 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please see
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 6          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 LARRY TROUBLEFIELD,

 8          Plaintiff-Appellant,

 9 v.                                                                   NO. 29,088

10 FENN FOODS, INC.,

11          Defendant-Appellee.

12 APPEAL FROM THE DISTRICT COURT OF EDDY COUNTY
13 Jane Shuler Gray, District Judge

14 Templeman & Crutchfield
15 C. Barry Crutchfield
16 Lovington, NM

17 for Appellant

18 Wagner Ford Law, P.A.
19 Lisa P. Ford
20 Albuquerque, NM

21 for Appellee


22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.

24          Plaintiff Larry Troublefield appeals the grant of summary judgment in favor of

25 Defendant, Fenn Foods, Inc. The district court held that Plaintiff’s claim was barred
 1 by the statute of limitations because it was not filed until over three years after he was

 2 injured in Defendant’s store. We affirm, concluding that Plaintiff’s claim accrued on

 3 the same day of the accident because there is no factual dispute that Plaintiff

 4 immediately knew that he suffered injuries.

 5 BACKGROUND

 6        Plaintiff was knocked to the ground and injured in Defendant’s grocery store

 7 on September 5, 1999, when he was struck by a cart being pushed by Defendant’s

 8 employee. Plaintiff filed suit against Defendant on April 18, 2003, approximately

 9 three years and seven months later. The district court granted summary judgment in

10 favor of Defendant based on the three-year statute of limitations. Plaintiff argues that

11 his suit is not barred by the statute of limitations because the statute was tolled until

12 at least April 25, 2000, because it wasn’t until then that he linked his throat injury to

13 his fall at the grocery store.

14        As a result of his fall, Plaintiff immediately suffered bruises, scratches, and a

15 bleeding wrist. Later the same day, he noticed that he could not swallow as he did

16 before his fall: when he drank water it caused him to choke. Plaintiff received

17 medical care for his injuries, and as of December 1999 he had been diagnosed with

18 bilateral ankle sprains or contusions, a left wrist sprain, and a forearm laceration.




                                               2
 1 However, Plaintiff’s treating physician was unable to find objective evidence of

 2 Plaintiff’s swallowing symptoms and recommended more testing.

 3        Plaintiff had experienced similar swallowing problems in the past relating to

 4 screws and bracing placed in his neck in 1998 in order to treat a prior medical problem

 5 unrelated to his fall at Defendant’s store. In an apparent attempt to treat Plaintiff’s

 6 renewed swallowing symptoms, the screws and bracing were removed in April 2000.

 7 After Plaintiff’s swallowing symptoms did not improve, Plaintiff attributed his

 8 swallowing symptoms to his fall at Defendant’s store. He argues that the statute of

 9 limitations was tolled until April 2000 because the cause of his swallowing symptoms

10 was not discoverable until the screws and bracing were removed and his symptoms

11 did not improve.

12 STANDARD OF REVIEW

13        Plaintiff does not challenge any of the district court’s factual findings and

14 argues only that the district court erred as a matter of law in concluding that his claim

15 is barred by the statute of limitations. “An appeal from the grant of a motion for

16 summary judgment presents a question of law and is reviewed de novo. Summary

17 judgment is appropriate where there are no genuine issues of material fact and the

18 movant is entitled to judgment as a matter of law.” In re Cable Family Trust, 2010-




                                               3
1 NMSC-017, ¶ 9, __ N.M. __, __ P.3d __ (internal quotation marks and citation

2 omitted).




                                       4
 1 DISCUSSION

 2        Plaintiff does not dispute that NMSA 1978, Section 37-1-8 (1976) applies to

 3 his claim and bars personal injury actions “not brought within three years of accrual

 4 of the cause of action.” Maestas v. Zager, 2007-NMSC-003, ¶ 15, 141 N.M. 154, 152

 5 P.3d 141 (internal quotation marks and citation omitted). The sole issue on appeal is

 6 whether there is a genuine issue of material fact as to the time of accrual of Plaintiff’s

 7 cause of action for injuries sustained from his fall at Defendant’s store. Plaintiff

 8 argues that his claim did not accrue until approximately seven months after he was

 9 injured because it wasn’t until then that a medical treatment removing screws and

10 bracing from his neck failed to remedy his condition. We cannot agree that these facts

11 present a genuine issue as to the time of accrual of Plaintiff’s cause of action.

12        Plaintiff relies on Peralta v. Martinez, 90 N.M. 391, 394, 564 P.2d 194, 197

13 (Ct. App. 1977), modified by Maestas, 2007-NMSC-003, to argue that a cause of

14 action for personal injury does not accrue until the time an injury “manifests itself .

15 . . and is ascertainable.” In Peralta, the plaintiff brought a medical malpractice claim

16 against a doctor who had operated on him nearly five years earlier. Id. at 392, 564

17 P.2d at 195. However, the cause of the plaintiff’s injury—that a “cottonoid” had been

18 left in the plaintiff’s body after surgery—was not discovered until over two years after

19 the original surgery. Id. Under those facts we concluded that the claim was not


                                               5
 1 barred by the statute of limitations because the injury did not “manifest[] itself in a

 2 physically objective manner and [become] ascertainable” until the cottonoid was

 3 discovered. Id. at 394, 564 P.2d at 197 (emphasis added). However, Peralta is not

 4 helpful here for two reasons: (1) its application of the “manifest and ascertainable”

 5 test has become obsolete, and (2) it dealt with a medical malpractice issue that

 6 presents policy considerations distinguishable from the case at bar.

