Rogers v. Illinois Cent. R. Co.

• Decision Date: 02 June 1992
• Docket Number: No. 61150,61150
• Parties: Donald ROGERS, Plaintiff/Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 426

833 S.W.2d 426

Donald ROGERS, Plaintiff/Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Defendant/Respondent.

No. 61150.

Missouri Court of Appeals,

Eastern District,

Division One.

June 2, 1992.

Gail Gaus Renshaw, The Lakin Law Firm, P.C., Wood River, for plaintiff/appellant.

Nicholas J. Lamb, William D. Hakes, Thompson & Mitchell, St. Louis, for defendant/respondent.

REINHARD, Presiding Judge.

Plaintiff appeals the trial court's award of summary judgment in favor of defendant in a Federal Employer's Liability Act (FELA) action for occupational hearing loss. 45 U.S.C. § 51 et seq. ¹ Defendant's motion alleged that the action was barred by the limitations provision of the statute. 45 U.S.C. § 56. We reverse and remand.

Plaintiff's petition was filed on February 22, 1991. The petition alleged that during his employment with defendant as a conductor/brakeman from approximately November 1, 1971 to November 1, 1988, he was "subjected to numerous sources of variable loud and excessive noises including but not limited to the engine diesel noises, caboose noise, torpedoes, brakes, coupling cars, and other railroad noises." The petition further alleged that wholly or partly as the result of negligence by defendant, plaintiff suffered hearing loss and ringing in his ears, extreme pain and mental anguish. The petition also alleged that plaintiff was caused to incur past and future medical expenses.

After submitting interrogatories and a request for admissions to plaintiff, defendant moved for summary judgment. Plaintiff responded with a memorandum in opposition to summary judgment and an affidavit. The court sustained the motion.

In ruling on a motion for summary judgment, the trial court and the appellate court must scrutinize the record in the light most favorable to the party against whom the motion was filed, and accord that party the benefit of every doubt. Summary judgment may only be rendered where it is made manifest by the pleadings, depositions, affidavits, answers to interrogatories, exhibits and admissions that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Rule 74.04(c); Edwards v. Heidelbaugh, 574 S.W.2d 25 (Mo.App.1978). Where the issue of limitations involves determination of when a claim accrues, summary judgment cannot be granted unless the evidence is so clear that there is no genuine factual issue and the determination can be made as a matter of law. Hildebrandt v. Allied Corp., 839 F.2d 396, 399 (8th Cir.1987), citing Lundy v. Union Carbide Corp., 695 F.2d 394, 398 (9th Cir.1982) (quoting Williams v. Borden, 637 F.2d 731, 738 (10th Cir.1980)). If the evidence presented to support or oppose the motion is subject to conflicting interpretations, or reasonable people might differ as to its significance, summary judgment is improper. United States v. Conservation Chemical Co., 619 F.Supp. 162, 179 (W.D.Mo.1985). Summary judgment should likewise be denied where the affidavits or other sworn statements require an evaluative judgment between two rationally possible conclusions, even if the court is convinced that the evidence makes it unlikely that a party can prevail at trial. Id.

Actions under FELA are governed by federal law. Kestner v. Mo. Pacific Railroad Co., 785 S.W.2d 646, 647 (Mo.App.1990); Norfolk & Western Railway Co. v. Liepelt, 444 U.S. 490, 493, 100 S.Ct. 755, 757, 62 L.Ed.2d 689 (1980). FELA cases must be commenced within three years from the date the cause of action accrued. 45 U.S.C. § 56; Kestner, 785 S.W.2d at 647.

In ruling on the motion, the trial court had before it the pleadings; plaintiff's answers to interrogatories and admissions; an exhibit which included plaintiff's response to a questionnaire submitted to him by defendant dated April 6, 1988; and an affidavit from plaintiff. On appeal, plaintiff contends that the trial court erred because a genuine issue of material fact existed as to when plaintiff's cause of action accrued.

In FELA occupational disease cases, a "discovery" rule has evolved. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Kestner v. Mo. Pacific R. Co., 785 S.W.2d at 647. 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, the cause of action does not accrue until the injury manifests itself. Urie, 337 U.S. at 170, 69 S.Ct. at 1025; Kestner at 647. This rule has been applied to hearing loss cases. Kestner at 647.

