4/December 2006—MDC Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 25, 2007

DAYLE TRENTADUE, as Personal Representative of the Estate of MARGARETTE F. EBY, Deceased, Plaintiff-Appellee,

v No. 128579 JEFFREY GORTON, VICTOR NYBERG, TODD MICHAEL BAKOS, MFO MANAGEMENT COMPANY, and CARL F. BEKOFSKE, as Personal Representative of the Estate of RUTH R. MOTT, Deceased,

and Defendants,

BUCKLER AUTOMATIC LAWN SPRINKLER COMPANY, SHIRLEY GORTON and LAUREN CE W. GORTON, Defendants-Appellants.

DAYLE TRENTADUE, as Personal Representative of the Estate of MARGARETTE F. EBY, Deceased, Plaintiff-Appellee,

v Nos. 128623, 128624, and 128625BUCKLER AUTOMATIC LAWN SPRINKLER COMPANY, SHIRLEY GORTON, LAURENCE W. GORTON, JEFFREY GORTON, VICTOR NYBERG, TODD MICHAEL BAKO S and CARL L. BEKOFSKE, as Personal Representative of the Estate of RUTH R. MOTT, Deceased, Defendants, and MFO MANAGEMENT COMPANY, Defendant-Appellant.

BEFORE THE ENTIRE BENCH CORRIGAN, J. This wrongful death case requires us to consider whether the common-law “discovery rule,” which allo ws tolling of the statutory p eriod of limitations when a plaintiff could not have reas onably discovered the elemen ts of a cause of action within the limitations period , can operate to toll the p eriod of limitations, or whether MCL 600.5827, which has no such provision, alone governs the time of accrual of the plaintiff’s claims. We conc lude that MCL 600.5827 alone controls. Because the Court of Appeals held to the contrary, we revers e its judgment and remand the case to the Genesee Circuit Cour t for further proceedings consistent with this opinion.

2I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE This case arises from the tragic rape and murder of Margarette F. Eby in November 1986 at her home in Flint. Acco rding to plaintiff’s complaint, in 1981 Eby leased a residence in the gatehouse on the grounds of th e Mott family estate from Ruth R. Mott (M ott) where Eby began to live . Eby was found raped and murdered on November 9, 1 986, after last being seen a live on November 7, 1986. The rape and murder remained unsolved un til 2002, when deo xyribonucleic acid (DNA) evidence established that Jeffrey Gorton, an employee of his parents’ corporation, the Buckler Automatic Lawn Sprinkler Company (Buckler), which serviced the sprinkler sy stem on the grounds, had co mmitted the crime. Gorton pleaded no contest when ch arged with the murder and was sentenced to life imprisonment for Eby’s rape-murder. On August 2, 2002, pl aintiff Dayle Trentadue, Eby’s daughter and the personal representative of h er estate, filed a complaint against Jeffrey Gorton; his parents Shirley and Lawrence Gorton who, as noted, op erated Buckler; Buckler; Carl F. Bekofske, personal rep resentative of the estate of Ruth R. Mott, deceased, who died in 1999; MFO Management Company (MFO), the management company that provided administrative s ervices to the Mott family; and two of Mott’s employees, Victor Nyberg and Todd Bakos, asserting several theories of negligence. Regarding th e Gortons, the contentions were essentially negligent hiring and monitoring of Jeffrey Gorton. The other defendants were allegedly

3negligent in allowing access to the area that led to Eby’s residence and not providing adequate security or alarms. Each defendant, except Jeffrey Gorton, moved for summary disposition under MCR 2.116(C)(7), arguing, among other things , that plaintiff’s action was barred by the three-year statute of limita tions for wrongful death actions. 1 In particular, they argued that under MCL 600.5827 2 a claim accrues when the plaintiff is harmed, 3 and the action for wrongful deat h must be commenced within three years after the claim fi rst accrued to the plainti ff or to someone through whom the plaintiff claims. MCL 600.5805 (1); MCL 600.5805(10). Further, while MCL 600.5852 permits an exte nsion of up to three years based on when a personal representative is appointed, that statute was inapplicable h ere because almost 16 years had passed. Thus, defendants ass erted that the suit should have been dismissed as untimely and b arred under the statute of limitations. Plaintiff in response asserted that the common-law discov ery rule applied to toll the period of limitations. That is, even though the provisions of th e period of limitations were

1 MCL 600.5805(10). 2 MCL 600.5827: Except as otherwise e xpressly provided, the period of limitations runs from the time the claim accrues . The claim accrues at the time provided in sections 5829 to 5838 , and in cases not covered by these sections the claim accrues at the tim e the wrong upon which the claim is based was done regardless of the time when damage results. 3 Boyle v Gen Motors Corp, 468 Mich 226, 231 n 5; 661 NW2d 557 (2003).

4silent on tolling based on discovery, until sh e knew the identity of the killer, the period of limitations was tolled. 4 The Genesee Circuit Court ruled for plai ntiff, adopting her theory that the common-law discovery rule remains viable in Michigan and thus applicable here. The court concluded regard ing defendants Buckler a nd Shirley and Lawrence Gorton that “[a] claim for p ersonal injury accrues when all of the elements are present and can be properly pleaded in a complaint,” citing, e.g., Connelly v Paul Ruddy’s Equip Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). Trentadue v Buckler Automa tic Lawn Sprinkler Co, opinion of the Genesee Circuit Court, issued October 28, 2003 (Docket No. 02.74145-NZ), p 4. The court also “recognize[d], in some instances, [that the] identity of the kill er may be necessary to plead a cause of action.” Id. Accordingly, it decided that most of plaintiff’s claims were not time-barred b ecause plaintiff could not determine that the duties were breached, or that the breaches caused the injuries, until she became aware of the killer’s identity in 20 02. Regarding Bekofske a nd MFO, the court granted

4 Regarding plaintiff’s inability to di scover the identity of the killer, she characterized the facts largely as do Justice Kelly and Justice Weaver in dissent. Most significantly, plaintiff claimed th at she could not have discovered her premises liability an d security claims against Mo tt and MFO because the police were convinced that Eby had been mu rdered by an acquaintance whom she allowed into the apartment. This claim distorts the affidavit of David King, the homicide investigator. King described th e method of entry as “undetermined” and attested that the police investigated Eby’s acquaintances and other persons “who appeared to be suspicious because of th eir lifestyle.” It appears unknown why police did not interv iew Jeffrey Gorton.

5their summary disposition motions on the ba sis that if Mott an d MFO had failed to provide adequate security, this claim was known to plaintiff at the time of the killing, and the cause of action coul d have been brought at that time. 5 On appeal, the Court of Appeals affirm ed in part, revers ed in part, and remanded, concluding that the common-la w discovery rule to lled the limitations period for all plaintiff’s claims, incl uding the improper security claims against Bekofske and MFO. 266 Mich App 297; 701 NW2d 75 6 (2005). The Court of Appeals concluded that the common-law discovery rule tolle d the period of limitations because plaintiff was unaware of a cause of action against Buckler, the Gortons, Nyberg, or Bakos until their relationship with the killer became known. Regarding Bekofske and MFO, the Court of Appeals reversed the part of the trial court’s judgment that granted summary disposition in their favor. It concluded that the discovery rule a pplied because until the identity of th e killer became known, no causal connection could be disc overed between a breach of duty and Eby’s death. The Court of Appeals faile d to address the absence of the common

law discovery provision in MCL 600.5827. It eviden tly presumed that the discovery provision could co-exist with th e statute and was not abrogated by the
statute’s enactment. Buckler, the Gortons, and MFO sought leave to appeal in this Court. We granted leave to appeal to consider whether a common-law discovery rule

5 The claim against Jeffrey Gorton is not in dispute.

6continues to exist in Michigan or wh ether MCL 600.5827, which has no common

law discovery provision, is the exclusive means of establishing tolling. 6
II. STANDARD OF REVIEW This Court reviews motions fo r summary disposition under MCR 2.116(C)(7) de novo. Grimes v Dep’t of Transportation, 475 Mich 72, 76; 715 NW2d 275 (2006). In the ab sence of disputed facts, we also review de novo whether a cause of action is barred by th e applicable statute of limitations. Joliet v Pitoniak, 475 Mich 30, 35; 715 NW2d 60 (2006). Finally, we address questions of statutory interpretation de novo. Grimes, supra at 76.
III. ANALYSIS
A. THE STATUTE OF LIMITA TIONS AND ITS EFFECT ON THE COMMON-LAW DISCOVERY RULE The applicable statute of limitations in a wrongful death case is MCL 600.5805(10), 7 which states: “The period of lim itations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a p erson or property.” Thus, th e period of limitations runs three years from “the death or injury.”

6 475 Mich 906 (2006). 7 MCL 600.5805(10) has been renumbered several times since it was enacted as part of the Revised Judicat ure Act of 1961. 1961 PA 236. The subsection was also amended to explicitly apply to cases alleging wrongful death in 1978. 1978 PA 495. We will refer to the subs ection as subsection 10 throughout this opini on for ease of reference.

7Moreover, MCL 600.5827 defines the tim e of accrual for actions subject to the limitations period in MCL 600.5805(10). 8 It provides: Except as otherwise expre ssly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 58 38, and in cases not covered by these secti ons the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.

8 See, e.g., Joliet, supra at 40; Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 282; 696 NW2d 64 6 (2005), amended 473 Mich 1205 (2005); Moll v Abbott Laboratories, 444 Mich 1, 12; 5 06 NW2d 816 (1993). Although this Court has c onsistently applied the st atutes together, Justice Kelly now questions whether MCL 600.58 27 applies in cases governed by MCL 600.5805(10). By its terms, § 5827 applies to “cases not covered by” MCL 600.5829 to 600.5838, which are not relevant to this case. Accordingly, this Court has consistently a pplied § 5827 and § 58 05(10) together. Joliet, supra at 40; Garg, supra at 282; Moll, supra at 12. Moreover, the statutes are complementary and easily read together. MCL 600.5827 esta blishes that periods of limitations run “from the time the claim accrues,” which is “the time the wron g upon which the claim was based is done.” MCL 600.5805( 10) specifies that personal injury and wrongful death actions accrue at the time of “death or injury .” Because “[t]he wrong is done when the plaintiff is harm ed rather than when the defendant acted” under § 5827, the statutes are perfectly consistent. Boyle v Gen Motors Corp , 486 Mich 266, 231 n 5; 661 NW2d 577 (2003). Significantly, Justice Ke lly’s preferred application of MCL 600.5805(10) by itself would not yield a different result. First, the time of death under § 5805(10) would be marked from the same moment as the time the wrong was done, under MCL 600.5827. Thus, not only are the stat utes complementary, they also have precisely the same effect when applied se parately. Second, even assuming that § 5805(10) shou ld alone govern, we would be hard-pressed to inject a common-law discovery rule into th is statute’s plain language, which unambiguously establishes that the “period of limitations is 3 y ears after the time of the death or injury.” Finally, using a discovery rule to avoid the plain language of § 5805(10) presents the sa me problem as does applying the rule under § 5827; it ignores the remainder of the statutory scheme, which clea rly provides for discovery-based tolling when the Legislat ure deems it appropriate, as further discussed infra.

8This is consistent with MCL 600.5805(10) because it indicates that the claim accrues “at the time the wrong upon which the claim is based was done . . . .” We have, not surprisi ngly given its clarity, so held in Boyle v Gen Motors Corp, 468 Mich 226, 231-232; 661 NW2d 557 (2003), and Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 282; 696 NW2d 646 (2005). We have also clearly establis hed that “[t]he wrong is done when the plaintiff is harmed rather than when the defendant acted.” Boyle, supra at 231 n 5. The Revised Judicature Act, at MCL 600.5838(2), 600.5838a(2), 600.5839(1), and 600 .5855, provides for tolling of the period of limitations in certain specified situations. These are acti ons alleging professional malpractice, MCL 600.5838(2); actions alleging me dical malpractice, MCL 600.5838a(2); actions brought against certai n defendants alleging inju ries from unsafe property, MCL 600.5839(1); and actions alleging th at a person who may be liable for the claim fraudulently concealed the existence of the clai m or the identity of any person who is liable for the claim, MCL 600.5855. Signifi cantly, none of these tolling provisions covers this situation—tolling until the identity of the tortfeasor is discovered. Plaintiff contends, however, that, notw ithstanding these st atutes, when the claimant was unaware of any basis for an action, the harsh result of barring any lawsuit because the period of limitations has expi red can be avoided by the operation of a court-created discovery rule , sometimes described as a common-law rule, articulated in Johnson v Caldwell, 371 Mich 368, 3 79; 123 NW2d 785

9(1963), superseded by st atute as stated in Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 42 8 n 2; 329 NW2d 729 (1982). Under a discovery-based analysis, a claim does not accrue until a plaintiff knows, or objectively should know, that he has a cause of action and can allege it in a proper complaint. Moll v Abbott L aboratories, 444 Mich 1, 16-1 7; 506 NW2d 816 (1993). 9 Accordingly, here, plaintiff argue s that her claims did not accrue until she discovered that Gorton was the killer b ecause, before that time, she could not have known of and alleged each element of the claims. 10 We reject this contention because the statutory scheme is exclus ive and thus preclude s this common law practice of tolling accrual based on discovery in cases where none of the statutory tolling provisions apply. It is axiomatic that the Legislatu re has the authority to abrogate the common law. Hoerstman Gen Contracting, Inc v Hahn , 474 Mich 66, 74; 711 NW2d 340 (2006). Further, if a statutor y provision and the common law conflict,

9 A personal injury claim must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the du ty, (3) the breach was the proximate cause of the plaintif f's injuries, and (4) damage. Moll, supra at 16. 10 Justice Weaver makes the same argumen t but also goes one step further. She acknowledges that, under MCL 600.5 827, a claim accrues when “‘all of the elements of the cause of action have occu rred’” or when “‘all of the elements of an action for personal injury, in cluding the element of dama ge, are present . . . .’” Post at 8-9, 15, quoting Connelly, supra at 150-151 (emphasi s omitted). Justice Weaver then asserts: “At the time of Dr. Eby’s death, not all of the elements of a wrongful death acti on had ‘occurred.’” Post at 9. To the contrary, clearly each element of plaintiff’s neg ligence claims had occurred at the time of Eby’s death; (continued...)

