The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 8, 2010 Session
PATRICIA MILLS, ET AL. v. JOHN H. BOOTH, II, ET AL.
Appeal from the Circuit Court for Roane County
No. 14510 Russell Simmons, Jr., Judge
No. E2010-00846-COA-R3-CV - FILED DECEMBER 28, 2010
On November 8, 2008, James Turlington and his wife, Altha Turlington, were killed in an
automobile accident after their car tuned left in front of a vehicle being driven by John H.
Booth, II (“Booth”). Initially, it was believed that the Turlington vehicle was being driven
by Altha Turlington. It was determined two days later that the Turlington vehicle was being
driven by James Turlington. An accident reconstructionist later concluded that while the
Turlington vehicle did turn in front of the Booth vehicle, the Turlington vehicle would have
had sufficient time to complete its turn without any collision taking place if Booth had not
been speeding. A complaint was filed on November 10, 2009, by Altha Turlington’s
daughter, Patricia Mills. The Trial Court determined that the statute of limitations began to
run on the day of the accident, that the discovery rule could not be used to extend when the
statute of limitations began to run, and the complaint had not been filed within the applicable
one year statute of limitations. Plaintiff appeals, and we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Circuit Court Affirmed; Case Remanded
D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., and C HARLES D. S USANO, J R., J., joined.
A. Philip Lomonaco and Bradley L. Henry, Knoxville, Tennessee, for the Appellant, Patricia
Mills, Individually and as Surviving Child and Next of Kin of Altha Turlington.
Brian H. Trammell and Erin B. Williams, Knoxville, Tennessee, for the Appellee, John H.
Booth, II.
George H. Buxton, Oak Ridge, Tennessee, for the Appellee, Tennessee Farmers Mutual
Insurance Company.
OPINION
Background
On November 10, 2009, Patricia Mills (“Plaintiff”), individually and on her
deceased mother’s behalf, filed a wrongful death lawsuit against Booth and James Turlington
(“Turlington”). Plaintiff is the daughter of Altha Turlington (the “Decedent”) who was killed
in the automobile accident that occurred on November 8, 2008. The Decedent was a
passenger in a vehicle being driven by Turlington, Decedent’s husband. According to the
complaint:
That on or about November 8, 2008, the deceased, Altha
Turlington, was a passenger in a vehicle traveling south
attempting to make a left hand turn onto East Dunn Street from
North Gateway crossing North Gateway from west to east. That
at the same time, the Defendant, John Booth, was attempting to
travel north along North Gateway through the intersection of
East Dunn Street. . . .
That as Defendant, John Booth, was attempting to travel
through the intersection at East Dunn Street north on North
Gateway, the said Defendant, with negligence and gross
negligence, while failing to yield [the] right of way, while
traveling in excess of the speed limit (approximately 58 in a 40),
with reckless disregard for the safety of others, without keeping
his automobile under control and failing to apply the brakes to
bring it under control, failing to keep a proper lookout, without
using due care to determine whether or not the roadway ahead
of him was clear, and with the Plaintiff in plain view, the said
Defendant, John Booth, did cause his vehicle to strike the
vehicle occupied by Altha Turlington while it attempting (sic)
to turn left onto East Dunn Street from North Gateway, causing
death. (original paragraph numbering omitted)
Plaintiff further alleged that Booth violated various statutes regulating the
driving of vehicles and that these violations constituted negligence per se. Plaintiff claimed
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Booth’s actions were the proximate cause of the accident. Plaintiff also sued her father, John
Turlington, and, pursuant to Tenn. Code Ann. § 56-7-1206, served her parents’
uninsured/underinsured motorist insurance carrier, Tennessee Farmers Mutual Insurance
Company (“Tennessee Farmers”).
Booth responded to the complaint and generally denied any liability to Plaintiff
or responsibility for Decedent’s death. Booth claimed he was lawfully proceeding through
the intersection when the Turlington vehicle made a left-hand turn in front of his vehicle.
