Condon v. A. H. Robins Co., Inc., 83-471

• Decision Date: 20 April 1984
• Docket Number: No. 83-471,83-471
• Citation: 349 N.W.2d 622,217 Neb. 60
• Parties: Susan K. CONDON, Plaintiff, v. A.H. ROBINS COMPANY, INC., Defendant.
• Court: Nebraska Supreme Court

Page 622

349 N.W.2d 622

217 Neb. 60

Susan K. CONDON, Plaintiff, v. A.H. ROBINS COMPANY, INC., Defendant.

No. 83-471.

Supreme Court of Nebraska.

April 20, 1984.

Syllabus by the Court

Products Liability: Limitations of Actions. The 4-year statute of limitations set forth in Neb.Rev.Stat. § 25-224(1) (Cum.Supp.1982) begins to run on the date on which the party holding the cause of action discovers, or in the exercise of reasonable diligence should have discovered, the existence of the injury or damage.

Jerold V. Fennell of Robert E. O'Connor & Associates, Omaha, for plaintiff.

Ronald F. Krause of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for defendant.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

KRIVOSHA, Chief Justice.

This matter is presented to the court on a certification of a question of law from the U.S. District Court for the District of Nebraska, pursuant to the provisions of Neb.Rev.Stat. § 24-219 (Cum.Supp.1982). The specific question certified to us by the federal court is as follows: Does the 4-year statute of limitations set forth in Neb.Rev.Stat. § 25-224(1) (Cum.Supp.1982) begin to run on the date on which injury or damage complained of occurs or when the person injured discovers the facts constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery?

If the question presented to us is whether the statute of limitations begins to run on the date on which the injury or damage "happens," whether known to the injured party or not, or when the injured party knows whom to sue, we believe the answer is neither time. We reach this conclusion because we believe, for reasons which we will detail hereafter, that a cause of action under the provisions of § 25-224(1) begins to run from the time the party entitled to bring the cause of action discovers, or in the exercise of reasonable diligence should have discovered, the existence of death, injury, or damage. While the date on which death occurs should usually be easy to determine, the date on which the injury or damage is discovered, or in the exercise of reasonable diligence could be discovered, may be more difficult. Furthermore, the date on which the statute of limitations under § 25-224(1) begins to run in regard to one particular injury or damage may not be the same as it is with respect to a further or different injury or damage occasioned by the use of or contact with the defective product.

Because evidence has not as yet been presented in the trial court and because this matter comes to the court as a certified question, the particular facts are neither available to us nor relevant in our determination of the legal question. We do, however, set out the statement of facts presented to us by the request for formal certification, solely for the reason that the statement may be helpful in discussing the legal principles.

On February 1, 1974, the plaintiff, Susan K. Condon, was professionally fitted with a "Dalkon Shield" intrauterine device manufactured by the defendant, A.H. Robins Company. On or about August 27, 1976, after experiencing abdominal pain, Condon received medical care, and the Dalkon Shield was removed. In January of 1982, following an examination and the administration of diagnostic tests, a physician advised Condon that she had pelvic adhesions, which were probably caused by her use of the Dalkon Shield. While not set out in the statement of facts presented to us, the complaint filed by Condon alleges that by reason of Robins' negligence, Condon was required to be hospitalized and, in addition to other damages, has become permanently sterile.

The statute in question, § 25-224(1), provides: "All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs." Subsection (5) is not material to our question as presented. Robins argues that the statute should be interpreted to mean that the statute of limitations begins to run when the injury or damage in fact first happens, even though the individual who has been injured or damaged may be totally unaware of the fact. In support of its position Robins argues that the Legislature was mindful of our decision in Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962), when it adopted § 25-224(1), and by omitting a specific reference to "discovery" in the subsection, the Legislature obviously intended that a discovery rule should not be applied. We do not believe, however, that an examination of either the legislative history surrounding the adoption of § 25-224(1) or the general applicable rules of law leads to the conclusion urged by Robins.

