Grillo v. Speedrite Products, Inc.

Citation340 S.C. 498,532 S.E.2d 1
Decision Date22 May 2000
Docket NumberNo. 3168.,3168.
CourtCourt of Appeals of South Carolina
PartiesMark GRILLO, Appellant, v. SPEEDRITE PRODUCTS, INC., Ready Mark Company and Columbia Marking Products, Inc., Defendants, of whom Columbia Marking Products, Inc., is the Respondent.

Jefferson D. Turnipseed, of Turnipseed & Associates, of Columbia; and Peter J. Tepley, of Southern Poverty Center, of Montgomery, Alabama, for appellant.

Robert A. McKenzie and Robert M. Cook, II, both of McDonald, McKenzie, Rubin, Miller & LyBrand, of Columbia; and S. Jahue Moore, of Kirkland, Wilson, Moore, Allen & Taylor, of West Columbia, for respondent. HOWARD, Judge:

This personal injury action involves application of the statute of limitations to an alleged toxic exposure case. The circuit court granted summary judgment to Columbia Marking Products, Inc., concluding the three year statute of limitations barred Mark Grillo's causes of action for negligence per se, strict liability, and negligent failure to warn. Grillo appeals. We reverse and remand.

FACTUAL/PROCEDURAL BACKGROUND

Mark Grillo was employed by the Kroger Sav-On food store. As part of his duties, Grillo painted banners and signs for the store one day a week. Kroger purchased Speedrite Instant Dry Ink from Columbia Marking Products, Inc. (CMP), and beginning in February of 1992, Grillo used the Speedrite Ink to paint the store banners. The ink bottle's label did not list its contents. However, the label stated the ink should not be used near open flames and should be used in "well ventilated areas to avoid breathing a heavy concentration of fumes."

In his deposition, Grillo testified he experienced symptoms of dizziness, headache, and euphoria when using the Speedrite Ink. The symptoms were temporary, usually lasting the day he used the product, and often into the next day. He started to affirmatively associate the symptoms with the product in May of 1992. Shortly thereafter, Grillo asked store managers if the Speedrite Ink was safe and whether the store had been given a Material Safety Data Sheet on it. The store did not have the product safety information.

Grillo continued to periodically use the Speedrite Ink until December 14, 1992. On that day, while using the ink, he experienced more pronounced symptoms. Grillo described the symptoms as "stinging and cloudy eyes, ringing in my ears, flushed face, dizziness, feeling faint, bodily tremors, not being able to stand up straight, [and] severe pounding headache." Grillo advised the assistant store manager he would not use the ink again. His symptoms did not subside after this occurrence, but persisted beyond the next day.

On December 19, 1992, Grillo visited a doctor. He previously suffered from and was treated for an anxiety disorder to which he partly attributed his extreme nervousness and headaches. However, Grillo notified the doctor about the ink. He was advised to avoid the product and excused from work for approximately two weeks.

While being examined on January 3, 1993, Grillo showed a bottle of the Speedrite Ink to a different doctor. According to Grillo, this doctor telephoned a poison control office and requested that the office contact Speedrite Products Inc., the manufacturer of the ink. Through this method, Grillo first learned that the toxic substance toluene was an ingredient in the Speedrite Ink. On April 1, 1993, Grillo was diagnosed with acute transient narcosis secondary to toxic solvent exposure.

On December 6, 1995, Grillo served a complaint alleging causes of action for negligence and strict liability against CMP.1 Specifically, Grillo alleged the label on the Speedrite Ink bottle failed to comply with the Federal Hazardous Substance Labeling Act and failed to adequately warn a user of the dangers associated with the product. As a result, Grillo alleged that he sustained permanent injuries to his immune and nervous systems as a result of exposure to toluene.

The trial court granted CMP's summary judgment motion. The court held Grillo's causes of action were barred under the statute of limitations because Grillo either knew or should have known no later than May of 1992 that he had a potential cause of action against the company. In reaching this conclusion, the court noted Grillo's deposition testimony established he knew by May of 1992 that the Speedrite Ink was causing him problems.

