Johnson v. Norfolk & Western Railway Co.

836 S.W.2d 83, 1992 Mo. App. LEXIS 1284, 1992 WL 182223
CourtMissouri Court of Appeals
DecidedAugust 4, 1992
DocketNo. 61224
StatusPublished
Cited by11 cases

This text of 836 S.W.2d 83 (Johnson v. Norfolk & Western Railway Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Norfolk & Western Railway Co., 836 S.W.2d 83, 1992 Mo. App. LEXIS 1284, 1992 WL 182223 (Mo. Ct. App. 1992).

Opinions

CARL R. GAERTNER, Judge.

Plaintiff Jacob Johnson appeals from the trial court’s judgment granting defendant Norfolk & Western Railway Company’s (N & WR) motion for summary judgment on grounds that the statute of limitations had run on Johnson’s action brought under the Federal Employers Liability Act (FELA), 45 U.S.C. § 51 et seq. For the reasons set forth below, we affirm.

Johnson worked for N & WR as a switch-man for 39 years until he retired in September 1987. Johnson claims that during his tenure he was exposed to loud noises from train engines, whistles, bells, brakes and the coupling of railroad cars. Sometimes he felt a “numbness” immediately after being exposed to the loud noises, but these sensations quickly subsided. He experienced this numbness throughout his career with N & WR.

A few years before his retirement, Johnson began having difficulty hearing telephone conversations and the television, and his wife began “nagging” him about his hearing problems. She convinced him in 1986 to see a physician to have his ears cleaned, but the physician did not diagnose his hearing loss.

Johnson alleges he learned in the middle of 1988 that loud noise causes hearing loss and that he might have a hearing problem after he discovered several of his former co-workers had filed FELA lawsuits against N & WR. He then talked to an N & WR claims agent and filled out a questionnaire. In January 1989, Johnson visited a physician for an audiogram which indicated he suffers from high frequency hearing loss.

On March 15, 1990, Johnson filed a petition in the Circuit Court of St. Louis, alleging that due to N & WR’s negligence he incurred medical expenses and suffered permanent hearing loss, ringing in the ears, extreme pain and mental anguish. Supported by plaintiff’s interrogatory answers and deposition testimony, N & WR moved for summary judgment, claiming that FELA’s three-year limitation barred Johnson’s suit.

In support of its summary judgment motion, N & WR pointed to the questionnaire Johnson filled out September 30, 1988. In the questionnaire, Johnson responded as follows:

Question: Do you think you have a hearing problem?
Answer: Yes
Question: If yes, how long have you known?
Answer: Appr. 5 years.
Question: Do you think it might be related to your railroad employment?
Answer: Yes.
Question: If yes, how long have you thought so?
Answer: 5 years_
Question: If you have problems with your ears, please list all complaints.
Answer: Wife complains about TV being loud. Daughter complains can’t hear telephone. Son thinks he will send a phone adapter so I can understand our telephone conversations.

N & WR claims these responses prove Johnson was aware of his injury and its cause as early as September 1983. Therefore, the statute of limitations expired three and a half years before he filed suit.

In reviewing the entry of summary judgment, the court must scrutinize the record in the light most favorable to Johnson, the non-moving party, and grant him the benefit of every doubt. Germania Bank v. Thomas, 810 S.W.2d 102, 105 (Mo.App.1991); Rule 74.04(c). Summary judgment [85]*85is only appropriate when the pleadings, depositions, affidavits, answers to interrogatories, admissions and exhibits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. If there is the slightest doubt about the facts, a material issue of fact exists. Triggs v. Risinger, 772 S.W.2d 381, 382 (Mo.App.1989).

FELA cases are governed by federal law. Kestner v. Missouri Pacific R. Co., 785 S.W.2d 646, 647 (Mo.App.1990). No cause of action may be maintained under the statute “unless commenced within three years from the day the cause of action accrued.” 45 U.S.C. § 56. Johnson filed his suit on March 15, 1990. Thus, his claim is barred if it accrued before March 15, 1987.

Often it is clear from the nature of the injury when the statute of limitations begins to run. However, with occupational diseases, as in the case at bar, a plaintiff may be unaware of when or how the injury occurs. To prevent hardship in such cases, the United States Supreme Court fashioned a “discovery rule” to determine when the statute of limitations begins to run. Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).1 Initially, under the discovery rule, a FELA cause of action accrued when the plaintiff became aware of his injury and its cause. Urie 337 U.S. at 170, 69 S.Ct. at 1025; Kubrick 444 U.S. at 122, 100 S.Ct. at 359.

Federal courts subsequently described the discovery rule as an objective test of the plaintiffs awareness of his injury and its cause. Under this formulation, a FELA cause of action for an occupational disease accrues when the plaintiff knows or should have known, in the exercise of reasonable diligence, the critical facts of his injury and its cause. DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1030-31 (5th Cir.1984); Kichline v. Consolidated Rail Corp., 800 F.2d 356, 359 (3d Cir.1986); Albert v. Maine Cent. R. Co., 905 F.2d 541, 544 (1st Cir.1990); Fries v. Chicago & Northwestern Trans. Co., 909 F.2d 1092, 1095-96 (7th Cir.1990) (emphasis added). Therefore, the court must determine whether the plaintiff was “armed with sufficient facts, more than three years before filing [an] action, with which reasonable persons could have protected themselves by seeking advice in the medical and legal community.” Bechtholdt v. Union Pacific R. Co., 722 F.Supp. 704, 707 (D.Wyo.1989).

Johnson first contends that his long-term exposure to hearing hazards amounts to continuous tortious conduct; therefore, the statute of limitations did not begin running until September 1987, the date of his retirement and his last exposure to the loud noises. In two recent cases, we have held the continuous tort doctrine does not apply to FELA hearing loss cases. See Lloyd v. Missouri Pacific Railroad Co.,

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Bluebook (online)
836 S.W.2d 83, 1992 Mo. App. LEXIS 1284, 1992 WL 182223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-norfolk-western-railway-co-moctapp-1992.