Fries v. Chicago & Northwestern Transp. Co., No. 89-1985

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore BAUER, Chief Judge, CUDAHY, Circuit Judge, and PELL; BAUER
Citation909 F.2d 1092
PartiesDavid J. FRIES, Plaintiff-Appellant, v. CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY, Defendant-Appellee.
Decision Date10 October 1990
Docket NumberNo. 89-1985

Page 1092

909 F.2d 1092
David J. FRIES, Plaintiff-Appellant,
v.
CHICAGO & NORTHWESTERN TRANSPORTATION COMPANY, Defendant-Appellee.
No. 89-1985.
United States Court of Appeals,
Seventh Circuit.
Argued May 1, 1990.
Decided Aug. 13, 1990.
Rehearing Denied Oct. 10, 1990.

Page 1093

Joseph P. Duffey, Milwaukee, Wis., Jeanne L. Sathre, Roy W. Strawn, Lakin & Herndon, Wood River, Ill., for plaintiff-appellant.

Brian D. Baird, Clifford R. Haggenjos, Borgelt, Powell, Peterson & Frauen, S.C., Milwaukee, Wis., for defendant-appellee.

Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and PELL, Senior Circuit Judge.

BAUER, Chief Judge.

Plaintiff David J. Fries appeals from the district court's judgment granting defendant Chicago & Northwestern Transportation Company's (C & NW) motion to dismiss on grounds that the statute of limitations had run on his action brought under the Federal Employers Liability Act, 45 U.S.C. Secs. 51-60. For the reasons set forth below, we affirm.

I.

Appellant was employed by C & NW as a machinist from April 10, 1969 to September 15, 1987. In 1980 or 1981 Fries first noticed a decline in his hearing and he began experiencing tinnitus in either 1981 or 1982.

Page 1094

Although both Fries and his wife stated at their depositions that they did not know his hearing problems were work-related, Fries admitted that in 1981 and 1982 the frequency of the ringing would increase toward the end of the work day, worsen throughout the work week, and would only subside after two days of quiet on the weekend. In order to recuperate, he needed silence for two hours after returning home from work because he "just felt terrible." The Fries indicated, however, that they could not ascribe the hearing loss to a cause other than work. Both acknowledged that they suspected he had a hearing loss as far back as 1980 and 1981. At no time did appellant inform the railroad that he was having problems with his hearing, nor did he seek medical treatment for his hearing loss before 1985. In fact, not until appellant was required to submit to a full physical in May, 1985 before returning to work following unrelated medical leave was he diagnosed by a physician with hearing loss and informed that his employer would be notified.

Fries filed this action in federal district court on November 18, 1987 under the Federal Employers Liability Act, 45 U.S.C. Secs. 51-60 seeking monetary damages for his hearing impairment. Fries alleged that C & NW acted negligently in requiring appellant to work near loud industrial noise and in failing to provide appellant with ear protection. Defendant moved to dismiss on grounds that plaintiff's action was time barred by FELA's three year statute of limitations. 45 U.S.C. Sec. 56. The railroad argued before the district court, and argues again on appeal, that Fries' cause of action accrued in 1980 or 1981 when the alleged occupational disease became known to him and when he should have reasonably known the injury was work-related. Plaintiff asserted that his cause of action did not accrue until 1985 when he had actual knowledge, by way of diagnosis, that his injury was caused by his work environment.

The district court, applying the rule set forth in Drazan v. United States, 762 F.2d 56, 59 (7th Cir.1985), agreed with defendant and found that Fries' cause of action accrued in 1981 when he knew the fact of his injury and should have reasonably discovered its cause. The court held that plaintiff failed in his duty to investigate "as a reasonably diligent person would," and that but for the re-entry physical made necessary by an unrelated illness plaintiff might not have discovered his injury's cause to date.

II.

This court reviews de novo the district court's grant of summary judgment. Dribeck Importers, Inc. v. G. Heileman Brewing Co., Inc., 883 F.2d 569, 573 (7th Cir.1989); Greer Properties, Inc. v. LaSalle Nat'l Bank, 874 F.2d 457, 459 (7th Cir.1989). Further, in order to affirm we must find (1) that the statute of limitations has run and (2) there exists no genuine issue of material fact as to when the plaintiff's cause of action accrued. Evenson v. Osmose Wood Preserving Co. of America, Inc., 899 F.2d 701, 703 (7th Cir.1990) (citations omitted).

