GEORGE SMITH v. DARRIN L. GAINES AND INTERNATIONAL KNIFE & SAW, INC.
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RENDERED:
NOVEMBER 10, 2005; 10:00 A.M.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2005-CA-000339-MR
GEORGE SMITH
APPELLANT
APPEAL FROM KENTON CIRCUIT COURT
HONORABLE STEVEN JAEGER, JUDGE
ACTION NO. 04-CI-00335
v.
DARRIN L. GAINES AND
INTERNATIONAL KNIFE & SAW, INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JOHNSON, KNOPF, AND VANMETER, JUDGES.
KNOPF, JUDGE:
On November 29, 2001, at the intersection of
Crescent Avenue and West Third Street in Covington, a vehicle
owned and operated by George Smith was struck from the rear by a
vehicle owned by International Knife and Saw, Inc., and operated
by its employee, Darrin Gaines.
Alleging damages as a result of
the accident, Smith filed suit against International and Gaines
in February 2004, some two months outside the applicable twoyear statute of limitations. 1
By summary judgment entered
January 24, 2005, the Kenton Circuit Court dismissed Smith’s
suit as untimely.
Appealing from that judgment, Smith contends
that the limitations period was tolled by his disability and
that the trial court erred by failing to so find.
We affirm.
As Smith notes, KRS 413.170(1) provides that if, at
the time his or her cause of action accrues, a person is
an infant or of unsound mind, the action may
be brought within the same number of years
after the removal of the disability . . .
allowed to a person without the disability
to bring the action after the right accrued.
Smith is a Vietnam-war veteran who was diagnosed in the mid1980’s with post-traumatic stress disorder (PTSD).
During the
later half of the 1980s, he suffered the break up of his
marriage, endured two suicide attempts, was several times
hospitalized for emotional problems, had trouble controlling his
anger, and became enmeshed in alcohol abuse.
At some point
during that period he was awarded veteran’s disability benefits.
In July 2000, however, his request for increased disability
benefits was denied and he was assessed as having only moderate
symptoms or moderate difficulty in social, occupational, or
school functioning.
proffered.
1
This was the most recent evidence Smith
He contends that this history and his PTSD diagnosis
KRS 304.39-230.
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would support a finding that at the time of his accident, when
his cause of action accrued, he was of “unsound mind” for the
purposes of the tolling statute.
KRS 413.170 does not define the phrase “unsound mind,”
but in Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor, 2
our Supreme Court indicated that the limitations period may not
be tolled on this ground unless the plaintiff’s mental illness
is such “as to render [him] incapable of managing [his] own
affairs.” 3
Other courts have reached the same result, 4 and in
particular it has been held that, standing alone, a diagnosis of
PTSD is not sufficient evidence of unsound mind to invoke the
tolling statute. 5
In addition, the plaintiff must proffer “hard
evidence” that he has been rendered “incapable of carrying on
the day-to-day affairs of human existence.” 6
The trial court did not err by ruling that Smith’s
evidence fails to meet this standard.
Indeed, Smith proffered
no evidence of his condition at the time of the accident, and
2
756 S.W.2d 467 (Ky. 1988).
3
Id. at 469; Rigazio v. Archdiocese of Louisville, 853 S.W.2d
295 (Ky.App. 1993).
4
Annotation, “Posttraumatic Syndrome as Tolling Running of
Statute of Limitations,” 12 ALR 5th 546, (Lawyers Cooperative
Publishing 1993).
5
Florez v. Sargeant, 917 P.2d 250 (Ariz. 1996).
6
Id. at 255.
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otherwise the record indicates that notwithstanding his drinking
problem he was then capable of living by himself, maintaining a
car and an operator’s license, and pursuing his veteran’s
benefits.
There is no evidence that he was incapable of
managing his own affairs.
In the absence of such evidence,
Smith’s claim could not have been found timely and thus could
not have prevailed.
appropriate. 7
Summary judgment, therefore, was
Accordingly, we affirm the January 24, 2005,
judgment of the Kenton Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harry P. Hellings, Jr.
Covington, Kentucky
Emily A. Faith
Amy M. Stewart
O’Bryan, Brown & Toner
Louisville, Kentucky
7
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476 (Ky. 1991).
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