Howard v. Fiesta Texas Show Park, Inc.

• Decision Date: 19 August 1998
• Docket Number: No. 04-97-00921-CV,04-97-00921-CV
• Citation: 980 S.W.2d 716
• Parties: Michael D. HOWARD, M.D., Jeanne M. Howard, Michael Peyton Howard, Geoffrey Austin Howard, Appellants, v. FIESTA TEXAS SHOW PARK, INC., Fiesta Texas Theme Park, Ltd., Showpark Management, Inc., D.H. Morgan Manufacturing, Inc., Richard Brown, Ph.D., Inc., Richard H. Brown, individually, and Reliance National Insurance Company, Appellees.
• Court: Texas Court of Appeals

Page 716

980 S.W.2d 716

Michael D. HOWARD, M.D., Jeanne M. Howard, Michael Peyton Howard, Geoffrey Austin Howard, Appellants, v. FIESTA TEXAS SHOW PARK, INC., Fiesta Texas Theme Park, Ltd. Showpark Management, Inc., D.H. Morgan Manufacturing, Inc. Richard Brown, Ph.D., Inc., Richard H. Brown, individually and Reliance National Insurance Company, Appellees.

No. 04-97-00921-CV.

Court of Appeals of Texas San Antonio.

Aug. 19, 1998.

Rehearing Overruled Aug. 19, 1998.

John Curney, Jr., John D. Mereness, Johnson, Curney, Price & Garcia, P.C., San Antonio, for appellant.

Timothy B. Poteet, Lea & Chamberlain, Austin, Joe Frazier Brown, Jr., Gail M. Bryant, Thornton, Summers, Biechlin, Dunham & Brown, L.C., San Antonio, Francis I. Spagnoletti, John P. Abbey, Spagnoletti & Associates, Houston, Charles L. Smith, Jeffrey G. House, Andrew L. Kerr, Jenkins & Gilchrist, Groce, Locke & Hebdon, P.C., San Antonion, for appellee.

Before LOPEZ, STONE and DUNCAN, JJ.

OPINION

STONE, Justice.

Appellants' Motion for Rehearing is granted to the extent discussion of the Texas Supreme Court opinion, Childs v. Haussecker and Humble Sand & Gravel v. Martinez, 974 S.W.2d 31 (1998), is warranted. The opinion and judgment of this court issued on July 15, 1998, are withdrawn and this opinion and judgment are substituted therefor.

FACTUAL AND PROCEDURAL BACKGROUND

This suit arises from the trial court's grant of the defendants' joint motion for summary judgment based on expiration of the statute of limitations.

The summary judgment evidence established that on May 17, 1992, Michael Howard went to Fiesta Texas Theme Park and rode the Rattler Rollercoaster. During the ride, Howard experienced pain in his neck that radiated toward his right shoulder. The pain was so severe that Howard had to sit for 20-30 minutes following the ride. Howard associated the pain with similar pain experienced with previous injuries to Howard's cervical spine. Although the pain improved within the next four days, Howard sought treatment and consultation with Dr. Karl Swann on May 22, 1992. Dr. Swann conducted an MRI and determined that Howard had disc herniations at the C4-5, C5-6, and C6-7 levels. Only the herniation at the C4-5 level appeared "acute." Because Howard had other degenerative problems with his cervical spine and a history of back problems, Dr. Swann could not determine whether Howard's rollercoaster ride caused the herniation at the C4-5 level. Howard's pain subsided within the next two weeks after therapy and treatment.

On July 8, 1995, Howard experienced a severe headache and nausea. During the following year, Howard experienced recurrent severe headaches accompanied by hypertension, dizziness, vision problems, hearing problems, and short term memory loss. Howard sought treatment and consulted with numerous physicians to determine the nature of his medical problems. In May 1996, it was determined that Howard had a tear in the fluid-filled membrane surrounding his brain and spinal cord. This tear was located at the C1-2 level. Shortly thereafter, Howard underwent surgery to repair the tear.

On December 19, 1996, Howard and his family ("Howard") filed suit against the defendants alleging breach of warranty, negligence, strict liability, violations of the Deceptive Trade Practices Act (DTPA), and loss of consortium. The defendants moved for summary judgment asserting that Howard's suit was barred by the expiration of the statute of limitations. The trial court granted the defendants' motion and ordered that Howard take nothing. Howard appealed the summary judgment order.

