Personal Injury – Statue of Limitations

October 26, 2019


Accrual of claims refers to the day on which an event that caused an alleged liability is deemed to have occurred. A statute of limitations is said to start running at the time a claim accrues.” – USLegal, Inc

Most prospective litigants know to think about the statute of limitations applicable to their potential case, without considering the equally important consideration of when their claim accrues.  If a statute of limitations sets the latest date on a (typically) 1-3 year clock for when a lawsuit must be filed by, this is obviously dependent in the first instance on when the clock starts: this calculation is known as the accrual date.

For most injuries, the clock starts on the day the incident occurred.  If your opioid-addicted neighbor decides in one of her paranoid fits that you are a demon summoned from the abyss of the Ninth Circle, and beats you over the head with a baseball bat, you are certainly (and probably apoplectically) aware that she has wronged you for purposes of a statute of limitations calculation.

However, this awareness can be a far trickier determination for injuries that are less easily detectable.  For example, if our disturbed neighbor secretly poisons a box of cereal on Day 1, we eat from that box on Day 10, get sick on Day 11, figure out that it is the evil neighbor on Day 30, and the sickness turns into a lifelong disease diagnosed on Day 100, does our statute start on Day 1, 10, 11, 30 or 100?

The answer lies in an analysis of accrual principles.

A cause of action ordinarily accrues when the wrongful act occurs. (Ovando v. Los Angeles (2008) 159 Cal.App.4th 42, 66.)  California law assumes a plaintiff has knowledge of being injured, but he is permitted to show that he did not actually suspect he had suffered harm amounting to an actual and appreciable injury at the time. (Davies v. Krasna (1975) 14 Cal.3d 502, 514; Fox v. Ethicon (2005) 35 Cal.4th 797, 808.)  In close cases, detection of non-visible injury is usually determined by diagnostic information imparted by a doctor. (Rivas v. Safety–Kleen (2002) 98 Cal.App.4th 218, 228-229; Miller v. Lakeside Condo (1991) 1 Cal.App.4th 1611, 1624.)  Accrual can also be measured by continuation of pain and worsening of symptoms. (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 820, 823.)

As explained in Fox v. Ethicon (2005) 35 Cal.4th 797, the discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action.  Plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put them on such notice and gather knowledge from sources available to them. (Fox, at 807-808; Gutierrez v. Mofid (1985) 39 Cal.3d 892, 896–897; Jolly v. Eli Lilly (1988) 44 Cal.3d 1103, 1109.)

But a tort lawsuit must propose to remedy something more than just a nominal injury. (See CACI 3900; Clemente v. California (1985) 40 Cal.3d 202, 219.)   A right to recover nominal damages will not trigger the running of the period of limitation. (Davies v. Krasna (1975) 14 Cal.3d 502, 514.) A temporal inconvenience is not actionable. (See Steingart v. White (1988) 198 Cal.App.3d 406, 410, 413-414 [although victim suspicious about lump in breast, negative result in mammogram sufficient to delay accrual]; Sinai Temple v. Kaplan (1976) 54 Cal.App.3d 1103, 1113; Larcher v. Wanless (1976) 18 Cal.3d 646, 656, fn. 11.)

In Miller, plaintiff’s mold-based asthma condition did not accrue when minor incidents of asthma occurred in September and October 1983; did not accrue in June 1984 when she began to experience further and more severe bouts of asthma; did not accrue in July 1984 when she was hospitalized and was diagnosed as suffering from allergies and asthma, and only finally accrued when in October, 1984 she suffered “extreme allergic reactions,” and “severe bouts of asthma,” for which she sought medical advice and treatment. (Miller,1 Cal.App.4th 1611, 1624; see Rivas v. Safety-Kleen (2002) 98 Cal.App.4th 218, 228-229 [accrual of cause of action not triggered until plaintiff was informed by his physicians that he was suffering from a “serious and debilitating condition”]; Arredondo v. California (2005) 131 Cal.App.4th 614, 618 [an injury manifests itself when it has become evidenced in some significant fashion, when the damage has clearly surfaced and is noticeable]; Fox v. Ethicon (2005) 35 Cal.4th 797, 808; Davies v. Krasna (1975) 14 Cal.3d 502, 514-515; Dolan v. Borelli (1993) 13 Cal.App.4th 816, 820, 823.)