10the common law must yield. Pulver v Dundee Cement Co, 445 Mich 68, 75 n 8; 515 NW2d 728 (1994). 11 Accordingly, this Court has observed: In general, where comprehensive legislation prescribes in detail a course of conduct to pu rsue and the parties and things affected, and designates specific limitations and exceptions, the Legislature will be found to have in tended that the statute supersede and replace the common law deali ng with the subject matter. [ Hoerstman Gen Contracting, supra at 74, quoting Millross v Plum Hollow Golf Club , 429 Mich 178, 183; 413 NW2d 17 (1987), citing 2A Sands, Sutherland Statutory Cons truction (4th ed), § 50.05, pp 440-441]. [12] Here, as we have explained, the releva nt sections of the Revised Judicature Act comprehensively establish limitations periods, times of accrual, and tolling for civil cases. MCL 600.5827 e xplicitly states that a limitati ons period runs from the time a claim accrues “[e]x cept as otherwise expressly pr ovided.” Accordingly, the

(...continued) indeed, the crux of each clai m is that defendants’ acts preceded and culminated in Eby’s death.
11 Similarly, see Sington v Chrysler Corp , 467 Mich 144, 164; 648 NW2d 624 (2002) (“Codification of common-la w rules makes those rules of no consequence if they are inconsis tent with the codification.”) 12 Justice Weaver’s effort at distinguishing Hoerstman and Millross on the basis of their facts is unavailing. She poin ts out that the statutory scheme at issue here does not contain precisely the same langua ge as the statutes at issue in those cases. Post at 16-19. Hoerstman and Millross do not stand for the proposition that the Legislature is bound to use cert ain language to conv ey its intent to abrogate the common law in a given area, ho wever. To the co ntrary, these cases direct us to examine the scheme as a whole and ask if it constitutes “‘comprehensive legislation prescrib[ing] in detail a course of conduct to pursue and the parties and things affected, and designat[ing] specifi c limitations and exceptions.’” Hoerstman Gen Cont racting, supra at 74, quoting Millross, supra at 183. As Justice Weaver plainly states: “What is important in conveying [the] intent [to abrogate] is that the legislation be comprehensive.” Post at 18.

11statutes “designate specific limitations and exceptions” for tolling based on discovery, as exemplified by MCL 600.5 838, 600.5838a, 600.5839, and 600.5855. The scheme also explicitly supersedes th e common law as can be seen in the area of medical malpractice, for instance, where this Court’s prestatutory applications of the common-law discovery rule were superseded by MCL 600.5838a, in which the Legislature codified the discovery rule for medical malpractice cases. Finally, MCL 600.5855 is a good indication that th e Legislature intended the scheme to be comprehensive and ex clusive. MCL 600.5855 provides for essentially unlimited tolling based on di scovery when a clai m is fraudulently concealed. 13 If we may simply apply an extras tatutory discovery rule in any case not addressed by the statutory sche me, we will render § 5855 effectively meaningless. For, under a general extrasta tutory discovery rule , a plaintiff could toll the limitations period simply by clai ming that he reasonabl y had no knowledge of the tort or the id entity of the tortfeasor. He woul d never need to establish that the claim or tortfeasor had b een fraudulen tly concealed.

13 MCL 600.5855 reads: If a person who is or may be lia ble for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the kn owledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the cl aim or the identity of the person who is liable for the claim, although the action would otherwise be barred by th e period of limitations.

12Since the Legislature has exercised its power to establish tolling based on discovery under particular circumstances , but has not provided for a general discovery rule that tolls or delays the tim e of accrual if a plaintiff fails to discover the elements of a cause of action during the lim itations period, no such tolling is allowed. Therefore, we conclude that c ourts may not employ an extrastatutory discovery rule to toll accrual in avoidance of the plain language of MCL 600.5827 and we reject this Court’ s contrary conclusion in Chase v Sabin, 445 Mich 190, 191-192; 516 NW 2d 60 (1994). 14 Because the statutory scheme here is

14 This result is also consiste nt with our recent holding in Boyle, supra at 231-232, in which we declin ed to employ the discovery ru le to the plaintiffs’ fraud claim based, in part, on th e plain language of MCL 600 .5827, which also governed accrual in that case. We note that Justice Weaver, in particular, relies on Chase to support her dissenting conclusion that “this case presents the unique situation in which this Court has traditionally applied the discovery rule.” Post at 11, citing Stephens v Dixon , 449 Mich 531, 534-536; 536 NW2d 755 (1995), in turn quoting Chase, supra at 196-197. First, the plaintiff in Chase alleged that a surgeon negligently injured him dur ing surgery. Id. at 192. Therefore, the Chase Court’s broad observations regarding appropriate use of the discovery rule are arguably dicta when applied beyond the medical malpract ice context. Most significantly, the Chase Court concluded that use of the discovery rule wa s particularly appropriate because a medical malpractice plainti ff will typically rely on a hospital or physician’s records to prove his claim. Id. at 199-200. As Justice Weaver observes, in contexts such as medical malpractice where the ru le is typically applied, “‘evidentiary records are rarely dimi nished by the passage of time’” and, therefore, there is less concern for prot ecting defendants from fading memories and time-flawed evidence. Post at 13, quoting Stephens, supra at 537. Thus, although we reject the Chase Court’s use of a discovery rule when not authorized by statute, we also fail to see how the in stant case “presents the unique situation in which this Court has traditionally applied the discovery rule[.]” Post at 11.

13comprehensive, the Legislature has undert aken the necessary task of balancing plaintiffs’ and defendants’ interests and has allowed for tollin g only where it sees fit. This is a power the Legislature has because such a statute of limitations bears a reasonable relationship to the p ermissible legislative objective 15 of protecting defendants from stale or fraudulent claims. Gladych v New Family Homes, Inc, 468 Mich 594, 600; 664 NW2d 705 (2003). Accordingl y, the lower courts erred when they applied an extrastatutory discove ry rule to allow pl aintiff to bring her claims 16 years after the death of her de cedent. When the death occurred, the “wrong upon which the claim is based was do ne.” Given this holding, we overrule Johnson, supra, and its progeny. Overruling these cases is th e most appropriate course of action because they run directly counter to the legislative scheme. Furt her, overruling them is not problematic, under Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000), primarily because, by its nature, the disc overy rule does not create expectation or reliance interests. In Robinson , we explained that, in deci ding whether to overrule wrongly decided cases, we must c onsider whether “practical real-world dislocations” would result, whether “re liance interests woul d work an undue hardship, and whethe r changes in the law or facts no longer justify the questioned decision.” Id. at 464-466. We have already explai ned that the statutory law, and its changes over time, cause us to question the va lidity of court-imposed

15 Phillips v Mirac, 470 Mich 415, 436; 685 NW2d 174 (2004).

14applications of the discovery rule. Most significantly, the na ture of the discovery rule contravenes any argument that our decision affects pl aintiffs’ reliance interests. A plaintiff does not decide to postpone asserting a claim because he relies on the availability of extrastatuto ry discovery-based tolling. To the contrary, discovery-based tolli ng is a retroactive mechanis m for relief to be used only when a plaintiff could not anticipat e his claims. To the extent reliance interests figure into the analysis, it is the expectations of defendants—including those who, as here, ma y have had as little indication that a claim existed as did the plaintiff—that are harmed when a plaint iff brings claims long after an event occurred. Defendants must, at some point, be able to safely dispose of business records and other seemingly mundane eviden ce that they would have no reason to expect could exculpat e them in litigation. Finally, our dissenting colleagues’ e xplanations for wh y we should not overrule cases that empl oy a common-law discovery rule ignore the central reasoning and result of our decision. Justice Kelly stat es, for instance, that “[t]he common-law discovery rule has become so embedded in the fabric of Michigan limitations law that the state’s jurisp rudence will be seriously damaged by destroying it.” Post at 15. But rather than dest roy the discovery rule, we recognize that the Legislatu re has comprehensively esta blished the circumstances

15under which the rule should be applied and has, in the process, rendered use of the rule more uniform and predictable for pl aintiffs, defendants and courts alike. 16
B. ADDITIONAL RESP ONSE TO DISSENTS First, we reject Justice Kelly’s cont ention in dissent that the statutory scheme evinces the Legislature’s intent si mply to “ratif[y] prio r decisions of this Court applying the common-law discovery rule,” post at 12, and, therefore, to “implicitly acknowledge[] the a pplicability of the rule in other types of cases.”

16 Although Justice Kelly criticizes us for disregard ing precedent, post at 9

- 10, she very recently indicat ed that she would have been more than willing to overrule precedent she disfavored, e.g. People v Nutt , 469 Mich 565; 677 NW2d 1 (2004). See People v Smith, 478 Mich 292, 322 n 17; 7 33 NW2d 351 (2007). She also voted to overrule anoth er decision of this Court in Haynes v Neshewat, 477 Mich 29, 39; 729 NW2d 488 (2007), overruling Kassab v Michigan Basic Prop Ins Assn, 441 Mich 433; 491 NW 2d 545 (1992). Therefore, one is naturally tempted to re-inquire, see Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223-228; 731 NW2d 41 (200 7) (Markman, J., concurri ng), whether her ongoing criticism truly concerns our attitudes to ward precedent or m erely her attitudes toward specific previous d ecisions of the Court. Ju stice Kelly points to her positions in recent cases including Liss v Lewiston-Richards , Inc , 478 Mich 203; 732 NW2d 514 (2007), Rohde v Ann Arbor Pub Schools, 479 Mich ___; ___ NW2d ___ (Docket No. 128768, decided July 25, 2007), and Michigan Citizens for Water Conservation v Nes tlé Waters of America, Inc , 479 Mich ___; ___ NW2d ___ (Docket No. 130802 , decided July 25 , 2007). She states: “[E]ven though I did not agree with the precedent in these case s, I said nothing about overruling it.” Post at 11 n 5. Yet, in Liss, although she did not expressly advocate overruling preceden t, she asserted that the holding of Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999), “should be lim ited strictly to cases involving the insuran ce industry.” Liss, supra at 217 (Kelly, J., dissenting). In Rohde and Nestlé , although she acknowl edged that the cases with which she disagrees are binding preceden t, she had no need to advocate for overruling them; she expressly contended that these established cases di d not preclude her preferred outcomes in the cases at hand. Rohde, supra at ___ (Kelly, J., concurring); Nestlé, supra at ___ (Kelly, J., dissenting).

16Post at 13. She concludes that the Legislat ure has abrogated our decisions only to “limit[] the discovery rule where it saw fit.” Post at 13. But we see no logical reason to equate the Legislat ure’s “approval of the rule ” —by its codification of some of this Court’s uses of the rule—w ith the Legislature’s approval of every application of the rule. Justice Weav er similarly suggests that, because the Legislature paid particular attention only to these circumstances, “it is apparent that the Legislature recogn ized the continuing exis tence and viability of the common-law discovery rule and saw fit to limit it in certain instances (§§ 5838 and 5838a), but not in all instances.” Post at 22. Thus, our dissenting colleagues conclude that the Legislature intende d merely to limit the rule in some circumstances rather than to establish limited circumstances in which the rule applies. But the scheme does not, as Justice Kelly asserts, merely “expressly provid[e] that the discovery rule does no t apply in professional negligence cases,” thus “impl[ying] that it was to apply in all other contexts” under the maxim of expressio unius est exclusio alterius. Post at 13 n 7. In draw ing this conclusion, Justice Kelly focuses on th e first sections of MCL 600 .5838 and 600.5838a, which establish general limitations on the use of a discovery rule in professional and medical malpractice cases. MCL 600.5838( 1) provides, for example, that a professional malpractice claim

accrues at the time [the professional] discontinues serving the plaintiff in a professional or pseu doprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of

17the time the plaintiff discovers or otherwise has knowledge of the claim . [Emphasis added.] The second section of this statute, ho wever, explicitly authorizes discovery

based tolling. MCL 600. 5838(2) provides that an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after th e plaintiff discovers or should have discovered th e existence of the claim, whichever is later. [Emphasis added.] In other words, th e statute simultaneously authorizes and limits the circumstances under which tolli ng is appropriate. The same is true of the other statutes that our dissenting colleagues cl aim merely limit how the rule applies in certain cases; each statute comprehensively authorizes and limits the use of discovery-based tolling in particular circumstances. 17 Because the statutes

17 MCL 600.5838a(1) provides that a medical ma lpractice claim “accrues at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.” MCL 600.5838a(2), in turn, authorizes limited use of the rule, stating: “an action involving a claim based on medical malpractice may be commenced at any time w ithin the applicable period prescribe d in section 5805 or sections 5851 to 5856, or within 6 mo nths after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.” MCL 600.5838a(2) and (3) round out the statute’s compreh ensive governance of discovery-based tolling in this area. These sections require that actions commenced on the basis of di scovery must be brought w ithin six years of the act or omission unless the claim involves permanent loss of or damage to a reproductive organ resulting in the inability to procreate or disc overy of the claim was prevented by the fraudulent conduct of the defendant or his agents. In a similar vein, MCL 600.5839(1) exp ressly authorizes plaintiffs to bring suit to recover damages arising out of a defective and unsafe condition of an improvement to real property on the basis of when they discov er the defect; such a suit must be brought within “1 year after the defect is discovered or should have (continued...)

18authorize use of discovery-based tolling, we cannot agree that “[t]he only possible reason the Legislature would ha ve included this language is to take professional negligence claims outside the scope of the common-law discovery rule.” Post at 13 n 7. Moreover, the general prohibiti on on use of the discovery rule in malpractice cases is not “reduced to a redundan cy” because it “remove[s] professional negligence claims from the sc ope of a rule that the Legislature never recognized as existing.” Post at 13-14 n 7. Rather, in light of this Court’s ongoing use of the discovery rule, partic ularly in the medical malpractice arena, the Legislature pointedly clarified that a malpractice claim accrues regardless of when it is discovered, consistent with the mandate in MCL 600.5827, while also prescribing a tolling period for commencement of a suit based on discovery. Most significantly, both di ssenting justices’ interpret ations of the scheme directly contravene the broad mandate in § 5827 that, “[e]x cept as otherwise expressly provided, the p eriod of limitations runs from the time the claim accrues.” In accord with this mandate, MCL 600.5 838, 600.5838a, 600.5839, and 600.5855 provide that certain actions may be commenced after a claim is discovered, although the cl aim accrued in the past a nd the limitations period has run. Thus, these statutes are clearly expressed exceptions to the general rule in §

(...continued) been discovered.” The statut e also lists certain criteria th at justify use of the rule and limits its application to claims brought within “1 0 years after the time of occupancy of the completed improve ment, use, or acceptance of the improvement.” Id.

