FILED

Oct. 25, 1995

Cecil Crowson, Jr.

Appellate Court Clerk

WALTER LEE STEELE and JENNIE )

BROWN, Individually and as Next-of- )

Kin of or Guardian of )

MELVIN LEE STEELE, Deceased, )

)

Plaintiffs/Appellants, )

) Appeal No.

VS. ) 01-A-01-9505-CH-00214

)

TENNESSEE JAYCEES, INC.; ) Davidson Chancery

TENNESSEE JAYCEE FOUNDATION, ) No. 94-2463-II

INC., Individually and d/b/a CAMP )

DISCOVERY; RES-CARE SOUTHSIDE)

COURT, Presently d/b/a SALEM )

VILLAGES OF TENNESSEE; RES- )

CARE, INC.; LAMONT WRIGHT, )

Individually and By and Through his )

next Friend and Guardian; DEWAYNE )

TINCH, a Minor, Individually and By )

and Through His Next Friend and )

Guardian; DAVID CASEY; and )

THERESA SUMRELL, )

)

Defendants/Appellees. )

COURT OF APPEALS OF TENNESSEE

MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY

AT NASHVILLE, TENNESSEE

THE HONORABLE C. ALLEN HIGH, CHANCELLOR

SHELLEY I. STILES

5214 Maryland Way, Suite 210

Brentwood, Tennessee 37027

Attorney for Plaintiffs/Appellants

RAYMOND D. LACKEY

105 Westpark Drive, Suite 424

Brentwood, Tennessee 37027

Attorney for Defendant/Appellee Tennessee Jaycees, Inc.

ALAN B. EASTERLY

Pioneer Bank Building, Third Floor

801 Broad Street

Chattanooga, Tennessee 37402-2621

Attorney for Defendants/Appellees Tennessee Jaycee Foundation, Inc., 

Individually and d/b/a Camp Discovery, DeWayne Tinch, and David Casey

THOMAS A. WISEMAN

JOHN T. REESE
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Suite 1900, NationsBank Plaze

414 Union Street

Nashville, Tennessee 37219-1782

AFFIRMED AND REMANDED

BEN H. CANTRELL, JUDGE

CONCUR:

TODD, P.J., M.S.

LEWIS, J.
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O P I N I O N

The Chancery Court of Davidson County granted summary judgment to

the Tennessee Jaycees and the other appellees, on the ground that the statute of

limitations had passed prior to the filing of the appellants' wrongful death complaint

against them. Because we do not find that the discovery rule tolls the statute of

limitations under the circumstances of this case, we affirm the trial court.

I.

The plaintiffs are the mother and the brother of Melvin Lee Steele, a 27

year old retarded man. Mr. Steele drowned in Cordell Hull Lake on August 9, 1993,

while attending Camp Discovery, a summer camp operated by the defendants. The

plaintiffs were not informed of the death until August 11, and they were told at that

time that their decedent had died of "natural causes."

On August 16, Jennie Lee Brown, Melvin Lee Steele's natural mother

and legal guardian, hired an attorney to investigate the death of her son. A death

certificate, filed on August 19, correctly stated the date of death, but did not indicate

the cause. The Jackson County Sheriff began an investigation into the circumstances

surrounding Melvin Steele's death, and Mrs. Brown's attorney was unable to obtain

any information during the pendency of that investigation.

Copies of the police report and of an autopsy report became available

in January of 1994. The autopsy report stated that death was due to drowning.

Contusions and abrasions on Mr. Steele's body were suggestive of a fight or a scuffle.

Upon further investigation, Mrs. Brown's attorney filed a complaint which alleged that
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a camper named Lamont Wright, a mentally retarded individual with known aggressive

tendencies, had deliberately drowned Mr. Steele.

The complaint charged the Jaycees and other corporate defendants

involved with the operation of Camp Discovery with negligent and inadequate

supervision. The complaint also named Lamont Wright, two administrators of the

camp, and a fifteen year old camp counselor, who supervised the cabin to which

Melvin Lee Steele, Lamont Wright and other campers were assigned.

Unfortunately, the complaint was not filed until August 15, 1994, more

than one year after Melvin Lee Steele's death. The narration of events in the

complaint states that the campers arrived at Camp Discovery on August 15, 1993, and

that the drowning death occurred on August 16, 1993. If that had been true, the

complaint would have been timely.

All the defendants, with the exception of Lamont Wright, responded, and

moved the trial court for summary judgment, on the ground that the statute of

limitations had passed. The motion was supported by uncontradicted evidence that

death occurred on August 9, 1993. The trial court granted the motion, and finding no

just reason for delay, entered a final judgment as to those defendants under

Tenn.R.Civ.P. 54.02.

II.

Statutes of limitation are legislative creations whose purpose is to

compel the exercise of a right of action within a reasonable time. See Carney v.

