MARK ALLEN NEAL v. JESSAMINE FISCAL COURT; FRANK HUBBARD, INDIVIDUALLY; AND FRANK HUBBARD, IN HIS CAPACITY AS JAILER OF THE JESSAMINE COUNTY DETENTION CENTER
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RENDERED:
OCTOBER 12, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000525-MR
MARK ALLEN NEAL
v.
APPELLANT
APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C. HUNTER DAUGHERTY, JUDGE
ACTION NO. 00-CI-00645
JESSAMINE FISCAL COURT;
FRANK HUBBARD, INDIVIDUALLY; AND
FRANK HUBBARD, IN HIS CAPACITY AS
JAILER OF THE JESSAMINE COUNTY
DETENTION CENTER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUIDUGLI, MILLER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
This is an appeal from an order of the
Jessamine Circuit Court dismissing a personal injury claim as
time-barred per the one-year statute of limitations set forth in
KRS 413.140(1)(a).
Having reviewed the record and applicable
law, we affirm.
Appellant, Mark Allen Neal, was in custody at the
Jessamine County Detention Center from December 8, 1999 to
December 13, 1999.
On December 15, 2000, Neal filed a complaint
naming as defendants the appellees, Jessamine County Fiscal Court
and Frank Hubbard, the jailer of the Jessamine County Detention
Center.
In the complaint, Neal alleged that while in custody at
the detention center, he was instructed to take a shower, and,
when exiting the shower, he slipped on the floor, causing a
compression fracture to his back.
Neal alleged that he received
no medical treatment while he was in the detention center, and,
as a result of appellees' failure to provide medical care, his
back later became infected, paralyzing him for a period of time,
and causing permanent spinal damage.
Neal contended that he
became aware of the disabling nature of his condition on
January 23, 2000.
Appellees moved the court to dismiss Neal's complaint
as time-barred per the one-year statute of limitations of KRS
413.140(1)(a).
In support of the motion to dismiss, appellees
provided an affidavit from Hubbard, stating that Neal was
admitted to the detention center on December 8, 1999, and
released on December 13, 1999.
Attached to the affidavit was
documentation from the detention center verifying that Neal was
released on December 13, 1999.1
Hence, appellees contended that
the latest date that Neal's cause of action would have accrued
would have been December 13, 1999, the date he was released from
custody, and, therefore, to be timely, his action must have been
filed before December 13, 2000.
On February 16, 2001, the court
1
Neal's complaint stated that the accident occurred on
December 15, 1999. However, on appeal, Neal acknowledges that he
was released from the detention center on December 13, 1999, and
states that while the exact date of his fall is unknown, it had
to be prior to his release date of December 13, 1999.
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entered an order dismissing Neal's complaint as time-barred.
This appeal followed.
On appeal, Neal contends that his fall caused two
separate injuries - first, the pain and suffering which occurred
at the time of the fall, and second, the invisible infection
which ultimately caused his serious spinal damage.
Neal
acknowledges that he has waived any claim for injuries sustained
immediately upon the fall.
However, Neal contends that his cause
of action for injury incurred as a result of the spinal column
infection did not accrue until January 23, 2000, on which date he
discovered said injury when it manifested itself in the form of
paralysis.
KRS 413.140(1)(a) requires that an action for injury to
the person of the plaintiff be commenced within one year after
the cause of action accrued.
Generally, the cause of action in a
personal injury case accrues when the injury occurs.
Arnett, Ky., 481 S.W.2d 668 (1972).
Caudill v.
In cases involving latent
injury resulting from exposure to harmful substances, however,
Kentucky courts have applied the "discovery rule", whereby the
cause of action is deemed to have accrued not when the injury
occurred, but "when the plaintiff first discovers the injury or
should have reasonably discovered it."
Roman Catholic Diocese v.
Secter, Ky. App., 966 S.W.2d 286, 288 (1998).
See also,
Louisville Trust Co. v. Johns-Manville Products Corp., Ky., 580
S.W.2d 497 (1979); Carroll v. Owens-Corning Fiberglas Corp., Ky.,
37 S.W.3d 699 (2000).
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Neal asserts that the discovery rule should be applied
in his case, contending that his spinal infection was an unknown
and invisible injury, analogous to the situation presented in
Carroll.
