Walter Lee Steele and Jennie Brown, Individually and as Next-of-Kin of or Guardian of Melvin Lee Steele v. Tennessee Jaycees, Inc.

WALTER LEE STEELE and JENNIE )
BROWN, Individually and as Next-of- )
Kin of or Guardian of )
MELVIN LEE STEELE, Deceased, )
)
Plaintiffs/Appellants, )
) Appeal No.
VS. ) 01-A-01-9505-CH-00214
)
TENNESSEE JAYCEES, INC.; ) Davidson Chancery
TENNESSEE JAYCEE FOUNDATION, ) No. 94-2463-II
INC., Individually and d/b/a CAMP )
DISCOVERY; RES-CARE SOUTHSIDE)
COURT, Presently d/b/a SALEM )
VILLAGES OF TENNESSEE; RES-
CARE, INC.; LAMONT WRIGHT,
Individually and By and Through his
)
)
)
FILED
Oct. 25, 1995
next Friend and Guardian; DEWAYNE )
TINCH, a Minor, Individually and By ) Cecil Crowson, Jr.
and Through His Next Friend and ) Appellate Court Clerk
Guardian; DAVID CASEY; and )
THERESA SUMRELL, )
)
Defendants/Appellees. )
COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE C. ALLEN HIGH, CHANCELLOR
SHELLEY I. STILES
5214 Maryland Way, Suite 210
Brentwood, Tennessee 37027
Attorney for Plaintiffs/Appellants
RAYMOND D. LACKEY
105 Westpark Drive, Suite 424
Brentwood, Tennessee 37027
Attorney for Defendant/Appellee Tennessee Jaycees, Inc.
ALAN B. EASTERLY
Pioneer Bank Building, Third Floor
801 Broad Street
Chattanooga, Tennessee 37402-2621
Attorney for Defendants/Appellees Tennessee Jaycee Foundation, Inc.,
Individually and d/b/a Camp Discovery, DeWayne Tinch, and David Casey
THOMAS A. WISEMAN
JOHN T. REESE
Suite 1900, NationsBank Plaze
414 Union Street
Nashville, Tennessee 37219-1782
AFFIRMED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
LEWIS, J.
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OPINION
The Chancery Court of Davidson County granted summary judgment to
the Tennessee Jaycees and the other appellees, on the ground that the statute of
limitations had passed prior to the filing of the appellants' wrongful death complaint
against them. Because we do not find that the discovery rule tolls the statute of
limitations under the circumstances of this case, we affirm the trial court.
I.
The plaintiffs are the mother and the brother of Melvin Lee Steele, a 27
year old retarded man. Mr. Steele drowned in Cordell Hull Lake on August 9, 1993,
while attending Camp Discovery, a summer camp operated by the defendants. The
plaintiffs were not informed of the death until August 11, and they were told at that
time that their decedent had died of "natural causes."
On August 16, Jennie Lee Brown, Melvin Lee Steele's natural mother
and legal guardian, hired an attorney to investigate the death of her son. A death
certificate, filed on August 19, correctly stated the date of death, but did not indicate
the cause. The Jackson County Sheriff began an investigation into the circumstances
surrounding Melvin Steele's death, and Mrs. Brown's attorney was unable to obtain
any information during the pendency of that investigation.
Copies of the police report and of an autopsy report became available
in January of 1994. The autopsy report stated that death was due to drowning.
Contusions and abrasions on Mr. Steele's body were suggestive of a fight or a scuffle.
Upon further investigation, Mrs. Brown's attorney filed a complaint which alleged that
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a camper named Lamont Wright, a mentally retarded individual with known aggressive
tendencies, had deliberately drowned Mr. Steele.
The complaint charged the Jaycees and other corporate defendants
involved with the operation of Camp Discovery with negligent and inadequate
supervision. The complaint also named Lamont Wright, two administrators of the
camp, and a fifteen year old camp counselor, who supervised the cabin to which
Melvin Lee Steele, Lamont Wright and other campers were assigned.
Unfortunately, the complaint was not filed until August 15, 1994, more
than one year after Melvin Lee Steele's death. The narration of events in the
complaint states that the campers arrived at Camp Discovery on August 15, 1993, and
that the drowning death occurred on August 16, 1993. If that had been true, the
complaint would have been timely.
All the defendants, with the exception of Lamont Wright, responded, and
moved the trial court for summary judgment, on the ground that the statute of
limitations had passed. The motion was supported by uncontradicted evidence that
death occurred on August 9, 1993. The trial court granted the motion, and finding no
just reason for delay, entered a final judgment as to those defendants under
Tenn.R.Civ.P. 54.02.
II.
Statutes of limitation are legislative creations whose purpose is to
compel the exercise of a right of action within a reasonable time. See Carney v.
