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Bill A. Axe v. Norfolk Southern Railway

June 27, 2012

BILL A. AXE,
PLAINTIFF-APPELLANT,
v.
NORFOLK SOUTHERN RAILWAY COMPANY, CONSOLIDATED RAIL CORPORATION, AND AMERICAN PREMIER UNDERWRITERS, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Madison County. No. 10-L-879 Honorable William A. Mudge, Judge, presiding.

The opinion of the court was delivered by: Justice Stewart

Rule 23 order filed

May 30, 2012;

Motion to publish granted

JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Spomer and Wexstten concurred in the judgment and opinion.

OPINION

¶ 1 On August 23, 2010, the plaintiff, Bill A. Axe, a retired railroad conductor, filed his complaint seeking damages against his former employers, Norfolk Southern Railway Company, Consolidated Rail Corporation, and American Premier Underwriters, Inc. (formerly known as Penn Central Transportation Company),*fn1 pursuant to the Federal Employers' Liability Act (FELA) (45 U.S.C. §§ 51--60 (2006)), alleging injuries caused by repetitive trauma to his knees. On June 1, 2011, the circuit court of Madison County granted the defendants' motion for summary judgment on the ground that the plaintiff's cause of action was barred by the three-year statute of limitations (45 U.S.C. § 56 (2006)). In its ruling, the court found that the plaintiff had a duty to investigate the cause of his injuries because his condition of severe degenerative arthritis had been diagnosed and had manifested itself no later than July 24, 2006, more than three years before he filed his complaint. Because the plaintiff reasonably should have known of both the injury and its cause more than three years before filing his complaint, the court granted the defendants' motion for summary judgment. The plaintiff filed a timely notice of appeal.

¶ 2 BACKGROUND

¶ 3 In 2002, the plaintiff retired from his employment as a freight conductor for the defendants. On August 23, 2010, he filed his complaint, alleging that his job duties required him to "climb onto and ride on and operate locomotive engines." The plaintiff alleged injuries to "his knees and related nerves and soft tissue" as a result of the defendants' negligence. Each of the defendants answered the complaint, and each alleged the affirmative defense that the plaintiff's complaint was barred by the statute of limitations.

¶ 4 On December 28, 2010, the defendants filed a motion for summary judgment on statute of limitations grounds. The defendants argued that the plaintiff's cause of action for repetitive trauma injury to his knees must have accrued on or after August 23, 2007, which was three years before he filed his complaint, or it was barred by the statute of limitations. The defendants argued that the plaintiff's medical records showed that his claim accrued well before August 23, 2007, and was accordingly barred. The defendants set forth a list of the plaintiff's medical records showing that he underwent right knee arthroscopic surgery in 1992, that he was treated for osteoarthritis in his right knee on September 15, 2003, that he had bilateral knee complaints that began well before July 24, 2006, and that he underwent a left knee replacement on August 23, 2006.

¶ 5 The defendants argued that they were entitled to summary judgment because the plaintiff had failed to show compliance with the three-year statute of limitations under the FELA, a condition precedent to his cause of action. They asserted that the plaintiff's cause of action for repetitive trauma to his knees accrued when he knew or should have known in the exercise of reasonable diligence the essential facts of his injury and its causes. They argued that the case law construing the FELA statute of limitations placed the plaintiff under an affirmative duty to investigate his injury and any suspected cause once his symptoms began. In support of their motion for summary judgment, the defendants attached copies of the plaintiff's relevant medical records.

¶ 6 On March 25, 2011, the plaintiff filed a response to the defendants' motion for summary judgment, arguing that he did not have actual knowledge that his employment caused his injuries until "2009 when he was discussing a possible claim with co-workers." In his response, the plaintiff also argued that he did not have constructive notice that his railroad employment caused his injuries because "he did not know the cause of his injuries until 2009 and his doctors never told him that his injuries were railroad related." He attached his affidavit to his response. In that affidavit, the plaintiff averred that he had twisted his knee at work in 1992, that he had filed a claim and was paid for that injury, and that his current claim was not based on the 1992 injury. The plaintiff also averred as follows:

"9. During this time [after 1992], the railroad knew that part of my job duties were to get on and off moving equipment; however, the railroad never warned me that it could cause damage to my ...


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