# FILED Oct. 25, 1995 Cecil Crowson, Jr . Appellate Court Clerk WALT ER LEE STEELE and JEN NIE ) BRO WN, Indi vi dual ly

and a s Ne xt- of- ) Kin of or Guardi an of ) MELVIN LEE STEELE, Deceased, ) ) Plaintiffs/App ellants, ) ) Appeal No. VS. ) 01-A-01-9505- CH-00214 ) TENNESSEE JAY CEES, INC.; ) Davidson Chancery TENNESSEE JAYCEE FOUNDATION, ) No. 94-2463-II INC., Individually and d/b/a CAMP ) DISCOVERY ; RES-CARE SOUTHSIDE) COURT, Pres ently d/b/a SALEM ) VILLAGES OF TENN ESSEE; RES- ) CARE, INC. ; LAMO NT WRIGHT, ) Individually and By and Through his ) next Friend and Guardian; DEW AYNE ) TINCH, a Mi nor, Indiv idually and By ) and Through Hi s Next F riend and ) Guardian; DAVI D CASEY; a nd ) THERESA SUMR ELL, ) ) Defendants/Ap pellees. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SEC TION AT NASHVILLE

APPEALE D FRO M THE C HANC ERY C OURT O F DAVI DSON COUN TY AT NASHVILLE, TENN ESSEE THE HONORABLE C. ALLEN HI GH, CHANC ELLOR

SHELLEY I. STILE S 5214 Maryl and Way, Suite 210 Brentwood, Tennes see 37027 Attorney for Plaintiffs/Appella nts RAYMONDD. LACKEY 105 Westpark Drive, Sui te 424 Brentwood, Tennes see 37027 Attorney for Defenda nt/Appellee Tenn essee Jaycees, Inc. ALAN B. EASTERLY Pioneer Bank Bui lding, Thir d Floor 801 Broad Street Chattanooga, Tennes see 37402-2621 Attorney for Defendants/Appellees Tennessee Jayc ee Foundation, Inc ., Individual ly and d/b/a Camp Discovery, DeWayne Tinch, and D avid Casey
THOMAS A. WISEMAN JOHN T. REESE- 2 -

Suit e 190 0, Na tion sBan k Pla ze 414 Union Street Nashvil le, Tennessee 37219- 1782

AFFIRMED AND REMAN DED

BEN H. CAN TRELL, JUDGE

CONCUR: TODD, P.J., M .S. LEW IS, J.- 3 - 

## O P I N I O N

The ChanceryCourt of Dav idson County granted summary judg ment to the Tennessee Jaycees and the other a ppellees, on t he ground that the statute of limitationshad passed pri or to the filin g of the appellant s' wrong ful death complaint against them. Because we do no t find that the discovery rul e tolls the statute of limitations under the circumstances of this case, we affirm the trial court.

I.

The plaintiffs are themother and the brother of Melvin LeeSteele, a 27 year old retarded man. Mr. Steele drowned in Cordell Hull Lake on August 9, 1993, while attending C amp Discovery, a summer camp operated by

the defendants. The plai ntiffs were not i nformed of the death until August 11, a nd theywere tol d at that time that their

decedent had died of "natu ral causes."

On August 16, J ennie Le e Brown, Melvin Lee Steele's natur al mother and legal g uardian, hired a n attorney t o investi gate 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 Count y Sheriff began an investi gation into the circumstanc es surrounding Melvin Steele's death, and Mrs. Brown' s attorney was unable to obtain any information during the pe ndency of that i nvestig ation.

Copies of the police report and of an autopsy report becam e available in January of 1994. The au topsy report s tated t hat dea th was due to drownin g. Contusionsand abrasions on Mr. Steele 's body were sug gestive of a fight or a s cuffle. Upon further investigation, Mrs. Brow n's attorney filed a complaint

which al leged that- 4 -

a camper named Lamont Wright, a mental ly retar ded indivi dual with k nown aggres sive tendencies, had del iberately drowned M r. Steele.