Smith, 437 S.W.2d 246, 248 (Tenn. 1969). They are looked upon with favor by our
courts, for they prevent undue delay in bringing claims, and limit the time during which
a potential defendant must fear an impending lawsuit.
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The development in modern times of a body of law sometimes referred
to as "the discovery doctrine" or "the discovery rule," has ameliorated the hardship
which sometimes arises from the operation of statutes of limitations, by making it less
likely that such a statute will unfairly deprive a plaintiff of all opportunity to enlist the
assistance of the courts to vindicate his claim. But the discovery rule was not
designed to rescue a plaintiff from his own error or that of his attorney, if he has failed
to avail himself in a timely way of the opportunity the law provides.
The so-called "wrongful death statute," Tenn. Code Ann. § 20-5-106,
contains no statute of limitations of its own. The reason is that it does not purport to
create a new cause of action. Rather, it permits the right of action an injured party
would have had against a tortfeasor to pass to the injured party's personal
representatives, if death results from his injuries. The courts have uniformly held the
one year period of limitations on actions for personal injury found in Tenn. Code Ann.
§ 28-3-104 to be the appropriate one to apply in wrongful death cases. See Jones v.
Black, 539 S.W.2d 123 (1976).
The statute of limitations begins to run when the plaintiff's cause of
action accrues. See Tenn. Code Ann. § 28-3-104. Historically, this has generally
meant when the negligent act which causes the injury is performed. See State v.
McClellan, 113 Tenn. 616, 624, 85 S.W. 267, 269 (1905). In more recent times,
statutory enactments and judicial decisions have recognized that in cases where there
is a significant interval between the wrongful act and the injury that occurs therefrom,
it is more equitable to consider that the cause of action does not accrue until the injury
occurs. See Tenn. Code Ann. § 29-28-103 (products liability). Tenn. Code Ann. §
29-26-116 (medical malpractice). See also McCroskey v. Bryant Air Conditioning Co.,
524 S.W.2d 487 (Tenn. 1975).
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The courts have also found reason to allow a further extension of time
for accrual of a cause of action in some cases where the injury is of a type that is not
immediately discoverable, or where the fact of injury has been discovered, but it is not
possible to discover the negligence that caused the injury, until after the statute of
limitations has passed. The discovery rule has evolved from the experience of our
courts in dealing with such cases.
III.
An example of an injury that is not immediately discoverable may be
found in Teeters v. Curry, 518 S.W.2d 512 (Tenn. 1974). The plaintiff was a woman
who learned that she was pregnant exactly thirty months after voluntarily undergoing
a tubal ligation for the purpose of sterilization, which had been performed by the
defendant doctor. The birth of her premature child was attended by many
complications, and pursuant to medical advice, she underwent another tubal ligation.
The surgeon who performed the second operation disclosed to her that the earlier
surgery had not been done in accordance with the proper standards of medical care.
The defendant denied any negligence, but was granted summary
judgment on his plea of the statute of limitations. The Supreme Court reversed the
trial court, stating that, "[w]e find it difficult to embrace a rule of law requiring that a
plaintiff file suit prior to knowledge of his injury or, phrasing it another way, requiring
that he sue to vindicate a non-existent wrong, at a time when injury is unknown or
unknowable." 518 S.W.2d at 515.
The lesson of Teeters v. Curry was stated in a more general way in
McCroskey v. Bryant Air Conditioning Co., supra, as follows:
"We hold that in tort actions . . . predicated on negligence,
strict liability or misrepresentation, the cause of action
accrues and the statute of limitations commences to run
when the injury occurs or is discovered, or when in the
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exercise of reasonable care and diligence, it should have
been discovered."
524 S.W.2d at 491.
Justice Harbison wrote a concurring opinion in Teeters v. Curry in
response to anticipated concerns that the Court's opinion would undermine the
purposes of the statutes of limitations:
[I]t does not seem to me that the adoption of a 'discovery"
rule brings about a drastic change in the law of this state
except in a very limited set of cases. As stated in the principal
opinion, the rule applies only to cases where the plaintiff does
not discover and reasonably could not be expected to
discover that he has a right of action... The statute is tolled
only during the period when the plaintiff has no knowledge at
all that wrong has occurred, and as a reasonable party is not
put on inquiry." 518 S.W.2d at 518.
The question of when, as reasonable persons, the appellants were put
on inquiry of their cause of action is determinative of the present case.
IV.
The appellants insist that their claim falls within the category of cases
where the cause of action does not accrue until the negligent cause of a known injury
is revealed. They rely on several cases which extended the discovery rule to cover
such situations.
