Wilson v. Sullivan, 922 S.W.2d 835

Wilson v. Sullivan

922 S.W.2d 835

Mo. Ct. App.

1996

Check Treatment

Tresa J. WILSON, Plaintiff-Appellant, v. Daniel J. SULLIVAN, Defendant-Respondent.

Nos. 67806 and 67860.

Missouri Court of Appeals, Eastern District, Division Two.

April 2, 1996.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 6, 1996.

Application to Transfer Denied June 25, 1996.

925 S.W.2d 835

the motion to dismiss. It is not disputed that the plaintiff‘s personal injury claim is governed by the five-year statute of limitations, § 516.120. However, plaintiff contends that her injuries were not capable of ascertainment until December 7, 1989, and pursuant to § 516.100, the five year statute did not begin to run until December 7, 1989. However, plaintiff did not plead that in her petition, but asserted it by affidavit supporting her memorandum in opposition to the motion to dismiss.

Reviewing a motion to dismiss, we examine the pleadings and not materials outside the pleadings. Sheehan, 901 S.W.2d at 59[6]. In Sheehan, a daughter sued her father for damages, alleging child sexual abuse and that the father‘s conduct caused “consequential” injuries and damages. Id. at 57[6]. In reviewing a grant of a motion to dismiss, our Supreme Court held that the petition did not clearly indicate on its face and without exception that her suit was barred before the effective dates of the relevant statutes, §§ 537.046.2 and 516.371. Id. at 59[6]. The Court further stated that the petition did not state the date the daughter “sustained and suffered” these injuries and damages. Id. Therefore, the petition was ambiguous as to when she could have discovered them. Id.

Here, in plaintiff‘s petition and first amended petition, plaintiff alleges that as a “direct and proximate result” of defendant‘s negligence, she suffered severe and permanent injuries. Her pleadings are not ambiguous as to when she sustained her injuries. Rather, it is clear from the petition that her injuries were sustained on December 6, 1989, the date of the collision. Since her petition was not filed until December 7, 1994, more than five years after the date of the collision, her personal injury claim is barred by the statute of limitations, § 516.120. Therefore, the trial court did not err in granting defendant‘s motion to dismiss.

Judgment of the trial court is affirmed.

AHRENS, P.J., and PUDLOWSKI, J., concur.