195827 that the limitations period begins r unning when the harm is done. Indeed, expressio unius est exclusio alterius

. MCL 600.5855 also belies the conten tion that the statutory exceptions merely limit, rather than exclusively au thorize, discovery-based tolling under certain circumstances. As we have discussed, MCL 600 .5855 provides for essentially unlimited tolling based on discovery when a claim is fraudulently concealed. If we may apply an extrasta tutory discovery ru le in any case not covered by the expressed exceptions , we will render § 5855 effectively meaningless because a plaintiff may toll th e limitations period simply by claiming he reasonably had no knowledge of the tort or the identity of the tortfeasor. He would never need to alle ge fraudulent concealment. Justice Weaver’s argument regarding this issue only serves to strengthen our point. She expl ains that “the fraudu lent concealment provi sion would not be helpful to this plaintiff, nor to other plaintiffs who, in the absence of fraudulent concealment, are unable to pursue a cl aim because they did not have the information necessary to establish a claim until after the period of limitation had expired.” Post at 20. Therefore, she concludes: “Given the distinct need for the common-law discovery rule to assist these inno cent plaintiffs, it cannot be said that the continued existence of the discove ry rule makes § 5855 superfluous. The two provisions can peacefully co-exist because they serve different purposes.”
Post at 21.

20To the contrary, the common-law disc overy rule fully encompasses the statutory rule allowing tollin g based on fraudulent concea lment. As described by Justice Weaver, for instance, the common-law rule applie d if the “plaintiff did not have enough information to allege” elemen ts of the claim, th rough no fault of his

own. Post at 9. The discovery of prev iously unknown information would therefore permit a claim to be saved by the discovery rule regardless of whether the information was intentionally obscured from the plaintiff. Thus, Justice Weaver’s interpretation renders the fraudul ent concealment statute unnecessary— because the statute’s purpose is subsum ed by the broader common-law rule—and ignores the Legislature’s decision to appl y the discovery rule to one class of undiscovered claims but not to all undisc overed claims. Although she attempts to protect innocent plaintiffs, she fails to acknowledge that the Legislature has balanced its desire to protect such plaintiffs against its desire to protect defendants from having to defend stale claims; the outcome of the balancing differs on the basis of the defendant’s culpability, or lack thereof, for obs curing the claim. Finally, we also disagree with Justi ce Kelly’s contention that the lower courts could noneth eless employ a discovery rule here because courts commonly did so in 1986 at the time of Eby’s deat h. She cites MCL 600.5869, which states: “[a]ll actions and rights shall be govern ed and determined according to the law under which the right accrued, in respect to the limitations of such actions or right of entry.” Post at 21. MCL 600.5827 and the three-year limitations period for wrongful death actions under MCL 600.58 05 have existed in their current forms

21since 1961 and 1 978, respectively. 18 Moreover, the related statutes defining and limiting the use of discovery rules unde r particular circumstances have also existed since 1986. 19 Thus, the relevant statutory la w has not changed since 1986. Regardless of whether we ag ree with Justice Kelly that § 5869 encomp asses both statutory and common law, she presents no authority or ex planation for how a unique, equitable, inherently backward-loo king doctrine such as the discretionary common-law discovery rule can be meaningfully applie d as “the law under which the right accrued.” First, a court could not have invoked the discovery rule in 1986 when the “right accrued ” because it was unnecessary ; the limitations period had not run. Sec ond, § 5869 does not require use of the rule, as Justice Kelly
presumes. Post at 22 n 13. Rather, the rule is judge-made law that has been applied on a case-by-case basis. In esse nce, Justice Kelly’s theory would render our opinion paradoxically meaningless b ecause our holding w ould not apply to events occurring any time before the day we decide this case; although a claim that accrues tomorrow will be subject to the relevant statutor y period and exceptions, a claim that accrued in 1986 may be brought at any tim e in the future, indefinitely. Most significantly, Justice Kelly’s focus on MCL 600.5 869 obscures the crux and effect of her position; she is asking us to refrain from applying our

18 1961 PA 236; 1978 PA 495. 19 MCL 600.5838 (amended by 1975 PA 142 to address discovery-based tolling); MCL 600.5838a (enacted by 1986 PA 178 with language addressing (continued...)

22holding in this case to this case. This position violates th e general rule that decisions are retroactive un less “exigent circumstances ” justify the “extreme measure” of prospective-only application. Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586; 702 NW2d 539 (2005) (internal quotati ons omitted). Even when a decision meets the threshold criterion for pr ospective applicati on because it clearly establishes a new principle of law, we must consider: “(1) the purpose to be served by the new rule, (2) the extent of reliance on th e old rule, and (3) the effect of retroactivity on the admi nistration of justice.” Pohutski v City of Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002). Here, pr ospective-only application is inappropriate. First, the very purpose of our holding is to respect limits the Legislature has placed on plaintiffs’ abili ties to revive suits relying on events occurring in the dist ant past; prospective applica tion is therefore directly opposed to our resolve to ho nor the Legislature’s policy choi ce. Moreover, as we already explained , the very nature of the discovery rule defies any reliance on its operation. Finally, the administration of justice is not significantly affected because the rights and interests of plain tiffs and defendants are opposed in these matters; although plaintiffs may be denied relief for st ale claims, defendants and the judiciary are relieved from having to defend and decide cases based on deteriorated evidence.

(...continued) discovery); MCL 600.5839(1) (amended by 1985 PA 188 to address discovery

based tolling); MCL 600.5855 (en acted by 1961 PA 236).

23For similar reasons, our decision does not “throw[] Michigan into topsy

turvy land, where a person’s legal cl aim dies before it is born.” Post at 23. A discovery rule is only necessary when a plaintiff’s clai m has accrued and he cannot bring suit within the limitations period. Nothing in our decision cuts off a plaintiff’s right to bring su it before the wrong is done; for, until the wrong is done, a claim does not accrue un der MCL 600.5827.
C. DUE PROCESS Plaintiff also asserts that, in cons truing MCL 600.582 7 as we do, we deprive her of due process 20 because she cannot seek damages for her injury. While she does not dispute that in normal circumsta nces three years, along with the statutorily allowed extension for p ersonal representatives, is reasonable, she asserts that it is unreasonabl e if she had no way of kn owing the identity of the perpetrator of the wrong. That is, she argues that it is unconstitutional for the Legislature to deprive a plaintiff who has an injury—but who, through no fault of his own, has no knowledge of who inju red him—of a cause of action. Plaintiff’s reasoning is rooted in the followin g passage from Price v Hopkin, 13 Mich 318, 324 (1865): [T]he legislative authority is not so entirely unlimited that, under the name of a statute limiti ng the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. . . . It is of the essence of a law of limitation that it shall afford a reasonable time with in which suit may be brought

20 US Const, Am XIV; Const 1963, art 1, § 17.

24and a statute that fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law. [Citations omitted.] Justices Kelly and Weaver also rely on Price for their contention that our holding violates due process. They misconstrue the holding in Price , however, which does not apply to this case.
Price does not address the discovery rule. Rather, there, the Court was faced with a new legislative enactment that shortened the limitations period during which a plaintiff could bring a suit for ejectment from land. Id. at 322-323. When the act took effect, it applied to all future cases that ha d not yet been filed. Id. at 323. Accordingly, the ability to bring suit was extingu ished for a limited class of plaintiffs who, before the act was passe d, had relied on the former limitations period and expected to be able to bring suit in the future. Id. at 323, 324-328. The
Price Court concluded that, under the circ umstances, due process was violated because a legislature may not “take away an existing right of acti on, by a statute of limitations which allows no tim e in which to bring suit after the statute has come into operation.” Id. at 324. Accordingly, the specific holding in Price has no bearing on this case, in which the limitations period has remained consistent since the time plaintiff’s causes of action accrued. 21 A plaintiff’s right to du e process is not violated

21 Justice Weaver argues that, in Chase, supra at 196, this Court cited Price as general support for continue d use of the discovery rule. Post at 24-25. The (continued...)

25because a desired remedy is no longer av ailable; every statute of limitations deprives plaintiffs of a remedy at the mo ment the period of limitations expires. Indeed, in Price , the newly shortened limitations period was not problematic, in and of itself, as a matter of law. Price, supra at 323-324. Rather, it was only unconstitutional as applied to the plaintiff. Id. at 328. The general rule expressed
in Price remains: The general power of the legisl ature to pass statutes of limitation is not doubted. The time th at these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has b een unwisely exercised. [ Price, supra at 324.]
Given the Legislature’s un questioned power, the only question we must ask—as with any due process analysis of a st atute that involves neither a suspect classification such as race, alienage, ethnic ity or national origin, nor a deprivation

(...continued) reference to Price in Chase directly precedes a discu ssion of the general proposition—rooted in MCL 600.5827 and explained in Connelly, supra —that a negligence claim accrues not when a defendant breach es a duty, but when a plaintiff is injured. Any other conclusion “could pote ntially bar a plaintiff’s legitimate cause of action befo re the plaintiff’s injury.” Chase, supra at 196. We agree that this potential effect could “‘declare the bread stal e before it is baked,’” id. at 197 (citation omitted), and raise the due process concerns described in Price

. We reject the Chase Court’s interpretation of Price only to the extent Chase may be read, as Justice Weaver suggests, to ass ert that a plaintiff’s due process rights are violated under Price if an otherwise reasonable limitations period expires before a plaintiff is aware of the claim. Such an interpretation of Price would eschew the Price Court’s assertion that it is fully within th e power of the Legislature to enact reasona ble periods of limitations.

26of a fundamental right—is whether it “‘b ears a reasonable relation to a permissible legislative objective.’” Phillips v Mirac, Inc, 470 Mich 415, 436; 685 NW2d 174 (2004) (citation omitted). Statutes of limit ations “serve the permissible legislative objective of relieving defendants of the bu rden of defending cl aims brought after the time so established.” O'Brien v Hazelet & Erdal, 410 Mich 1, 14; 299 NW2d 336 (1980). 22 This Court has also explained th at “[i]f the Legislature can entirely abrogate a common-law right, surely it ma y provide that a particular cause of

22 See, also, Stephens v Dixon , 449 Mich 531, 536; 536 NW2d 755 (1995) (brackets in original): “While providing equitable relief to plaintiffs otherwise barred by a strict application of the statute of limitations, the discovery rule also threatens leg itimate interests of the defendant which the statute protects. While it may be harsh to bar the action of a plaintiff who, through no fault of his own, did not discover his injury until after the ru nning of the statute, it is also unfair . . . to compel a defendant to answer a ch arge arising out of events in the distant past. The discovery rule tends to undermine the sense of security that the statute of lim itations was designed to provide, namely, that at some point a person is entitled to put the past behind him and leave it there.” [Olsen, The discovery rule in New Jersey: Unlimited limitation on the statute of limitations, 42 Rutgers LR 205, 211-212 (1989).] In her dissent, Justice Kelly asserts: “T he purpose of a limitations statute is to ‘penalize plaintiffs who have not been industrious in pursuing their claims,’ not to eliminate a valid cause of action wh en the plaintiff is without fault.” Post at 19, quoting Lemmerman v Fealk, 449 Mich 56, 65-66; 534 NW2d 695 (1995). She ignores that limitations periods are also aimed at relieving defendants from the burden of defending stale claims. Justice Weaver ack nowledges the dual purposes of limitations periods. When she asserts that the equities favor plaintiff in this case, however, Justice Weaver merely distinguishes Stephens, supra, in which the discovery rule was clearly inapplicable b ecause the plaintiff knew of her injury and its cause before the lim itations period expired. Post at 8, 13-14.

27action can no longer arise unless it accrues within a specified period of time.” Id. at 15. In light of the permissible legislative objectives of statutes of limitations, O’Brien, supra, the statutes applicable to th is case unquestio nably further a legitimate legislative aim. The Le gislature obviously weighed carefully the competing interests of plain tiffs and defendants when it limited a plaintiff’s ability to bring suit under MCL 600.5827 and MCL 600.5805, but protected plaintiffs by affording a limited extension for persona l representatives, MCL 600.5852, as well as a discovery-based tolling provision when a defendant fraudulently conceals claims, MCL 600.5855. Gi ven the three-year limitations period and its potential extensions, we cannot say that the Legi slature failed to “afford a reasonable time within which suit may be brought.” Price, supra at 325. Accordin gly, our holding does not violate plaintiff’s due process rights.
D. EQUITAB LE TOLLING UNDER BRYANT v OAKPOINTE VILLA NURSING CENTRE, INC Finally, we decline plainti ff’s request to employ a “pinpoint application of equity” to her claims so as to render them timely, on th e unique facts of this case. In making this request, plaintiff relies largely on Bryant v Oakpoi nte Villa Nursing Centre, Inc , 471 Mich 411; 684 NW2d 864 (2004). In Bryant, we addressed the difference between actions sounding in ordi nary negligence and those sounding in medical malpractice. We concluded that some of the plaintiff’s claims sounded in malpractice, and woul d have been barred by the ma lpractice limitations period.

28Id. at 432. Nonetheless, we allowed the p articular plaintiff’s malpractice claims to proceed with th e negligence claims because [t]he distinction between actions sounding in medical malpractice and those sounding in ordinary neg ligence is one that has troubled the bench and bar in Mi chigan . . . [and the p]laintiff’s failure to comply with the a pplicable statute of limitati ons is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights. [ Id. at 432.] As we clarified in Devillers v Auto Club Ins Ass’n, 473 Mich 562, 590 n 65; 702 NW2d 539 (2005), however, our use of equity in Bryant is limited to those circumstances when the courts themse lves have created confusion. In Bryant, the use of equity was appropriate because of “the preexisting ju mble of convoluted caselaw through which the plaintiff was for ced to navigate.” Devillers, supra at 590 n 65. Here, in contrast, plaintiff has not detrimen tally relied on confusing, pre-existing case law. By its very nature, the discovery ru le does not lend itself to detrimental reliance; plaintiffs seeking to invoke it do not wait to bring suit because they expect to rely on the rule, but because they claim that external factors prevented them from discov ering their claims. Perhaps most significantly, in Bryant, no controlling statute negated the application of equity; rather, this Cour t’s caselaw determined whether a claim sounded in medical malpractice or ordinary negligence. Devillers, supra at 590 n 65

. To the contrary, in the inst ant case, the statutory scheme controls limitations periods, accrual, and tolling, just as the no-fault act, specifically MCL 500.3145(1), controlled the outcome in Devillers. Id. As we opined in Devillers,

29supra at 591, if courts are free to cast aside a plain statute in the name of equity, even in such a tragic case as this, then imme asurable damage w ill be caused to the separation of powers ma ndated by our Constitution. 23 Statutes lose their meaning if “an aggrieved party need only convince a willing judge to rewrite the statute under the name of equity.” Id. Significantly, such unrestrai ned use of equity also undermines consistency and predictability for plaintiffs and defendants alike.
IV. CONCLUSION We hold that the plain language of MCL 600.5827 precludes the use of a broad common-law di scovery rule to toll the accrual da te of claims to which this statute applies. Here, the wrong was do ne when Eby was rap ed and murdered in 1986. MCL 600.5827 was in eff ect at that time. Accord ingly, plaintiff’s claims accrued at the time of Eby’s death. The Legislature has evinced its intent that, despite this tragedy, the defendant-appellants may not face the threat of litigation 16 years later, merely because plaintiff a lleges she could not reasonably discover the facts underlying their poten tial negligence until 2002. We reverse the judgment of the Court of Appeals as well as the circuit court’s order denying the defendant-appe llants’ motions for summary disposition

23 Const 1963, art 3, § 2.

30under MCR 2.116(C)(7). We remand to the circuit court for further proceedings consistent with this opinion.
Maura D. Corrigan Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

31v S T A T E O F M I C H I G A N
SUPREME COURT

DAYLE TRENTADUE, as Personal Representative of the Estate of MARGARETTE F. EBY, Deceased, Plaintiff-Appellee,
No. 128579 JEFFREY GORTON, VICTOR NYBERG, TODD MICHAEL BAKOS, MFO MANAGEMENT COMPANY, and CARL F. BEKOFSKE, as Personal Representative of the Estate of RUTH R. MOTT, Deceased, Defendants, and
BUCKLER AUTOMATIC LAWN SPRINKLER COMPANY, SHIRLEY GORTON and LAUREN CE W. GORTON, Defendants-Appellants.