The case of Foster v. Harris, 633 S.W.2d 304 (Tenn. 1982), involved
professional malpractice by the defendant dentist. J.B. Foster went to the defendant
for some bridgework. During the procedure, the dentist cut his own finger and the
patient's lip, and their blood intermingled. Three months later Mr. Foster was
diagnosed with serum hepatitis. Despite a diligent search by the plaintiff and his
physicians, they were unable to determine where he contracted the disease. After six
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months, Mr. Foster returned to the same dentist, and was told that on the day of the
earlier visit, the defendant had been infected with serum hepatitis.
Mr. Foster's suit for medical malpractice and fraudulent concealment
was filed more than one year after the first dental visit, and also more than one year
after Mr. Foster's condition was diagnosed. The trial court held that the action was
time-barred under the statute of limitations for medical malpractice found in Tenn.
Code Ann. § 29-26-116. The Court of Appeals affirmed on the malpractice claim,
holding in conformity with the high court's analysis in McCroskey v. Bryant, that the
plaintiff's cause of action had accrued when his disease was diagnosed.
The Supreme Court reversed, stating:
"In the continuing saga of when the statute of limitations
begins to run in tort cases, this case presents two unique
questions. First, was the injury discovered upon diagnosis of
the disease or upon discovery that the source of the disease
was a negligent act, and, second, assuming that the
discovery of the injury occurred in January 1976 [when
hepatitis was diagnosed] did the statute of limitations begin
to run when neither the existence of nor the identity of a tort
feasor was known to plaintiff? Our answer to the first
question is that the discovery that the source of the disease
was a negligent act triggers the statute of limitations. In our
opinion the second question requires a negative answer.
633 S.W.2d at 304
Another case of the same type was Gosnell v. Ashland Chemical, Inc.,
674 S.W.2d 737 (Tenn.App. 1984). Bobbie Edward Merritt died of leukemia after a
thirty year career mixing paints and chemicals at the defendant's manufacturing
facility. His widow brought suit more than one year after his death.
She filed an affidavit stating that she did not learn about the possible
connection between her husband's leukemia and his long-term exposure to solvents
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and chemicals until she read a newspaper article about a suit that had been filed for
the wrongful death of one of Mr. Merritt's co-workers, who had also died of leukemia.
The trial court granted summary judgment for the defendant, and the plaintiff
appealed.
This court reversed the trial court. We held that it was a question for the
jury as to whether the widow could reasonably have been expected to discover the
possible connection between her husband's exposure to chemicals and the illness
that led to his death, prior to the running of the statute of limitations.
V.
While the appellants urge us to adopt the rationale of Foster v. Harris
and Gosnell v. Ashland Chemical, Inc. to find that their cause of action did not accrue
until they were able to fully inform themselves as to the circumstances of Melvin Lee
Steele's death, we find very little resemblance between the situation of their decedent
and that of Mr. Foster and Mr. Merritt.
The delay in the discovery of the origin of Mr. Foster's serum hepatitis
occurred because of the inherent difficulties involved in tracing the transmission of
disease. Since such diseases may be contracted without negligence by any party, Mr.
Foster was not put on notice by the diagnosis that he may have been the victim of a
negligent act.
The delay in the discovery that Mr. Merritt's leukemia may have been
due to occupational exposure to chemicals can be attributed to the imperfect state of
medical knowledge about leukemia, and also to the lack of any link that would be
obvious to laypersons, between the exposure and the illness. In both the Foster and
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Gosnell cases, the question of causation relied more upon expert knowledge than
upon the common experiences of the ordinary person.
Analysis of the facts of the above cases shows that the discovery rule
was appropriately used to protect the rights of individuals who were not put on inquiry
that the injury they suffered may have been caused by the negligence of others. The
plaintiffs in the present case, however, cannot persuasively argue that they were not
put on inquiry of possible negligence once they learned of Melvin Lee Steele's death.
Their prompt action in retaining an attorney shows that they not only should have
been, but were in fact alert to the likelihood of negligence.
They also cannot argue that they had no idea who the responsible
parties might be, since they were aware that their decedent was attending Camp
Discovery at the time of his death. Regardless of the exact circumstances of the
unfortunate incident, knowledge of the bare fact of Melvin Lee Steele's death would
have been sufficient to put the appellants on notice of a possible claim against those
charged with supervision over Mr. Steele and other mentally handicapped campers.
The discovery rule was not meant to allow a party to delay filing his claim
until after he has completed the process of discovering all the factors that affect its
merits. It is clear from the record that the late filing of the plaintiffs' complaint was due
to simple mistake, rather than to any unavoidable delay in discovering their cause of
action. Therefore the invocation of the discovery rule does not rescue their claim.
VI.
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The judgment of the trial court is affirmed. Remand this cause to the
Chancery Court of Davidson County for further proceedings consistent with this
opinion. Tax the costs on appeal to the appellant.
_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
SAMUEL L. LEWIS, JUDGE
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