The complaint charg e d the Jaycees and other corpo rate defendants involved with the operation of Camp Di scovery with neg ligent and i nadequate supervis ion. The comp laint al so named Lamont Wright, two a dministrator s of the camp, and a fifteen year old camp counselor, who supervis ed the cabin to which Melvin Lee Steele, Lamont Wright and other campers w ere assig ned.
Unfortunately , the complaint w as not filed until August 15, 1994, more than one year after

Melvin Lee Steele's deat h. The narration of events in t he complaintstates that the campers arri ved at Camp D iscover y on August 15, 1993, and that the drowni ng death occur red on August 16, 1993. If that had been tr ue, th e comp lain t woul d have been time ly.

All the defenda nts, wit h the excepti on of Lamont Wright, responded, and moved the tr ial court f or summary j udgment, on the g round that the st atute of limitationshad passed. The moti on wassupported by uncontradicted evidence th at death occurred on August 9, 1993. The trial court gr anted the motion, and fin ding no just reason for

dela y, entered a final j udgment as to thos e defendants under Tenn.R.Civ. P. 54.02.

II.

Statutes of limitation are legislative creations whose purpose is t o compel the e xe rcise of a right of act ion withi n a reasonable ti me. See Carney v. Smith, 437 S.W .2d 246, 248 (Tenn . 1969). They are l ooked upon wi th favor by our courts, for they

prevent undue delay in br inging c laims, and li mit the time during which a potential defendant must fear an impending lawsuit

.- 5 - The develop ment

in m oder n ti mes o f a body of law someti mes referred to as "t he discover

y doctri ne" or "the discovery rule," has ameli orated the hards hi p which sometimes aris es from the operati on of statutes oflimitations, by making it less likely that such astatute will unfairly deprive a plaintiff of all opportunity to enlist the
ass istance of the courts to v indicate his claim. But t he discover y rule was no t designed to rescue a pl aintiff from his ow n error or that ofhis attorney , if he has failed to avail himself in a timely way of the opportunity the law provides.

The so-called "wrongful death statute," T enn. Code Ann. § 20-5- 106, contains no statute of limi tations of its ow n. The reason is that it does not purport to create a new causeof action. Rather , it permits t h e right of act ion an injure d party would have had ag ainst a tortfeasor to pass to the i njured party'spe rsonal representatives, if death results from his injur ies. The courts have uniformly hel d the
one year period of limit ations on acti ons for personal injury found in Tenn. Code Ann. § 28-3-104 to be t he appropriateone to apply in wrong ful death cases. S ee Jones v. Black , 539 S.W .2d 123 (1976).

The statute of limit ations begin s to run w hen the plainti ff's caus e of action accrues. S ee Tenn. Code Ann. § 28 -3-104 . Hi storically, this has generally meant w hen the negli gent act w hich causes th e injury is performed. Se e State v. McClell an, 113 Ten n. 616, 624, 85 S.W . 267, 269 (1905). In more rece nt times, statutory enactments and judicial decisionshave recognized that in cases where there is a significant

interval between thewro ngful a ct and the inj ury that oc curs therefr om, it is more equitable to consider that the cause of action does not accrue until the inju ry occurs. See Tenn. Code Ann. § 29-28-103 (products liability). Tenn. Code Ann. § 29-26-116 (medical malpr actice). See also McCroskey v. Bryant Ai

r Conditioni

ng Co. , 524 S.W .2d 487 (Tenn. 197 5).- 6 - The courts have also found r eason to allow

a further

exte nsion of time foraccrual 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 injuryhas been discov ered, but it i s not possible to discover the negli gence that caus ed the injury , unt il after the statute of lim itations h as passed. The dis covery rule has ev

olved from the ex perience of our courts in deal ing wi th such cases.

III.