 7        The holding in Peralta is obsolete. In cases subsequent to Peralta, the time of

 8 accrual of a cause of action in medical malpractice has turned on the applicability of

 9 the Medical Malpractice Act (MMA) and, more specifically, the language of the

10 applicable statute of limitations. In Cummings v. X-Ray Associates of New Mexico,

11 P.C., 1996-NMSC-035, ¶ 47, 121 N.M. 821, 918 P.2d 1321, the New Mexico

12 Supreme Court identified two rules for determining the time of accrual:            the

13 occurrence rule, and the discovery rule. Where a cause of action is brought under the

14 MMA, the “occurrence rule” applies and those causes of action accrue at the time of

15 the negligent act, not the date of discovery. See id. ¶¶ 48, 50-51 (interpreting NMSA

16 1978, Section 41-5-13 (1976), which states that claims for medical malpractice must

17 be “filed within three years after the date that the act of malpractice occurred”).

18 However, in personal injury cases falling outside of the MMA where, as here, Section

19 37-1-8 applies, the discovery rule applies and a cause of action accrues when “the


                                              6
 1 plaintiff knows or with reasonable diligence should have known of the injury and its

 2 cause.” Maestas, 2007-NMSC-003, ¶ 18 (internal quotation marks and citation

 3 omitted). Thus, the “manifest and ascertainable” test applied in Peralta is now

 4 obsolete because it describes neither the occurrence rule nor the discovery rule. See

 5 Maestas, 2007-NMSC-003, ¶ 20 (explaining that (1) under the occurrence rule,

 6 accrual hinges strictly on the date of the act of negligence; and (2) Peralta explicitly

 7 held that the language “manifest and ascertainable” does not describe a discovery

 8 rule).

 9          In addition, the discovery rule is applied somewhat uniquely in personal injury

10 cases for medical malpractice (non MMA cases) based on policy considerations not

11 applicable to the case at bar. In Maestas, the Court recognized several policy

12 considerations unique to medical malpractice claims which justified use of the

13 discovery rule where the MMA does not apply:

14          The victim of medical malpractice is in a vulnerable position and should
15          not be punished for his or her lack of medical expertise. Although the
16          plaintiff in a medical malpractice case may not require any special
17          knowledge or training to know that she suffers from pain, in the absence
18          of such knowledge or training, she may be unable to ascertain the cause
19          of that pain. . . . The disparity between doctors and patients places a duty
20          on the law to protect the patient from injury caused by a negligent act of
21          a physician. Included within that duty is an obligation to ensure that a
22          person of ordinary diligence has an adequate period of time to pursue his
23          claim.




                                                 7
 1 Maestas, 2007-NMSC-003, ¶ 19 (internal quotation marks and citations omitted).

 2 Plaintiff does not explain how any of these policy considerations are analogous here

 3 such that the rule as articulated in Peralta should apply to his claim. Thus, to the

 4 extent that the policy justification for the holding in Peralta continues to carry

 5 persuasive weight in some cases, it is not helpful here.

 6        In general, a personal injury cause of action accrues once a plaintiff suffers a

 7 loss or injury. In Bolden v. Village of Corrales, 111 N.M. 721, 722, 809 P.2d 635,

 8 636 (Ct. App. 1990), the plaintiff was certain that she had suffered a loss or injury

 9 when she fell in the defendant’s ditch and hurt her ankle. Id. The fact that she was

10 later diagnosed with a more severe or different injury than she may have initially

11 realized did not toll the statute of limitations. Id. The facts in Bolden were

12 distinguishable from medical malpractice cases where injuries had been “inherently

13 unknowable.” Id.

14        We recognize that in Bolden we considered the now obsolete “manifest and

15 ascertainable” language from Peralta. However, our analysis of that case is consistent

16 with the discovery rule later articulated in Maestas, 2007-NMSC-003, ¶ 18.

17 Specifically, in Bolden, we concluded that the statute of limitations began to run when

18 the plaintiff knew of her injury and its cause, and that the facts of that case were

19 distinguishable from Peralta. Bolden, 111 N.M. at 722, 809 P.2d at 636. We stated


                                              8
 1 that “[i]t is not required that all the damages resulting from the negligent act be known

 2 before the statute of limitations begins to run.” Id. “Once plaintiff suffers loss or

 3 injury, the statute begins to run.” Id.

 4        Pursuant to Bolden, Plaintiff’s cause of action accrued on the day he was

 5 knocked down in Defendant’s store. There is no factual dispute that Plaintiff was

 6 aware that he had suffered injuries as a result of being struck by Defendant’s

 7 employee on September 5, 1999. Plaintiff also knew that he developed a renewed

 8 swallowing problem the same day of the accident that had not existed before the

 9 accident. Thus, as in Bolden, it was immediately apparent to Plaintiff that he was

10 injured and the cause of his injuries. Id. The fact that Plaintiff may not have fully

11 understood the extent of his throat condition—whether or not removal of the screws

12 and bracing would remedy the problem—does not negate his knowledge that a

13 swallowing condition and other nonnegligible injuries occurred immediately after the

14 accident. See id. (stating “[t]he fact that the full extent of the injury was not known

15 does not affect the running of the statute of limitations”); see also, Martinez v. Showa

16 Denko K.K., 1998-NMCA-111, ¶¶ 21-22, 125 N.M. 615, 964 P.2d 176 (holding that

17 the discovery rule under Section 37-1-8 began to run when the plaintiff knew of her

18 injury and could have reasonably attributed its cause to the defendant even before any

19 definitive medical diagnosis was made).



                                               9
1 CONCLUSION

2        For the foregoing reasons, we affirm the district court’s grant of summary

3 judgment in favor of Defendant because Plaintiff’s claim is barred by the statute of

4 limitations.

5        IT IS SO ORDERED.


6
7                                        MICHAEL D. BUSTAMANTE, Judge

8 WE CONCUR:


 9
10 MICHAEL E. VIGIL, Judge


11
12 TIMOTHY L. GARCIA, Judge
13




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