DAYLE TRENTADUE, as Personal Representative of the Estate of MARGARETTE F. EBY, Deceased, Plaintiff-Appellee,

v Nos. 128623, 128624, and 128625 BUCKLER AUTOMATIC LAWN SPRINKLER COMPANY, SHIRLEY GORTON, LAURENCE W. GORTON, JEFFREY GORTON, VICTOR NYBERG, TODD MICHAEL BAKO S and CARL L.BEKOFSKE, as Personal Representative of the Estate of RUTH R. MOTT, Deceased, Defendants, and MFO MANAGEMENT COMPANY, Defendant-Appellant.

WEAVER, J. ( dissenting ). I dissent from the majority’s conclusion that MCL 600.5827 exclusively governs the time of accrual of plaintiff’s claims. I would affirm the Court of Appeals decision applying the common-law “discovery rule,” 1 which operates to toll the statutory period of limitations when a plainti ff could not ha ve reasonably discovered the elements of a cause of ac tion within the limita tions period. Further, I concur with Justice Kelly that under the test set forth in Robinson
v Detroit , 2 the discovery rule “has become so embe dded, so accepted, so fundamental, to everyone’s expectations that to chan ge it would produce not just readjustments, but practical real-world dislocations.” 3

1 Johnson v Caldwell, 371 Mich 368, 379; 123 NW 2d 785 (1963). See also Moll v Abbott L aboratories, 444 Mich 1, 16-17; 506 NW2d 816 (1993).

2 462 Mich 439; 613 NW2d 307 (2000).

3 Id. at 466.

2FACTS In 1981, Dr. Margaret Eby moved to Flint, Mich igan, and began leasing a two-story gatehouse located near the ent rance to the Ruth R. Mott estate (Mott Estate). Evidently Mrs. Mo tt lived a hermitic lifestyle on the Mott Estate grounds known as “Applewood.” Virtually all h er personal dealings were handled by the Mott Family Office (MFO). 4 The gatehouse was remote ly located some distan ce from Mrs. Mott’s home and the gatehouse basement contained th e valves and piping that supported the sprinkler system for the enti re Mott Estate grounds. In January 1985, Dr. Eby complained to Mrs. Mott about break-ins she experi enced at the gatehouse, including an incident on January 23, 1985, during wh ich Dr. Eby’s compact disc player and purse were stolen. Paul Yage r, then the chief executive officer of MFO, responded to Dr. Eby’s complaint on behalf of Mr s. Mott. In response to Dr. Eby’s complaint an d her request for installation of a security alarm system, Mrs. Mott had new deadbolt locks installed. No alarm system was installed. Nearly two years later, late in the ev ening on November 7, 1986, Dr. Eby returned to the gatehouse after a dinner part y. Two friends acco mpanied her to the gatehouse door and wa ited until she was safely inside before departing. Two days later, Dr. Eby was found dead in her gatehouse. She ha d been attacked, raped, and

4 MFO was formed in 1969 to attend to the financia l and personal needs of Ruth Mott, her children, and her nieces and nephews.

3knifed to death. The police investigation of Dr. Eby’s death focused primarily on persons who might have been known to Dr. Eb y because there app eared to be no sign of forced entry. Poli ce interviewed a number of su spicious persons, but there was never any evidence developed that im plicated those persons in Dr. Eby’s death. The evidence coll ected included deoxyribonuc leic acid (DNA) evidence (semen) from Dr. Eby’s body, as well as a partial fingerp rint from a faucet inside the gatehouse. In 1991, Nancy Ludwig, an airline attendant, wa s attacked, raped, and knifed to death in a hotel near the Detroit Metropolitan Airport. The circumstances surrounding her death were st rikingly similar to Dr. Eby’s, and at the request of Dr. Eby’s son, the police reopened the investiga tion into Dr. Eby’s death. After additional DN A testing on evidence collect ed from both victims, and after comparing fingerprints left at both crime scenes, in vestigators were able to determine that Jeffrey Gorton committed both murders. 5 Before Dr. Eby’s death in 1986, Jeffrey Gorton was an employee of Buckler Automatic Lawn Sp rinkler Company (Buckler), which serviced the Moss Estate’s sprinkler system. Buckler was owned by Jeffrey Gorton’s parents, Laurence and Shirley Gorton. Jeffrey Gorton was provid ed access to the sprinkler

5 Gorton was apprehended in Florida and sentenced to life in prison on February 13, 2003, after plead ing no contest to first-de gree murder, MC L 750.316, and first-degree criminal sexual conduct, MCL 750.520b.

4system controls housed in the gatehous e basement through Mott Estate staff members Victor Nyberg and Todd Bakos, both allegedly employed by MFO. On August 2, 2002, six months after discovering the identity of Dr. Eby’s murderer through the arrest of Gorton, plaintiff Dayle T rentadue, daughter of Dr. Eby and personal representative for the esta te of Margarette F. Eby (estate of Eby), filed a wrongful d eath complaint against mul tiple defendants. The defendants included Buckler, its owners Laurence and Shirley Gorton, Jeffrey Gorton, Ruth Mott, MFO, and MFO employees Nyberg and Bakos. The complaint alleged, among other things, ne gligent hiring and negligent supervision of Dr. Eby’s killer, Jeffrey Gorton. 6 With regard to her claims against th e Mott Estate, MFO, and Nyberg and Bakos for negligent hiring an d negligent supervision, pl aintiff alleges that on November 5, 1986, MFO employees Nyb erg and Bakos provided Gorton with unsupervised access to the gatehouse baseme nt to winterize the sprinklers, and that

6 With regard to her claims against Buckler a nd the Gortons for negligent hiring and negligent supervision, plain tiff alleges that in 1985, a year before Gorton killed Dr. Eby, Go rton’s parents were aware that Gorton had just been released from a Florida prison after serv ing time for assault crimes. Evidently Jeffrey Gorton had a history of violence against women and his felony convictions in Florida involv ed physical assaults on women. His paternal grandparents even appeared for his se ntencing in Florida and begged the judge to permit Gorton to get psychiatric he lp for his violent outbursts against women. Yet, despite this knowledge, the Gortons employed their son in the family business and sent him to serv ice the sprinklers at the Mott Estate.

5it was by this means that Gorton was subsequently able to come back on November 7 to attack and kill Dr. Eby. 7 Moreover, despite Dr. Eby’s earlier and repeated requests to defendant s Ruth Mott and MFO to impr ove the secur ity of the gatehouse, plaintiff alleges that defenda nts were negligent in failing to provide adequate security, thereby permitting J effrey Gorton’s access to the gatehouse. All defendants filed motions for summary disposition, but the circuit court granted summary disposition only to defendants Mott a nd MFO, and only on one count (count VIII, which a lleged that the premises were unsafe). The parties appealed, and the Court of Appeals rev ersed summary disposition for MFO on count VIII, affirmed in all other respects, and remanded the matter to the circuit court for further proceedings. 8 In so ruling, the Court of Appeals concluded that the discovery rule tolled the period of limitations because plaintiff had no basis to assert claims against any defendant until the murderer’s culp ability was discovered. Defendants appealed, and we granted l eave, directing the parties to include among the issues to be briefed:

7 Plaintiff suggests that when Nyb erg and Bakos gave Gorton access on November 5, they failed to re-secure the ga tehouse basement access so that Gorton was then later able to enter the gate house on November 7 through the unlocked basement door.

8 Trentadue v Buckler Automatic Lawn Sprinkler Co, 266 Mich App 297; 701 NW2d 756 (2005). The decision was initially unpub lished, but the court later granted plaintiff’s publication request.

6[W]hether the Court of Appeal s application of a common-law discovery rule to determine when plaintiff’s cl aims accrued is inconsistent with or contraven es MCL 600.5827, and whether previous decisions of this Court, wh ich have recogni zed and applied such a rule when MCL 600.5827 would otherwis e control, should be overruled. [ Trentadue v Buckler Automa tic Lawn Sprinkler Co, 475 Mich 906 (2006).] ANALYSIS MCL 600.5805(10) provides that in wro ngful death actions, “[t]he period of limitations is 3 years after the time of the death or injury . . . to recover damages for the death of a person . . . .” Further, MCL 600.5827 states: Except as otherwise expre ssly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 58 38, and in cases not covered by these secti ons the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. Both of the above provi sions appear in the Revised Judicature Act, MCL 600.5801 et seq ., in the chapter en titled “Limitation of Ac tions.” The policy considerations behind the enact ment of statutes of limitations were noted by this Court in Lothian v Detroit : 9 They encourage the prompt recovery of damages, Buzzn v Muncey Cartage Co , 248 Mich 64, 67; 226 NW 836 (1929); they penalize plaintiffs who have not b een industrious in pursuing their claims, First National Bank of Ovid v Steel , 146 Mich 308; 109 NW 423 (1906); they “afford security against stale demands when the circumstances would be unfavorab le to a just examination and decision”, Jenny v Perkins , 17 Mich 28, 33 (1868); they relieve

9 414 Mich 160, 166-167; 324 NW2d 9 (1982).

7defendants of the prol onged fear of litigation, Bigelow [ v Walraven ], supra , [392 Mich at] 576 [;221 NW 2d 328 (1974)]; they prevent fraudulent claims from being asserted, Bailey v Glover , 88 US (21 Wall) 342; 22 L Ed 636 (1875); a nd they “‘remedy . . . the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert’”. Lenawee County v Nutten, 234 Mich 391, 396; 208 NW 613 (1926). In Lemmerman v Fealk, 10 we further noted that “‘the primary purposes behind statutes of limitati ons are: 1) to encourage plai ntiffs to pursue claims diligently, and 2) to prot ect defendants from having to defend against stale and fraudulent claims.’” And cert ainly, had plaintiff herein failed to diligently pursue her claim, or attempted to file a fraudulent claim, this Court wo uld not hesitate to summarily apply these stat utes of limitations to b ar plaintiff’s suit. However, neither of th ese policy considerations will be furthered by application of these provisions given that plaintiff was deprived of the evidence necessary to even establis h that a claim existed un til long after the period of limitations had expired. It is precisely in situations such as th e one plaintiff here faces that this Court has applied the di scovery rule to p revent a statute of limitations from foreclosing on a plaintiff’s right to bring suit. And, in fact, the law in this state in 1986, the year of Dr. Eby’s murder, was that a cause of action did not accrue until the elem ents forming the basis of the complaint could be pleaded:

10 449 Mich 56, 65; 534 NW2d 695 (1995) (citation omitted).

8In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint. Those elements are four in number. (1) The existence of a legal duty by defendant toward plaintiff. (2) The breach of such duty. (3) A proximate causal relati onship between the breach of such duty and an inju ry to the plaintiff. (4) The plaintiff must have suffered damages. 11 At the time of Dr. Eby’s death, not all of the elements of a wrongful death action had “occurred.” The majority disagrees with this contention, ante at 10 n 10, arguing that each elemen t of plaintiff’s claim had “occurred” at the time Dr. Eby was murdered; however, wh ile I concede that the events had “occurred,” the fact is that plaintiff did not have enough in formation to allege that Dr. Eby’s death was the result of the neglig ent acts of Ruth Mott, MFO and its employees, and Buckler Automatic Sprinkler Co and its employees and ow ners. In other words, the information available to plaintiff at the time of Dr. Eby’ s death did not put plaintiff on notice that a claim could be made against the various defendants. Plaintiff was not alerted to the availability of a claim to be made against defendants until plaintiff learned the id entity of the killer and the killer’s connection to defendants. Plaintiff was not aware of the killer’s identity, nor was

11 Connelly v Paul Ruddy’s Co, 388 Mich 146, 150; 200 NW2d 70 (1972).

9plaintiff aware of the connection the killer ha d to any of the poten tial defendants. Consequently, there was no basis for plead ing that any duty was owed to the plaintiff by any potential defendant. The evidence collected te nded to show that Dr. Eby was killed by an acquaintance, given that there was no sign of forced entry into the gatehouse. Because the poli ce evidently theori zed that Dr. Eby knew the killer, their investigation focu sed on Dr. Eby’s known acquaintances. Consequently, the police never qu estioned killer Jeffrey Gorton, the Buckler employee, nor was there ever any investigati on into the relationship between Buckler, MFO, a nd Ruth Mott. Dr. Eby’s murder remained unsolved until years after the period of limitations had expired; thus, pl aintiff lacked the essential piece of evidence—the fact that Buckler employee Jeffrey Gorton attacked, raped, and killed Dr. Eby. It was only up on discovering this critical information that plaintiff wa s able to establish, after re opening the investigation, that the elements necessary to bring a wrongful death cl aim were in fact all present and could be alleged in a complaint. And while defendants have asserted that despite th e absence of the critical information pertaining to how Dr. Eby in fact died, plaintiff could still have adequately alleged a general negligence cl aim within the statutory period, had she done so, her claim likely woul d have been deemed legally deficient given that the criminal evidence collected at the time of Dr. Eby’s death tended to indicate that Dr. Eby herself allowed the k iller into her own home.