Smith, 437 S.W.2d 246, 248 (Tenn. 1969). They are looked upon with favor by our

courts, for they prevent undue delay in bringing claims, and limit the time during which

a potential defendant must fear an impending lawsuit.
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The development in modern times of a body of law sometimes referred

to as "the discovery doctrine" or "the discovery rule," has ameliorated the hardship

which sometimes arises from the operation of statutes of limitations, by making it less

likely that such a statute will unfairly deprive a plaintiff of all opportunity to enlist the

assistance of the courts to vindicate his claim. But the discovery rule was not

designed to rescue a plaintiff from his own error or that of his attorney, if he has failed

to avail himself in a timely way of the opportunity the law provides.

 

The so-called "wrongful death statute," Tenn. Code Ann. § 20-5-106,

contains no statute of limitations of its own. The reason is that it does not purport to

create a new cause of action. Rather, it permits the right of action an injured party

would have had against a tortfeasor to pass to the injured party's personal

representatives, if death results from his injuries. The courts have uniformly held the

one year period of limitations on actions for personal injury found in Tenn. Code Ann.

§ 28-3-104 to be the appropriate one to apply in wrongful death cases. See Jones v.

Black, 539 S.W.2d 123 (1976).

The statute of limitations begins to run when the plaintiff's cause of

action accrues. See Tenn. Code Ann. § 28-3-104. Historically, this has generally

meant when the negligent act which causes the injury is performed. See State v.

McClellan, 113 Tenn. 616, 624, 85 S.W. 267, 269 (1905). In more recent times,

statutory enactments and judicial decisions have recognized that in cases where there

is a significant interval between the wrongful act and the injury that occurs therefrom,

it is more equitable to consider that the cause of action does not accrue until the injury

occurs. See Tenn. Code Ann. § 29-28-103 (products liability). Tenn. Code Ann. §

29-26-116 (medical malpractice). See also McCroskey v. Bryant Air Conditioning Co.,

524 S.W.2d 487 (Tenn. 1975).
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The courts have also found reason to allow a further extension of time

for accrual of a cause of action in some cases where the injury is of a type that is not

immediately discoverable, or where the fact of injury has been discovered, but it is not

possible to discover the negligence that caused the injury, until after the statute of

limitations has passed. The discovery rule has evolved from the experience of our

courts in dealing with such cases. 

III.

An example of an injury that is not immediately discoverable may be

found in Teeters v. Curry, 518 S.W.2d 512 (Tenn. 1974). The plaintiff was a woman

who learned that she was pregnant exactly thirty months after voluntarily undergoing

a tubal ligation for the purpose of sterilization, which had been performed by the

defendant doctor. The birth of her premature child was attended by many

complications, and pursuant to medical advice, she underwent another tubal ligation.

The surgeon who performed the second operation disclosed to her that the earlier

surgery had not been done in accordance with the proper standards of medical care.

The defendant denied any negligence, but was granted summary

judgment on his plea of the statute of limitations. The Supreme Court reversed the

trial court, stating that, "[w]e find it difficult to embrace a rule of law requiring that a

plaintiff file suit prior to knowledge of his injury or, phrasing it another way, requiring

that he sue to vindicate a non-existent wrong, at a time when injury is unknown or

unknowable." 518 S.W.2d at 515.

The lesson of Teeters v. Curry was stated in a more general way in

McCroskey v. Bryant Air Conditioning Co., supra, as follows:

"We hold that in tort actions . . . predicated on negligence,

strict liability or misrepresentation, the cause of action

accrues and the statute of limitations commences to run

when the injury occurs or is discovered, or when in the
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exercise of reasonable care and diligence, it should have

been discovered."

524 S.W.2d at 491. 

Justice Harbison wrote a concurring opinion in Teeters v. Curry in

response to anticipated concerns that the Court's opinion would undermine the

purposes of the statutes of limitations:

[I]t does not seem to me that the adoption of a 'discovery"

rule brings about a drastic change in the law of this state

except in a very limited set of cases. As stated in the principal

opinion, the rule applies only to cases where the plaintiff does

not discover and reasonably could not be expected to

discover that he has a right of action... The statute is tolled

only during the period when the plaintiff has no knowledge at

all that wrong has occurred, and as a reasonable party is not

put on inquiry." 518 S.W.2d at 518.

The question of when, as reasonable persons, the appellants were put

on inquiry of their cause of action is determinative of the present case. 

IV.

The appellants insist that their claim falls within the category of cases

where the cause of action does not accrue until the negligent cause of a known injury

is revealed. They rely on several cases which extended the discovery rule to cover

such situations.