Section 56 of FELA provides that no cause of action may be maintained under the statute "unless commenced within three years from the day the cause of action accrued." Accrual is defined in terms of two components, the injury and its cause, for statute of limitations purposes. In Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), the Supreme Court stated that when the specific date of injury cannot be determined because an injury results from continual exposure to a harmful condition over a period of time a plaintiff's cause of action accrues when the injury manifests itself. Id. at 170, 69 S.Ct. at 1024-25. Urie had been continuously exposed to silica in his work environment over the course of several years. In the absence of a rule that tolled the limitations period until the injurious effects manifested themselves, the Court reasoned, the law would require a blamelessly ignorant plaintiff to discover the inherently unknowable injury at its inception. Such a reading of FELA would provide persons injured in this manner with a "delusive remedy." Id. at 169-70, 69 S.Ct. at

Page 1095

1024. United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) refined the rule announced in Urie. In Kubrick, plaintiff brought a malpractice suit pursuant to the Federal Tort Claims Act alleging he was injured when a doctor improperly treated his...

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138 practice notes
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...of causation triggers a duty to investigate the possible causes of injury. (Fries v. Chicago & Northwestern Transp. Co. (7th Cir.1990) 909 F.2d 1092, 1096; Albert v. Maine Cent. R. Co., supra, at p. 544; Nemmers v. U. S. (7th Cir.1986) 795 F.2d 628, 631-632; Williams v. Southern Pacific Tra......
  • St. George v. BNSF Ry. Co., Case No. 12–cv–2592 SRN/FLN.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 7, 2014
    ...interpreted Kubrick as refining the “discovery rule” announced in Urie. See, e.g., Fries v. Chicago & Northwestern Transportation Co., 909 F.2d 1092, 1095–96 (7th Cir.1990) (reading Urie and Kubrick as cases elaborating on the same “accrual” standard); Kichline v. Consolidated Rail Corp., 8......
  • Cloer v. Sec'y of Health, No. 2009–5052.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 5, 2011
    ...v. Hose, 589 F.3d 626, 634–35 (3d Cir.2009); Rakes v. United States, 442 F.3d 7, 20 (1st Cir.2006); Fries v. Chicago & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir.1990); 2 Calvin W. Corman, Limitation of Actions § 11.1.1 (1991). The discovery rule tethers accrual of the cause, and with it......
  • Anderson v. BNSF Ry., No. DA 14–0253.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...L.Ed.2d 259 (1979). See, e.g., Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 814 (6th Cir. 1996) ; Fries v. Chicago & N.W. Transp. Co., 909 F.2d 1092, 1095 (7th Cir.1990) ; Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir.1990) ; Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501......
  • Request a trial to view additional results
138 cases
  • Monarch v. Southern Pacific Transp. Co., No. A081178
    • United States
    • California Court of Appeals
    • March 25, 1999
    ...of causation triggers a duty to investigate the possible causes of injury. (Fries v. Chicago & Northwestern Transp. Co. (7th Cir.1990) 909 F.2d 1092, 1096; Albert v. Maine Cent. R. Co., supra, at p. 544; Nemmers v. U. S. (7th Cir.1986) 795 F.2d 628, 631-632; Williams v. Southern Pacific Tra......
  • St. George v. BNSF Ry. Co., Case No. 12–cv–2592 SRN/FLN.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • October 7, 2014
    ...interpreted Kubrick as refining the “discovery rule” announced in Urie. See, e.g., Fries v. Chicago & Northwestern Transportation Co., 909 F.2d 1092, 1095–96 (7th Cir.1990) (reading Urie and Kubrick as cases elaborating on the same “accrual” standard); Kichline v. Consolidated Rail Corp., 8......
  • Cloer v. Sec'y of Health, No. 2009–5052.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 5, 2011
    ...v. Hose, 589 F.3d 626, 634–35 (3d Cir.2009); Rakes v. United States, 442 F.3d 7, 20 (1st Cir.2006); Fries v. Chicago & Nw. Transp. Co., 909 F.2d 1092, 1095 (7th Cir.1990); 2 Calvin W. Corman, Limitation of Actions § 11.1.1 (1991). The discovery rule tethers accrual of the cause, and with it......
  • Anderson v. BNSF Ry., No. DA 14–0253.
    • United States
    • Montana United States State Supreme Court of Montana
    • August 12, 2015
    ...L.Ed.2d 259 (1979). See, e.g., Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 814 (6th Cir. 1996) ; Fries v. Chicago & N.W. Transp. Co., 909 F.2d 1092, 1095 (7th Cir.1990) ; Albert v. Maine Cent. R.R. Co., 905 F.2d 541, 544 (1st Cir.1990) ; Townley v. Norfolk & W. Ry. Co., 887 F.2d 498, 501......
  • Request a trial to view additional results

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