Emberton v. Gmri, Inc.

• Decision Date: 29 October 2009
• Docket Number: No. 2008-SC-000109-DG.,No. 2007-SC-000443-DG.,2007-SC-000443-DG.,2008-SC-000109-DG.
• Citation: 299 S.W.3d 565
• Parties: Tim EMBERTON, Appellant, v. GMRI, INC., f/k/a General Mills Restaurants, Inc. (d/b/a Red Lobster Restaurant # 349), et al, Appellees.
• Court: United States State Supreme Court — District of Kentucky

299 S.W.3d 565

Tim EMBERTON, Appellant, v. GMRI, INC., f/k/a General Mills Restaurants, Inc. (d/b/a Red Lobster Restaurant # 349), et al, Appellees.

No. 2007-SC-000443-DG.

No. 2008-SC-000109-DG.

Supreme Court of Kentucky.

October 29, 2009.

Rehearing Denied January 21, 2010.

Casey Alan Hixson, Stephen L. Hixson, Bowling Green, KY, Counsel for Appellant.

Matthew Porter Cook, Stefan Richard Hughes, Cole & Moore, P.S.C., Bowling Green, KY, Counsel for Appellees.

Opinion of the Court by Justice SCOTT.

This is an appeal from a Court of Appeals' opinion reversing the Judgment of the Warren Circuit Court in favor of Appellant/Cross-Appellee, Tim Emberton ("Emberton"), on the grounds that his personal injury action against Appellee/Cross-Appellant, GMRI Inc. ("GMRI"), was untimely filed and thus barred by the statute of limitations. For reasons that GMRI actively concealed Emberton's probable cause of action, we hold that his suit was timely filed. Having also addressed GMRI's cross-appeal, we reverse the decision of the Court of Appeals and reinstate the judgment of the Warren Circuit Court.

Background

This is a case arising from a restaurant exposing a customer to hepatitis A, causing him to contract the virus. Upon discovering the probable cause of his illness, the customer filed suit against the restaurant and one its employees, as well as against the local health department and several of its employees.¹ The customer asserted three claims against the restaurant sounding in negligence, products liability, and breach of warranty. The relevant facts are as follows.

As had become customary in his family, Tim Emberton, a forty-two year old resident of Glasgow, celebrated his mother-in-law's birthday on July 28, 2001, at the local Red Lobster restaurant (# 349) owned by GMRI in Bowling Green, Kentucky. Later, on August 27, Emberton began exhibiting fever, chills, fatigue, and dark urine. He was admitted to the hospital three days later and released on September 5, 2001. On his discharge, Emberton was informed that blood tests revealed he was suffering from hepatitis A, a viral infection of the liver. Asking his family physician as to how he could have contracted the virus, Emberton was told that hepatitis A was spread by fecal-oral contact and that the source of his infection "could be anywhere."

On the day Emberton dined at Red Lobster, a young server, Carissa Phelps, worked her entire shift. Though she did not know it at the time, she was infected with hepatitis A. And though GMRI had a stringent handwashing policy in effect at the restaurant, Phelps was not shown the training tape and was unaware of its handwashing guidelines. GMRI management failed to conduct Phelps' mandatory performance reviews and never noticed whether she washed her hands after using the restroom.

Twelve days after Emberton's dinner, Phelps arrived at the restaurant sick and vomiting. She was sent home by her manager and later diagnosed with hepatitis A. In fact, during this time, several cases of hepatitis A surfaced in the Bowling Green area.²

As required by law, the health department was informed of each case of hepatitis A. Tina Loy was one of four nurses at the Barren River District Health Department, forming an epidemiology team selected to investigate the occurrences of hepatitis A. Loy and the epidemiology team were charged with investigating the time, place, and source of the various complainants' exposure to the virus. This is often done by asking an infected patient a series of standardized questions that serve to identify their personal contacts, health history, eating history, lifestyle, and risk factors. With this information, the team creates an investigative matrix that serves to identify what the various hepatitis A patients had in common and thus the likelihood of where they may have been infected.

GMRI's response to Phelps' infection was largely dictated by the restaurant's established policy to inhibit public notification of on-site hepatitis A infections. Consequently, GMRI's management ordered all the restaurant's employees not to discuss the infection with anyone and assured the health department's epidemiology team that Phelps' hygiene was good. The management did not disclose that Phelps' fellow employees had seen her touching food with her bare hands, eating from the ice cream, and drinking directly from a milk carton.