The rule was refined by the United States Supreme Court in United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). ² Kubrick held that a plaintiff's claim accrues at the time that plaintiff first becomes armed with the critical facts of both the existence and the cause of his injury, regardless of whether plaintiff is then aware that these facts constitute legal negligence. Kubrick at 122, 100 S.Ct. at 359; Kestner at 647. We have held that an occupational disease claim is deemed to accrue under FELA when the claimant becomes aware or has reason to be aware that he has been injured and is aware of or has reason to be aware of the cause of his injury. Kestner at 647. See DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1030 (5th Cir.1984).

The discovery rule was developed to avoid mechanical application of statutes of limitations. DuBose at 1031. Thus, Kubrick does not set an inflexible rule, but rather intends that the discovery rule be applied in differing fact situations to effectuate the rationale behind the rule. Id.

Where the factual evidence raises different inferences, the time at which an impairment manifests itself is for a jury to determine. Hildebrandt v. Allied Corp., 839 F.2d 396, 398 (8th Cir.1987). The issue of when plaintiff knew or should have known of his injury and its cause is a question of fact for the jury. Id. at 398-99.

In the case of actual knowledge, the cause of action accrues when the character of the condition and its cause first "c[o]me together" for the plaintiff. Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434, 436 (Mo. banc 1984). The "should have known" test is not narrowly confining. Miller v. Mobay Corp., 741 F.Supp. 177, 178 (W.D.Mo.1990), citing Hildebrandt, 839 F.2d 396. The test is not a "could have known" test. Miller at 178. Rather, it requires a very substantial common-sense likelihood that a reasonably careful person would discover the existence of the injury and its cause. Id. Plaintiffs are entitled to wait until the cause has been rationally identified. Hildebrandt at 399.

Plaintiff's responses to the hearing loss questionnaire submitted by defendant (dated April of 1988) include the following:

Q. Do you think you have a hearing problem?

A. Yes.

Q. If yes, how long have you known?

A. 7 years.

Q. Do you think it might be related to your railroad employment?

A. Yes.

Q. If yes, how long have you thought so?

A. 6 years. (Emphasis ours.) ³

In answer to a question which asked, "If you have problems with your ears, please list all complaints", plaintiff responded: "Loss of Hearing--can't hear well."

In his answer to interrogatories, however, plaintiff gave the following answer to the question of when his symptoms first appeared: "Because plaintiff's symptoms developed gradually over a period of time, he cannot determine the date when such symptoms first appeared." When asked in another interrogatory when he had first learned, become aware of or realized that he had sustained a hearing loss or other injury, condition or disease, and when he first learned, became aware of or realized that the hearing loss or other injuries might be due to conditions at his employment with defendant, plaintiff again stated: "Because Plaintiff's symptoms developed gradually over a period of time, he cannot determine the date when such symptoms first appeared." ⁴

In his affidavit filed in response to the motion for summary judgment plaintiff stated that in answering the questions, "Do you think you have a hearing problem; if yes, how long have you known; do you think it might be related to your railroad employment; if yes, how long have you thought so", he was speaking "retrospectively." Plaintiff stated that, "in retrospect, he feels that upon reflecting back upon his career he probably had a hearing loss as long ago as seven years before the date of the questionnaire." Plaintiff further stated that as of the date of the questionnaire, he "had never had confirmed by any medical health provider of any sort that he in fact did have a hearing loss." He stated that at the time he completed the questionnaire he did not know that he had a hearing loss but merely assumed that he did. Plaintiff also stated that it was not until August 12, 1988, when he obtained an audiogram which revealed that he did have a hearing loss, that he was aware of any hearing loss as opposed to speculating upon whether or not he had a hearing loss.

We believe that an issue of fact remains on when plaintiff knew or should have known of his hearing loss and its cause.

Ordinarily, "the phrases 'I figured' and 'maybe' fail to rise to the level of proof required for summary judgment." Kestner v. Mo. Pacific R. Co., 785 S.W.2d at 647. Here, the phrase "might be" used in the portion of the questionnaire which defendant cites as proof that defendant knew of the cause of his injury is of a similar nature. See Kestner at 648. Furthermore, plaintiff filed an affidavit and gave interrogatory answers that in effect rebutted the statements made in the questionnaire he had previously answered.

Defendant's argument in response to plaintiff's affidavits and interrogatories is misplaced. Defendant's brief states:

... Appellant argues ... that the mere filing of an affidavit which contradicts his prior admissions puts at issue the meaning of his handwritten answers on the Questionnaire. Such argument lacks merit and is not supported by...