Liddell v. SCA Serv. of Ohio, Inc.

• Decision Date: 03 August 1994
• Docket Number: No. 93-294,93-294
• Citation: 70 Ohio St.3d 6,635 N.E.2d 1233
• Parties: LIDDELL, Appellant, v. SCA SERVICES OF OHIO, INC., Appellee.
• Court: Ohio Supreme Court

Page 6

70 Ohio St.3d 6

635 N.E.2d 1233

LIDDELL, Appellant, v. SCA SERVICES OF OHIO, INC., Appellee.

No. 93-294.

Supreme Court of Ohio.

Submitted March 22, 1994.

Decided Aug. 3, 1994.

SYLLABUS BY THE COURT

When an injury allegedly caused by exposure to toxic chlorine gas does not manifest itself immediately, a cause of action for that injury arises upon the date the plaintiff is informed by competent medical authority that he has been injured by exposure to the gas, or upon the date on which, by exercise of reasonable diligence, he should have become aware that he has been so injured, whichever date occurs first. (O'Stricker v. Jim Walter Corp. [1983], 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727, applied and followed.)

On September 21, 1981, appellant Kenneth Liddell, a police officer employed by the city of East Cleveland, responded to a report of a trash truck on fire at the intersection of Euclid and Shaw Avenues. Upon arriving at the scene, Liddell observed a burning garbage truck with flames coming from the bottom and a large amount of black smoke billowing from the rear. He radioed for fire equipment and police backup.

The garbage truck belonged to appellee SCA Services of Ohio, Inc. ("SCA") and had been transporting calcium hypochlorite, a substance classified as a hazardous waste. Sections 261.21 and 261.23, Title 40, C.F.R. That classification subjects the transportation and storage of calcium hypochlorite to state and federal regulation. E.g., Section 171.3, Title 49, C.F.R.; R.C. Chapter 3734. The truck, however, contained no markings that it was transporting hazardous waste.

When the fire department arrived the firemen began hosing down the burning truck with water. Immediately afterward an explosion occurred in the back of the truck and a white cloud engulfed the area. The fire and ensuing explosion allegedly resulted from the mixture of the calcium hypochlorite with organic material, apparently cooking fat, which also was being transported by the SCA truck. The explosion released a toxic chlorine gas in the form of a white cloud.

Unaware that the white cloud was toxic, Liddell went to assist a school bus driver who had inadvertently driven a busload of school children into the engulfed area. Walking beside the bus, Liddell helped guide the bus driver, whose vision was obscured by the smoke, through the white cloud. After successfully escorting the bus to safety Liddell, overcome by the fumes, collapsed and was taken to Huron Road Hospital.

At the hospital emergency room Liddell received treatment for smoke inhalation. He reported experiencing a scratchy throat and a burning and watering of his eyes. These symptoms abated, however, and he returned to work the next day.

Liddell filed a workers' compensation claim for his medical bills in 1981 and later applied for compensation for permanent partial disability as a result of inhalation of the fumes.

Within nine months of the exposure to the toxic gas Liddell began to experience frequent sinus infections. In 1987 a specialist performed surgery and removed a benign papilloma from Liddell's left nasal cavity. Neither Liddell nor his physicians connected these medical problems with his exposure to the toxic chlorine gas on September 21, 1981.

Then, in January 1988, a biopsy revealed a cancerous growth in the same nasal cavity. At this time Liddell's physician advised him that there might be a relationship between the cancer and his exposure to the toxic fumes. Liddell subsequently underwent a complete facial degloving, which included removing his left sinuses and part of his facial skeleton.

Liddell filed this negligence claim on April 26, 1989. On January 30, 1990, SCA filed a motion for summary judgment, arguing that Liddell's claim was barred by the so-called fireman's rule, and by the applicable two-year statute of limitations contained in R.C. 2305.10. The trial court denied that part of SCA's motion for summary judgment that was based on the fireman's rule, stating that a genuine issue of material fact existed as to whether SCA had violated R.C. 3734.15. However, the trial court granted SCA's motion for summary judgment with respect to the argument that Liddell filed his claim after the two-year statute of limitations specified in R.C. 2305.10 had expired. The court of appeals affirmed, holding that Liddell's cause of action accrued on the date of exposure and not the date he was diagnosed with cancer.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Sindell, Lowe & Guidubaldi, and Ryan H. Fisher, Cleveland, for appellant.

