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Trentadue v. Buckler Automatic Lawn Sprinkler Co.5/5/2005
UNPUBLISHED March 24, 2005
APPROVED FOR PUBLICATION May 5, 2005
Plaintiff Estate of Margarette F. Eby appeals by leave granted the order granting defendants Estate of Ruth R. Mott ("Mott") and MFO Management Company ("MFO") summary disposition on plaintiff's claim pertaining to their breach of duty to provide adequate security to Margarette F. Eby ("Eby"), on the ground that it was barred by the applicable statute of limitations in this wrongful death action. Defendants, Buckler Automatic Lawn Sprinkler Company ("Buckler"), Shirley Gorton and Laurence W. Gorton ("the Gortons"), appeal by leave granted the order denying their motion for summary disposition based on the applicable statutes of limitation on all plaintiff's claims. MFO appeals by leave granted the order denying its motion for summary disposition on plaintiff's breach of duty claim under a theory of respondeat superior. We affirm in part, reverse in part, and remand.
Defendants assert that plaintiff's claims are barred by MCL 600.5805(10). Buckler and the Gortons assert that all plaintiff's claims should be precluded because MCL 600.5827 states that a claim accrues "at the time the wrong upon which the claim is based was done regardless of the time when damages results." They contend that the time of the wrong that initiated the running of the limitations period was the date plaintiff's injury resulted from a breach of duty. Lemmerman v Fealk, 449 Mich 56, 64; 534 NW2d 695 (1995), citing Larson v. Johns-Manville Sales Corp, 427 Mich 301, 309; 399 NW2d 1 (1986). Defendants contend the discovery rule is not available to plaintiff because the date of accrual is not delayed until discovery of the identity of the perpetrator or determination of all possible causes of action. Plaintiff argues that the discovery rule should apply because until Jeffrey Gorton's culpability for Eby's murder was discovered, there was no basis to assert breach of duty claims against Mott and MFO. Plaintiff asserts that without the identity of Eby's murderer, there was no basis to assert any type of claim against the remaining defendants, Buckler, the Gortons, Nyberg and Bakos because their culpability was solely based on their specific job responsibilities or employment relationship to the murderer Jeffrey Gorton.
A trial court's ruling on motions for summary disposition is reviewed de novo. Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001). When there is no disputed issue of fact, the question whether a statute of limitation bars a cause of action is also reviewed de novo. Van Reken v Darden, Neef & Heitsch, 259 Mich App 454, 456; 674 NW2d 731 (2003).
Our Supreme Court has recognized the dichotomy that exists between the need to protect defendants from stale claims and the injustice which could result from precluding certain claims as requiring application of a discovery rule to toll limitations periods in certain situations. A discovery rule has been applied to avoid unjust results which could occur when a reasonable and diligent plaintiff would be denied the opportunity to bring a claim due either to the latent nature of the injury or the inability of the plaintiff to learn of or identify the causal connection between the injury and the breach of a duty owed by a defendant. Specifically:
Where the discovery rule is found to be appropriate, a 'plaintiff's claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered . . . (1) an injury, and (2) the causal connection between plaintiff's injury and the defendant's breach [of duty to the plaintiff].' [Lemmerman, supra, p 66, quoting Moll v Abbott Laboratories, 444 Mich 1, 16; 506 NW2d 8
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