An exampl e of an injury that is not i mmediately di scoverabl e may be found in Teeters v. Curry , 518 S.W .2d 512 (Tenn. 197 4). The plaintiff was a woman who learned that s he was pregnant exactly thirty months after vol untarily undergoing
a tubal lig ation for the purpos e of steriliz ati on, whi ch had been performed by the defendant doctor. The bir th of her premature child wa s attende d by many complications, and pursuant to medical advice, she underw ent another tubal l igation. The surgeon w ho performed the second operation dis closed to her that the earli er surgery had not been done in accordance w ith the proper standar ds of medical care.

The defendant denied any negligence, but was gra nted summary judgmenton his plea of the statute of limi tations. The Supreme Court reversed the trial court, stati ng that, "[ w ]e find it difficult to embrace a rul e of law req uiring th at a plaintiff file suit prior to knowled ge of his injury or, phrasin g it another way, requiri ng that he sue to vi ndicate a non-ex istent wr ong, at atim e when inj ury is unknown or unknowable." 518 S.W.2d at 515.

The les son of Teeters v. Curry was state d in a more ge n eral way in McCroskey

v. Bryant Ai

r Conditioni

ng Co. , supra, as follows: "W e hold that in to rt actions . . . predicat ed on ne gligence , strict liabilit

yor mi srepresentati on, the cause of acti on accrues and the statute of limitations c o mmences to run when the injury occurs or is discovered, or w hen in th e- 7 - exercise of reasonable care and diligence, it shou ld ha ve been discove red." 524 S.W.2d at 491.

Justice Harbison w rote a concurr ing opinion in Teete rs v. Cu rry in response to anticipated concerns that t he Court's opi nion would undermin e the purposes of the stat utes of limitations:

[I]tdoes not seem to me t hat th e ad opti on of a 'dis cover y" rule brings about a drastic c han ge in the law of this st ate exceptin a very limited set of cases. As stated in the principa l opinion, the rule applies only tocases whe re the plainti ff does not disc over an d reasonably could not be ex pected to disc over that he has a rig ht of action... The st atute is toll ed onlyduring the period when the plaintiff has no know ledge at all that wronghas occurred, and as a reasonable par ty is not put on inquir

y." 518 S.W.2d at 518.

The question of w hen, as reasonabl e persons, theappellants were put on inquiry

of their cause of ac

tion is deter minative of the p resent case.

IV.

The appella nts insist that their c laim falls w ithin the categ ory of cases where the cause of action does not accru e until thenegligent cause of a known injury is revealed. They rely

on several cases whi ch extended the discovery rule to cover such situations.

The cas e of Foster v. Harris , 633 S.W .2d 3 04 (T enn . 198 2), in vo lve d professional malpractice by the defendant denti st. J.B. Foster went t o the defendant forsome bridgework. During the proce dure, th e dentist cut hi s own fing er and the pat ient's lip, and thei r blood inter mingled. Threemonths later M r. Foster w as diagnosed with serum hepatitis. Despite a diligent search by the plaintiff and his physicians, they were unable to determine w here he contracted the disease. Af ter six- 8 -

months, Mr. Foster returned to the same de ntist, and was told that on the day of the earlier visit, the defendant had been infected with serum hep atitis.

Mr. Foster's suit for medical malpractice an d fraudulent co nc ealment
was filed more than one year after the first dental visit, and also more tha n one year afterMr. Foster 's condition was diag nosed. The trial court held that the action was time-barred u nder th e statute of limit ations for medical malpractice found in Tenn. Code Ann. § 29-26- 116. TheCourt of Appeal s affirm ed on th e malpr actic e clai m, holding in conformity with the high court's analysis in McCro skey v. Bry ant, that the plaintiff's cause of action had accr ued when his disease was diagnosed.

