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Grillo v. Speedrite Products5/22/2000
940 S.W.2d 139, 144 (Tex. Ct. App. 1996) aff'd, 974 S.W.2d 31(Tex. 1998) ( " iscovery of the 'nature' of an injury resulting from a progressive occupational disease must include knowledge sufficient to determine whether the injury is a temporary sickness or a permanent condition." The court noted that the discovery rule should not be applied in a manner which would require one to file an action for temporary sickness or discomfort or risk the loss of a right of action for permanent injury. The court further noted, as an example, the absurdity of requiring a sandblaster, who might know that silicosis can be related to sandblasting, to file a lawsuit at the first sign of a cough in order to protect his rights in the case that he might suffer from the disease.)
III.
Viewing the evidence in the light most favorable to Grillo, we conclude CMP was not entitled to summary judgment as a matter of law on the basis that Grillo should have known he had a cause of action when he associated his temporary symptoms with the use of the ink as of May 1992. We find more than one inference can be drawn as to when a reasonable person would have been on notice that he might have a cause of action against CMP. Institution of an action based upon those temporary symptoms would likely have been premature and possibly frivolous. Moreover, the permanent injuries for which Grillo now seeks recovery would not have been compensable at that time. Accordingly, a jury issue is presented as to the application of the statute of limitations in this case. See Johnston v. Bowen, 313 S.C. 61, 437 S.E.2d 45 (1993).
REVERSED AND REMANDED.
GOOLSBY and HUFF, JJ., concur.
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