Employer and Employee--railroad worker--delayed investigation of
breathing difficulties
The trial court did not err in an asbestosis action by a
railroad worker by granting summary judgment for defendant-
railroad based on the three-year FELA statute of limitations
where plaintiff experienced breathing difficulties in 1984 which
he believed to be related to dusty working conditions, never
informed his physicians of his exposure, did not seek any other
medical treatment or diagnosis until after consulting an attorney
in 1998, and filed this action in 1999. Plaintiff did not
fulfill his affirmative duty to investigate suspected causes of
his breathing difficulties.
Bondurant & Appleton, P.C., by Randall E. Appleton, for
plaintiff-appellant.
Poyner & Spruill, L.L.P., by Timothy Wood Wilson and Randall
Ray Adams, for defendant-appellee.
WALKER, Judge.
From March 1970 until November 1986, Robert L. Vincent
(plaintiff) worked for CSX Transportation, Inc. (defendant).
Plaintiff's job required him to inspect, repair, and maintain the
rails, crossties, and roadbeds upon which trains operate. His
duties exposed him to varying levels of dust and he was
hospitalized in 1984 for difficulty of breathing. Plaintiff's
physicians advised him that cigarette smoking was contributing to
his breathing difficulties. Plaintiff did not make inquiry of his
physicians as to the causes of his breathing problems because heknew “back then” that the dust in his workplace was the cause. At
that time, he chose not to file a claim against defendant for the
breathing problems.
In 1998, plaintiff learned that some of his co-workers had
been diagnosed with work-related asbestosis. He contacted an
attorney who advised him to undergo a pulmonary evaluation. After
this evaluation, plaintiff was diagnosed on 18 November 1998 with
asbestosis which was attributed to his exposure to asbestos dust
while working for defendant.
On 25 January 1999, plaintiff filed this negligence action
against defendant, seeking damages pursuant to the Federal
Employers' Liability Act (FELA) of 1908, 45 U.S.C. § 51 (1994) et
seq., for “occupational pneumoconiosis including but not limited to
asbestosis.” Plaintiff alleged he contracted this condition as a
result of his employment with defendant. Defendant filed a motion
for summary judgment which was granted on 15 May 2000. The trial
court concluded there was no genuine issue of material fact since
the three-year statute of limitations had expired before plaintiff
filed this cause of action. From this order, plaintiff appeals.
In his sole assignment of error, plaintiff contends the trial
court erred in finding his cause of action was barred by the
statute of limitations. In support of his argument, plaintiff
asserts he presented sufficient evidence to establish he neither
knew, nor should have known, that he suffered from asbestosis due
to dust exposure during his employment with defendant prior to 18
November 1998.
At the outset, we note the test for summary judgment iswhether on the basis of the materials presented to the trial
court
“there exists any genuine issue of material fact.” Lowe v.
Murchison, 44 N.C. App. 488, 490, 261 S.E.2d 255, 256 (1979),
citing N.C.R. Civ. P. 56(c). In other words, “[s]ummary judgment
is proper when it appears that even if the facts as claimed by
plaintiff are taken as true, there can be no recovery.” Lowder v.
Lowder, 68 N.C. App. 505, 506, 315 S.E.2d 520, 521, disc. review
denied, 311 N.C. 759, 321 S.E.2d 138 (1984)(citation omitted). A
trial court must construe the record in a light most favorable to
a party opposing a motion for summary judgment. Peterson v. Winn
Dixie, 14 N.C. App. 29, 187 S.E.2d 487 (1972).
FELA governs those actions brought by railroad workers who
claim injuries as a result of their employer's negligence. See 45
U.S.C. § 56 (1994). The United States Supreme Court and the
federal courts, who have interpreted FELA, apply the principles of
common law negligence in these cases. Urie v. Thompson, 337 U.S.
163, 93 L. Ed. 1282 (1949). In Urie, the Supreme Court stated: “We
recognize . . . that [FELA] is founded on common-law concepts of
negligence and injury, subject to such qualifications as Congress
has imported into those terms.” Id. at 182, 93 L. Ed. at 1299.