10As we stated in Stephens v Dixon, 12 this case presents the unique situation in which this Court has traditiona lly applied the discovery rule: In Michigan, the limitation p eriod for ordinary negligence actions such as the case at b ar is three years. MC L 600.5805(8); MSA 27A.5805(8). The most complicated prob lem associated with statutes of limitation, and the proble m presented in this case, is that of determining when they begi n to run. MCL 600.5805(8); MSA 27A.5805(8) provides that “[t]he cl aim accrues at the time . . . the wrong upon which the claim is based was do ne regardless of the time when damage results.” MC L 600.5827; MSA 27A.5827. We have held that the term “wrong,” as used in the accrual provision, refers to the date on which the plaintiff was harmed by the defendant’s negligent act, not the date on which the defendant acted negligently. Connelly v Paul Ruddy’s E quipment Repair & Service Co , 388 Mich 146; 200 NW2d 70 (1 972). Otherwise, a plaintiff’s cause of action could be barred before the injury took place. Another accrual problem associated with statutes of limitation occurs when a plaintiff is injured but is unaw are of the injury. If the statute of limitation begins to run at the time of injury, it is possible that plaintiffs with perfectly va lid claims could be prevented, through no fault of their own, from bringing their actions within the specified period of lim itation. In situations such as these, the common law has developed equitable rules to mitigate the harsh effects of the statute of limitation. One such exce ption is the discovery rule. The discovery rule, based on principles of fundamental fairness, “w as formulated to a void the harsh results produced by commencing the runni ng of the statute of limitations before a claimant was aware of any basis for an action.” Hammer v Hammer , 142 Wis 2d 257, 264; 418 NW2d 23 (1987). We explained the discovery rule in Chase v Sabin , 445 Mich 190, 196-197; 516 NW2d 60 (1994). In Chase , a 1963 eye operation failed because of an event that occurred during the operation. The plaintiff was not told of the occu rrence. In 1988, wh ile pursuing an unrelated worker’s comp ensation claim, the pl aintiff’s attorney obtained a hospital record of the su rgery and learned of the event. We stated:

12 449 Mich 531, 534-536; 536 NW2d 755 (1995).

11“Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cau se of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances. La st term . . . we held that the discovery rule controls the date a pharmaceutical products liability action accrues. ‘If the three-y ear period of limitati on began to run at the time of the defendant's breach, mo st, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretati on seeks “to declare the bread stale before it is baked.”’” (Citation omitted.) We note that while the discovery rule serves as an important limit on a mechanical and unjust termination of a legitimate cause of action, there can be equitable pr oblems with the imposition of the discovery rule as well. As one commentator has stated: “While providing equitable relief to plaintiffs otherwise barred by a strict application of the statute of limitations, the discovery rule also threatens leg itimate interests of the defendant which the statute protects. While it may be harsh to bar the action of a plaintiff who, through no fault of his own, did not discover his injury until after the ru nning of the statute, it is also unfair . . . to compel a defendant to answer a ch arge arising out of events in the distant past. The discovery rule tends to undermine the sense of security that the statute of lim itations was designed to provide, namely, that at some point a person is entitled to put the past behind him and leave it there. [Olsen, The discovery rule in New Jersey: Unlimited limitation on the statute of limitations , 42 Rutgers L R 205, 211-212 (1989).]” Given the competing in terests of balancing the plain tiff’s right to bring a claim once a plaintiff learns of the injuries with the defendant’s right not to have to defend a stale claim, the Stephens Court went on to discu ss when to apply the discovery rule: In the present case, th e plaintiff proposes that we take a step beyond the rule of Chase [ v Sabin, supra ]. There, we held that “the discovery rule governs the accrual date for negligence claims, pursued against hospitals and th eir agents, which are similar to

12malpractice claims.” Id. at 201. By contrast, the present case involves allegations of ordinary negligence. In Moll v Abbott Laboratories , 444 Mich 1, 12-13; 506 NW2d 816 (1993), we noted this C ourt’s adoption of the discovery rule for medical malpractice cases in Johnson v Caldwell , 371 Mich 368; 123 NW2d 785 (1963), in negligent misrepresentation cases in Williams v Polgar , 391 Mich 6; 215 NW2d 149 (1974), and in products liability actions for as bestos-related diseases in Larson v Johns-Manville Sales Corp , 427 Mich 301; 39 9 NW2d 1 (1986). In Moll , we extended the application of the discovery rule to products liability actions for pharmaceutical products liability actions. Defendant correctly points out that in these contexts, evidentiary records are rarely diminished by the pa ssage of time. Hence, as we stated in Larson , supra at 312, quoting Eagle-Pitcher Industries, Inc v Cox , 481 So2d 517, 523 (Fla App, 1985), “the concern for protecting defendants from ‘time-fl awed evidence, fading memories, lost documents, etc.’ is less signifi cant in these cases.” That is not the case in automobile tort liabi lity cases, where th e evidence for liability defense is ofte n dependent on fading me mories of individual witnesses. We hold that the discovery rule is not available in a case of ordinary negligence wh ere a plaintiff merely misjudges the severity of a known injury. [ Id . at 537.] Ultimately, the Stephens Court declined to extend th e discovery rule in that case because, unlike plaintiff herein, the plaintiff in Stephens not only knew she was injured, but knew th e cause of her injury before the period of limitations expired. The plaintiff in Stephens had argued that even though she knew she was injured, she did not know the true extent of her injuries un til after the period of limitations had e xpired. Citing Connelly, supra, the Court declined to apply the discovery rule and restated the rule that “a cause of action for tortious injury

13accrues ‘when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.’” 13 In contrast to the plaintiff in Stephens, plaintiff Trentadue, as personal representative of the estate of Eby, did not have the information available to bring a wrongful death claim until she knew who the killer was and how the killer managed to get access to Dr. Eby’s privat e residence. Essen tially, the “injury,” that is, the wrongful death, was not apparent until 16 ye ars after Dr. Eby’s death. Nor was the “cause” of that injury apparent until after the period of limitations had expired. In determining when th e wrongful death claim ac crued, we turn to MCL 600.5827: Except as otherwise expre ssly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 58 38, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results . [Emphasis added.] The statute does not define “wrong” or “damage,” but this Court has already examined these terms and prov ided the following analysis: Defendants argue that the statut ory provision “* * * the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results” means, in the context of this case, that claims against them are b arred, since breach of duty claimed against them must have occurred prior to March 15, 1965, more than 3 years b efore action was commenced.

13 Stephens, supra at 539, quoting Connelly, supra at 150.

14Defendants contend that the word wrong refers to an act of carelessness or negligence in repair ing or handling the press. By their view, the word damage refers to the persona l injury suffered by the plaintiff on May 12, 1965, the day that the press malfunctioned. Defendants claim that interpreting the word wrong to mean actionable wrong, tort, harm or injury is to broaden the meaning of that word, and render the word damage entirely meaningless. It is argued by the plaintiff th at under such a view, her claim is barred before she was hurt. She would never have been able to commence an action at all. By that interpretation, plaintiff says, the statute is not one of limitation but one of abolition, comp letely destroyi ng her cause of action before it arises. Defendants counter by pointing out that the statute of limitations is a statute of repose, designed to protect defendants from stale claims; that this is an industrial state and it is therefore reasonable to conclude that the Le gislature intended to protect industrial and commercial interes ts by fixing a certain limit upon exposure to liability for faulty products and workmanship. We cannot accept the defendants’ view. However desirable the stated objectives might be, it is doubted that such was the legislative purpose. The statute in question is the Revised Judicature Act. It was drawn, as defendant s point out, by a distinguished committee of lawyers, known as th e Joint Committee on Michigan Procedural Revision. The pur pose of the Act was to effect procedural improvements, not advance social, industrial or commercial policy in substantive areas. The word damage is not rendered meaningless in a fair reading of the statute, even where the word wrong is understood to mean actionable wrong

. It is quite common in personal injury actions to allege and prove future loss of ea rning capacity, future medi cal expenses, future pain and suffering. Indeed all of th ese elements must be alleged and proved in a single cause of action. Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run . Later damages may result, but they give rise to no new cause of

15action, nor does the statute of limita tions begin to run anew as each item of damage is incurred. [ Connelly , supra at 150-151 (emphasis added).] Thus, for purposes of a wrongful d eath action in which a plaintiff seeks damages for tortious injuries and death su ffered by the decedent, the time that the claim first accrues is the poin t in time when “all of the elements of an action for personal injury, including th e element of damage, are p resent . . . .” Because plaintiff, through no fault of her own, lack ed the information n ecessary to establish the elements of wrongful death until 16 years after Dr. E by’s death, the claim did not accrue until plaintiff became aw are of that information. Today, the majority overrules Johnson and its progeny, effectively depriving plaintiff, and future potential in jured parties, from seeking compensation when their injuries are not known to them before the statutory period of limitations expires. As a result, statutes of lim itations will be imposed not on those who would sit on their rights, but on the innocent, who, through no fault of their own, have been deprived of the information necessary to brin g an otherwise valid claim. The majority’s justificati on for the abolition of the discovery rule is that with the enactment of MCL 600.5801 et seq. , the Legislature created a comprehensive statutory scheme mean t to supersede any existing common law dealing with the subject matter. Ante at 11-12. Yet, the au thority cited in support of the majority’s argument is unpers uasive. The majority points to Hoerstman

16Gen Contracting, Inc v Hahn 14 as the basis for its conclusion that MCL 600.5801 et seq . were enacted to abrogate the common-law discovery rule. However, in
Hoerstman , the statute at issue was Article 3 of the Uniform Commercial Code,
MCL 440.3101 et seq . The question we faced was wh ether after the enactment of MCL 440.3311, the comm on-law defense of accord and satisfaction was eliminated. In finding th at the Legislature did so intend, we stated: As already noted, Article 3 of the UCC is comprehensive. It is intended to apply to nearly ever y situation involving negotiable instruments. See MCL 440.3102. The language contained in MCL 440.3311 completely covers the details of accord and satisfactions

. MCL 440.3311(3) and (4) contain exceptions or conditions. Their enumeration eliminates the po ssibility of their being other exceptions under the legal maxim expressio unius est exclusio alterius . The maxim is a rule of cons truction that is a product of logic and common sense. This Cour t long ago stated that no maxim is more uniformly used to pr operly construe statutes. Therefore, the language of the statute shows that the Legislature covered the entire area of accord an d satisfactions involving negotiable instruments. It clearly intended that the statute would abrogate the comm on law on this subject . [ Id. at 74-75 (citations omitted; emphasis added).] The rationale from Hoerstman is not applicable to the statutory scheme at issue here because MCL 600.5801 et seq . lack the comprehensive enactment language found in the negotiable instrume nts statute. Importantly, MCL 440.3102 defines the scope of the statute and its reach, whereas the same cannot be said of

14 474 Mich 66, 74; 711 NW 2d 340 (2006), quoting Millross v Plum Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987), citing 2A Sands, Sutherland Statutory Construction (4 th ed), § 50.05, pp 440-441.

17MCL 600.5805. In particular, MCL 440.3102(1) provides: “ This article applies to negotiable instruments. It does not apply to money, to payment orders governed by article 4a, or to securities governed by article 8.” (Emphasis added.) Chapter 58 of the Revised Judicature Act does not contain a comp arable provision defining the scope of the chapter. The majority claims that Hoerstman and Millross are not distinguishable on this basis, ante at 11 n 12, because these cases do not establish that the Legislature must use certain language to abrogate the common law. However, as the
Hoerstman Court correctly noted, “[t]he Legislature has the author ity to abrogate the common law.” 15 And “[w]hen it does so, it should speak in no uncertain
terms.” 16 Thus, language defining the scope of a chapter is just one example of the kind of language that the Legislature has us ed to convey its inte nt to abrogate the common law. What is important in conveying such intent is that the legislation be comprehensive. For example, the Hoerstman Court cited Millross, supra, for the proposition that comprehensive legi slation abrogates the common law. 17 Millross provides even stronger eviden ce that the statutory sche me herein is distinct from the statutory schemes at issue in both Hoerstman and Millross . Specifically, in

15 Id. (citation omitted).

16 Id. (citations omitted).

17 Hoerstman, supra at 74.

18Millross , this Court noted that abrogation was appropriate because it was clear that “the Legislature intended the dramshop act to be a complete and self-contained solution to a problem not adequately addr essed at common law and the exclusive remedy for any action arising under ‘dramshop-related facts.’” 18 “Indeed,” the Court went on to note that the Legislature has amended the act to expressly codify this intent in 1986 PA 176, which provid es in pertinent part, “ This section provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor.” MCL 436.22(11); MSA 18.993(11). [ Millross, supra at 186 (emphasis added).] In contrast, nowhere in Chapter 58, Limitations of Actions, is there a provision establishing that that chapter is exclusive. Nor is there any language evidencing an intent by the Legislature to abolish the common-law discovery rule in order to provide “complete and self-contained” le gislation limiting the time in which actions coul d be brought and thereby replace the discovery rule. The majority asserts, ante at 12, that because the Legislature included MCL 600.5855, 19 the application of the common-la w discovery rule will render § 5855

18 Millross, supra at 185-186.

19 MCL 600.5855 states: If a person who is or may be lia ble for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the kn owledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the cl aim or the identity of (continued...)

19meaningless. I disagree, given that in order for a plaintiff to avail himself or herself of § 5855, there mu st still be evidence of fraudulent concealment. Here, where there does not appear to be evidence of fraudulent concealment on the part of any of the named defendant s, plaintiff would not be ab le to use this provision. 20 Thus, the fraudulent concealment provision would not be helpful to this plaintiff, nor to other plaintiffs who, in the abse nce of fraudulent con cealment, are unable to pursue a claim because they did not have the information necessary to establish a claim until after the period of limitations had expired.

(...continued) the person who is liable for the claim, although the action would otherwise be barred by th e period of limitations.

20 This Court discussed fraudulent concealment in International Union United Auto Workers v Wood, 337 Mich 8, 13-14; 59 NW2d 60 (1953): Fraudulent concealment was defined in De Haan v. Winter , 258 Mich 293, 296[; 241 NW 923 (1932), superseded by statute on other grounds Morgan v Taylor , 434 Mich 180 (1990)], as meaning the “employment of artifice, planne d to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character a nd fraudulent.” * * * Fraudulent concealment is more than mere silence. McNaughton v. Rockford State Bank , 261 Mich 265, 268[; 246 NW 84 (1933)]. * * * . . . Concealment by one oth er than the one sought to be charged is not with in the prohibition of the statute. See Stevenson v Robinson , 39 Mich 160 [1878].

20Further, I disagree with the majority ’s assertion that a narrowly drawn statute purports to change an entire body of common law in the absence of the Legislature explicitly stating that it so intends. The majority’s assertion incorrectly assumes that a narrowly tailored statute, wh ich is silent with regard to the broad scope of the discovery rule, so mehow changes the entire application of the discovery rule. 21
Given the distinct need for the common-law discover y rule to assist these innocent plaintiffs, it cannot be said that the continued existence of the discovery rule makes § 5855 superfl uous. The two provision s can peacefully co-exist because they serve different purposes. Indeed, it is eviden t that when the Legislatu re wanted to supersede the common-law discovery rule, it did so speci fically with regard to certain claims. For example, MCL 600.5838 establishe s the time in which a malpractice claim

accrues: (1) Except as other provided in section 5838a, a claim based on the malpractice of a p erson who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time

21 While the majority a sserts incorrectly that th e fraudulent concealment statute is “subsumed,” ante at 21, by the discovery rule because the discovery rule encompasses both fraudulent concealment claims and nonfraudulent concealment claims, the fact that the discovery rule has a broader application than the fraudulent concealment statute does not mean that the Le gislature sought to allow the use of the discovery rule only with respect to fraudu lent concealment claims. Nor does the continued existence of th e discovery rule v itiate the fraudulent concealment statute, which merely represents the Legislature’s decision to specify how the common-law discovery rule applie s to fraudulent concealment claims.