By late August of 2001, the health department had traced seven hepatitis A cases to GMRI's restaurant. Though the health department could never confirm whether Phelps actually transmitted the virus to the infected patrons, she was the only employee there to test positive for hepatitis A. Eventually, approximately thirteen cases were tied to the restaurant, all of which had no other link to a known outbreak.³ The health department elected not to notify the public of their findings.

Upon Emberton's discharge from the hospital, he was contacted by Loy and the epidemiology team in their efforts to determine how he had contracted the virus. During the interview, he included Red Lobster as one of the restaurants at which he had eaten in past weeks. Though the health department already knew a likely source for his infection, Emberton was not informed of the other infections pointing to GMRI's restaurant.

Approximately a month later, Emberton's recovery stalled and he was again contacted by Loy, this time for additional tests. Still not indicating any particular source for Emberton's illness, the health department assured him that they were still trying to find exactly how he had acquired the virus through RNA analysis and that he would be contacted if there was anything he needed to know. Emberton never heard back from the health department and made no further inquiry into the source of his infection. His recovery took seven months.

Nearly three years later, in May of 2004, Emberton discovered the probable cause of his illness. He was then contacted by attorney Stephen Hixson, who had come across Emberton's name in separate litigation against GMRI. Hixson was representing a Bowling Green resident who had fallen ill with hepatitis A a week after Emberton.⁴ In the course of discovery, Hixson found that Emberton was one of about thirteen different health department patients that had eaten at the restaurant in the late summer of 2001.⁵ It was at this time that Emberton first became aware that Phelps was the likely source of his hepatitis A infection and that both GMRI management and the health department officials knew about the restaurant's 2001 outbreak. Suit was filed against GMRI in August of 2004.

At trial, the jury found that GMRI's employee, Phelps, had complied with her legal duty but that GMRI had violated one or more of its duties causing Emberton to contract hepatitis A. The jury awarded Emberton $8,666.05 for medical expenses and $225,000 for pain and suffering. The trial court, accordingly, entered judgment on October 5, 2005, in the amount of $233,000. GMRI filed several post-trial motions, all of which were denied.⁶

On appeal, the Court of Appeals reversed the judgment of the trial court on grounds that Emberton's suit was not filed within the one-year statute of limitations period. This Court granted Emberton's Motion for Discretionary Review relating to the statute of limitations issue and subsequently granted GMRI's Cross-Motion for Discretionary Review relating to its claims of error in the trial below.

Analysis

A. Emberton's Suit Was Timely Filed

On direct appeal, Emberton contends that the decision of the Court of Appeals must be reversed and the judgment of the trial court reinstated because the Court of Appeals failed to apply Kentucky's discovery rule to his injury. In the alternative, Emberton argues that GMRI actively concealed his cause of action so as to toll the statute of limitations period. We hold that GMRI did actively obstruct Emberton's discovery of his cause of action so as to make his suit timely. Because it is dispositive of the issue, we see no need to consider arguments concerning the discovery rule.

Prior to trial, GMRI moved for summary judgment, alleging that Emberton had failed to file his suit within the one-year statute of limitations, pursuant to KRS 413.140(1)(a).⁷ In response, Emberton filed an affidavit, explaining that, in spite of his attempts, he did not discover the source of his illness until May of 2004.⁸ The trial court overruled GMRI's motion and concluded that:

[E]mberton knew that he had been harmed. He knew that. He readily knew that he had been harmed. But that is not the definition. The question is whether or not he was injured... It was not until he realized that he had been injured [that the limitations period began to run]. That's the way I'm going to rule on it ... I think that the Wiseman [v. Alliant Hospitals, 37 S.W.3d 709 (Ky.2000)] case is enough on point in this matter that it's within the statute of limitations. So I'm going to overrule the motion for summary judgment.

Following judgment, GMRI moved for judgment notwithstanding the verdict, again asserting the statute of limitations as a bar to Emberton's cause of action. After a hearing, the trial court overruled GMRI's motions.

GMRI then appealed and the Court of Appeals reversed the judgment of the trial court, concluding that Emberton had failed to file his suit within the statutory period. In reaching this decision, the Court of Appeals held that Kentucky's discovery rule did not apply to Emberton's injury and that he failed to investigate the source of his illness when reasonable diligence could have revealed the likely tortfeasor within the statutory period.⁹ Emberton's cause of action, therefore, accrued when he was diagnosed with hepatitis A, making his suit two years too late.

We note at the outset of our analysis that "[w]here the pertinent facts are not in dispute, the validity of the defense of the statute of limitations can and should be determined by...