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Williams v. Clay County11/13/2003
99. This Court has also held that "genuine disputes as to the ability to discover a latent injury are questions of fact to be decided by a jury." Donald v. Amoco Prod. Co., 735 So. 2d 161, 168 (Miss. 1999) (citing Schiro v. American Tobacco Co., 611 So. 2d 962, 962 (Miss. 1992)).
. Thus, Williams' allegation that a latent injury tolls the statute of limitations until its discovery is properly founded in the case law of this State. However, Clay County asserts that Williams raises this allegation for the first time on appeal. It argues that Williams' failure to give the trial judge an opportunity to consider this aspect of her claim forecloses this Court's consideration of it. See Pickens v. Donaldson, 748 So.2d 684, 690 (Miss. 1999) (holding that the discovery rule did not toll statute of limitations in a medical malpractice action brought under the Act because the plaintiff made no claim that injury was latent, and offered no evidence that she did not or could not have discovered injury within the SOL).
. Though she did not specifically plead in her complaint that the statute of limitations was tolled because she suffered a latent injury , Williams does allude to this fact. In paragraph V of her complaint, Williams alleges the following: "While Plaintiff's injuries did not immediately appear to be serious, she began, shortly thereafter, to experience severe pain, and required medical treatment." In addition, in an affidavit filed by Williams as a supplement to her opposition to Clay County's motion to dismiss, she alleged the following:
When I sent my letter to Robbie Robinson concerning my fall, I did not mention my personal injury . This was because, at that time, the difficulties with my personal injury had not started. However, when I started having medical problems, I talked about these both with Mr. Robinson and to Supervisors Shelton Dean and Darrell Meyers. We discussed my injuries at the Courthouse. This discussion occurred in March, 2000. I was told that the Board of Supervisors was going to have a meeting as to whether or not they would pay my medical bills because of my fall.
(emphasis added). Thus, her allegations that she suffered a latent injury were in fact before the court, and they were known by Clay County.
. A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. To grant the motion there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim. ( Miss. R. Civ. P. 12 cmt.). In the present case, matters outside the pleadings were presented to and not excluded by the court; thus, Clay County's motion to dismiss should have been treated as one for summary judgment and disposed of as provided in Rule 56. Miss. R. Civ. P. 12 (b).
. Under Rule 56, " he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions of file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56 (c).
. Considering Williams' allegations under either rule 12 (b) or rule 56 (c), it is clear that she raised the issue of latent injury. It is also clear that the trial judge failed to address this issue in his order of dismissal. Whether Williams suffered a latent injury that tolled the SOL SOL until she became aware of it is a material issue of fact, and it is disputed by Clay County. Other disputed (or undeveloped) issues include, inter alia: whether Williams told Clay County the name of her doctor during the March 2000 meetings (thus, arguably creating
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