As explained by the Rutter scholars, “[t]here are times when a tort initially causes injuries so insubstantial that it is not reasonable to expect the victim to file a lawsuit, even though he or she would be entitled to at least nominal damages. When such a person does not sue, and later suffers substantial injuries that do justify a lawsuit, he or she should not be punished for acting reasonably in not prosecuting a lawsuit for insignificant damages.” (Turner & Banke, California Practice Guide: Civil Procedure Before Trial, Statutes of Limitations  (“Rutter Guide”) (2018), § 3-A, ¶ 3.26.)

Recently, the Second District ruled that a desk that fell over a stairwell and hit a student in the head, but said injury didn’t trigger symptoms of a real TBI for another eight months, would survive on a delayed discovery (accrual) theory.

The Court argued: Pooshs v. Philip Morris (2011) 51 Cal.4th 788 is instructive. There, the plaintiff was a cigarette smoker for 35 years, from 1953 through 1987. In 1989, she was diagnosed with chronic obstructive pulmonary disease (COPD), which she knew was caused by her smoking habit. Nevertheless, she did not sue the manufacturers of the cigarettes that she had smoked, and the statutory period for doing so elapsed. In 1990 or 1991, she was diagnosed with periodontal disease, which she knew was caused by her smoking habit. Again, she did not sue the various cigarette manufacturers, and the statutory period for doing so elapsed. In 2003, plaintiff was diagnosed with lung cancer. This time, she sued. The issue presented was whether her lawsuit, based on that later-discovered latent disease, was time-barred. (Id. at p. 791.)

Pooshs concluded that when a later-discovered latent disease is separate and distinct from an earlier-discovered disease, the earlier disease does not trigger the statute of limitations for a lawsuit based on the later disease. (Pooshs, 51 Cal.4th at p. 803.)

Pooshs explained: “[N]o good reason appears to require plaintiff, who years ago suffered a smoking-related disease that is not lung cancer, to sue at that time for lung cancer damages based on the speculative possibility that lung cancer might later arise …. [if] It is true that here plaintiffs COPD involved the same part of the body (the lungs) as her lung cancer. Nevertheless, … in deciding the statute of limitations issue we accept as true plaintiffs factual assertion ‘that COPD is a separate illness, which does not pre-dispose or lead to lung cancer and that it has nothing medically, biologically, or pathologically to do with lung cancer.’ [Citation.]

Assuming that assertion to be true, it does not matter that both diseases affect the lungs. The significant point is that the later-occurring disease (lung cancer) is, according to plaintiffs offer of proof, a disease that is separate and distinct from the earlier-occurring disease (COPD). Therefore, … the statute of limitations bar can apply to one disease without applying to the other.” (Pooshs, 51 Cal.4th at p. 802.)

Thus, claims arising from separate injuries caused by the same wrongdoing may accrue on different dates, based upon when plaintiff discovered each injury. In the instant case, we cannot say as a matter of law that the traumatic brain injury that allegedly manifested on February 26, 2014 (i.e., blackouts, seizures and other complications) was not separate and distinct from the head injury that manifested on May 3, 2013 (i.e., headache, vomiting, dizziness).

So where does that leave us with the neighbor?

It depends on a few facts.  Days 1, 10, and 11 are out. We cannot rule out a minor, temporary case of food poisoning from the standard culprits at this time (Jack-in-the-Box, suspicious tuna can, etc).  If we discover it was the Perco-popping neighbor on Day 30, and she confesses that the poison she used is something particularly toxic and therefore likely to cause a lifelong illness, there is a pretty good argument for Day 30.

But if the toxin she employed is of a more routine variety – say, something among her biological output (witch!) – and might only inflict a temporal discomfort, and we only confirm from a doctor on Day 100 that we’re in for the long haul with a real disease, then Day 100 seems the fairer result.  That extra 100 days can be critical, especially in cases where the patient may spend the early years of the statute clock distracted by the consequences of rectifying the condition itself.

Please feel free to reach out regarding any and all of your law inquires. Pavone & Fonner law firm has the knowledge and intelligence to represent Fortune 500 disputes to simple neighborly disagreements. Regardless if you are famous or not so famous we care about the law, in fact we are passionate about it.



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