In Carroll, the appellant was diagnosed with a mild
form of asbestosis in 1983, but chose not to sue at the time.
Eight years later, the appellant was diagnosed with lung cancer
and filed suit.
The Kentucky Supreme Court held that the one-
year statute of limitations provided by KRS 413.140(1)(a) did not
bar the appellant's lung cancer claim, because, although both
diseases arose from asbestos exposure, lung cancer and asbestosis
are separate and distinct diseases, and are not causes or
prerequisites for each other.
Carroll, 37 S.W.3d at 700.
Hence,
the Court concluded that when the appellant was diagnosed with
asbestosis, he did not necessarily know, nor should he have
known, that he would also develop lung cancer.
Id. at 701.
Neal
contends that, similar to Carroll, although falling on one's back
presents the obvious injury of bruising and pain, bruising and
pain do not necessarily progress to spinal infections, and the
fact that he had bruising and pain did not make his spinal
infection any more known to him.
However, "[w]ith the exception
of cases involving latent injuries from exposure to harmful
substances, Kentucky courts have generally refused to extend the
discovery rule without statutory authority to do so."
966 S.W.2d at 288.
Secter,
In Carroll, the Kentucky Supreme Court
stated:
[S]tatutes of limitations in toxic substance
cases serve neither of the traditional
functions of statutes of limitations - - the
preservation of evidence and peace of mind
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for potential defendants. Unlike traditional
torts, those involving toxic substances
include a cause of injury that is difficult
to trace, a period of exposure which is
longer and more varied, harms more
susceptible to misdiagnosis, and a greater
number of victims.
Carroll, 37 S.W.3d at 702, citing, Michael D. Green, The Paradox
of Statutes of Limitations in Toxic Substances Litigation, 76
Calif. L.Rev. 965 (1988).
In the present case, Neal contends that his spinal
infection arose from the fall and alleged lack of medical
treatment which are undisputed to have occurred no later than
December 13, 1999.
Although Neal did not realize the seriousness
of his injury, i.e. the spinal infection, until later becoming
paralyzed, under Caudill v. Arnett, Ky., 481 S.W.2d 668 (1972),
Neal's cause of action accrued no later than December 13, 1999.
In Caudill, the appellant sustained what he believed were minor
injuries in a bus accident on February 2, 1963.
On August 26,
1969, the appellant was diagnosed with chronic pancreatitis, the
cause of which was determined to be the injury he sustained in
the 1963 bus accident.
On November 26, 1969, the appellant filed
an action, which the trial court dismissed as time-barred by the
one-year statute of limitations per KRS 413.140(1)(a).
On
appeal, the appellant contended that his cause of action accrued
upon the date of discovery of his injury, August 26, 1969, when
he was diagnosed with chronic pancreatitis, rather than the date
of the bus accident.
The Court stated that it did not consider
the diagnosis of pancreatitis "to be a 'discovery of injury,' but
rather the ascertainment of the extent of a previously recognized
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injury."
Caudill, 481 S.W.2d at 669.
The Court held that "[t]he
appellant's cause of action came into existence or accrued on the
day he was injured in the school-bus accident, and limitations
began to run from that date even though he was not made fully
aware of the extent of his injury until several years later."
Id.
Similarly, in the present case, Neal was injured on the day
he fell in the shower, which was no later than December 13, 1999.
Further, any denial of medical treatment by the detention center
also had to have occurred no later than December 13, 1999, the
date of Neal's release.
Hence, Neal's cause of action accrued no
later than December 13, 1999, even though he did not become aware
of the spinal infection until January 23, 2000.
Id.
Accordingly, the trial court did not err in dismissing Neal's
complaint, filed December 15, 2000, as time-barred.
KRS
413.140(1)(a).
For the aforementioned reasons, the order of the
Jessamine Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
James O. Springate
Versailles, Kentucky
Shelby C. Kinkead, Jr.
Lexington, Kentucky
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