Along with his answer, Booth filed a motion to dismiss. According to this motion, Plaintiff’s
complaint was filed with the Circuit Court for Roane County, Tennessee, on November 10,
2009. Because there is a one year statute of limitations for personal injuries and because the
automobile accident happened on November 8, 2008, Booth asserted that the statute of
limitations as to him had run by the time the lawsuit was filed. Tennessee Farmers filed a
motion to dismiss on the same basis.
Plaintiff responded to the motion to dismiss. According to Plaintiff, the
original Uniform Traffic Crash Report issued on November 8, 2008, incorrectly indicated
that the Decedent was driving the Turlington vehicle at the time of the accident. However,
“[a]fter further investigation by the Rockwood Police Department, an Amended Tennessee
Uniform Traffic Crash Report . . . was issued on November 12, 2008 naming James
Turlington as the driver of the vehicle, not [the Decedent.]” According to Plaintiff, she had
one year from the date she discovered that the vehicle was being driven by James Turlington
in which to file suit.1 Thus, Plaintiff asserted that the lawsuit was filed timely. Plaintiff filed
an affidavit and stated as follows in her response to the motion to dismiss:
The Plaintiff, Patricia Mills, was not present to witness
the accident. Plaintiff did not receive a copy of the initial crash
report until at least November 10, 2008 which stated that her
mother, Altha Turlington was at fault for failure to yield right of
way.
Immediately after the accident, by all accounts, it
appeared the Turlington vehicle was at fault in the accident.
This is true because the Turlington vehicle turned left in front of
the Booth vehicle and the police report cited the Turlington
vehicle as failing to yield the right of way at the intersection and
causing the accident.
1
In the amended crash report, James Turlington was cited for failing to yield the right of way. As
mentioned previously, both James and Altha Turlington died from injuries received in the accident.
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The discovery that Booth had caused the accident was
only apparent after a report by an Accident Reconstructionist
was provided to the plaintiff on or around December 12, 2008,
more than a month after the accident. The insurance company
for the Turlington vehicle commissioned the report. The report
indicates the accident would not have happened had the
Defendant, Booth not been speeding. . . . (internal citations to
Plaintiff’s affidavit and other documentation omitted)
Booth replied to Plaintiff’s response to the motion to dismiss. Booth argued
that pursuant to applicable law, the statute of limitations begins to run on the date of injury,
regardless of whether a plaintiff knows of the specific type of claim he or she may have.
Booth argued that in the present case, the date of the accident was when the statute of
limitations began to run and, therefore, the complaint was not filed timely. Tennessee
Farmers filed a similar reply.
In March of 2010, the Trial Court entered an Order granting the motions to
dismiss filed by both Booth and Tennessee Farmers. The Trial Court also entered a
Memorandum Opinion explaining its reasons for granting the motions. According to the
Trial Court’s Memorandum Opinion:
This wrongful death action was filed by the deceased’s
daughter on November 10, 2009. The deceased was involved in
the fatal automobile accident on November 8, 2008. Defendants
have filed Motions to Dismiss based on the fact that the lawsuit
was filed after the statute of limitations had run.
Plaintiff claims that the discovery rule should apply
because the original accident report listed the deceased as the
driver of her vehicle which turned into the path of an oncoming
vehicle which would lead to the conclusion that the deceased
was at fault and had no cause of action. Plaintiff further claims
she did not know a right of action existed until: 1) November
12, 2008 when an amended accident report was issued showing
deceased’s husband to be the driver of the vehicle in which
deceased was riding, or 2) December 12, 2008 when an
engineering report was issued indicating the other vehicle could
be at fault due to excessive speed. Plaintiff also claims she
exercised reasonable care in determining whether a right of
action existed.
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The discovery rule was first introduced into Tennessee
law in the case of Teeters v. Currey, 518 S.W.2d 512 (Tenn.