The Su preme Co urt reverse d, stati ng:

"In the continuingsaga of when the sta tute of limitatio ns begins to run in tort cases, this case presents two unique questions. First, was the injury discovered upon diagnosi s of the disease or upon discovery that the source of th e disease was a negligent act, and, second, assu mi ng that the discovery

of the i n jury occ urred in Janua ry 1976 [w hen hepatitis was diagn osed] did the statute of limitations begin to run when neither the ex istence of nor the identity of a tort feasor was know n to p lai ntiff? Our ans wer to the first question is that the discovery that the source of th e disease was a neg ligent act

trigg ers the statuteof 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.Ap p. 1984). Bobbie Edward M erritt die d of leukemia af ter a thirty year career mixingpaints and chemi cals at t he de fe ndant's manufacturing facility. His w idow broug ht suit more tha n one year after his death.

She filed a n aff idavit sta ting t hat she did not learn abou t the possible connection between her husband's leukem ia and his long-term exposure t o solvents- 9 -

and chemicals unti l she read a newspaper article abou t a suit that ha d been filed for the wrongful death of one ofMr. Mer ritt's co-workers , who had al so died ofleukemia. The trial court granted su mmary judg ment for t he de fenda nt, a nd th e pl aint iff appealed.

This court reversed the trial court. W e held that it was a q uestion for the juryas to wheth er the wi dow could r easonably have be en e xpected to di scover th e possible connecti on between her husband's exposure to chemicals and the illness that led to his

death, prior to the running of the statute of limi tations.

V.

W hile the appellants urge us to a dopt the rat iona le o f Foster v. Harris and Gosnell

v. Ashland Chemical, Inc. to find that their cause of action di d not accrue until they w ere able to fully inform themselves as to the ci rcumstances of Me lvin Lee Steele's death, we find very little resemblance between the situatio n of their decedent and that of Mr. F oster and Mr . Merritt

.

The delay in the discovery of the origin of Mr. Foster's serum hepatitis occurred because of the inherent difficulti es inv olved in t racing the transmission of disease. Since such di seases may becontracted w ithout negli gence by a nyparty, Mr. Foster was not put

on notice by

the diagnosi s that he may have b een the vi cti m of a negligent act.

The delay in t he discover y that Mr . Merritt 's leukemia may have been due to occupational exposure t o chemicals can be attribu ted to the imperfect state of medic al knowledg e about leukemia, an d also to the l ack of any li nk that woul d be obviousto layperso ns, between t he exposure a nd the illness . In both the Foster and- 10 -

Gosnell cases, the q uestion of causati on relied more upon e xpert know ledge than upon the common exp eriences of the or dinary per

son.
Analysis of the facts of the above cases shows that

the discovery rule
was appropriatel y used to pr otect the rights of individuals who were not put on inquiry that the injury

they suffered may have b een caused by the neglig ence of others. The plai ntiffs in the present

case, however, cannot persuasively argue that they were not put on inquir

y ofpossible neg ligence onc e they lear ned of Melvin Lee Steele's death. Theirprom pt ac tion in ret aini ng an atto rney s hows t hat t hey no t onl y shou ld ha ve been, but were in fact alert to the likel ihood of neglig ence.

Theyalso cannot argue that they had no idea who the responsible parties might be, si nce they were a wa re that thei r dece dent was atte nding Camp Discovery

at the time of his death . Regardless of the exact circu mst ances of the unfortunate incident , knowledg e of the bare fact of Melvin Lee Steele's death would have been sufficient to put th e appellants on notice of a possible claim against those charged with supe rvisi on over Mr. Steele and other mentally handicapp ed campers.

The discover

y rule w as not meantto allow a party to delay filing his claim until after he has complet ed the process of discovering all t he fact ors that affect its merits. It is cl ear from the recor d that the latefiling of the plaintiff s' complaint was due to simple mistake, rather than to a ny unavoidable delay in discovering their cause of action. Therefore the inv ocation of the di scove ry rule d oes not resc ue thei r cla im.

VI.- 11 - The j udgment of the trial court is af firmed. Remand th is cause to th e ChanceryCourt of Dav idson County for further proce edings consi stent wit h thi s opinion. Tax the costs on appeal to the appellant.

___ ______________________ ___ _ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SEC TION

_______________________________ SAMUEL L. LEWIS, JUDGE