Ward v. City of Alliance

417 N.W.2d 327, 227 Neb. 306, 1988 Neb. LEXIS 1
CourtNebraska Supreme Court
DecidedJanuary 8, 1988
Docket85-906
StatusPublished
Cited by32 cases

This text of 417 N.W.2d 327 (Ward v. City of Alliance) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ward v. City of Alliance, 417 N.W.2d 327, 227 Neb. 306, 1988 Neb. LEXIS 1 (Neb. 1988).

Opinions

Hastings, J.

The plaintiff has appealed from a judgment in favor of the City of Alliance in his action under the Political Subdivisions Tort Claims Act. That judgment was based on the running of the statute of limitations.

In July of 1981, the plaintiff was an employee of the city of Mitchell. It had purchased part of an electrical substation, including a transformer, from the City of Alliance. As part of his duties for the city of Mitchell, the plaintiff dismantled this equipment in preparation for its move to Mitchell and in September began assisting in reconstructing this same equipment after it arrived in Mitchell. As a part of this operation, it was necessary for the plaintiff to have his arms in oil, contained in the transformer, for extended periods of time.

This oil was later found to contain PCB (polychlorinated biphenyl), a toxic substance. Plaintiff was hospitalized several times after that for excessive fatigue, weakness, and numerous physical complaints. As a proximate result of such exposure, plaintiff alleged in his pleadings, he suffered severe illnesses, including liver damage, multiple physical illnesses, pain, and total permanent disability.

According to the record, the city of Mitchell had filed a workers’ compensation report of injury in which it alleged illness on the part of the plaintiff, resulting from exposure to transformer oil while doing maintenance on a transformer. This report was dated January 27, 1982, and alleged that plaintiff had been feeling ill for about 6 weeks as of December 16,1981, qnd was hospitalized for tests on Januaryll, 1982.

On March 8, 1982, a trade magazine, Public Power Weekly, published an article, entitled “Neb. utility superintendent is ill from exposure to PCBs,” disclosing results of an interview with plaintiff a week earlier. The article, in relevant part, provides:

“I remembered I’d been working on a transformer shortly before Thanksgiving and it occurred to me the oil could have contained PCBs” Ward said last week.
“Doctors asked me if I’d been around any toxic [308]*308chemicals and I said no. Then I remembered I’d spent two days with my arms immersed to my elbows in transformer oil repairing an old transformer which we bought used from another municipality, ” he said.
A test on a sample of the transformer oil shows it contained 229 parts per million of PCBs----
... He [Ward] said he experiences severe headaches, terrible weakness, abnormal appetite, itching on his arms and aching in his shoulder, knee, and arm joints. His vision sometimes seems impaired too, he said.
Doctors plan to do further tests on his liver. He is being treated by his local family physician and expects to see a specialist in Chicago, Dr. Daniel Hryhorczuk, who has done research on the effects of PCBs.

The plaintiff testified by deposition that in January of 1982 he suspected PCB contamination and directed three of his employees to have tests run on their blood.

Plaintiff argues in his brief that among the various medical personnel there was an inability to develop and stick with a definitive diagnosis throughout the period from July 1981 through 1985. He continues by pointing out that in late 1983, the treating physician could not give a definite opinion of causation. However, in a letter dated October 11, 1983, that same physician wrote: “The possibility of PCB poisoning came to our attention in November of 1981 in regard to Mr. Ward____”

On April 6, 1985, the plaintiff reported to his attending physician with a suspicious lesion on the right side of his nose, which was excised and submitted for laboratory analysis which disclosed it to be a basal cell carcinoma.

The claim in this case was filed against the City of Alliance on November 11, 1983, and the petition was filed in the district court on April 19,1985.

Dr. Janette D. Sherman, a toxicologist, testified that she reviewed the plaintiff’s records and examined him on August 20, 1985, and, as a part of that examination, she reviewed certain of plaintiff’s medical records. She gave as her opinion that the cause of the basal cell carcinoma was plaintiff’s [309]*309exposure to PCB. Additionally, although the testimony is a trifle vague, Dr. Sherman suggested that if she had been given the history and laboratory reports which were available in 1981, she could have made the diagnosis of exposure to PCB at that time. Dr. Sherman also commented that Dr. Lowell A. Stratton, plaintiff’s local physician, did an outstanding job of diagnosing possible PCB involvement as early as June of 1982.

The trial in this case was bifurcated and, at the outset; concerned only the issue of the statute of limitations. At the close of all of the evidence the district court concluded that attaching a discovery exception to Neb. Rev. Stat. § 23-2416 (Cum. Supp. 1984), as was mandated by this court in Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962), with respect to Neb. Rev. Stat. § 25-208 (Reissue 1964), would result in a bar to the present action.

Section 23-2416 requires that every claim against a political subdivision shall be forever barred unless a claim in writing is made within 1 year after such claim accrued. Additionally, all lawsuits permitted by that section must be. brought within 2 years after such claim accrued, with certain exceptions which we need not discuss here.

Specifically, the trial court found that the evidence established that by March 9, 1982, if not earlier, the plaintiff had sufficient information to trigger the running of the time requirements and that he failed to file a notice of his claim or commence suit within the time stated in the statute. Because plaintiff’s claim was not filed with the City of Alliance until November 11, 1983, which we find is well beyond the requirements of § 23-2416, we need not discuss the matter of the filing of the petition.

As previously stated, every claim against a political subdivision shall be forever barred unless a claim in writing is made within 1 year after such claim accrued. The critical question then becomes, When did the claim accrue?

The general rule in tort law is that a claim “accrues” at the time of the plaintiff’s injury, but this rule has been modified in many jurisdictions to provide that such accrual does not occur until the injury has manifested itself. United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1919). Kubrick is [310]*310cited for the proposition that an action accrues when a plaintiff learns, or in the exercise of reasonable diligence should have learned, of the injury and the actions that caused it.

This court, as early as Spath v. Morrow, supra, applied a discovery rule to avoid the harshness of a strict statute of limitations application in a medical malpractice case under then-existing § 25-208. A judicial exception to § 23-2416 should be wholly consistent with the discovery exception to § 25-208 carved out by Spath.

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Ward v. City of Alliance
417 N.W.2d 327 (Nebraska Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
417 N.W.2d 327, 227 Neb. 306, 1988 Neb. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ward-v-city-of-alliance-neb-1988.