515 N.E.2d 342, 113 Ill. Dec. 533 (4th Dist. 1987). We cannot agree with defendants' analyses of these cases.
In Johnson, the court discussed the discovery rule in relation to the running of the statute of limitations, 103 Ill. App. 3d at 300, 431 N.E.2d at 473, 59 Ill. Dec. at 188, but it did not assert that the discovery rule controls when there is a continuing tort allegation. Instead, the court emphasized that under either analysis -- the discovery rule or continuing tort -- plaintiff's cause of action would not be time-barred. Id.
Nor can we accept defendants' argument that Kirby addressed this interplay. The court in Kirby held defendant's construction of a permanent ballpark near plaintiff's home could only constitute a single, not continuing nuisance. 162 Ill. App. 3d at 465, 515 N.E.2d at 344, 113 Ill. Dec. at 535. As defendant's alleged act of nuisance could not have constituted a continuing tort, the court evaluated the statute of limitations issue only in accordance with the discovery rule. Id.
When the Illinois Supreme Court adopted the discovery rule in Nolan, supra, and Witherell, supra, the court chose to apply an intermediate discovery rule concept. See Knox College v. Celotex Corp., 88 Ill. 2d 407, 416, 430 N.E.2d 976, 980, 58 Ill. Dec. 725, 729 (1981). But no Illinois decisions discuss the relationship between the continuing tort doctrine and the discovery rule, although Johnson, by implication, supports the plaintiff's position here. Several federal decisions do, however, address the relationship between the two in the context of the Federal Tort Claims Act. See, e.g., Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818 (D.C. Cir. 1984); Gross v. United States, 676 F.2d 295 (8th Cir. 1982).
In Page, the D.C. Circuit refused to apply the discovery rule of United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979), and instead held a plaintiff's cause of action did not accrue until the government allegedly stopped administering harmful drugs to him. 729 F.2d at 823. And in Gross, the Eighth Circuit determined that a series of acts by the federal government which wrongfully denied the plaintiff farmer participation in a feed grain program constituted a continuing tort. 676 F.2d at 300 (citing Cooper v. United States, 442 F.2d 908, 912 (7th Cir. 1971)). The Gross court rejected the government's argument that Kubrick prevented plaintiff from recovering damages for any harm caused outside of the two-year limitations period: "Where the tortious conduct is of a continuing nature, the Kubrick rule does not apply." Id.
Following the rule identified by these courts, we conclude that the limitations period does not begin to run when the plaintiff acquires knowledge that his deteriorating physical condition was or may have been caused by his use of potentially hazardous chemicals. We look instead to the date of the last exposure. To hold otherwise would allow a party to acquire a right to continue engaging in tortious conduct. Id. 729 F.2d at 822 (citing Fletcher v. Union Pacific R.R., 621 F.2d 902, 908 (8th Cir. 1980), cert. denied, 449 U.S. 1110, 66 L. Ed. 2d 839, 101 S. Ct. 918 (1981)).
Finally, defendants argue that if we accept the continuing tort doctrine as controlling, plaintiff cannot allege that defendants engaged in continuous tortious conduct. This argument flows from defendants' assertion that in order for there to be a continuing tort, defendants must be under a continuing duty to warn plaintiff of the dangers associated with using the chemicals. Once plaintiff learned that his respiratory problems were linked to the chemicals in his workplace, defendants' duty to warn was purportedly extinguished.
We find this argument more properly addressed in a motion for summary judgment on the issue of liability and assumption of risk. With respect to this motion, we cannot rule that plaintiff's knowledge extinguished defendants' duty. Furthermore, plaintiff alleges the chemicals were defective and posed a danger to his health. This allegation survives regardless of whether defendants provided plaintiff with adequate warning. Because plaintiff's cause of action accrued on the date of his last exposure, his cause of action is not time-barred.
For the foregoing reasons, defendants' motion for summary judgment is denied.
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