Johnson v. Norfolk & Western Ry. Co.

Decision Date04 August 1992
Docket NumberNo. 61224,61224
Citation836 S.W.2d 83
CourtMissouri Court of Appeals
PartiesJacob JOHNSON, Plaintiff/Appellant, v. NORFOLK & WESTERN RAILWAY CO., Defendant/Respondent.

Douglas A. Forsyth, Gail N. Gaus-Renshaw, Wood River, Ill., for plaintiff/appellant.

Douglas K. Rush, Frank N. Gundlach, Richard Saville, St. Louis, for defendant/respondent.


Plaintiff Jacob Johnson appeals from the trial court's judgment granting defendant Norfolk & Western Railway Company's (N & WR) motion for summary judgment on grounds that the statute of limitations had run on Johnson's action brought under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq. For the reasons set forth below, we affirm.

Johnson worked for N & WR as a switchman for 39 years until he retired in September 1987. Johnson claims that during his tenure he was exposed to loud noises from train engines, whistles, bells, brakes and the coupling of railroad cars. Sometimes he felt a "numbness" immediately after being exposed to the loud noises, but these sensations quickly subsided. He experienced this numbness throughout his career with N & WR.

A few years before his retirement, Johnson began having difficulty hearing telephone conversations and the television, and his wife began "nagging" him about his hearing problems. She convinced him in 1986 to see a physician to have his ears cleaned, but the physician did not diagnose his hearing loss.

Johnson alleges he learned in the middle of 1988 that loud noise causes hearing loss and that he might have a hearing problem after he discovered several of his former co-workers had filed FELA lawsuits against N & WR. He then talked to an N & WR claims agent and filled out a questionnaire. In January 1989, Johnson visited a physician for an audiogram which indicated he suffers from high frequency hearing loss.

On March 15, 1990, Johnson filed a petition in the Circuit Court of St. Louis, alleging that due to N & WR's negligence he incurred medical expenses and suffered permanent hearing loss, ringing in the ears, extreme pain and mental anguish. Supported by plaintiff's interrogatory answers and deposition testimony, N & WR moved for summary judgment, claiming that FELA's three-year limitation barred Johnson's suit.

In support of its summary judgment motion, N & WR pointed to the questionnaire Johnson filled out September 30, 1988. In the questionnaire, Johnson responded as follows:

Question: Do you think you have a hearing problem?

Answer: Yes

Question: If yes, how long have you known?

Answer: Appr. 5 years.

Question: Do you think it might be related to your railroad employment?

Answer: Yes.

Question: If yes, how long have you thought so?

Answer: 5 years....

Question: If you have problems with your ears, please list all complaints.

Answer: Wife complains about TV being loud. Daughter complains can't hear telephone. Son thinks he will send a phone adapter so I can understand our telephone conversations.

N & WR claims these responses prove Johnson was aware of his injury and its cause as early as September 1983. Therefore, the statute of limitations expired three and a half years before he filed suit.

In reviewing the entry of summary judgment, the court must scrutinize the record in the light most favorable to Johnson, the non-moving party, and grant him the benefit of every doubt. Germania Bank v. Thomas, 810 S.W.2d 102, 105 (Mo.App.1991); Rule 74.04(c). Summary judgment is only appropriate when the pleadings, depositions, affidavits, answers to interrogatories, admissions and exhibits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. If there is the slightest doubt about the facts, a material issue of fact exists. Triggs v. Risinger, 772 S.W.2d 381, 382 (Mo.App.1989).

FELA cases are governed by federal law. Kestner v. Missouri Pacific R. Co., 785 S.W.2d 646, 647 (Mo.App.1990). No cause of action may be maintained under the statute "unless commenced within three years from the day the cause of action accrued." 45 U.S.C. § 56. Johnson filed his suit on March 15, 1990. Thus, his claim is barred if it accrued before March 15, 1987.

Often it is clear from the nature of the injury when the statute of limitations begins to run. However, with occupational diseases, as in the case at bar, a plaintiff may be unaware of when or how the injury occurs. To prevent hardship in such cases, the United States Supreme Court fashioned a "discovery rule" to determine when the statute of limitations begins to run. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). 1 Initially, under the discovery rule, a FELA cause of action accrued when the plaintiff became aware of his injury and its cause. Urie 337 U.S. at 170, 69 S.Ct. at 1025; Kubrick 444 U.S. at 122, 100 S.Ct. at 359.