This application of common law negligence by the federal courts
supersedes state law and binds the state courts in their
interpretation of FELA. Cole v. R.R., 199 N.C. 389, 154 S.E. 682
(1930), citing Toledo R.R. Co. v. Allen, 276 U.S. 165, 72 L. Ed.
513 (1928). FELA provides in part that “[n]o action shall be maintained
under this [Act] unless commenced within three years from the day
the cause of action accrued.” 45 U.S.C. § 56. Further, the burden
is on the claimant to allege and prove he commenced his cause of
action within this statute of limitations as a condition precedent
to recovery. See Carpenter v. Erie R. Co., 132 F.2d 362, 362-363
(3d Cir. 1942); Bealer v. Missouri Pacific R.R. Co., 951 F.2d 38,
39 (5th Cir. 1991).
The purpose of the statute of limitations “. . . is to require
the reasonably diligent presentation of tort claims against the
[alleged tortfeasor]. United States v. Kubrick, 444 U.S. 111, 123,
62 L. Ed. 2d 259, 270 (1979). Thus, when a plaintiff is unaware of
when the injury actually occurs, the “discovery rule” is applied.
See Tolston v. National R.R. Passenger Corp., 102 F.3d 863, 865
(7th Cir. 1996); Albert v. Maine Cent. R. Co., 905 F.2d 541, 543
(1st Cir. 1990); Fries v. Chicago & Northwestern Transp. Co., 909
F.2d 1092, 1095 (7th Cir. 1990); Townley v. Norfolk & Western Ry.
Co., 337 F.2d 498, 501 (4th Cir. 1989); DuBose v. Kansas City
Southern Ry. Co., 729 F.2d 1026, 1029-1030 (5th Cir.), cert.
denied, 469 U.S. 854, 83 L. Ed. 2d 113 (1984); Kichline v.
Consolidated Rail. Corp., 800 F.2d 356, 358 (3rd Cir. 1986); Young
v. Clinchfield Railroad Company, 288 F.2d 499 (4th Cir. 1961).
Under this rule, borrowed from the reasoning of our United States
Supreme Court in Urie, an action accrues when the plaintiff
becomes, or should become aware of his injury. Id.; Urie at 170,93 L. Ed. at 1282-1293. Likewise, a claim under the Federal Torts
Claim Act accrues when the employee knows, or should know, of both
his disease and its cause. Kubrick at 123, 62 L. Ed. 2d at 270.
This rule has been extended to FELA cases. See Townley at 501;
Kichline at 356.
In Kubrick, the claimant brought an action under the Federal
Tort Claims Act to recover for a hearing loss allegedly caused by
negligent treatment received in a veterans' administration (VA)
hospital. Kubrick at 115, 62 L. Ed. 2d at 265. Although his
private physician had indicated to him in 1969 that his treatment
administered by the VA hospital had likely caused his hearing loss,
Kubrick did not file his action until 1972 after another physician
had advised him that the VA hospital treatment had caused his
injury. Id. at 114-115, 62 L. Ed. 2d at 264-265. The Supreme
Court held that the statute of limitations began to run in 1969
when the plaintiff knew of his hearing loss and its cause, not in
1971 when another physician confirmed that his hearing loss
resulted from his treatment at the VA hospital. Id. at 122-123, 62
L. Ed. 2d at 269-270. The Court further stated:
We . . . cannot hold that Congress intended
that 'accrual' of a claim must wait awareness
by the plaintiff that his injury was
negligently inflicted. A plaintiff . . .,
armed with facts about the harm done to him,
can protect himself by seeking advice in the
medical and legal community. To excuse him
from promptly doing so by postponing the
accrual of his claim would undermine the
purpose of the limitations statute[.]
