holding that discovery rule applies to employer intentional tort
How later courts described this case
- holding that discovery rule applies to employer intentional tort
- “[T]he discovery rule . . . provides that a cause of action does not arise until the plaintiff discovers, or by the exercise of reasonable diligence should have discovered, that he or she was injured by the wrongful conduct of the defendant.” (emphasis added)
- employer intentional tort and other claims
Written by the judges who cited it.
The opinion
Cook, J.,
dissenting.
{¶ 21} David Norgard knew in August 1992 that he suffered from chronic beryllium disease, likely caused by his exposure to beryllium during his years as a Brush Wellman employee. Norgard was therefore aware of both his injury and its probable cause at that time. Accrual of a cause of action for purposes of the statute of limitations requires nothing more. See O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84 , 4 OBR 335, 447 N.E.2d 727 , paragraph two of the syllabus. Because the cause of action accrued in August 1992, at the very latest, the lower courts correctly determined that Norgard’s action was time-barred.
{¶ 22} In concluding otherwise, the majority creates a new rule for employer intentional-tort cases. After today’s decision, the statute of limitations will not begin to run until some unspecified time when the plaintiff determines that each element of an employer intentional-tort claim is present — notwithstanding that the plaintiff may already know that he or she has suffered an injury caused by the conduct of his or her employer. But a rule that rests the date of accrual on a plaintiffs recognition of his or her legal rights is fundamentally flawed. As the United States Supreme Court has observed in an analogous context:
{¶ 23} “[I]n applying a discovery accrual rule, we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock. In the circumstance of medical malpractice, where the cry for a discovery rule is loudest, we have been emphatic that the justification for a discovery rule does not extend beyond the injury:
{¶ 24} “ We are unconvinced that for statute of limitations purposes a plaintiffs ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask.’ ” (Emphasis added.) Rotella v. Wood (2000), 528 U.S. 549, 555-556 , 120 S.Ct. 1075 , 145 L.Ed.2d 1047 , quoting United States v. Kubrick (1979), 444 U.S. 111, 122 , 100 S.Ct. 352 , 62 L.Ed.2d 259 .
{¶ 25} By tying the accrual of the cause of action to the elements of a legal claim — rather than to the traditional concepts of injury and its cause — today’s *171 majority extends the discovery rule beyond the scope of its justification. I respectfully dissent.
Waite, Schneider, Bayless & Chesley Co., L.P.A., Stanley M. Chesley, Louise M. Roselle and Paul M. De Marco; Mohler Law Office and George Gerken, for appellants.
Jones, Day, Reavis & Pogue, Patrick F. McCartan, Jeffery D. Ubersax, Jeffrey S. Sutton and Chad A. Readier, for appellee.
Manley, Burke & Lipton, Todd B. Naylor and Daniel R. Beerck, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.
Moyer, C.J., and Lundberg Stratton, J., concur in the foregoing dissenting opinion.