1974) in which the Supreme Court of Tennessee adopted “the
principle that those classes of cases where medical malpractice
is asserted to have occurred through the negligent performance
of surgical procedures, the cause of action accrues and the
statute of limitations commences to run when the patient
discovers, or in the exercise of reasonable care and diligence for
his own health and welfare, should have discovered the resulting
injury.”
After the Teeters case, the appellate courts have
addressed the “discovery rule” as it applies to different causes
of action and under different factual situations. Because the
“discovery rule” is used to extend the time in a situation where
the “injury is of a type that is not immediately discoverable, or
where the fact of injury has been discovered, but it is not
possible to discover the negligence that caused the injury, until
after the statute of limitations has passed.” Steele v. Tennessee
Jaycees, Inc., No. 01-A-01-9505-CH-00214, [1995 WL 623027,
at *2] (Tenn. Ct. App. Oct. 25, 1995).
In this lawsuit by her own affidavit, Plaintiff had
information that the deceased was a passenger in the wrecked
vehicle and that one or both defendants were at fault by
December 12, 2008. She had approximately eleven (11) months
to file her lawsuit before the statute of limitations had run from
the date of the accident. The Complaint was dated November 3,
2009, but was not filed with the clerk until November 10, 2009.
As set out in the Steele case, “The discovery rule was not
meant to allow a party to delay filing his claim until after he has
completed the process of discovering all the factors that affect
its merits.” [Steele, 1995 WL 623027, at *5.]
The Trial Court finds the following reasoning in the
Young v. Enerpack, [299 S.W.3d 815, 818 (Tenn. Ct. App.
2009)] case to be applicable:
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“In our view, the discovery rule is not designed to ‘tack
on’ days or weeks to the statute of limitations for short
periods of time when a plaintiff might not be fully aware
of what had occurred. If such were the case, the statute
of limitations would become a nebulous rule with
difficult application, which could be arbitrarily
lengthened each time a plaintiff had a temporary
difficulty, but was fully competent to file his claim
within the statutory period.”
Based on the above, the Court finds that the discovery
rule is not applicable and the statute of limitations began to run
on the date of the accident, November 8, 2008. The Court
further finds that the lawsuit was filed after the statute of
limitations had run, and the Motions to Dismiss are
sustained. . . .
The order was certified as a final judgment pursuant to Tenn. R. Civ. P. 54.02,
and Plaintiff appeals. Plaintiff claims that because of the discovery rule, the statute of
limitations did not begin to run until November 12, 2008, at the earliest. Thus, Plaintiff
claims that the Trial Court erred when it granted the motions to dismiss based on the
expiration of the statute of limitations prior to the lawsuit being filed.
Discussion
Since matters outside the pleadings were considered by the Trial Court when
resolving Defendants’ motions to dismiss, we will treat the motions as motions for summary
judgment in accordance with Tenn. R. Civ. P. 12.02.2 See Smith Mechanical Contractors,
Inc. v. Premier Hotel Development Group, 210 S.W.3d 557, 562-63 (Tenn. Ct. App. 2006).
Our Supreme Court reiterated the standard of review in summary judgment cases as follows:
The scope of review of a grant of summary judgment is
well established. Because our inquiry involves a question of
2
In relevant part, Rule 12.02 provides that if, “on a motion asserting the defense numbered (6) to
dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule 56.”
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law, no presumption of correctness attaches to the judgment, and
our task is to review the record to determine whether the
requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49,
50-51 (Tenn. 1997); Cowden v. Sovran Bank/Cent. S., 816
S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v.
Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the
summary judgment has the ultimate burden of persuasion “that
there are no disputed, material facts creating a genuine issue for
trial . . . and that he is entitled to judgment as a matter of law.”
Id. at 215. If that motion is properly supported, the burden to
establish a genuine issue of material fact shifts to the
non-moving party. In order to shift the burden, the movant must
either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party
cannot establish an essential element of his case. Id. at 215 n.5;
Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden
to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our
state does not apply the federal standard for summary judgment.
