Summary
holding that the statute of limitations is tolled until the defendant's continuing tortious activity is eliminated
Summary of this case from White v. Mercury MarineOpinion
27297.
ARGUED JULY 11, 1972.
DECIDED DECEMBER 4, 1972.
Questions certified by the Court of Appeals of Georgia.
Smith, Cohen, Ringel, Kohler, Martin Lowe, Robert W. Beynart, for appellants.
Carter, Ansley, Smith, McLendon Quillian, W. Colquitt Carter, Gerald A. Friedlander, Nall, Miller Cadenhead, D. N. Love, Powell, Goldstein, Frazer Murphy, for appellees.
Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Alfred L. Evans, Jr., J. Lee Perry, Assistant Attorneys General, amicus curiae.
1. In connection with a sale of goods having a potentiality of doing harm by normal, intended, and non-negligent use, where there is no fiduciary relationship between the seller and the purchaser, and no fraud, it is the duty of the seller to warn the purchaser at the time of sale and delivery, and a breach occurs at this time if there is a failure to warn.
2. The breach of a duty to warn occurs at the time of the sale and delivery of the goods, and the statute of limitation with respect to that breach begins to run at that time. However, on a tort claim for personal injury the statute of limitation begins to run at the time the tortious act and damage resulting therefrom occur. And if the tortious act is a continuing one, inflicted over a period of time, the statute of limitation does not commence to run until such time as the continued tortious act producing injury is eliminated by an appropriate warning in respect to the hazard.
3. Mere ignorance of the existence of a right of action does not toll a statute of limitation.
4. Natural wear and deterioration of an article in its intended, ordinary, non-negligent use may be a valid consideration in determining whether a claim of injury attributable to such deterioration is barred by the statute of limitation, to the extent that the time of injury operates to commence the running of the statute, and absent other circumstances which operate to toll the statute, e.g., a continuing tort, fraud preventing discovery, and infancy or incapacity of the injured person.
ARGUED JULY 11, 1972 — DECIDED DECEMBER 4, 1972.
Harold D. Everhart and Chrystal Smith Everhart, husband and wife, and their three minor children commenced an action in Fulton Superior Court on May 11, 1971, against Rich's, Inc., J. P. Stevens Company, Inc., and Owens-Corning Fiberglas Corporation, seeking recovery for personal injuries and property damage allegedly caused by a set of gold draperies purchased from Rich's, a retail department store, in December 1964, by Chrystal Smith Everhart, and hung in the Master bedroom of the home occupied by the plaintiffs. The draperies were made from fabric manufactured by Stevens and composed primarily of fiberglas, the registered trademark of a glass fiber manufactured by Owens-Corning. In February, 1970, the plaintiffs began to suffer extreme personal discomfort and illness. Subsequently, the plaintiffs allegedly discovered that their discomfort and illness was caused, in whole or in part, by billions of fiberglas particles which had broken loose from the gold draperies and had been conducted throughout the house through the heating system. The plaintiffs further allege that the defendants gave no warning that the material could and would injure human skin. Count 1 of the petition is based on negligence in failing to warn of the danger, and Count 2 is based on a breach of implied warranty that the draperies were fit for the ordinary purposes for which they were used.
The defendants pleaded, among other defense, that all claims were barred by an applicable statute of limitation and moved for judgment on the pleadings. The trial judge granted the motions with respect to the adult plaintiffs, and these plaintiffs appealed to the Court of Appeals. The Court of Appeals has certified to this court the following questions:
"1. When does the breach of a duty to warn occur in connection with a sale of goods having a potentiality of doing harm, there being no fiduciary relationship between the seller and the purchaser, and no fraud?
"2. If the answer to question number 1 indicates that the breach occurs at the time of the sale and delivery of the goods, does the statute of limitation on a claim of personal injury, Code § 3-1004, begin to run from the date of the breach, i.e., the date of the sale, or does it begin to run only from the time it is discovered that injury and damage has resulted from the normal, intended and non-negligent use of the goods?
"3. Does ignorance of the purchaser as to facts constituting a right of action, or that his rights have been invaded, prevent the running of the statute of limitation?
"4. Is the matter of natural wear and deterioration of an article in its intended, ordinary, non-negligent use a valid consideration in determining whether a claim of injury attributable to such deterioration is barred by the statute of limitation?"
