# McAfee v. Cole

> Supreme Judicial Court of Maine · February 18, 1994 · 637 A.2d 463

URL: https://www.frixlaw.com/law-library/cases/9699797

## Case

- **Full name:** Mark A. McAFEE v. Warren S. COLE and Cole Farms Restaurant, Inc.
- **Court:** Supreme Judicial Court of Maine
- **Decided:** February 18, 1994
- **Citations:** 637 A.2d 463; 1994 Me. LEXIS 71
- **Precedential status:** Published
- **Opinion:** Dissent by Dana
- **Judges:** Wathen, Roberts, Glassman, Clifford, Collins, Rudman, Dana
- **Cited by:** 163 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9699797

## How later opinions describe it (automated extraction)

- noting that the Law Court has refused to extend the discovery rule at least six times

## Opinion text

DANA, Justice,
dissenting.
In the absence of explicit legislative direction, determining when a cause of action accrues remains a judicial function. Anderson v. Neal, 428 A.2d 1189, 1190-91 (Me.1981). A cause of action generally accrues when the wrongful act occurs. In certain limited circumstances, however, we have held that a cause of action accrues not when the wrongful act occurs, but when the plaintiff discovers the harm. Our determination of what circumstances merit the application of the “discovery rule” has depended on four factors: (1) the nature of the relationship between the plaintiff and the defendant; (2) the magnitude of the loss’ or harm; (3) the plaintiffs inability to discover that he had been wronged within the applicable limitations period; and, to a lesser degree, (4) the existence of corroborating evidence. See Black v. Ward, 549 A.2d 371, 372 (Me.1988); Bolton v. Caine, 541 A.2d 924, 926 (Me.1988); Myrick v. James, 444 A.2d 987, 995-97 (Me. 1982); Anderson, 428 A.2d at 1191-92 .
In the present case, the Court declines to apply the discovery rule to McAfee’s claims. This result is not unprecedented, as we have declined to extend the rale in at least six other cases. 1 In all of these decisions, however, we explained why the discovery rule did not apply. Today the Court departs from this practice by affirming the dismissal *468 of McAfee’s claims -without analyzing whether the rule should be applied. Because McAfee has alleged (1) an adult-child relationship, (2) substantial harm, and (3) repression of childhood trauma, I would apply the discovery rule to McAfee’s claims if (4) supported by corroborating evidence.
. See Dugan v. Martel, 588 A.2d 744, 746 (Me.1991) (where plaintiff knew of defects in defendant’s installation of insulation, her negligence claim accrued on date she discovered the defects, not on date she discovered the scope of her injury); Kasu Corp. v. Blake, Hall & Sprague, Inc., 582 A.2d 978, 979-80 (Me.1990) (discovery rule did not apply because there was "nothing inherently unknowable” about plaintiff's claim for breach of contract); Arsenault v. Kipp, 565 A.2d 97, 99-100 (Me.1989) (plaintiff's claim against physician for negligent diagnosis accrued when he was told that there had been "some mismanagement” of his case, not when he received another physician's assessment of the underlying facts); Matson v. Babcock, 565 A.2d 312, 313 (Me.1989) ("Because the insured was capable of discovering any malpractice there is no justification for applying the discovery rule in this case.”); Chiapetta v. Clark Associates, 521 A.2d 697, 700 (Me.1987) (because there was "nothing inherently unknowable” about plaintiff's breach of contract claim, discovery rule did not apply); Bozzuto v. Ouellette, 408 A.2d 697, 699 (Me.1979) (discovery rule did not apply to plaintiff's wrongful conversion claim against sheriff because plaintiff's damages were "immediately determinable” when sheriff wrongfully sold his property).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699797. Public record. Not legal advice.