Federal courts subsequently described the discovery rule as an objective test of the plaintiff's awareness of his injury and its cause. Under this formulation, a FELA cause of action for an occupational disease accrues when the plaintiff knows or should have known, in the exercise of reasonable diligence, the critical facts of his injury and its cause. DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1030-31 (5th Cir.1984); Kichline v. Consolidated Rail Corp., 800 F.2d 356, 359 (3d Cir.1986); Albert v. Maine Cent. R. Co., 905 F.2d 541, 544 (1st Cir.1990); Fries v. Chicago & Northwestern Trans. Co., 909 F.2d 1092, 1095-96 (7th Cir.1990) (emphasis added). Therefore, the court must determine whether the plaintiff was "armed with sufficient facts, more than three years before filing [an] action, with which reasonable persons could have protected themselves by seeking advice in the medical and legal community." Bechtholdt v. Union Pacific R. Co., 722 F.Supp. 704, 707 (D.Wyo.1989).

Johnson first contends that his long-term exposure to hearing hazards amounts to continuous tortious conduct; therefore, the statute of limitations did not begin running until September 1987, the date of his retirement and his last exposure to the loud noises. In two recent cases, we have held the continuous tort doctrine does not apply to FELA hearing loss cases. See Lloyd v. Missouri Pacific Railroad Co., 832 S.W.2d 310 (Mo.App.E.D.1992); Alexander v. Missouri Pacific Railroad Co., 827 S.W.2d 757 (Mo.App.1992). This point is denied.

Johnson further contends the statute of limitations cannot begin to run in a FELA hearing loss case until the injured party has actual knowledge of his injury and its cause. Because it is difficult to distinguish permanent from temporary hearing loss, Johnson asserts that an injured party may only discover permanent hearing loss through medical diagnosis. Therefore, he argues, the statute of limitations has not run because he was medically diagnosed with permanent hearing loss in January 1989, fifteen months before he filed his claim.

However, a number of federal courts have rejected this subjective actual knowledge theory. DuBose at 1031; Albert at 544; Fries at 1094-96; Bechtholdt at 707; Jones v. Maine Central R. Co., 690 F.Supp. 73, 74 (D. Maine 1988). The discovery rule is an objective test of the plaintiff's awareness. DuBose at 1030-31; Kichline at 359; Albert at 544; Fries at 1095. Rather than waiting for a physician's diagnosis, a plaintiff has an affirmative duty to investigate his injury and any suspect cause once he experiences symptoms. Albert at 544; Fries at 1095-96. Otherwise, the Fries court noted, a plaintiff could "unilaterally postpone the running of the statute of limitations by negligently failing to investigate the fact of and cause of his injury," which would thwart the statute's purpose of encouraging prompt presentations of claims. Fries at 1096. Therefore, we reject Johnson's contention that his cause of action accrued in January 1989, when he was diagnosed with permanent hearing loss.

Finally, Johnson argues that his responses to the questionnaire are not dispositive of when his cause of action accrued. His subsequent interrogatory and deposition answers, Johnson argues, put at issue the meaning of his questionnaire responses and thus create a material issue of fact.

To support his argument, Johnson cites Rogers v. Illinois Cent. R. Co., 833 S.W.2d 426 (Mo.App.E.D.1992). During his 17 years of employment at Illinois Central, Rogers suffered permanent hearing loss due to his exposure to various railroad noises. Id. at 426-427. The trial court granted Illinois Central's motion for summary judgment based upon Rogers' responses to a questionnaire in which he admitted knowing seven years earlier of his injury and its cause. Id. at 427, 428. We reversed the entry of summary judgment, concluding that a material issue of fact existed as to when Rogers' cause of action accrued because Rogers' interrogatory answers and affidavit rebutted his admissions in the questionnaire. Id. at 429, 430.

Rogers refused to admit the accuracy of his questionnaire statements and instead asserted that his responses were not facts within his knowledge but were mere assumptions based upon retrospection. Id. at 429. Thus, a question of fact precluding...

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