Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 27 -- Alfred Y. Kirkland, Judge .
Before Cummings and Wood, Circuit Judges, and Jameson, Senior District Judge.*fn*
The plaintiff, Jack Steele, appeals from the district court's dismissal of his complaint against the United States. The facts as revealed in the record and the briefs of the parties are as follows: According to the plaintiff's complaint, he was injured on August 15, 1975, while installing runway lights and signs on an inactive runway at O'Hare International Airport in Chicago, Illinois. While connecting wires to a transformer box, he sustained an electrical shock because the current to the box was on. Unknown to the plaintiff, an agency of the United States, the Federal Aviation Administration, operated and controlled a remote power switch regulating the flow of electricity to the transformer. The plaintiff alleges that the FAA negligently left the electric current on and negligently failed to warn the plaintiff of the remote power switch. He seeks damages for personal injuries, pain and suffering, medical expenses, and lost wages.
The plaintiff initially commenced an action in the district court against the FAA on August 12, 1977. The district court dismissed this complaint because the plaintiff had failed to first file an administrative claim with the appropriate federal agency as required by the Federal Tort Claims Act. The plaintiff has not appealed from that dismissal.*fn1
On September 14, 1977, the plaintiff filed an administrative claim with the FAA which rejected it because the accident had occurred more than two years prior to the filing of the claim, See 28 U.S.C. § 2401(b), and because the claim form failed to specify a sum certain as required by Department of Justice regulations, 28 C.F.R. § 14.2 (1978).*fn2 The plaintiff amended the claim form to state a sum certain and resubmitted it to the FAA. On October 17, 1977, the FAA again returned the form, explaining as it had earlier, that the claim was untimely.
On January 4, 1978, the plaintiff filed his present complaint in federal district court, generally alleging that before November 1, 1975, he neither knew, nor in the exercise of reasonable diligence could have known, of the remote power switch or the control of the United States or its agents over it. On June 21, 1978, the district court granted the defendant's motion to dismiss on the ground that the claim accrued on the date of the injury, which was more than two years before the filing of a claim with the FAA. The only issue raised in this appeal is whether the two-year statute of limitation for presenting tort claims to federal agencies prevents the plaintiff from prosecuting this action. We hold that it does and affirm the judgment of the district court.
The applicable statute of limitation, 28 U.S.C. § 2401(b) provides:
A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues . . . .
We note initially a matter which seems to have been assumed by the parties and which we think is implicit in the prior decisions of this court.*fn3 Although the liability of the government under the Federal Tort Claims Act is determined "in accordance with the law of the place where the act or omission occurred," 28 U.S.C. § 1346(b), when a "claim accrues" is determined by federal law. Kossick v. United States, 330 F.2d 933 (2d Cir.), Cert. denied, 379 U.S. 837, 85 S. Ct. 73, 13 L. Ed. 2d 44 (1964); Tyminski v. United States, 481 F.2d 257, 262-63 (3d Cir. 1973); Portis v. United States, 483 F.2d 670, 672 n. 4 (4th Cir. 1973); Quinton v. United States, 304 F.2d 234 (5th Cir. 1962); Jordan v. United States, 503 F.2d 620, 622 (6th Cir. 1974); Reilly v. United States, 513 F.2d 147, 148 (8th Cir. 1975); Hungerford v. United States, 307 F.2d 99, 100-01 (9th Cir. 1962), Noted in 63 Colum.L.Rev. 536 (1963); Exnicious v. United States, 563 F.2d 418, 420 n. 6 (10th Cir. 1977).*fn4
We can do little more than restate the reasons for a federal rule given in Quinton v. United States, 304 F.2d 234 (5th Cir. 1962). Congress, by enacting a two-year statute of limitation for tort claims against the government, clearly manifested its intention to have a uniform rule defining when such claims become stale, and "(t)he simple fact is that (the) law respecting the accrual of a particular claim cannot be divorced from the . . . law fixing the period after accrual within which the plaintiff can bring suit on an accrued claim." Id. at 238. Application of the laws of the various states to determine when claims accrue would thus "permit the states to do indirectly what Congress clearly forbids them to do directly by increasing or decreasing their statutes of limitations on particular claims," Id. at 236, and would leave the government subject to diverse local rules on accrual.*fn5 This would undercut the policy of repose for the United States the very purpose of the two-year limitation. See Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971).
