claim is barred by § 25-207. Resolving these competing contentions will require us to examine the continuing tort doctrine generally and then consider how the discovery rule affects the statute of limitations for a continuing tort.
It is well accepted that when an individual is subject to a continuing, cumulative pattern of tortious conduct, capable of being terminated and involving continuing or repeated injury, the statute of limitations does not run until the date of the last injury or cessation of the wrongful action.7 This "continuing tort doctrine" requires that a tortious act—not simply the continuing ill effects of prior tortious acts—fall within the limitation period.8 Nor can the necessary tortious act merely be the failure to right a wrong committed outside the statute of limitations, because if it were, the statute of limitations would never run because a tort-feasor can undo all or part of the harm.9 Rather, when a tort is continuing, although the initial tortious act may have occurred longer than the statutory period prior to the filing of an action, an action will not be barred if it can be based upon the continuance of that tort within that period.10
There is some disagreement as to whether the continuing tort doctrine is a tolling doctrine or a doctrine of accrual — that is, whether continuing tortious conduct tolls the running of the statute of limitations with respect to a claim or whether the claim accrues as the tort continues.11 But the better-reasoned view is that it is a doctrine of accrual. As explained by the Seventh Circuit, "Moiling rules create defenses; they are optional with the plaintiff; he can sue as soon as his claim accrues."12 When an alleged tort-feasor's conduct is continuing, however, the plaintiff can sue only with respect to what the tort-feasor has already done, not what the tort-feasor might continue to do; so, it makes little sense to describe the continuing tort as "tolling" the statute of limitations with respect to injuries not yet inflicted. Instead, "the usual and it seems to [the Seventh Circuit] the correct characterization of the doctrine . . . is that it is a doctrine governing accrual."13
The more significant difference of opinion concerns whether a claim based on a continuing tort may be brought for all damages caused by the tort or only the damages caused by tortious conduct within the statutory limitations period. As explained by the Eleventh Circuit:
Under the pure version of the continuing tort theory, a cause of action for any of the damages a plaintiff has suffered does not "accrue" until the defendant's tortious conduct ceases.[14] Under the pure continuing tort theory, a plaintiff may...
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...action accrued. Bauers, supra . “[A] statute of limitations begins to run as soon as the claim accrues.” Alston v. Hormel Foods Corp., 273 Neb. 422, 425, 730 N.W.2d 376, 381 (2007). Although state law determines which statute of limitations applies to § 1983 claims, “the accrual date of a §......
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