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Cannon v. Mid-South X-Ray Co.2/23/1999
ot commence until the "act, omission or neglect" with reasonable diligence first is or should have been discovered. In other words, there not only has to be an injury, but the prospective plaintiff must know of the "act, omission or neglect" that caused it.
. That is not the language nor the interpretation of the statute of limitations that is applicable in the present case. The relevant general statute of limitations holds that in suits "for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury." Miss. Code Ann. § 15-1-49(2). What that means was discussed in a case relied upon by the majority here:
The cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease. Though the cause of the injury and the causative relationship between the injury and the injurious act or product may also be ascertainable on this date, these factors are not applicable under § 15-1-49(2), as they are under Miss. Code Ann. § 15-1-36. Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss. 1990) (emphasis added). The "cause of the injury" and the "causative relationship" between the injury and the "injurious act" are, as Edwards holds, explicitly not applicable factors in determining when this statute of limitations begins to run. Under section 15-1-49, the 3-year statute of limitation calendar begins as soon as the plaintiff becomes aware of the disease or injury.
. The majority reverses summary judgment as to the statute of limitations because it finds that the date for commencement of the running of the statute is a matter of disputed fact. In my view the only dispute concerns facts that are immaterial. No delay is authorized under this statute as a prospective plaintiff allegedly remains uncertain regarding the cause of her illness. This is shown in another case relied upon by the majority. In that suit the plaintiff brought suit against tobacco companies for the effects of her smoking; the court held that the cause of action accrued and the statute of limitations began to run when she was diagnosed with lung cancer. Schiro v. American Tobacco Co., 611 So. 2d 962, 965 (Miss. 1992). The earlier dates when the plaintiff stopped smoking, or two dates when she had reason to believe but had no physician's confirmation that she had cancer, did not begin the limitations period. Id.
. For the plaintiff here also to be permitted sufficient delay in bringing her suit, the initial diagnosis of the illnesses for which she is seeking compensation must have been within the three years prior to her complaint. In fact, all the illnesses that she claims arose from the effects of the chemicals in the darkroom were diagnosed well before the relevant date:
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