That the question of when a claim accrues is governed by federal law does not, of course, end our inquiry since we must still determine what is the appropriate rule.*fn6 The Restatement of Torts provides the following general rule for when a cause of action accrues. Restatement (Second) of Torts § 899, comment C (1977). Ordinarily, a statute of limitation does not begin to run until the tort is complete, I. e., when there has been "an invasion of a legally protected interest of the plaintiff." In a negligence action where damage is the last essential element of the tort, the "cause of action for negligently harming a person or thing is complete when the harm occurs." Accord, Developments in the Law Statutes of Limitations, 63 Harv.L.Rev. 1177, 1201 (1950) ("if harm is deemed the gist of the action, the occurrence of harm marks the beginning of the period"). Moreover, under the early cases the limitations period began as soon as the injury regardless of the plaintiff's knowledge of the tort. See Restatement (Second) of Torts § 899, comment E (1977).
The plaintiff, however, maintains and the government apparently concedes that under the federal standard a claim accrues when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the tort.*fn7 This standard, the so-called discovery rule, originated in malpractice cases. See Comment, Federal Torts Claims Act Interpretation of Two Year Period of Limitations, 34 Tenn.L.Rev. 421, 430 (1967), and has recently been adopted by this court as the proper standard for medical malpractice claims in De Witt v. United States, 593 F.2d 276 (7th Cir. 1979). Yet, to say that the claim accrues upon discovery does not resolve all the difficulties in determining when a claim accrues, because it remains to be delineated what should be discovered. The court could, for example, look to the plaintiff's discovery of the acts leading to the injury, the character of those acts, E.g., negligence, or the injury itself. Hence, in De Witt we adopted a further elaboration of the discovery rule: " "(Until) a claimant has had a reasonable opportunity to discover All of the essential elements of a possible cause of action duty, breach, causation, damages his claim against the Government does not accrue.' " De Witt, 593 F.2d at 279 (quoting Bridgford v. United States, 550 F.2d 978, 981-82 (4th Cir. 1977)).
Arguably if the standard adopted in De Witt were applied in the present case, we would have to reverse the trial court's judgment. According to the plaintiff's general allegations, he neither knew, nor in the exercise of reasonable diligence could have known, of the remote power switch and the FAA's control over it. If we accept these allegations as sufficient, arguably the plaintiff had no reason to know of the cause of his injury or, more arguably still, the breach of a duty owed to him. Regardless of the correctness of the relaxed discovery rule in medical malpractice cases,*fn8 we do not believe that the refinement of the discovery rule should govern when a claim accrues for more ordinary torts such as the one suffered by the plaintiff here.
Several factors distinguish medical malpractice claims from the more usual types of personal injury torts. First, many of the consequences of medical malpractice remain undiscovered until after the limitations period if it commences upon the actual injury. Restatement (Second) of Torts § 899, comment E (1977). Thus, the injury itself may be unnoticed. Second, "the nature of the tort itself and the character of the injury will frequently prevent knowledge of what is wrong, so that the plaintiff is forced to rely upon what he is told by the physician or surgeon." Id. Hence, even if the injury is apparent, the causal connection between the doctor's acts and the injury may be difficult to ascertain. Finally, even if the injury is obvious and is seemingly the consequence of the doctor's conduct, whether that conduct constituted a departure from standards of due care is often difficult for a layman to judge. See, e.g., Kubrick v. United States, 581 F.2d 1092 (3d Cir. 1978), Cert. granted, 440 U.S. 906, 99 S. Ct. 1211, 59 L. Ed. 2d 453 (1979), rev'd, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979); Cf. Developments in the Law Statutes of Limitations, 63 Harv.L.Rev. 1177, 1201 (1950) (ordinary rules for determining when a cause of action accrues are particularly harsh ...