STANDARD OF REVIEW

Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. The evidence and inferences which can be reasonably drawn are to be viewed in the light most favorable to the non-moving party. Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999). All ambiguities, conclusions, and inferences arising from the evidence must be construed most strongly against the movant. Even when there is no dispute as to the evidentiary facts, but only as to the conclusions or inferences to be drawn from them, summary judgment should be denied. However, when plain, palpable, and indisputable facts exist on which reasonable minds cannot differ, summary judgment should be granted. "If triable issues exist, those issues must go to the jury." Young v. S.C. Dep't of Corrections, 333 S.C. 714, 718, 511 S.E.2d 413, 415 (Ct.App.1999).

DISCUSSION

I.

Grillo argues, considering the facts in a light most favorable to him, that CMP was not entitled to summary judgment as a matter of law where reasonable minds could differ on when he knew or should have known he had a cause of action against CMP. We agree.

The elements of a cause of action in tort for personal injury are (1) duty, (2) breach of that duty, (3) proximate causation, and (4) injury. Shipes v. Piggly Wiggly, 269 S.C. 479, 238 S.E.2d 167 (1977). By statute, an action for personal injury must be commenced within three years after the cause of action shall have accrued. S.C.Code Ann. § 15-3-20 and 15-3-530(5) (1976 and Supp.1999). "The fundamental test ... in determining whether a cause of action has accrued[] is whether the party asserting the claim can maintain an action to enforce it." Brown v. Finger, 240 S.C. 102, 111, 124 S.E.2d 781, 785 (1962). Stated differently, "[a] cause of action accrues at the moment when the plaintiff has a legal right to sue on it." Id.

Our legislature modified the application of the general rule of accrual to personal injury actions by statutorily imposing the "discovery rule." As enacted, all actions initiated under section 15-3-530(5) "must be commenced within three years after the person knew or by the exercise of reasonable diligence should have known that he had a cause of action." S.C.Code Ann. § 15-3-535 (Supp.1999). In construing the "reasonable diligence" requirement, our supreme court stated:

The exercise of reasonable diligence means simply that an injured party must act with some promptness where the facts and circumstances of an injury would put a person of common knowledge and experience on notice that some right of his has been invaded or that some claim against another party might exist. The statute of limitations begins to run from this point and not when advice of counsel is sought or a full-blown theory developed.

Snell v. Columbia Gun Exchange Inc., 276 S.C. 301, 303, 278 S.E.2d 333, 334 (1981) (An accidental and unexplained discharge of a pistol places the injured party on notice that a defect in the weapon is possible.).

A key element in the reasonable diligence test is "notice." The fact that an injured party may not comprehend the full extent of the damage is immaterial. Dean v. Ruscon Corp., 321 S.C. 360, 468 S.E.2d 645 (1996) (Trial court correctly granted directed verdict for defendant where plaintiff testified she saw crack in her building and, at that time, believed it resulted from pile driving activities of defendant.). More recently, the supreme court has explained that "[i]n a negligence action, the statute of limitations accrues at the time of the negligence or when the facts and circumstances would put a person of common knowledge on notice that there might be a claim against another party." True v. Monteith, 327 S.C. 116, 119, 489 S.E.2d 615, 616 (1997) (citing Kreutner v. David, 320 S.C. 283, 465 S.E.2d 88 (1995)). Under section 15-3-535, the statute of limitations is triggered not merely by knowledge of an injury, but by knowledge of facts, diligently acquired, sufficient to put a person on notice of the existence of a cause of action against another. Id. This is an objective, not a subjective, determination. Wiggins v. Edwards, 314 S.C. 126, 442 S.E.2d 169 (1994).

II.

Our courts have not addressed the application of the discovery rule in an analogous context. However, in the context of a latent occupational disease, the District Court for the District of South Carolina considered the application of the statute of limitations in Hinson v. Owens-Illinois Inc., 677 F.Supp. 406 (D.S.C.1987). In Hinson, the district court granted the defendants' motion for summary judgment. Recognizing that the development of asbestosis takes place over a period of time, the court looked at the information available to the plaintiff over a number of years concerning his exposure to asbestos material and his medical condition. Finally, the court concluded that, at the latest, as of the time the plaintiff underwent a CAT scan which positively revealed asbestosis, a person of common knowledge and experience would have been on notice that some right of his had been invaded.

The court rejected the plaintiff's argument that the statute of limitations did not begin to run until the date he received a definitive diagnosis of asbestosis, some two years after the CAT scan. Notably, however, the court rebuffed the defendants' contention that the plaintiff knew he suffered an actionable injury attributable to asbestos several years earlier when he...

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