54 N.Y.2d 1008 | NY | 1981
Lead Opinion
OPINION OF THE COURT
Memorandum.
The orders of the Appellate Division should be affirmed, with costs.
Plaintiffs in these actions, asserting injuries caused by the inhalation of asbestos particles, each commenced his action more than four years after their or their decedents’ last employment-related exposure to asbestos. In Schmidt v Merchants Desp. Transp. Co. (270 NY 287), where the plaintiff alleged that the inhalation of dust while in the defendant’s employ caused him to contract the disease known as pneumoconiosis, this court held that the statutory period of limitations began to run when the plaintiff inhaled the foreign substance. This principle was later reaffirmed in Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212, cert den 374 US 808), involving a compound inserted into the plaintiffs’ sinuses for the purpose of making them more perceptible in x-ray examination. Accordingly, if this rule is still controlling, each of the causes of action brought by plaintiffs is barred by the Statute of Limitations. Plaintiffs now urge, however, that the Statutes of Limitations applicable to their cases should not run from the date of the last exposure to the invading substance, but rather from the date on which the asbestos-related disease was or could have been discovered. We are unable to adopt this proposed standard, and we reaffirm the principle announced in Schmidt and followed in Schwartz. Only recently, in Thornton v Roosevelt Hosp. (47 NY2d 780), where it was alleged that a thorium dioxide substance manufactured by the defendant and injected into the deceased plaintiff resulted in the onset of cancer, we held that “the cause of action accrued at the time of invasion of decedent’s body, and not at the time” the condition became apparent. There, we noted that further extension of the limited discovery provision contained within the CPLR (214-a) was a matter best reserved for the Legislature, and
As the dissent recognizes, the Legislature has acted but has so far gone no further than “Agent Orange” cases.
In amending CPLR 214, which details the various Statutes of Limitations, the Legislature, at its last regular session, included the following statements in its formal legislative findings: “It was never the intent of the legislature in imposing limitations, to foreclose the citizens of this state from prosecuting legitimate claims, provided such claims are diligently and expeditiously pursued. An exception to the general period of limitation rule is required when the
True, in the compromising fashion of legislative bodies (see O’Malley v Macejka, 44 NY2d 530, 533-534), these declarations were made applicable to “Agent Orange” cases alone. But, as with other social catalysts, what it accelerated was a return in this area to the mainstream of legal thought.
Dissenting Opinion
(dissenting). The orders appealed from in these cases should be reversed and the motions for summary judgment denied.
Once again we are confronted with a determination that plaintiffs who, alleging tortious wrongdoing as a result of which they were injured, are held to have been barred by the Statute of Limitations before they learned or could have learned that they had sustained the injuries of which they complain.
Though to state this proposition would appear to be to refute it, the majority, under what it takes to be the restraint of three cases, Schmidt v Merchants Desp. Transp. Co. (270 NY 287), Schwartz v Heyden Newport Chem. Corp. (12 NY2d 212) and, most recently, Thornton v Roosevelt Hosp. (47 NY2d 780), a decision in which I filed a dissent, in effect upholds it.
In my view, the cases cited are too confusing and contradictory to support such a result. For example, in Schmidt, though the court held that dust which produced a disease of the lungs set off the running of the statute when it was ingested rather than when the injury came to the fore, the court, inexplicably, also proclaimed (at p 300) that “There can be no doubt that a cause of action accrues only when the forces wrongfully put in motion produce injury” (emphasis added). Further, in the relatively short time which has elapsed since Thornton was decided, the Legislature already has issued policy pronouncements that cut across the legal philosophy they bespoke.
The underlying principle is hornbook law. As Dean Prosser put it, “the statute of limitations does not begin to run against a negligence action until some damage has occurred” (Prosser, Law of Torts [4th ed], p 144). Or, as was acknowledged with apparent reluctance in Schwartz, “Since, then, the recognized damages in negligence cases are pain and suffering, loss of earnings and, we suppose, damage to the structure of the body, it is questionable whether any cause of action exists before these things actually happen” (Schwartz, swpra, at p 217).
In this court, contrary rulings have troubled its Judges, and, ultimately, have been repudiated by the court as a whole. So, in Schwartz, itself, a strong dissent by Chief Judge Desmond and Judge (later Chief) Judge Fuld left no room for misunderstanding when it warned that “it would be unreasonable and perhaps unconstitutional to hold that his time to sue expired before it was possible for him to learn of the wrong” (Schwartz, supra, at p 219). And, the clarion clear comment that “it is all but unthinkable that a person should be time-barred from prosecuting a cause of action before he ever had one”, first made by Judge (later Chief Judge) Breitel in dissent in Mendel v Pittsburgh Plate Glass Co. (25 NY2d 340, 346), was later to be adopted by the whole court in Victorson v Bock Laundry Mach. Co. (37 NY2d 395, 401).
Guided by these beacons, I now turn to the opposing positions on which summary judgment turned. The defendants’ needs no elaboration; it is simply that the actions arose when each of the plaintiffs breathed the asbestos-laden air, that is, at the time of exposure. If this contention is credited, of course, the wrongful conduct and ensuing dam
The plaintiffs go on to assert that the properties of particles of asbestos are such that their inhalation will not necessarily result in the contraction of the disease; that, unlike chemical compounds, the particles do not break down into reactive elements when lodged in the body; that those who are exposed may never sustain any injury at all; that, even if a cancerous tumor later forms, it will not have begun to do so at the time of exposure; that, before such an event will occur, the asbestos may lay dormant for years; and that the future time when it may develop is unpredictable.
In this apposition the Statute of Limitations question is not one presenting a choice, as the majority would have it, between the times of inhalations and the times of discovery of the subsequent disease. Were that so, absent a discovery rule, the defendants’ motions would indeed have had to have been granted. But, since the issue of fact fleshed out by the motions instead left it a case of dates of inhalation versus dates when the damaging disease came into existence, the question was one for triers of fact.
It follows that the orders of the Appellate Division must be reversed and the cases remitted for trial on the merits.
Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, and Wachtler concur in memorandum; Judge Meyer con
Order affirmed.