The standard established in McCarley v. West Quality Food
Service, 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the
words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The
Legacy of Byrd v. Hall: Gossiping About Summary Judgment
in Tennessee, 69 Tenn. L. Rev. 175, 220 (2001).
Courts must view the evidence and all reasonable
inferences therefrom in the light most favorable to the
non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426
(Tenn. 1997). A grant of summary judgment is appropriate only
when the facts and the reasonable inferences from those facts
would permit a reasonable person to reach only one conclusion.
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000).
In making that assessment, this Court must discard all
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countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).
In the present case, the Trial Court relied, in part, on this Court’s decision in
Young v. Enerpac, 299 S.W.3d 815 (Tenn. Ct. App. 2009) when concluding that the
discovery rule did not extend the commencement of Plaintiff’s statute of limitations past the
date of the accident. In Young, we discussed the discovery rule as follows:
The Trial Court dismissed the action and found the
Complaint should have been filed before June 21, 2006, but it
was not filed until June 23, 2006. The Court found that Young’s
medical records showed that on the day of the accident, he
demonstrated an awareness of the facts of his accident sufficient
to put him on notice of a potential cause of action, and found
that the discovery rule was inapplicable to the facts of this
case. . . .
Plaintiff argues that the discovery rule is applicable to the
facts of this case to toll the statute of limitations. He states that
he underwent surgery and was under anesthesia, and could not
appreciate his injuries nor the cause thereof until a few days
after his accident. Both parties agree that Woods v.
Sherwin-Williams, 666 S.W.2d 77 (Tenn. Ct. App. 1983),
appropriately presents the history of the discovery rule as it has
developed in this state.
In Woods, this Court explained that the discovery rule
was developed to prevent plaintiffs from being barred from
filing a claim before they even knew it existed. Id. This Court
further stated the substance of the rule as:
the cause of action accrues and the statute of limitations
commences to run when the injury occurs or is
discovered, or when in the exercise of reasonable care
and diligence, it should have been discovered.
Id., quoting McCroskey v. Bryant Air Conditioning Company,
524 S.W.2d 487 (Tenn. 1975).
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The Supreme Court has expounded on the rule as
follows:
[T]he one-year statute of limitations begins to run when
a plaintiff discovers, or in the exercise of reasonable care
and diligence, should have discovered, the existence of
a legal cause of action. This so-called “discovery rule”
prevents the anomaly of requiring that a plaintiff file suit
“prior to knowledge of his injury or . . . that he sue to
vindicate a non-existent wrong, at a time when injury is
unknown and unknowable.” As we have explained:
[A] cause of action in tort does not accrue until a
judicial remedy is available. A judicial remedy is
available when (1) a breach of a legally
recognized duty owed to plaintiff by defendant (2)
causes plaintiff legally cognizable damage. A
breach of a legally cognizable duty occurs when
plaintiff discovers or ‘reasonably should have
discovered, (1) the occasion, the manner and
means by which a breach of duty occurred that
produced . . . injury; and (2) the identity of the
defendant who breached the duty.’
We further stated in Carvell v. Bottoms, 900
S.W.2d 23 (Tenn. 1995):
It is not required that the plaintiff actually know
that the injury constitutes a breach of the
appropriate legal standard in order to discover that
he has a right of action; the plaintiff is deemed to
have discovered the right of action if he is aware
of facts sufficient to put a reasonable person on
notice that he has suffered an injury as a result of
wrongful conduct.
Id. at 29 (quoting Roe v. Jefferson, 875 S.W.2d 653, 657
(Tenn. 1994)).
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Terry v. Niblack, 979 S.W.2d 583 (Tenn. 1998) (internal
citations omitted).
The Supreme Court has also expressed that “the statute
of limitations is tolled only during the period of time when the
plaintiff has no actual knowledge of the injury and, as a
reasonable person, would not be placed on inquiry notice.”
Potts v. Celotex Corp., 796 S.W.2d 678, 680-81 (Tenn. 1990).