Gallagher, Sharp, Fulton & Norman, Alan M. Petrov and Timothy J. Fitzgerald, Cleveland, for appellee.

Arter & Hadden, and Irene C. Keyse-Walker, Cleveland, urging affirmance for amicus curiae, Ohio Ass'n of Civil Trial Attys.

Altman & Calardo Co., L.P.A., and D. David Altman, Cincinnati, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

WRIGHT, Justice.

The issue presented to us today is whether a rule of discovery can be applied to toll the statute of limitations for a cause of action alleging negligent exposure to toxic chlorine gas, where the plaintiff subsequently develops a cancerous growth allegedly caused by the exposure, and where the cancer could not be, and was not, discovered until after the applicable statute of limitations governing causes of action for bodily injury had expired. In this case we decide that the application of the discovery rule is the appropriate solution.

I

This is an action for bodily injury and as such is subject to the statute of limitations set forth in R.C. 2305.10. That provision states that "[a]n action for bodily injury * * * shall be brought within two years after the cause thereof arose." Liddell filed this cause of action for negligence on April 26, 1989. Thus, his claim is timely only if his cause of action arose after April 26, 1987.

II

SCA asserts that any cause of action for negligence which Liddell may have had arose on September 21, 1981, the date of exposure to the toxic chlorine gas. Specifically, SCA argues that when a traumatic event occurs in which a party is visibly injured, and at the same time the party is exposed to toxic fumes, any cause of action, whether regarding an immediately apparent injury or a later manifestation of cancer, arises at the time of the traumatic event that caused the exposure. SCA points out that because Liddell did not file this cause of action until April 26, 1989, over seven-and-a-half years after the exposure, his claim is time-barred by R.C. 2305.10, the applicable two-year statute of limitations. SCA further argues that permitting Liddell to maintain a cause of action for cancer now would, in effect, be permitting him to unlawfully split his causes of action.

Liddell contends that, because the cancer did not manifest itself immediately following his exposure to the toxic chlorine fumes, and because the cancer could not be detected before the applicable limitations period had run, his cause of action for negligence regarding the cancer did not begin to accrue until the cancer and its cause were discovered. He thus argues that his claim did not arise, and that R.C. 2305.10, the two-year statute of limitations governing this particular cause of action, did not begin to run until his doctors discovered the cancerous growth in his nasal cavity in January 1988. He maintains that because he filed this cause of action within two years of discovering the cancer he is not barred by R.C. 2305.10 from pursuing his cause of action.

We find Liddell's argument to be more persuasive.

III

As a preliminary matter, we must address SCA's argument that in allowing Liddell to proceed with this claim we would be permitting him to split his causes of action in contravention of a well-established rule of law. A generally accepted legal principle states that "a personal injury caused by a single tortious wrongful act of negligence is an entirety, affords ground for only one action, and cannot be split up in order to bring separate actions for different elements of damages." State ex rel. Weinberger v. Indus. Comm. (1941), 139 Ohio St. 92, 97, 22 O.O. 59, 62, 38 N.E.2d 399, 402. SCA insists that once an injury due to a defendant's conduct is evident, a claim accrues for that injury and for all other injuries that may arise in the future as a result of the same conduct. More to the point, assuming a single identifiable event caused the subsequent cancer, SCA maintains that Liddell filed a workers' compensation claim in 1981 for an injury resulting from the event, that he received a permanent partial disability award on account of the injury, that he thereby knew at least by 1983 that he had been permanently injured, that all the elements needed to bring a cause of action were evident within two years of the event, and that Liddell now cannot split his causes of action and maintain a separate claim based on his cancer. In fact, SCA attempts to convince us that this, and not the application of a rule of discovery to the statute of limitations, is the real issue in the instant case.

To bolster its argument, SCA points out that this case differs significantly from the asbestos cases where courts have held that a plaintiff can maintain a cause of action against a defendant when exposure to asbestos causes cancer, even though the plaintiff had been diagnosed with a noncancerous disease related to the exposure, such as asbestosis, much earlier and did not file a claim at that time. See Wilson v. Johns-Manville Sales Corp. (C.A.D.C.1982), 684 F.2d 111. In asbestos cases a plaintiff typically is exposed to asbestos over a period of time and cannot pinpoint one specific exposure that caused the cancer, whereas here a single identifiable event, not a creeping disease, allegedly caused Liddell's cancer. In essence, SCA asserts that Liddell did not have the option to waive a tort claim for...