ARGUMENT AND AUTHORITIES

Standard of Review

A defendant who moves for a summary judgment based on the affirmative defense of expiration of the statute of limitations assumes the burden of showing that as a matter of law the suit is barred. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). The defendant's burden is to prove conclusively all elements of the affirmative defense as a matter of law such that there is no genuine issue of material fact. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984) ; Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). If the non-movant pleads the "discovery rule" to circumvent the time bar, the summary judgment burden is placed on the movant to prove when the cause of action accrued, and to negate the discovery rule by proving it does not apply as a matter of law or there is no genuine issue of fact about when the plaintiff discovered the nature of the injury. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex.1988).

In applying the statute of limitations, a cause of action accrues when facts come into existence which give a claimant the right to seek a remedy in the courts. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977); Ponder v. Brice & Mankoff, 889 S.W.2d 637, 641 (Tex.App.--Houston [14th Dist.] 1994, writ denied). The right to seek a remedy arises when a wrongful act causes some legal injury, even if the injury is not discovered until later, and even if all resulting damages have not yet occurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). The question of when a cause of action accrues for limitations purposes is a question of law for the court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 80 (Tex.App.--San Antonio 1996, writ denied). The discovery rule is a narrow exception to the limitations bar, and when applied, defers the accrual of a cause of action. S.V., 933 S.W.2d at 4.

Therefore, a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the plaintiff's assertion of the discovery rule by proving that as a matter of law, it does not apply or that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. Burns, 786 S.W.2d at 267; Woods, 769 S.W.2d at 518 n. 2. If the movant cannot do so, a fact question exists about when the limitations period began to run. Clade v. Larsen, 838 S.W.2d 277, 282 (Tex.App.--Dallas 1992, writ denied). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the non-movant. See Montgomery, 669 S.W.2d at 311. Every reasonable inference from the evidence will be indulged in favor of the non-movant, and any doubts will be resolved in its favor. See id.

The statute of limitations for a DTPA action, including a claim for breach of express or implied warranty under the DTPA, is two years. TEX. BUS. & COMM.CODE ANN. § 17.565 (Vernon 1987); see Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 188 (Tex.App.--Dallas 1996, no writ). Claims for negligence and strict liability resulting in personal injury must be filed within two years of the time of their accrual. TEX. CIV. PRAC. & REM.CODE ANN. § 16.003(a) (Vernon Supp.1998). Claims for loss of consortium and loss of services are derivative of the injured family member's cause of action for personal injuries and are subject to the same statute of limitations and defenses that preclude liability. See Reed Tool Co. v. Copelin, 610 S.W.2d 736, 738-39 (Tex.1980).

Application of Discovery Rule

Because Howard undisputedly filed his suit beyond the normal limitations periods, the survival of his claims depends on application of the discovery rule. Howard contends the trial court erred by granting the defendants' motion for summary judgment because the discovery rule applies to this case as a matter of law. Howard contends the discovery rule delayed accrual of his cause of action until May 1996, when he discovered the nature and cause of his injury and subsequent medical problems. Howard contends he could not have discovered the existence of his injury in May 1992 because his particular injury lay dormant until July 1995, at which time Howard began to experience symptoms. After Howard became symptomatic, he alleges he diligently discovered the nature and cause of his injury. Howard contends he raised a fact issue whether the discovery rule applies to preclude summary judgment.

As a narrow exception to the general rule of accrual of a cause of action, application of the discovery rule delays such accrual until a plaintiff knows or through the exercise of reasonable care and diligence "should have known of the wrongful act and resulting injury." S.V., 933 S.W.2d at 4.

Application of the discovery rule now requires a two-tiered inquiry. First, unless otherwise excluded, the discovery rule applies only in cases satisfying the objective "unifying principle" that the injury be inherently undiscoverable and evidence of the injury be objectively verifiable. See Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996); Neel v. HECI Exploration Co., 942 S.W.2d 212, 220 (Tex.App.--Austin, 1997, writ granted). ¹ To be "inherently undiscoverable", an injury need not be absolutely impossible to discover. See Computer Assocs. Int'l, Inc., 918 S.W.2d at 455; S.V., 933 S.W.2d at 6-7. Nor does "inherently undiscoverable" mean merely that a particular plaintiff did not discover his injury within the prescribed period of limitations; discovery of a particular injury is dependent not solely on the nature of the injury but on the circumstances in which it occurred and plaintiff's diligence as well. See Computer Assocs. Int'l, Inc., 918 S.W.2d at 455; S.V., 933 S.W.2d at 6-7. An "inherently undiscoverable" injury is one which by its nature is unlikely to be discovered within the limitations period despite due diligence. See Computer Assocs. Int'l, Inc., 918 S.W.2d at 455; S.V., 933 S.W.2d at 6-7. "The requirement of inherent undiscoverability recognizes that the discovery rule exception should be permitted only in circumstances where 'it is difficult for the injured party to learn of the negligent act or omission.' " Computer...