21that person discontinues serving th e plaintiff in a professional or pseudoprofessional capacity as to th e matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim

. (2) Except as otherw ise provided in sec tion 5838a, an action involving a claim based on malpr actice may be commenced at any time within the applicab le period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of pr oving that the plainti ff neither discovered nor should have discovered the existen ce of the claim at least 6 months before the expiration of the period otherwise a pplicable to the claim shall be on the plaintiff. A malpractice actio n which is not commenced within the time prescribed by th is subsection is barred. [Emphasis added.] [ 22 ] In contrast to the malpractice limita tion provisions, which indicate with specificity how the discovery rule should be applied, the wrongful death limitation provisions at issue here do not bar the use of the common-law discovery rule, nor do they limit the application of the discovery rule in certain in stances. Given the co-existence of these various limitation provisions, it is apparent that the Legislature recognized the continuing existence and viability of the common-law discovery rule and saw fit to limit it in certain instances (§§ 5838 and 5838a), but not in all instances. Specifically, MCL 60 0.5805 does not cont ain any provisions limiting the application of the discove ry rule, but inst ead provides: (1) A person shall not bring or maintain an action to recover damages for injuries to p ersons or property unless, after the claim first accrued to the plaintiff or to someone through whom the

22 MCL 600.5838a contains a comparab le accrual provision abolishing the availability of the discovery rule for medical malpracti ce claims filed under that statute.

22plaintiff claims, the action is comm enced within the periods of time prescribed by this section. * * * (10) The period of limitations is 3 years after the time of the death or injury for a ll other actions to recover damages for the death of a person, or for injury to a person or property. Ultimately, if plaintiff is denied her day in court on the basis of the majority’s interpretation of MCL 600.5827, plaintiff will be denied due process. This Court has held that while the Legisl ature has the power to enact statutes of limitations, those provisions will be deemed unconstitutional if they unreasonably deprive a plaintiff from bringing an otherwise valid claim: The general power of the legisl ature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so en tirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoev er may be taken away. A statute which forbids any suit for the recovery of lands is not a statute of limitations, but a statute to pass to adverse possessors the title of all other claimants; and its validity cannot depend upon the name bestowed upon it. It is of the e ssence of a law of limitation that it shall afford a reasonable time within which suit may be brought; and a statute that fails to do this canno t possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law. [ Price v Hopkin, 13 Mich 318, 324-325 (1865) (citations omitted).]

23More recently, this Court cited Price to support this Court’s long history of applying the discovery rule when a statut e of limitations would wrongfully deprive plaintiff of a reasonable time in which to bring a claim: 23
A statute of limitation should provide plaintiffs with a reasonable opportunity to commen ce suit. For over one hundred years, this Court has sought to fulfill this purpose, construing statutes accordingly. * * * Our adherence to this principl e resulted in our holding that the term “wrong,” as stated in the accrual statute, desi gnated the date on which the plaintiff was harmed by the defendant’s negligent act, as opposed to the date the defendant acted negligently. Connelly v Paul Ruddy’s Equipmen t Repair & Service Co , 388 Mich 146; 200 NW2d 70 (1972). Necessity dictated such a conclusion because an opposite interpretation could potentia lly bar a plaintiff’s legitimate cause of action before th e plaintiff’s injury. Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cau se of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances. Last term, in Moll , supra at 13, we held that the discovery rule co ntrols the date a pharmaceutical products liability action accrues . “If the three-year period of limitation began to run at the time of the defendant’s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks ‘to declare the b read stale before it is baked.’” (Citation omitted.) The same reasoning compe lled our application of the discovery rule to products liabil ity actions premised on asbestos related injuries, Larson , supra . In Southgate School Dist v West Side Construction Co , 399 Mich 72, 82; 247 NW2d 884 (1976), we held that the discover y rule governs the date a breach of warranty claim accrues, providing pl aintiffs with an adeq uate opportunity to bring suit. See also Williams v Polgar , 391 Mich 6; 215 NW2d 149 (1974) (the discovery rule go verns the accrual of negligent

23 Chase v Sabin, 445 Mich 190, 195-197; 516 NW2d 60 (1994).

24misrepresentation cases), and Dyke v Richard , 390 Mich 739; 213 NW2d 185 (1973) (the discovery rule governs the accrual of medical malpractice cases). The majority opinion dis putes the applicability of Price, yet this Court adopted the rationale from Price in both Moll and Chase on the basis that in each

case, where the plaintiff was not aware of the injury or its cause , the discovery rule was appropriately inv oked to permit the plainti ff to go forward on an otherwise time-barred claim. A statute of limitations that effectively deprives a plaintiff of the substantive right to bring an action is unreasonable. 24
CONCLUSION As a result of the majority’s conc lusion that MCL 600.5827 exclusively governs the time of accrual of plaintiff’s claims and that the discovery rule is therefore no longer availabl e to a plaintiff who c ould not reasona bly have discovered the elements of a cause of action, the majority has succeeded in depriving plaintiff, and those similarly s ituated, from having their day in court.

24 Taxpayers Allied for Constitutio nal Taxation v Wayne Co, 450 Mich 119, 125-126; 537 NW2d 596 (1 995) (“The one-year limitation is not in the class of limitation periods that are ‘so harsh and un reasonable in their c onsequences that they effectively divest plaintiffs of the acces s to the courts inte nded by the grant of the substantive right.’ Forest v Parmalee , 402 Mich 348, 35 9; 262 NW2d 653 (1978), citing Buscaino v Rhodes , 385 Mich 474; 189 NW2d 202 (1971).”). While the Taxpayers Court upheld the one-year st atute of limitations at issue, what is notable abou t that decision is the fact that the Court acknowledged that when a limitations peri od effectively deprives a plaintiff of judicial access, it will not be upheld. That is the very s ituation we face here if this Court deprives plaintiff of the right to apply the common-law discovery rule.

25Because I disagree with the majority’s conclusion that w ith the enactment of the Revised Judicature Act, the Legisl ature sought to abrogate the discovery rule, I would affirm the Court of App eals decision applying the common-law discovery rule and tolling the period of limitations where plaintiff could not have reasonably discovered th e elements of a wrongful deat h cause of acti on within the limitations period. Elizabeth A. Weaver Michael F. Cavanagh

26v S T A T E O F M I C H I G A N
SUPREME COURT

DAYLE TRENTADUE, as Personal Representative of the Estate of MARGARETTE F. EBY, Deceased, Plaintiff-Appellee,
No. 128579 JEFFREY GORTON, VICTOR NYBERG, TODD MICHAEL BAKOS, MFO MANAGEMENT COMPANY, and CARL F. BEKOKSKE, as Personal Representative of the Estate of RUTH R. MOTT, Deceased, Defendants, and
BUCKLER AUTOMATIC LAWN SPRINKLER COMPANY, SHIRLEY GORTON, and LAUREN CE W. GORTON, Defendants-Appellants.

DAYLE TRENTADUE, as Personal Representative of the Estate of MARGARETTE F. EBY, Deceased, Plaintiff-Appellee,

v Nos. 128623, 128624, and 128625
BUCKLER AUTOMATIC LAWN SPRINKLER COMPANY, SHIRLEY GORTON, LAURENCE W. GORTON JEFFREY GORTON, VITOR NYBERG, TODD MICHAEL BAKOS, and CARL L.BEKOFSKE, as Personal Representative of the Estate of RUTH R. MOTT, Deceased, Defendants, and MFO MANAGEMENT COMPANY, Defendant-Appellant.

KELLY, J. ( dissenting ). In this wrongful death action, the majo rity frames the is sue as whether the common-law discovery rule tolls the stat utory period of lim itations or whether MCL 600.5827 alone governs wh en plaintiff’s claims accru ed. It concludes that MCL 600.5827 alone controls. I strongly disagree with this deci sion for three reasons. First, MCL 600.5827 does not apply to this case. S econd, even if it did apply, the majority commits a tragic mistake by abandonin g Michigan’s decad es-old common-law discovery rule. Third, ev en accepting the majority’s decision to abolish the discovery rule from now on, this particular plaintiff should be allowed to claim the benefits of the rule. Accordin gly, I respectfully dissent.
F ACTS This case arises from the murder of Mrs. Margarette Eby. From 1981 to 1986, she rented the gatehouse on the Mott Estate (Applewood) where she was found dead on Nove mber 9, 1986.

2During that five-year period, Mrs. Eb y experienced occasional break-ins at the gatehouse and complained about them to Ruth Mott. Ruth Mott was Mrs. Eby’s landlord. She also lived at Applewood. Mrs. Mott’s affairs were handled by the MFO (Mott Family Office) Manage ment Company, which acted on her behalf in virtually every aspect of her business and personal life, including Applewood. The responses that Mrs. Eby received from letters written to Mrs. Mott in 1986 regarding break-ins at the gatehouse wa s typified by the following: While Mrs. Mott regrets the occurrence of last Wednesday night, it seems apparent that no system would have prevented your loss when the keys to make the system effectiv e were left in your unlocked car in front of the house. Further, when yo u leave the gate open frequently and fail to provide visual security through drags, curtains or blinds, unnecessary te mptation to unwelcome intruders is evident. On November 7, 1986, Mrs. Eby attende d a dinner party with three friends. Two of them accompanied her home, arriving at Applewood sometime after 11:00
p.m. Mrs. Eby’s companions observed h er attempt to unlock the front door. When she was unable to do so, she asked her friends to walk her to the side door. She was able to open the side door and her compani ons saw her lock the door before they left. Two days later, the gatehouse door was found open. Wh at was discovered inside has been described by the Flint Polic e Department officers who arrived at the scene as perhaps the most gruesome murder scen e they had ever encountered. Mrs. Eby’s body was found in her upstai rs bedroom. She had been attacked, raped, and knifed to death.

3The physical evidence pr ovided little of value. Be sides a partial fingerprint on a bathroom faucet, the poli ce uncovered virtually nothing to link the crime to a particular individual. As a result, it a ppears that the Flin t Police Department pursued the only theory that seemed to suit the murder scene, that Mrs. Eby voluntarily allowed the killer into her home. However, because Mrs. Eby had not been killed by an acquaintan ce, this theory pr oved fruitless. It is unclear why the police never considered that a complete stranger migh t have been Mrs. Eby’s killer. What no one knew at the time was that the MF O had given the killer, Jeffrey Gorton, access to the common area be neath Mrs. Eby’s home. Gorton was a lawn service employee of Buckler Automatic Lawn Sprinkler Company (Buckler). Two days befo re Mrs. Eby was raped and murdered, Gorton arrived at Applewood to perform sprink ler winterization. The MF O supervised the process and gave Gorton unsupervised access to the gatehouse basement. It is believed that, while in the house, Go rton unlocked an entry poi nt that allowed him to reenter the building on the ni ght of the murder. Gorton was first identifie d as a suspect when, abou t 16 years later, Mrs. Eby’s son recognized the similarities between his mother’s murder and the murder of Northwest Airlines flight attendant Nancy Ludwig. Al erted to the similarities, the police eventually conducted deoxyribonucleic ac id (DNA) testing on evidence collected from both victims. It showed that the same man killed both women. The fingerprint found on the faucet was also reex amined, and more sophisticated

4fingerprint techniques reveal ed that it belonged to J effrey Gorton, who was then living in Florida. A police surveilla nce operation resulted in gathering a DNA sample from Gorton that matched the sa mples retrieved from both victims. On February 8, 2002, Jeffrey Gorton was arrested and charged with murder. On January 6, 2003, he pl eaded no contest to a char ge of murdering Mrs. Eby more than 16 years earlier. He is currently serving a life sentence for the crime. On August 2, 2002, Mrs. Eby’s esta te filed a wrongful death complaint against Mrs. Mott’s estate (Mrs. Mott di ed in 1999), the MFO, MFO employees Todd Bakos and Victor Ny berg, Buckler, Jeffrey Gort on, and Gorton’s parents, Shirley and Laurence Gorton, who owned and operated Buckl er. In the complaint, plaintiff alleged that (1) Jeffrey Gorton k illed plaintiff’s decedent, (2) Mrs. Mott, the MFO, Bakos, and Nyb erg gave Jeffrey Gorton un supervised access to the decedent’s home, (3) Mott and the MF O were responsible on a respondeat superior theory for the ne gligence of Bakos and Nybe rg, (4) Mrs. Mott and the MFO had a duty but failed to provide adequate security for the resid ence despite the decedent’s repeated requests for it and notice of prior crimi nal activity at the site, (5) Buckler and Shirley and Lauren ce Gorton breached their duty to conduct adequate employment investigations to determine if prospective employees presented any danger, (6) Shirley and Laurence Gorton failed to supervise Jeffrey when they knew or should have known he was a th reat, (7) and Shirley and Laurence Gorton had respondeat superior liability becaus e they put Jeffrey in a position to rape and k ill the decedent.

