Daugherty v. Farmers Co-op. Ass'n

• Decision Date: 16 October 1984
• Docket Number: No. 58371,58371
• Citation: 689 P.2d 947,1984 OK 72
• Parties: Byron A. DAUGHERTY and Ruby Daugherty, Appellants, v. FARMERS COOPERATIVE ASSOCIATION, a corporation, and Stauffer Chemical Company, a corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 947

689 P.2d 947

1984 OK 72

Byron A. DAUGHERTY and Ruby Daugherty, Appellants, v. FARMERS COOPERATIVE ASSOCIATION, a corporation, and Stauffer Chemical Company, a corporation, Appellees.

No. 58371.

Supreme Court of Oklahoma.

Oct. 16, 1984.

CERTIORARI TO COURT OF APPEALS, DIV. 3.

In an action to recover damages sustained as a result of exposure to pesticides, plaintiff alleged that the relevant statute of limitations in a manufacturers' products liability action did not begin to run until the plaintiff knew or should have known that he had a condition on which an action could have been brought against defendants. The defendant filed a motion for summary judgment which was subsequently granted. Writ of Certiorari has been previously granted, and the issue is presented as to when the statute of limitations begins to run in a manufacturers' products liability cause of action, in addition to the question of continued applicability of breach of warranty claims.

OPINION OF THE COURT OF APPEALS VACATED. JUDGMENT OF THE TRIAL COURT AFFIRMED IN PART; REVERSED IN PART. REMANDED FOR FURTHER PROCEEDINGS.

Ed Abel and Glen Mullins, Abel, Musser, Sokolosky & Clark, Oklahoma City, for appellants.

Huckaby, Fleming, Frailey & Chaffin by Michael L. Darrah, Oklahoma City, for appellee, Stauffer Chemical Co.

C. Scott Beuch, Lee, Beuch & Coulson, Oklahoma City, for appellee, Farmers Co-op. Ass'n.

HARGRAVE, Justice.

This action was instituted in the District Court of Oklahoma County to recover damages sustained as a result of exposure to toxic pesticides manufactured and sold by Stauffer Chemical Company and purchased by plaintiff Byron A. Daugherty from Farmers Cooperative Association. The pesticide was known as Cythion E-5 and it appears from the record plaintiff applied the substance between July 22 and August 1 of 1975. Later that August, the plaintiff began suffering numerous ailments, including numbness, weakness, paralysis, pain and burning sensations of the chest and extremities. The first physician plaintiff contacted diagnosed the problem as pesticide toxicity in August of 1975. Subsequently, the plaintiff was seen at Baptist Medical Center. The record indicates a Baptist Medical Center tentative diagnosis of malathion insecticide poisoning was entered on October 13, 1975. The final diagnosis from Clinton Regional Hospital dated September 17, 1975, was pesticide toxicity.

The petition in this action was filed May 24, 1978, and alleges the causal connection between the injuries and the product "was not discoverable before January 1, 1977." The defendant Stauffer Chemical Company answered and filed a motion for summary judgment; both instruments raise the question of the statute of limitations. The defendant's motion for summary judgment was granted and this appeal followed.

Appellants urge three propositions of error for review here. First, their claim for personal injury against the defendants did not accrue until they knew, or a reasonably prudent person should have known, that plaintiff had a condition on which an action could have been brought against defendants. Second, summary judgment was improper because there were material factual issues precluding summary judgment as to whether plaintiff knew or should have known of his cause of action. Third, even if the claim accrued in 1975, as defendants contend, the breach of implied warranty is not time-barred.

The inquiry into the bar of the statute of limitations in this action begins with the language of 12 O.S. 1981 § 95(3), which reads in part:

"Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action shall have accrued, and not afterwards:

* * *

Third. Within two years: ... an action for injury to the rights of another, not arising on contract, ...

This action is before the court as an appeal from defendant's successfully prosecuted motion for summary judgment. Such motions should be granted only where it appears there is no substantial controversy as to any material fact and that a party is entitled to judgment as a matter of law. Heavner v. Farmers Ins. Co. 663 P.2d 730 (Okl.1983). Where, as here, the defendant moves for summary judgment on the basis of an affirmative defense he must show that there is no substantial controversy as to facts that are material to the affirmative defense, and that the facts and inferences that may be reasonably drawn from them are in his favor. Martin v. Chapel, Wilkinson, Riggs & Abney, 637 P.2d 81 (Okl.1981). Furthermore, a ruling upon such a motion is to be made upon the record which the parties have actually made and not on that which is potentially possible. Thus a mere contention that such facts exist is not sufficient to withstand a motion for summary judgment. Culpepper v. Lloyd, 583 P.2d 500 (Okl.1978), Loper v. Austin, 596 P.2d 544 (Okl.1979).

Under these standards, the record before the Court is to be examined to determine the propriety of the motion for summary judgment granted the defendants in this cause. In answering defendants' interrogatories, the plaintiff stated he experienced certain injuries, i.e., pain, numbness, weakness, burning sensations in the upper and lower extremities, burning sensations in the chest, paralysis, speech problems and blindness, all gradually occurring from August, 1975 to date. Further, Ross Deputy, M.D., first diagnosed these symptoms as poisoning in the same month and year. On September 12, 1975, the significance of plaintiff's skin contact with pesticide and inhalation thereof two weeks before the onset of the symptoms was noted in his medical records at the Clinton Regional Hospital. In October of 1975, a tentative diagnosis was made at Baptist Medical Center reflecting malathion insecticide poisoning. The record thus demonstrates symptoms had become manifest and a medical connection had been made between those symptoms and the insecticide within three months of exposure. These diagnoses were not positive, and the record reflects uncertainty in that the physicians' records made a part of the record on appeal reflect tentative diagnoses. One such entry in the medical records states the fact the patient did not improve with time contra-indicated to him the diagnoses of pesticide poisoning.

The record contains no briefs or affidavits as to what findings were made by other physicians, although appellants' brief indicates several other physician contacts were made. The discharge summary from Baptist Memorial reflects that Ruby Daugherty indicated to a speech therapist that one diagnosis of multiple sclerosis was made. The diagnosis of pesticide toxicity was indicated on each exhibit attached to the defendants' motion for summary judgment and on the exhibit attached to plaintiff's brief in opposition to that motion. As previously noted, rulings on motions for summary judgment must be made on the actual record presented and not on the record which could have been made.

Plaintiff seeks a ruling from this Court that in products liability actions, the discovery rule should be applied in determining whether the statute of limitations had run. We have applied the discovery rule in this jurisdiction in cases of medical malpractice. See 76 O.S. 1981 § 18.9. McCarroll v. Doctors General Hospital, 664 P.2d 382, (Okl.1983). Additionally, the rule has been applied to cases of cumulative injury in workers' compensation cases. Eaton v. Van Noy Drilling, 637 P.2d 1249 (Okl.1981). To this date, this analysis has not been utilized in products liability actions. Tenth Circuit has stated this jurisdiction would probably adopt the discovery rule in products liability actions. Williams v. Borden, Inc., 637 F.2d 731 (1980), wherein the following statement is found:

"We are persuaded that a similar rule on accrual would be applied by the Oklahoma Courts in a case like this, namely, that the statute does not begin to run until the plaintiff knows, or as a reasonably prudent person should know, that he has the condition for which his action is brought and that the defendant caused it."

This appeal arises from a motion for summary judgment granted to the defendant. The record before this Court will not pass the challenge of the defendant's motion under the discovery rule.

The Tenth Circuit Court of Appeals...