The purpose of permitting a discovery rule to be applied to a statute of limitations is founded upon what this court perceives as the logic of the matter. In Spath we examined the history underlying a statute of limitations, and noted at 41, 115 N.W.2d at 583-84:

The statute of limitations is a statute of repose; it prevents recovery on stale demands. In re Estate of Anderson, 148 Neb. 436, 27 N.W.2d 632. The statute is enacted upon the presumption that one having a well-founded claim will not delay enforcing it beyond a reasonable time if he has the right to proceed. The basis of the presumption is gone whenever the ability to resort to the courts is taken away. Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545. The mischief which statutes of limitations are intended to remedy is the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert. 34 Am.Jur., Limitation of Actions, § 10, p. 20. If an injured party is wholly unaware of the nature of his injury or the cause of it, it is difficult to see how he may be charged with a lack of diligence or sleeping on his rights.

Additionally, if an individual is wholly unaware that he has in fact suffered injury or damage, it is difficult to see how he can file suit under a legal system which requires a party to allege and prove not only that another has breached a duty owed to the plaintiff but also that such breach has produced injury or damage. May one bring a cause of action if one neither knows nor, with the exercise of reasonable diligence, could know that he has been injured or damaged? We think not. The elements of actionable negligence are set out in 57 Am.Jur.2d Negligence § 32 at 378 (1971). The author there notes:

The primary wrong upon which a cause of action for negligence is based consists in the breach of a duty on the part of one person to protect another against injury, the proximate result of which is an injury to the person to whom the duty is owed.

These elements of duty, breach, and injury are essentials of actionable negligence. In the absence of any one of them, no cause of action for negligence will lie.

And at 57 Am.Jur.2d, supra § 64 at 415, the author further notes:

A cause of action for negligence depends not only upon the defendant's breach of duty to exercise care to avoid injury to the plaintiff, but also upon damage or injury suffered by the plaintiff as a consequence of the violation of duty. Liability for negligence, of course, depends upon a showing that the injury suffered by the plaintiff was caused by the alleged wrongful act or omission of the defendant.

In Widemshek v. Fale, 17 Wis.2d 337, 340, 117 N.W.2d 275, 276 (1962), the Wisconsin Supreme Court observed: "Actual damage is an essential element in the cause of action based on negligence or on fraud."

It seems to us that it would be a Hobson's choice to suggest, on the one hand, that one could not maintain a cause of action unless and until one could show not only a breach of duty but an injury or damage resulting from that breach and, on the other hand, to suggest that the time for bringing that action could begin and terminate before the individual could either reasonably be aware of the injury or damage or be able in any manner to establish its existence.

These rules are consistent with our own rules in such matters. It has long been recognized in this jurisdiction that a cause of action accrues and the statute of limitations begins to run when the aggrieved party has the right to institute and maintain a suit. See Weiss v. Weiss, 179 Neb. 714, 140 N.W.2d 15 (1966). Nebraska has a statute specifically declaring that concept to be the law of this jurisdiction. Neb.Rev.Stat. § 25-201 (Reissue 1979) provides: "Civil actions can only be commenced within the time prescribed in this chapter, after the cause of action shall have accrued." The provisions of § 25-201 are applicable to § 25-224(1).

One may maintain that such an argument may have merit, but the Legislature, having spoken with clarity, cannot be disregarded. We believe, however, that we are not disregarding either the Legislature or the statutory language.

By simply turning to the dictionary and obtaining the plain meaning of "occur," one is inclined to adopt a discovery rule for § 25-224(1). While it is true that the word "occur" is often thought to mean "to happen," in fact its preferred meaning is otherwise. According to Webster's New Universal Unabridged Dictionary 1237 (2d ed. 1983), the word "occur" means "to come to mind; to be presented to the mind, imagination, or memory; to present itself." And the preferred meaning in Webster's Third New International Dictionary, Unabridged 1561 (1968), is "to be found or met with." To therefore suggest that the use of the word "occur" rather than "accrue," in § 25-224, somehow precludes the presence of a discovery rule or requires us to abandon the rule adopted by us in Spath is without support.

The word "occur" has previously been the source of litigation in insurance policies and generally has been held to imply a...