5Each defendant, except Jeffrey Go rton, filed a motion for summary disposition, arguing that the claims w ere barred by the statute of limitations. Genesee Circuit Judge Robert M. Ranson ruled on the motions on October 28, 2003. With the exception of the claim against the MF O and Mrs. Mott’s estate that were premised on a gen eralized duty to keep Mrs. Eby safe, the motions were denied. The trial court rule d that, because plaintiff di d not know who killed Mrs. Eby before 2002, plainti ff did not know that someon e had breached a duty. Hence, plaintiff lacked kn owledge of the causation comp onent of the claims until
2002. The Court of Appeals granted defendants’ applications for leave to appeal. In a unanimous, published opin ion, the Court affirmed the part of the trial court’s decision that denied defenda nts’ motions for summary di sposition. But it reversed the part that grante d summary disposition to the MF O and Mrs. Mott’s estate on the claim alleging failure to pr ovide adequate security. Trentadue v Buckler Automatic Lawn Sprinkler Co , 266 Mich App 297, 299 ; 701 NW2d 756 (2005). The panel found that the common-law di scovery rule tolled the statute of limitations with respect to all the claims. It ruled that pl aintiff could not have been aware of a possible cause of action ag ainst defendants until Jeffrey Gorton was identified as the killer. Id. at 303-305. This Court granted defendants’ applica tion for leave to appeal, directing the parties “to include among the issues to be briefed whether the Court of Appeals application of a common-law discovery rule to determine when plaintiff’s claims

6accrued is inconsistent with or contraven es MCL 600.5827, an d whether previous decisions of this Court, which have rec ognized and applied such a rule when MCL 600.5827 would otherwise control, should be overruled.” 475 Mich 906 (2006).
S TANDARD OF R EVIEW In the absence of disputed facts, wh ether a cause of action is barred by a statute of limitations is a question of law that we review de novo. Boyle v Gen Motors Corp , 468 Mich 226, 229-230; 661 NW2d 557 (2003). We also review de novo a trial court’s decision on a motion for summary disposition. Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 7 09 NW2d 589 (2006).
MCL 600.5827 D OES N OT A PPLY TO P LAINTIFF ’ S C LAIMS This Court asked the parties to an swer whether the co mmon-law discovery rule conflicts with MCL 600.5827 and, if so, whether decisions of this Court recognizing the rule sh ould be overruled. MCL 600. 5827 is Michigan’s accrual
statute. It states: Except as otherwise expre ssly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 58 38, and in cases not covered by these secti ons the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. In deciding that the common-law disc overy rule conflicts with § 5827, a majority of this Court errs by deciding that § 5827 applies to plaintiff’s claims. Because I find that § 5827 is not implicated by this case, I conclude that this Court

7overreaches and unnecessarily decides that the common-law discovery rule is inapplicable when § 5827 applies. All tort causes of acti on are governed by a statut e of limitations. MCL 600.5805 is the statute that governs personal injury actions. The specific subsection that applies to plaintiff’s clai ms is MCL 600.5805(1 0). It provides: The period of limitations is 3 y ears after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property. Subsection 10 differs from the other su bsections of § 5805. The other subsections provide a specific period during which a case must be filed. But they do not provide an accrual period. 1 When these subsec tions apply, § 5827 determines when the limitations period begins to ru n. Unlike these subsections, subsection 10 provides not only a specific peri od for filing (wit hin 3 years), it provides when the acti on accrues (the time of death or injury). Given that § 5805(10) contains its own accru al provision, whenever § 5805(10) is applicable, one need not cons ider § 5827. Indeed, § 5827 states that its accrual provision is to be applied “[e ]xcept as otherwise expressly provided.” When § 5805(10) controls , the accrual of the limitati ons period is “otherwise expressly provided.” Hence, because § 5827 does not a pply, it is unnecessary for

1 Examples of these other subsecti ons illustrate this point: § 5805(2) specifies only that “[t]he period of limita tions is 2 years for an action charging assault, battery, or false imprisonment.” Similarly, § 5805(5) provides that “the period of limitations is 2 years for an action charging malicious prosecution.”

8this Court to address wheth er the discovery rule is app licable when § 5827 applies, and this Court overreaches by answering that question. 2

T HIS C OURT S HOULD N OT O VERRULE I TS O WN P RIOR D ECISIONS R ECOGNIZING THE C OMMON -L AW D ISCOVERY R ULE As demonstrated earlier in this opin ion, MCL 600.5827 does not apply to plaintiff’s claims. But, if it did, th e issue would be wh ether the common-law discovery rule saves plaintiff’s claims fro m the running of the statutory period of limitations or whether § 5827 alone determin es when plaintiff’s claims accrued. The majority has decided th at plaintiff’s claims cannot be saved by the common

law discovery rule and ha s overruled the prior decisi ons of this Court that recognized the rule. In so doing, it has wiped out caselaw with a foundation

2 The majority recognizes that MC L 600.5805(10) provides both the specific statutory period of lim itations and the date when that period begins to run. It follows that the major ity also implicitly recognizes that MCL 600.5827 has no application to this case. Yet, it proceeds to decide the case as if MCL 600.5827 applies. Of course, this makes it possibl e to use this case to decide whether the common-law discovery rule conflicts w ith MCL 600.5827. Reaching out to decide an issue that need not be decided is generally c onsidered a form of judicial activism. Apparently, the majority deems it appropriate to decide whether the discovery rule can save a claim when MCL 600.5827 otherwise applies because the result would be the same under MC L 600.5827 and MC L 600.5805(10). Regardless of whether this is true, it is well established that a court should only decide issues that are n ecessary to resolve the cas e at hand. Because MCL 600.5827 does not ap ply, the case should not be deci ded as if it did, regardless of whether the same result would appl y under either MCL 600.5827 or MCL 600.5805(10). The more prudent course wo uld be to decide this case under MCL 600.5805(10). The Court should wait for a case implicating MCL 600.5827 to decide whether the discovery rule can save a plaintiff’s claims from the running of the period of limitations when § 5827 would otherwise apply.

9stretching back well over 100 years. 3 Yet, each of the factors articulated in Robinson v Detroit 4 for deciding when it is appropr iate to overrul e the precedent of this Court counsel in favor set by retaining those decisions. 5

3 See the discussion of this Court’s rec ognition of the fundamental right of access to the courts on pages 15-16 of this dissent. 4 462 Mich 439; 613 NW2d 307 (2002). 5 The four justices who are in the ma jority in this cas e were also in the majority in Robinson . Looking back, one must ques tion the majority’s statement in Robinson that stare decisis is genera lly “‘the preferred course.’” Id. at 463 (citation omitted). This majority has never relied on the doctrine to uphold a prior decision of this Court. The majority attempts to turn the argum ent around and qu estions “whether [my] ongoing criticism truly concerns [my] attitude[] toward pr ecedent or merely [my] attitude[] towards specific p revious decisions of the Court.” Ante at 16 n 16. In support of this alle gation, the majority c ites its own opinion in People v Smith , 478 Mich 292; 733 NW2d 351 (2007), and my opinion in Haynes v Neshewat , 477 Mich 29; 729 NW2d 488 (2007). My opinions in these cases are easily distinguishable from a decisi on like the majority’s that eradicates a rule with a foundation stretching back well over 100 years. In Smith , the majority overruled People v Robideau, 419 Mich 458; 355 NW2d 59 2 (1984). I preferred to retain Robideau . My position in Smith does not support a clai m that I do not respect precedent. And in Haynes , I wrote the unanimous majo rity opinion. The opinion carefully considered the Robinson factors and concluded th at no factor counseled against overruling our decision in Kassab v Michigan Ba sic Prop Ins Ass’n , 441 Mich 433; 491 NW2d 545 (1992). Kassab interpreted the Civil Rights Act to allow discriminatory behavior . We decided that it would be inappropriate to retain an erroneous interpretation of an act meant to protect agai nst discrimination, solely because some individuals may rely on the decision to discrimi nate. Every member of the Court agreed. Rather than look to Smith and Haynes , the majority woul d do better to look to my recent opinions in Liss v Lewiston-Richards , Inc, 478 Mich 203; 732 NW2d 514 (2007), Rohde v Ann Arbor Pub Schools, 479 Mich ___; ___ NW2d ___ (Docket No. 128768, decided July 25, 2007), and Michigan Citiz ens for Water Conservation v Nestlé Wa ters of America, Inc , 479 Mich ___; ___ NW2d ___ (Docket No. 130802, decided July 25, 2007). (continued...)

10T HE R OBINSON F ACTORS The Robinson factors are used to determine when it is appropriate to overrule the precedent of this Court. Th e first is whether the earlier decision was wrongly decided. Id. at 464. Finding that an ear lier decision was wrongly decided is not the end of the inquiry, however. Id. at 465. The Court must also weigh the effects of overruling the decision. Id. at 466. This consideration involves a review of whether the decision “defies ‘p ractical workability,’ whether reliance interests would work an un due hardship, and whether changes in the law or facts no longer justify the questioned decision.” Id. at 464.

(...continued) In Liss I stated, “[G]iven the language and purpose of the [Michigan Consumer Protection Act, MCL 445.901 et seq .], I believe that this Court interpreted the exem ption correctly in [ Attorney General v ] Diamond Mortgage [414 Mich 603; 327 NW2d 805 (1982)] and incorrectly in Smith [ v Globe Life Ins Co , 460 Mich 446; 597 NW2d 28 (1999)]. Even so, b ecause I do not think the compelling interests necessary to overrule a prio r decision of this Court are present, I do no t advocate overruling Smith .” Liss , 478 Mich at 226 (Kelly, J., dissenting). In Rohde , I stated “I reco gnize with regret that this Court’s decisions in Lee [v Macomb Co Bd of Comm’rs , 464 Mich 726; 629 NW2d 900 (2004)] and Nat’l Wildlife Federation [ v Cleveland Cliffs Iron Co , 471 Mich 608; 684 NW2d 800 (2004)] now constitute binding precedent.” Rohde , 479 Mich at ___ (Kelly, J., dissenting). And in Nestlé , I wrote “Justice Weaver reaches the opposite conclusion. In so doing, she rejects the standing test adop ted by the majority. . . . While I agree with Justice Weaver’s conc lusion and her an alysis of these decisions, I also recognize that Lee and Nat’l Wildlife Federation now constitute binding precedent of this Court.” Nestlé , 479 Mich at ___ (Kelly, J. dissenting). Hence, even though I did not agree with the precedent in th ese cases, I said nothing about overruling it. The major ity cannot point to a single case where, having expressed its disagreement with pr ecedent, it has not overruled it or signaled its intent to overrule it.

11The first question, therefore, is whet her this Court’s prior decisions recognizing the common-law di scovery rule were wrongly decided. The majority claims that the language of MCL 600.5827 indicates that the Legislature did not intend to allow plaintiffs to claim the benefit of the common-law discovery rule when § 5827 applies. I disagree. The majority erroneously ignores deliberate actions of the Legislature th at have recognized and ratifie d prior decisions of this Court applying the common-law discover y rule. These actions signify the Legislature’s approval of the rule. The common-law discovery rule has b een a part of Michigan limitations law for many years and has been a pplied in a variety of contexts. 6 And after this Court recognized the discovery rule, th e Michigan Legislature twice passed statutes that expressly limit the operation of the rule. MCL 600.5838 and MCL 600.5838a describe how the limitations period operates in professional negligence cases. The Legislature added language to both of these statutes speci fying that the period of limitations applies “regardless of the time the plaintiff discovers or oth erwise has knowledge of the claim.” This demonstrates that the Legislature recognize s the discovery rule and is aware of

6 See, e.g., Johnson v Caldwell , 371 Mich 368; 123 NW2d 785 (1963) (rule applied in medical malpractice cases); Williams v Polgar , 391 Mich 6; 215 NW2d 149 (1974) (rule applied in neg ligent misrepresentation cases); Larson v JohnsManville Sales Corp , 427 Mich 301; 399 NW2d 1 (19 86) (rule applied in products liability cases); Moll v Abbott Laboratories , 444 Mich 1; 506 NW2d 816 (1993) (rule applied in pharmaceutical products liability cases).

12what it needs to do to p revent the rule from applyi ng in particular cases. Therefore, MCL 600.5838 an d MCL 600.5838a are impor tant because they demonstrate that the Legislature has limite d the discovery rule where it saw fit. More importantly § 5838 and § 5838 a represent legislative acceptance of the discovery rule. By sp ecifically limiting the discove ry rule in professional negligence cases, the Legislature has imp licitly acknowledged th e applicability of the rule in other types of cases. As a result, in professional negligence cases, a plaintiff may no longer claim the benefit of the common-law discovery rule. But, the Legislature has not pr ohibited application of th e rule outside the areas addressed in § 5838 and § 5838a. 7

7 The majority claims that there is no “reason to equate the Legislature’s ‘approval of the rule’—by its codification of some of this Court’s uses of the rule—with the Legislature’s approval of every application of the rule.” Ante at 17. Yet, the well-established maxim of expressio unius est exclusio alterius , which this majority has often in voked in deciding cas es, states that the Legislature’s mention of one thing implies the exclusion of all others. E.g., Miller v Chapman Contracting, 477 Mich 102; 730 NW2d 462 (2007); Pittsfield Charter Twp v Washtenaw Co , 468 Mich 702, 712; 664 NW2d 193 (2003). By expressly providing that the discovery rule does not apply in professional negligence cases, the Legislature implied that it was to apply in all other contexts. The majority implies that MCL 600. 5838 and MCL 600.5838a support its position. In both of these statutes, the Legisl ature specifically limited the operation of the common-law discovery ru le by providing that the period of limitations described in these sections ap plies “regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.” The on ly possible reason the Legislature would have incl uded this language is to ta ke professional negligence claims outside the scope of the common-law discovery rule. But, as a result of the majority’s decision, this language is re duced to a redundancy. When a “plaintiff discovers or otherwise has knowledge of the claim” is completely irrelevant if there is no common-law discovery rule. The majority has decided that the (continued...)

13Given that the actions of the Legislature strongly suggest its approval of most of this Court’s prior decisions recognizing the common-law discovery rule, the rule should not be discarded. However, even if one believes that earlier cases applying the rule were wrongly decided, it does not follow that these cases must be overruled. Robinson , 462 Mich at 465. Rather, st are decisis is generally “the preferred course because it promotes the ev enhanded, predictabl e, and consistent development of legal principles, fost ers reliance on judicial decisions, and contributes to the actual and perceived in tegrity of the judicial process.” Id. at 463 (citation omitted). Before jettisoning precedent, this Court must determine “whether overruling such decision w ould work an undue hardsh ip because of reliance interests or expectations that have arisen.” Robertson v DaimlerChrysler Corp , 465 Mich 732, 757; 641 NW2d 567 (2002). In assessi ng these reliance interests, “the Court must ask wheth er the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would

(...continued) Legislature wrote this language in order to remove professional negligence claims from the scope of a rule that the Legislature nev er recognized as existing. The majority claims that MCL 600.5838(2) undercu ts my position because that section provides a statutory discovery period. The Legisl ature’s decision to provide a statutory discovery period do es nothing to weak en my position. Through MCL 600.5838(1), th e Legislature took profe ssional negligence claims outside the scope of the co mmon-law discovery rule. It was entirely consistent for the Legislature to provid e a statutory discovery peri od. In so doing, it took (continued...)

14produce not just readjustme nts, but practical real-world dislocations.” Robinson , 462 Mich at 466. The co mmon-law discovery rule has become so embedded in the fabric of Michig an limitations law that the st ate’s jurisprudence will be seriously damaged by destroying it. This Court has recognized a fundament al right of access to courts for a great many years. As it stat ed in 1877, “[e]very man is entitled to his day in court before his rights can be fina lly disposed of, and even the Legislature could not deprive him of the right.” Ehlers v Stoeckle , 37 Mich 260, 262- 263 (1877). The genesis of Michigan’s common-law discovery rule goes back ev en further and can be traced to Justice Cool ey over 140 years ago: The general power of the legisl ature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so en tirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy; all remedy whatsoever may be taken away. . . . It is of the essence of a law of limitatio n that it shall afford a reasonable time within which suit may be brought. [ Price v Hopkin , 13 Mich 318, 324 (1865).] The discovery rule, based on principles of fundamental fairness, “‘was formulated to avoid the harsh results produced by commencing the running of the statute of

(...continued) some of the sting out of removing profe ssional negligence cl aims from the scope of the common-law rule.