The discovery rule is designed to shield a plaintiff from
the unjust result of being barred from filing a claim before he
even knew that he had been wrongfully injured, i.e. an injury
that is latent in nature. In this case, the plaintiff alleges that he
was disoriented for a few days after his injury, but there was no
proof that the injury rendered him incompetent or otherwise
disabled him for any significant period of time such that he
would have been barred from filing his claim in a timely fashion
absent application of the discovery rule. Clearly, the record
establishes his injury was not latent, and assuming arguendo, as
we must, that plaintiff suffered a temporary loss of full mental
reasoning ability, he was not thereby prevented from filing his
claim within the statute of limitations, and was on inquiry notice
during that period. In our view, the discovery rule is not
designed to “tack on” days or weeks to the statute of limitations
for short periods of time when a plaintiff might not be fully
aware of what had occurred. If such were the case, the statute
of limitations would become a nebulous rule with difficult
application, which could be arbitrarily lengthened each time a
plaintiff had a temporary difficulty, but was fully competent to
file his claim within the statutory period. We agree with the
Trial Court that on these facts, the discovery rule is not
applicable.
Young, 299 S.W.3d at 816-18.
We agree with the Trial Court’s holding in the present case insofar as it
concluded that the discovery rule does not extend the running of the statute of limitations.
As stated by this Court in Young, a statute of limitations begins to run when the injury occurs
or is discovered, or when it should have been discovered with the exercise of reasonable care.
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The injury to Plaintiff and Decedent in this case occurred at the time of the accident on
November 8, 2008. At a very minimum, at that time Plaintiff was placed on inquiry notice.
All of the facts relevant to commencing the running of the statute of limitations
were known on the day of the fatal accident, i.e., November 8, 2008. These known facts
include, among other things, that there was a fatal accident between the Turlington and Booth
vehicles and that the Turlington vehicle was broad-sided by the Booth vehicle. These were
known facts regardless of who was driving the Turlington vehicle. As to Booth, Plaintiff
knew of the occasion and manner by which a breach of duty occurred and the identity of the
person who breached that duty, i.e., Booth. It is not necessary that Plaintiff actually know
that the injury constitutes a breach of a legal standard in order for the statute of limitations
to commence. It is sufficient that Plaintiff was aware of facts sufficient to put her on notice
that she suffered an injury as a result of wrongful conduct. Carvell, 900 S.W.2d at 29.
As stated previously, at a very minimum Plaintiff was on inquiry notice on the
date of the accident. As we stated in Young, the discovery rule cannot be used to “tack on”
days to a statute of limitations short periods of time when a plaintiff might not be fully aware
of all that had occurred. Young, 299 S.W.3d at 818. It is not necessary for a plaintiff to
know each and every fact before a statute of limitations beings to run. “As we have stated
before, ‘[t]he discovery rule was not meant to allow a party to delay filing his claim until
after he has completed the process of discovering all the factors that affect its merits.’” Burk
v. RHA/Sullivan, Inc., 220 S.W.3d 896, 902 (Tenn. Ct. App. 2006) (quoting Steele v.
Tennessee Jaycees, Inc., No. 01-A-01-9505-CH-00214, 1995 WL 623067, at *5 (Tenn. Ct.
App. Oct. 25, 1995)). Plaintiff was fully competent to timely file this lawsuit within one year
of the accident.
Based on the foregoing, we conclude, as did the Trial Court, that the discovery
rule does not extend the running of the statute of limitations. We, therefore, affirm the
judgment of the Trial Court granting the motions to dismiss on the basis that the complaint
was not timely filed.
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Conclusion
The judgment of the Trial Court is affirmed and this cause is remanded to the
Trial Court for collection of the costs below. Costs on appeal are taxed to the Appellant,
Patricia Mills, Individually and as Surviving Child and Next of Kin of Altha Turlington, and
her surety, for which execution may issue, if necessary.
_________________________________
D. MICHAEL SWINEY, JUDGE
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