Recent Supreme Court Decision: Application of Nebraska's Statute of Limitations and the Continuing Tort Doctrine

Recent Supreme Court Decision: Application of Nebraska's Statute of Limitations and the Continuing Tort Doctrine

Limitations on the time a plaintiff may bring suit have existed almost as long as the laws allowing plaintiffs to bring suit. Time limits find their origins in Roman law and have continued to be used in subsequent legal systems to this day. As early as 1236, English statutes were enacted prohibiting real property actions if they were based on a seisin prior to a given date. The modern time bar statutes first appeared in England in the Limitations Act of 1623.

In Alston v. Hormel Foods Corp., 273 Neb 422, --- NW2d --- (2007), the Nebraska Supreme Court held genuine issues of material fact existed as to whether statute of limitations ran on plaintiff’s October, 2003, complaint when the facts established she was first exposed to alleged hazards in 1990 or 1991, her diagnosis was made in 1996, but her last exposure to the alleged hazards was in November, 1999.

Beginning in September, 1988, Alston started working as a U.S. Department of Agriculture (“USDA”) meat inspector. In 1990 or 1991, she was assigned to Hormel Foods Corporation’s (“Hormel”) Fremont, Nebraska plant. While at Hormel, she was subjected to “excessive amounts of odor coming form the smokehouse ....” Alton, 273 Neb at 423. Alston claimed the work conditions exacerbated her asthma and lower airway reactivity; due to the respiratory problems, she also suffered from depression. Id.

In May, 1996, Alston was hospitalized for three (3) days; she was diagnosed with acute exacerbation of asthmatic bronchitis and allergic rhinitis. Id. In November, 1997, Alston missed work due to her physical condition.

In November, 1999, Alston completed and filed an application for immediate retirement from her USDA position. Id. at 424. Alston wrote in her application for retirement that she became disabled from her current position in April, 1995. In her application, Alston wrote, extensively, about her physical condition and attributed her disease to the “work environment.” Id.

In November, 1999, Alston terminated her employment with Hormel. At the same time, her doctor stated Alston had “significant asthma which is exacerbated by her environmental exposure at her place of employment.” In December, 1999, an allergy and asthma specialist wrote his suspicion that Alston’s condition will not improve until she is removed from “her current work environment.” Id.

In October, 1993, Alston filed her complaint against Hormel alleging excessive smoke and odor periodically reached the kill floor where she worked, Hormel had notice of the smoke and odor, and her condition was exacerbated by the smoke and odor. Id.

Hormel challenged Alston’s complaint on statute of limitations grounds, and filed a motion for summary judgment. The district court granted the motion. The Supreme Court reversed.

In reversing and remanding, the Supreme Court held:

It is well accepted that when an individual is subject to a continuing, cumulative pattern of tortious conduct, capable of being terminated and involving continuing or repeated injury, the statute of limitations doe no run until the date of the last injury or cessation of the wrongful action.

Id. at 426 (citations omitted).

The Court continued:

[T]the ‘continuing tort doctrine’ is not a separate doctrine, or an exception to the statute of limitations, as much as it is a straightforward application of the statute of limitations: It simply allows claims to the extent that they accrue within the limitations period. A ‘continuing tort’ ought not to be a rationale by which the statute of limitations policy can be avoided. But when there are continuing or repeated wrongs that are capable of being terminated, a claim accrues every day the wrong continues or each time it is repeated, the result being that the plaintiff is only barred from recovering those damages that were ascertainable prior to the statutory period preceding the lawsuit.

Id. at 429-30.

In concluding genuine issues of material fact existed as to whether Alston was injured by a continuing within the relevant four year limitations period, the Court also concluded the ‘discovery rule” did not affect the holding. Id. at 430. In determining when a claim accrues for a continuing tort “discovered” within the meaning of the discovery rule, but before the tort-feasor ceases the alleged tort, the Court concluded the “discovery rule,” at least in Nebraska, is a “tolling doctrine” and not one of accrual. To hold otherwise, and permit the discovery rule to apply under such circumstances, would be to issue the tort-feasor an “open ended license” to continue engaging in tortious conduct without any consequence. Id. at 434-35. ”

April, 2007
Claudia L. Stringfield-Johnson

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