Id. at 123, 62 L. Ed. 2d at 270. The Kubrick Court emphasized a claimant's affirmative duty to
investigate his injury with reasonable diligence. Id.; see also
Albert at 544 (holding once the plaintiff, who had filed a FELA
claim, concluded that he was injured and believed the injury was
caused by his employment, “he had a duty to investigate the
situation in order to confirm or deny his belief.”); Fries at 1095
(holding an injured plaintiff filing a FELA claim has “an
affirmative duty to investigate the potential cause of his injury”).
In the instant case, plaintiff argues that his claim did not
accrue until 1998 when he was formally diagnosed with asbestosis.
Defendant counters that courts, consistent with the affirmative duty
rule, have uniformly rejected the formal diagnosis rule that accrual
does not begin until medical conditions are formally diagnosed.
See, e.g., Townley at 498; Crisman v. Odeco, Inc., 932 F.2d 413 (5th
Cir. 1991).
In Townley, the plaintiff filed a claim under FELA for
pneumoconiosis allegedly resulting from his work as defendant's
yard brakeman. Townley at 499. Plaintiff claimed he was unaware
of his injury until his condition was diagnosed; however, his
testimony revealed he had corresponded with his employer about
obtaining black lung benefits in 1980. Id. at 499-500. The federal
Fourth Circuit Court of Appeals held that even if the defendant did
not truly believe he had black lung in 1980, “it is obvious . . .
that he possessed sufficient information that he knew, or should
have known, that he had been injured by his work with the railroad.”
Id. at 501. The Court explicitly rejected plaintiff's contentionthat the formal diagnosis rule should always apply by stating that
the statute begins to run when a person's condition is diagnosed,
unless the plaintiff shows he should have known earlier of his
injury. Id.
Here, plaintiff admitted in his deposition that his breathing
difficulties caused him to seek medical treatment in November of
1984. He attributed his breathing difficulties to the dust in his
work environment. Plaintiff's association between his breathing
difficulties and his workplace is evident from his deposition
testimony as follows:
Q Sir, when you were in the hospital in
November of 1984 because of your breathing
difficulty and pain when you were breathing,
shortness of breath, did you ask the doctors
then what was causing your breathing
difficulties?
A . . . no.
Q You don't recall asking any of the doctors
then why you were having the chest pain when
you were breathing, shortness of breath and
increasing shortness of breath when you exerted
yourself back there in November of '84?
A I know what part of that was. It come [sic]
from that dust.
Q You knew it back then?
A Yes, I knew it.
Q That part of your breathing difficulty was
from dust that--the various dust conditions you
[had] been around at the Railroad?
A Yes, I coughed dust up from when I worked
that week to the day I go [sic] back to work.
My wife can testify to that. Every time I
coughed, dust come [sic] up in cold.
Q And you believe that [at] that time, in
November of 1984, that being around variousdusty conditions over the course of Railroad
employment had harmed your breathing?
A Yes, I know it did.
When plaintiff experienced his breathing difficulties in 1984,
he had been employed by defendant for fourteen years. Even though
he had been exposed to dust during these years, plaintiff never
informed physicians of his dust exposure or of his own belief that
the dusty conditions caused or contributed to his breathing
difficulties. He admitted in his deposition that he never asked his
physicians in 1984 whether the dust in the workplace was the cause
of, or contributed to, his breathing difficulties. Further, even
though he did not work for defendant after 1986, plaintiff did not
seek any other medical treatment or diagnosis until after he
consulted an attorney in 1998. Thus, plaintiff did not fulfill his
affirmative duty to investigate suspected causes of his breathing
difficulties as required by Kubrick.
Therefore, under the cases cited herein, once plaintiff's
breathing difficulties manifested themselves and plaintiff
attributed these breathing difficulties to the dust in his
workplace, he possessed sufficient information that he knew, or
should have known, that he had been injured by his work with the
railroad. Because he failed to file his action within the requisite
time period, summary judgment in favor of defendant was proper. As
no genuine issue of fact existed, the judgment of the trial court
is
Affirmed.
Judges McCULLOUGH and THOMAS concur.
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