The case of Foster v. Harris, 633 S.W.2d 304 (Tenn. 1982), involved

professional malpractice by the defendant dentist. J.B. Foster went to the defendant

for some bridgework. During the procedure, the dentist cut his own finger and the

patient's lip, and their blood intermingled. Three months later Mr. Foster was

diagnosed with serum hepatitis. Despite a diligent search by the plaintiff and his

physicians, they were unable to determine where he contracted the disease. After six
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months, Mr. Foster returned to the same dentist, and was told that on the day of the

earlier visit, the defendant had been infected with serum hepatitis.

Mr. Foster's suit for medical malpractice and fraudulent concealment

was filed more than one year after the first dental visit, and also more than one year

after Mr. Foster's condition was diagnosed. The trial court held that the action was

time-barred under the statute of limitations for medical malpractice found in Tenn.

Code Ann. § 29-26-116. The Court of Appeals affirmed on the malpractice claim,

holding in conformity with the high court's analysis in McCroskey v. Bryant, that the

plaintiff's cause of action had accrued when his disease was diagnosed. 

The Supreme Court reversed, stating:

"In the continuing saga of when the statute of limitations

begins to run in tort cases, this case presents two unique

questions. First, was the injury discovered upon diagnosis of

the disease or upon discovery that the source of the disease

was a negligent act, and, second, assuming that the

discovery of the injury occurred in January 1976 [when

hepatitis was diagnosed] did the statute of limitations begin

to run when neither the existence of nor the identity of a tort

feasor was known to plaintiff? Our answer to the first

question is that the discovery that the source of the disease

was a negligent act triggers the statute of limitations. In our

opinion the second question requires a negative answer.

633 S.W.2d at 304

Another case of the same type was Gosnell v. Ashland Chemical, Inc.,

674 S.W.2d 737 (Tenn.App. 1984). Bobbie Edward Merritt died of leukemia after a

thirty year career mixing paints and chemicals at the defendant's manufacturing

facility. His widow brought suit more than one year after his death.

She filed an affidavit stating that she did not learn about the possible

connection between her husband's leukemia and his long-term exposure to solvents
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and chemicals until she read a newspaper article about a suit that had been filed for

the wrongful death of one of Mr. Merritt's co-workers, who had also died of leukemia.

The trial court granted summary judgment for the defendant, and the plaintiff

appealed.

This court reversed the trial court. We held that it was a question for the

jury as to whether the widow could reasonably have been expected to discover the

possible connection between her husband's exposure to chemicals and the illness

that led to his death, prior to the running of the statute of limitations. 

V.

While the appellants urge us to adopt the rationale of Foster v. Harris

and Gosnell v. Ashland Chemical, Inc. to find that their cause of action did not accrue

until they were able to fully inform themselves as to the circumstances of Melvin Lee

Steele's death, we find very little resemblance between the situation of their decedent

and that of Mr. Foster and Mr. Merritt.

The delay in the discovery of the origin of Mr. Foster's serum hepatitis

occurred because of the inherent difficulties involved in tracing the transmission of

disease. Since such diseases may be contracted without negligence by any party, Mr.

Foster was not put on notice by the diagnosis that he may have been the victim of a

negligent act.

The delay in the discovery that Mr. Merritt's leukemia may have been

due to occupational exposure to chemicals can be attributed to the imperfect state of

medical knowledge about leukemia, and also to the lack of any link that would be

obvious to laypersons, between the exposure and the illness. In both the Foster and
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Gosnell cases, the question of causation relied more upon expert knowledge than

upon the common experiences of the ordinary person. 

Analysis of the facts of the above cases shows that the discovery rule

was appropriately used to protect the rights of individuals who were not put on inquiry

that the injury they suffered may have been caused by the negligence of others. The

plaintiffs in the present case, however, cannot persuasively argue that they were not

put on inquiry of possible negligence once they learned of Melvin Lee Steele's death.

Their prompt action in retaining an attorney shows that they not only should have

been, but were in fact alert to the likelihood of negligence. 

They also cannot argue that they had no idea who the responsible

parties might be, since they were aware that their decedent was attending Camp

Discovery at the time of his death. Regardless of the exact circumstances of the

unfortunate incident, knowledge of the bare fact of Melvin Lee Steele's death would

have been sufficient to put the appellants on notice of a possible claim against those

charged with supervision over Mr. Steele and other mentally handicapped campers.

The discovery rule was not meant to allow a party to delay filing his claim

until after he has completed the process of discovering all the factors that affect its

merits. It is clear from the record that the late filing of the plaintiffs' complaint was due

to simple mistake, rather than to any unavoidable delay in discovering their cause of

action. Therefore the invocation of the discovery rule does not rescue their claim.

VI.
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The judgment of the trial court is affirmed. Remand this cause to the

Chancery Court of Davidson County for further proceedings consistent with this

opinion. Tax the costs on appeal to the appellant.

_____________________________

BEN H. CANTRELL, JUDGE

CONCUR:

_______________________________

HENRY F. TODD, PRESIDING JUDGE

MIDDLE SECTION

_______________________________

SAMUEL L. LEWIS, JUDGE