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January 19, 1984


The opinion of the court was delivered by: Foreman, Chief Judge:


Before the Court is a Motion for Judgment on the Pleadings or Summary Judgment by defendant Glendale Optical Company.

The key issue is whether or not plaintiff sustained a traumatic injury so that his claim would be barred by the applicable statutes of limitations. The facts alleged are as follows: On or about May 17, 1977, in the course of plaintiff's employment as a welder, a piece of hot slag flew from an iron object which plaintiff was cutting with a torch. The object landed on top of the plaintiff's safety goggles, burned through the frame and dropped to the bottom of the frame, lodging against the skin below plaintiff's eye. The burn was apparently small, comparable in size to a pea or the eraserhead on a pencil (plaintiff's deposition at 75, John Holt's deposition at 25). Plaintiff did not seek medical attention until April of 1982. Plaintiff was diagnosed as having skin cancer for which he underwent surgical treatment. Between the time of the original burn and diagnosis, the sore would heal up and break out periodically. On April 11, 1983, plaintiff sued the manufacturer of the goggles (Glendale Optical Co.) on theories of strict liability, breach of express or implied warranty and negligence.

Defendant seeks to characterize plaintiff's injury as traumatic so that under the holding of Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970) the statute of limitations would begin to run from the time of the traumatic event which caused the injury i.e. the burning of plaintiff's skin. Since the burn occurred in 1977 and suit was filed in 1983, plaintiff's negligence and strict liability claims would be time barred (See Ill.Rev. Stat., ch. 110, paras. 13-202, 13-213; the statute of limitations issue regarding breach of warranty will be discussed later in the opinion).

Plaintiff, in opposition, argues that the injury should not be dealt with under the traumatic injury rule, since he did not discover his injury, the cancer, at the time of the traumatic event. It is plaintiff's position that the exact time at which he should have known that he had skin cancer and that the cancer was wrongfully caused is a question for the jury. Thus plaintiff seeks to invoke the discovery rule which provides ". . . when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run . . ." Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 52 Ill.Dec. 1, 5, 421 N.E.2d 864, 868 (1981); accord, Hobby v. Johns-Manville Sales Corp., 573 F. Supp. 53, 55 (S.D.Ill. 1983) (cause of action for asbestos-related disease could accrue no later than time of diagnosis under discovery rule).

Since matters outside the pleadings have been presented to the Court, defendant's motion shall be treated as one for summary judgment. Fed.R.Civ.P. 12(c). The purpose of summary judgment is to prevent an unnecessary trial where, on the basis of pleadings and supporting documents, there remains no material issue of fact to be tried. Kirk v. Home Indemnity Co., 431 F.2d 554, 559 (7th Cir. 1970). The Court may not try disputed fact questions on the basis of evidence before it (Carter v. Williams, 361 F.2d 189, 194 (7th Cir. 1966)) and all inferences drawn from such evidentiary materials must be in favor of the non-moving party. Cedillo v. International Association of Bridge, Etc., 603 F.2d 7, 11 (7th Cir. 1979). The sole determination of the trial court is whether or not a dispute as to a material fact exists (Carter, supra) and the burden is on the movant to make this showing. Rose v. Bridgeport Brass Co., 487 F.2d 804, 808 (7th Cir. 1973). The parties are apparently in agreement that the plaintiff was burned below his right eye sometime in May of 1977. Thus, the threshold legal issue is whether this event triggered the running of the applicable statute of limitations.

The issue presented is a novel one, not neatly falling within the category of cases decided under either the discovery rule or the "traumatic injury rule".*fn1 Although plaintiff's ultimate injury may be traced to what could be viewed as a traumatic event, the burning of the skin under his right eye, the injury for which he seeks compensation, the cancer, is the type of slowly developing disease for which the discovery rule is commonly employed. See Nolan, supra. After a review of Illinois case law in this area, it is the Court's opinion that common sense and the policy behind the discovery rule compel the conclusion that this is not a proper case for the application of the traumatic injury rule.

Illinois Courts have found application of the traumatic injury rule appropriate in cases where it was apparent at the time of the traumatic event that the injury was serious enough to be compensable in a legal action, assuming such injury was wrongfully caused. See Berry v. G.D. Searle & Co., 56 Ill.2d 548, 309 N.E.2d 550 (1974); Williams v. Brown Manufacturing Co., 45 Ill.2d 418, 261 N.E.2d 305 (1970); Le Pretre v. Petrie Bros., 113 Ill. App.3d 484, 69 Ill.Dec. 334, 447 N.E.2d 551 (3d Dist. 1983); Bates v. Little Co. of Mary Hospital, 108 Ill. App.3d 137, 63 Ill.Dec. 887, 438 N.E.2d 1250 (1st Dist. 1982). In the case at bar, however, it was by no means clear that plaintiff had a compensable injury at the time of the burn. Plaintiff's deposition indicates that he had been burned before in the course of his employment as a welder (plaintiff's deposition at 58, 102) and did not feel the burn in this case was a serious enough injury to warrant a trip to the doctor (plaintiff's deposition at 76). Plaintiff also indicated that he once had a burn on his hand which took over two years to heal (plaintiff's deposition at 102-104). The testimony of plaintiff's employer at the time of the burn, John Holt, also indicated that most slag burns normally will heal properly and disappear; Mr. Holt did not feel the burn warranted a trip to the doctor (deposition of John Holt at 27).

In this case, the injury for which plaintiff sues is not the burn, but the cancer which allegedly developed from the burn. From the depositions of two doctors, it appears that the type of cancer plaintiff had could have developed in a matter of months or a matter of years deposition of Dr. Koldys at 18-19, 30-33; deposition of Dr. McCracken at 8-9. Thus, this type of injury develops over time and is similar in this regard to the disease of abestosis for which the Illinois Supreme Court invoked the discovery rule in Nolan, supra.

On the other hand, plaintiff's injury bears little similarity to the types of injuries for which the traumatic injury rule has been found appropriate (See Berry, supra, stroke; Williams and Bates, supra, injuries caused by being pinned or run over by machinery; LePretre, supra, severe burns caused by explosion; See also Lofton v. General Motors, 694 F.2d 514 (7th Cir. 1982), disc damage from a fall). Although the plaintiff in this case may have waited an unreasonable length of time before filing suit, the Court feels resolution of this question is inappropriate for summary judgment. Under Illinois law, "[t]he question of when a party knew or should have known both of an injury and its probable wrongful cause is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them." Nolan, supra, 52 Ill.Dec. at 5-6, 421 N.E.2d at 868-869. In the present case, disputed fact issues exist as to whether the burn changed in size or appearance. Moreover, the issue of when the plaintiff should have known of the injury invokes the reasonable man standard, a standard most appropriately applied by the jury. See Wright, Miller, & Kane, Federal Practice and Procedure, § 2729 at 194 (2d Ed. 1983). Accordingly, defendant's Motion for Summary Judgment on the issues of strict liability and negligence will be denied.

Defendant also argues that plaintiff's claims for breach of express and/or implied warranty, are time barred. The statute of limitations for breach of warranty actions found in the Uniform Commercial Code is as follows:

    (1) An action for breach of any contract for
  sale must be commenced within 4 years after the
  cause of action has accrued. By the original
  agreement the parties may reduce the period of
  limitation to not less than one year but may not
  extend it.
    (2) A cause of action accrues when the breach
  occurs, regardless of the aggrieved party's lack
  of knowledge of the breach. A breach of warranty
  occurs when tender of delivery is made, except
  that where a warranty explicitly extends to
  future performance of the goods and discovery of
  the breach must await the time of such

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