15limitations before a claimant was aw are of any basis for an action.’” Stephens v
Dixon , 449 Mich 531, 535; 536 NW2d 755 (1995) (citation omitted). Elimination of the common-law discovery rule will have a drastic, adverse effect on plaintiffs’ rights in Michigan. Cutting off pl aintiffs’ actions before plaintiffs even know they have a cause of action is the very definition of a “practical real-world dislocation.” And pe ople will lose confid ence in the courts when they learn that the courts deny th em compensation for th eir injuries simply because it took too long to discover their causes. Aside from the real-world dislocati on created by abolishing the common

law discovery rule, there are other factors to consider in determ ining whether to overrule the prior decisions of this Court. They include wheth er the decisions defy practical workability and whet her changes in the law or the facts no longer justify the questioned precedents. Robinson , 462 Mich at 464. It has not been shown that the discovery rule is unwo rkable. To the contrary, the near univer sal acceptance of this rule around the country is a strong indication of its workability. 8 And no

8 In addition to Michigan, 35 states plus the Dist rict of Columbia have embraced the discovery rule . See, e.g., Alaska: Hanebuth v Bell Helicopter Int’l , 694 P2d 143 (Alas, 1984). Arkansas: State v Diamond Lakes Oil Co , 347 Ark 618; 66 SW3d 613 (2002). California: Norgart v Upjohn Co , 21 Cal 4th 383; 981 P2d 79; 87 Cal Rptr 2d 453 (1999). Colorado: Rauschenberger v Radetsky , 745 P2d 640 (Colo, 1987). Connecticut: Champagne v Raybes tos-Manhattan, Inc , 212 Conn 509; 562 A2d 1100 (1989). Delaware: In re: Asbestos Litigation, West Trial Group , 622 A2d 1090 (Del Super Ct, 1992). Florida: Johnson v Szymanski , 368 So 2d 370 (Fla, 19 79). Georgia: King v Seitzingers, Inc , 160 Ga App 318; 287 SE2d 252 (1981). Hawaii: Yoshizaki v Hilo Hosp , 50 Hawaii 150 ; 433 P2d 220 (1967). Indiana: Wehling v Citizens Nat’l Bank , 586 NE2d 840 (Ind, 1992). Iowa: (continued...)

16facts or law have changed to call into question those cases recognizing the discovery rule. Indeed, the Legislature’s d ecision to abolish the rule solely in the context of professional negligence cases indicates its approval of this Court’s decisions that have applied the rule in other contexts. It is the majority ’s decision to abolish the co mmon-law discovery rule that threatens to defy practical workability by leading to absurd results and constitutional violations. This Court has he ld that “[s]tatutes should be construed

(...continued) Roycroft v Hammons , 203 F Supp 2d 1053 (SD Io wa, 2002). Louisiana: Harvey v Dixie Graphics, Inc , 593 So 2d 351 (La, 1992). Maine: Johnston v Dow & Coulombe, Inc , 686 A2d 1064 (Me, 1996). Maryland: Georgia-Pacific Corp v Benjamin , 394 Md 59; 904 A2d 511 (2006). Minnesota: Johnson v Winthrop Laboratories Div of Sterling Drug, Inc , 291 Minn 145; 190 NW2d 77 (1971). Mississippi: Sweeney v Preston , 642 So 2d 332 (Miss, 1994). Nebraska: Condon v AH Robins Co , 217 Neb 60; 349 NW2d 622 (1984). Nevada: Siragusa v Brown , 114 Nev 1384; 971 P2d 801 (1998). New Hampshire: Big League Entertainment, Inc v Brox Industries , 149 NH 480; 821 A2d 1054 (2003). New Jersey: Mancuso v Mancuso , 209 NJ Super 51 ; 506 A2d 1253 (1986 ). New Mexico: McNeil v Rice Engineering & Operating Inc , 139 NM 48; 128 P3d 476 (NM App, 2005). North Dakota: Wells v First American Bank West , 1999 ND 170; 598 NW2d 834 (1999). Ohio: Collins v Sotka, 81 Ohio St 3d 506, 69 2 NE2d 581 (1998). Oklahoma: Resolution Trust Corp v Grant , 1995 Okla 68; 901 P2d 8 07 (1995). Rhode Island: Wilkinson v Harrington , 104 RI 224; 243 A2d 745 (1968). South Carolina: Gattis v Chavez , 413 F Supp 33 (D SC, 1976). Tennessee: Hathaway v Middle Tennessee Anesthesiology, PC , 724 SW2d 355 (Tenn Ap p, 1986). Texas: McDade v Texas Commerce Bank, Nat’l Ass’n , 822 SW2d 713 (Tex App, 1991). Utah: Klinger v Kightly , 791 P2d 868 (Utah, 1990). Vermont: Leo v Hillman , 164 Vt 94; 665 A2d 572 (1995). Virginia: Locke v Johns-Manville Corp , 221 Va 951; 665 A2d 572 (1981) . Washington: White v Johns-Manville Corp , 103 Wash 2d 344; 693 P2d 687 (19 85). West Virginia: Gaither v City Hosp , 199 W Va 706; 487 SE2d 90 (1997). Wisconsin: Hansen v A H Robins Co, Inc , 113 Wis 2d 550; 335 NW2d 578 (1983). Wyoming: Olson v A H Robins Co , Inc , 696 P2d 1294 (Wyo, 1985). District of Columbia: Burke v Washington Hosp Ctr , 293 F Supp 1328 (D DC, 1968).

17so as to prevent ab surd results, injustice or prejudi ce to the public interest.” McAuley v Gen Motors Corp , 457 Mich 513, 518; 578 NW2d 282 (1998). See also Cameron v Auto Club Ins Ass’n , 476 Mich 55; 718 NW2d 784 (2006). Without the discovery rule, plaintiffs will lose the right to pursue certain causes of action before they have or c ould have had knowledge of th em. The plaintiff in this case falls within that group. Moreover, given this Court’s decision in Henry v Dow Chemical Co , 9 the very real possibility exists th at there will be cases in whic h a plaintiff will never be able to file suit. In Henry , this Court held that a plai ntiff can pursue a tort claim only if he or she has su ffered a presen t injury. Id. at 74. Because there will be cases in which a person’s injury will not be manifeste d for a prolo nged time, there will be cases where no cause of action can ever be pursued. These are cases where a person’s injury does not manifest itse lf until the established limitations period has expired. The absurdity of a system th at deprives someone of his or her cause of action before it can be instituted is ma nifest. As Judge Jerome Frank stated: Except in topsy-turvy land you can’t die before you are conceived, or be divo rced before ever you m arry, or harvest a crop never planted, or bur n down a house never bu ilt, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepte d, as a sort of legal “axiom,” that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e ., before a judicial remedy is available to the plaintiff. For a limitations statute, by its inherent nature, bars a cause of action solely because suit was not

9 473 Mich 63; 701 NW2d 684 (2005).

18brought to assert it during a period when the suit, if begun in that period, could have been successfully maintained; the plaintiff, in such a case, loses for the sole reason that he dela yed—beyond the time fixed by the statute—commenci ng his suit which, but for the delay, he would have won. [ Dincher v Marlin Firearms Co , 198 F2d 821, 823 (CA 2, 1952) (Frank, J., dissenting).] Today’s decision to abolish the discove ry rule also raises constitutional questions regarding the extent of the Legislature’s author ity to enact statutes of limitations. The Legislature can, if it chooses, completely eliminate common-law causes of action. 10 But the enactment of a statute of limitations implicates other considerations. The purpose of a limitations statute is to “penalize plaintiffs who have not been industrious in pursing their claims,” 11 not to eliminate a valid cause of action when the plain tiff is without fault. Lemmerman v Fealk , 449 Mich 56, 65-66; 534 NW2d 695 (1995). For this reason, this Cour t has repeatedly held that a limitations period that does not provide a reasonable period in which to file suit is constitutionally suspect. See, e.g., Krone v Krone , 37 Mich 308 (1877); Dyke v Richard , 390 Mich 739; 213 NW2d 185 (1973).
In Dyke , this Court prohibited a statute of limitations from extinguishing a right to bring suit before reas onable discovery of the cause of action was possible. The Court explained: Since “[i]t is of the essence of a law of limitation that it shall afford a reasonable time within wh ich suit may be brought . . .”,

10 Bean v McFarland , 280 Mich 19, 21; 273 NW 332 (1937). 11 Lothian v Detroit , 414 Mich 160, 166- 167; 324 NW2d 9 (1982).

19Price, supra , a statute which extinguishes the right to bring suit cannot be enforced as a law of li mitation. As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a cause of action, this statute has the effect of abo lishing his right to bring suit. Such a statute, if sustainable at all could be en forced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative inte ntion to accomplish that end. We read it as a statute of limitation wh ich applies in every case except where the plaintiff does not know of his cau se of action. [ Dyke, 390 Mich at 746-747.] And this Court has also held that a lim itations provision that does not afford a reasonable time to file suit cannot be co nstitutionally upheld, because it prevents access to the courts. Forest v Parmalee 12 held that “statutes of limitations are to be upheld by courts unless it can be demonstrated that they are so harsh and unreasonable in their consequences that they effectively divest plaintiffs of the access to the courts intended by the grant of the substantive right.” In certain circumstances, the common-la w discovery rule is necessary to ensure that plaintiffs have had a reasonable time to gain knowledge of their causes of action. By abrogating this rule, the majority decision raises serious constitutional questions. These constitu tional concerns counsel in favor of retaining the discovery rule. This Court, like most, has long recogni zed the value of st are decisis. Its decisions applying the common-law discov ery rule should be upheld under that

12 402 Mich 348, 359; 262 NW2d 653 (1978).

20doctrine because (1) the d ecisions recognizing the rule were correctly decided, (2) a change in the discovery rule would have a drastic effect on pl aintiffs’ rights, (3) the discovery rule is workable, and (4 ) abolishing the rule will lead to constitutional violations as well as absurd and unjust results.
MCL 600.5869 R EQUIRES A PPLICATION OF THE C OMMON -L AW D ISCOVERY R ULE TO P LAINTIFF ’ S C LAIMS A majority of this Court decides th at the common-law discovery rule is inapplicable when MC L 600.5827 applies. I strongly disagree wi th this decision. But, even accepting it, the C ourt need not reverse the C ourt of Appeals decision in this case. MCL 600.5869 provides: All actions and rights shall be governed and determined according to the law under which th e right accrued, in respect to the limitations of such actions or right of entry. The majority finds that “plaintiff’s claims accrued at the time of Eby’s death.” Ante at 30. Mrs. Eby was murdered in 1986. At that time, this Court recognized the common-law discov ery rule. Thus, as of 1986, the law in this state was that the cause of action did not accrue un til “all of the elements of the cause of action have occurred a nd can be alleged in a proper complaint.” Connelly v Paul Ruddy’s Equip Repair , 388 Mich 146, 150; 200 NW2d 70 (1970). It follows that, although some future plaintiffs may not be able to claim the benefit of the

21common-law discovery rule, th is plaintiff can. For this reason, the majority need not reverse the decision of the Court of Appeals. 13
A PPLICATION OF THE C OMMON -L AW D ISCOVERY R ULE TO THE F ACTS OF THE C ASE Under the common-law discovery rule, a claim accrues when, on the basis of objective facts, a plaintiff can allege each element of the asserted claim. Moll v Abbott Laboratories , 444 Mich 1, 15-16; 506 NW 2d 816 (1993). A claim for personal injury must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached th e duty, (3) the defendant’s breach was the proximate

13 The majority claims that § 5869 can not save plaintiff’s claim because the statutory law has not change d since 1986. This fact is irrelevant. Section 5869 states that “[a]ll actions and rights sha ll be governed and de termined according to the law under which th e right accrued . . . .” This section is not confined to statutory provisions. Rather, § 5869 includ es all law. It is well established that the law includes the common law. E.g., People v Blume , 443 Mich 476, 480 n 7, 505 NW2d 843 (1993); Myers v Genesee Co Auditor , 375 Mich 1, 7; 133 NW2d 190 (1965); Const 1963, art 3, § 7. Because it is clear that this Court recognized a common-law discovery rule in 1986, § 5869 requires that the discovery rule be applied to plaintiff’s case. And because § 5869 requires application of the discovery rule, the majority ’s discussion about retro active versus prospective application of decisions by this Court is misplaced. The majority also claims that I presen t no authority or explanation for why the discovery rule is applicable. Ante at 22. In fact, I have made such a presentation. I will recap it here: MCL 600.5869 states that all actions shall be governed by the law as it existed when the cl aim accrued. The majority asserts that the claim in this case accrued in 1986. In 1986, this Cour t recognized the common-law discovery rule. Therefore, the discovery rule was the law of the land at the time the claim accru ed. Accordingly, § 5869 requires us to apply the common-law discovery rule to plaintiff’s claim. As I think is obvious, the authority I cite as requiring application of the discovery rule is § 5869.

22cause of the plaintiff’s injuries, and (4) the plaintiff suffered damages. Chase v Sabin , 445 Mich 190, 201 n 15; 516 NW2d 60 (1994). Here, it was not until after Jeffrey Gorton was arrested that plaintiff found out that Mrs. Eby’s killer was a stranger. Plaintiff could not ha ve alleged a breach of duty against any of th e defendants before knowing th at a stranger, Gorton, had killed Mrs. Eby. Therefore, it was not until Gorton was id entified as the killer that the statute of limitations began to run. Because plaintiff filed suit within three years of Gorton’s identification as the killer, plaintiff’s claims are timely. 14
C ONCLUSION With today’s decision, the majority th rows Michigan into topsy-turvy land, where a person’s legal claim dies before it is born. The majority finds that plaintiff’s tort cause of action disapp eared before plaintiff could discover the tortfeasor. As a result, the judgment of the Court of A ppeals has been reversed. I disagree with this decision on numerous grounds. MCL 600.5827 does not apply here. Moreover, it is a grievo us error to overrule th e precedent of this Court that recognizes the common-law discovery rule. The Legislature has signaled its approval of this precedent an d indicated that the rule should apply in all cases except those allegi ng professional negligence. The judgment of the Court of Appeals should be affirm ed and the discovery rule should remain untouched.

14 MCL 600.5805(10) prov ides the applicable p eriod of limitations for plaintiff’s claim. That period is three years.

23But, even if the discovery rule has no application in the future, this particular plaintiff should be allowed to claim the benefits of the rule. For these reasons, I dissent. Marilyn Kelly

24