For consideration in answering the above questions, the Court of Appeals cites the following: "Crawford v. Gaulden, 33 Ga. 173 (8); Lilly v. Boyd, 72 Ga. 83; Gould v. Palmer Read, 96 Ga. 798 ( 22 S.E. 583); Schofield v. Woolley, 98 Ga. 548 ( 25 S.E. 769); McClaren v. Williams, 132 Ga. 352 (4) ( 64 S.E. 65); Davis v. Boyett, 120 Ga. 649 (2) ( 48 S.E. 185); Maxwell v. Walsh, 117 Ga. 467 ( 43 S.E. 704); Freeman v. Craver, 56 Ga. 161; Irvin v. Bentley, 18 Ga. App. 662 (3) ( 90 S.E. 359); Barrett v. Jackson, 44 Ga. App. 611 ( 162 S.E. 308); Silvertooth v. Shallenberger, 49 Ga. App. 133 ( 174 S.E. 365); Silvertooth v. Shallenberger, 49 Ga. App. 758 ( 176 S.E. 829); Bryson v. Aven, 32 Ga. App. 721 ( 124 S.E. 553); Colvin v. Warren, 44 Ga. App. 825 ( 163 S.E. 268); Tabor v. Clifton, 63 Ga. App. 768 ( 12 S.E.2d 137); Dowling v. Lester, 74 Ga. App. 290 (2) ( 39 S.E.2d 576); Saffold v. Scarborough, 91 Ga. App. 628 ( 86 S.E.2d 649): Parker v. Vaughn, 124 Ga. App. 300 ( 183 S.E.2d 605); Crawford v. McDonald, 125 Ga. App. 289 ( 187 S.E.2d 542); Mobley v. Murray County, 178 Ga. 388. 394 (173 S.E. 680); Chitty v. Horne-Wilson, Inc., 92 Ga. App. 716 ( 89 S.E.2d 816); Chitty v. Horne-Wilson, Inc., 92 Ga. App. 721 ( 89 S.E.2d 820); Wellston Co. v. Sam M. Hodges, Jr. Co., 114 Ga. App. 424 ( 151 S.E.2d 481); Hunt v. Star Photo Finishing Co., 115 Ga. App. 1, 5 ( 153 S.E.2d 602); Whiten v. Orr Construction Co., 109 Ga. App. 267 ( 136 S.E.2d 136); Morgan Construction Co., v. Kitchings, 110 Ga. App. 599 ( 139 S.E.2d 417); Hamilton v. Lockridge, 123 Ga. App. 609 (1) ( 181 S.E.2d 910); Carroll County Gas Co. v. Parker, 125 Ga. App. 27 ( 189 S.E.2d 913); Cheney v. Syntex Laboratories, 277 F. Supp. 386 (N.D. Ga.); Anno. 4 ALR3rd 821."
1. The first headnote, as an answer to the first certified question, requires no elaboration. See Code §§ 105-103, 105-104; 65 CJS 1078, 1082, Negligence, § 100(2)a.
2. On a tort claim for personal injury the statute of limitation generally begins to run at the time damage caused by a tortious act occurs, at which time the tort is complete. In such cases the true rule in this State was expressly recognized by the Court of Appeals in Chitty v. Horne-Wilson, 92 Ga. App. 716, 719 ( 89 S.E.2d 816), and more recently in Carroll County Gas Co. v. Parker, 126 Ga. App. 27 ( 189 S.E.2d 913), to the effect that in an action for personal injuries the statute of limitation commences at the time the damage or injury is actually sustained. In such torts, where the injury is occasioned by violent external means, the result of the previous violation of a duty, no problem arises in fixing the date and time when the statute begins to run. Where, however, there is a breach of a duty owed to another, e.g., the failure to warn of the existence of a hazard capable of producing injury, and exposure to the hazard or the cumulative effects of continued exposure results in injury, a cause of action accrues when exposure to the hazard first produces ascertainable injury. While the tort is then complete in the sense that it will support a claim, it is nevertheless a tort of a continuing nature which tolls the statute of limitation so long as the continued exposure to the hazard is occasioned by the continued failure of the tortfeasor to warn the victim, and the statute of limitation does not commence to run under these circumstances until such time as the continued tortious act producing injury is eliminated, e.g., by an appropriate warning in respect to the hazard. The theory of a continuing tort was adopted, applied, and limited to surgical malpractice in Parker v. Vaughan, 124 Ga. App. 300 ( 183 S.E.2d 605). Today we recognize and extend this theory, as here explained, to those factual situations analogous to the situation here involved where any negligent or tortious act is of a continuing nature and produces injury in varying degrees over a period of time.
For a discussion of the practical problems in fixing a specific date of injury, and the rules for determining the time of injury or "accident" under the workmen's compensation law, as distinguished from general tort law, with respect to a disease caused by injurious and hazardous exposure, e.g., loss of hearing and silicosis, see Shipman v. Employers Mut. Liab. Ins. Co., 105 Ga. App. 487 ( 125 S.E.2d 72); Patterson v. Employer's Mut. Liab. Ins. Co., 99 Ga. App. 325 ( 108 S.E.2d 146); Free v. Associated Indem. Corp., 78 Ga. App. 839 ( 52 S.E.2d 325).
The theory of discovery as fixing the date of the running of the statute of limitation where fraud is involved, illustrated by the rulings in Bryson v. Aven. 32 Ga. App. 721 ( 124 S.E. 553); Colvin v. Warren, 44 Ga. App. 825 ( 163 S.E. 268); and Tabor v. Clifton, 63 Ga. App. 768 ( 12 S.E.2d 137), and other cases, is supported by the provisions of Code § 3-807 providing that "the period of limitation shall run only from the time of the discovery of the fraud."
3. The third certified question must be answered in the negative. The appellate courts of this State have held that mere ignorance of the existence of a right of action, absent the element of fraud, does not toll a statute of limitation. E.g., see Crawford v. Gaulden, 33 Ga. 173, 188; Davis v. Boyett, 120 Ga. 649 ( 48 S.E. 185, 66 LRA 258, 102 ASR 118, 1 AC 386); Mobley v. Murray County, 178 Ga. 388 (3) ( 173 S.E. 680).
4. Headnote 4 as an answer to the fourth certified question requires no elaboration.
Questions answered as stated in the opinion. All the Justices concur.