                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                  Axe v. Norfolk Southern Ry. Co., 2012 IL App (5th) 110277




Appellate Court            BILL A. AXE, Plaintiff-Appellant, v. NORFOLK SOUTHERN
Caption                    RAILWAY COMPANY, CONSOLIDATED RAIL CORPORATION,
                           and AMERICAN PREMIER UNDERWRITERS, INC., Defendants-
                           Appellees.



District & No.             Fifth District
                           Docket No. 5-11-0277


Rule 23 Order filed        May 30, 2012
Motion to publish
granted                    June 27, 2012


Held                       Summary judgment was properly entered for defendant railways in a
(Note: This syllabus       retired conductor’s action pursuant to the Federal Employers’ Liability
constitutes no part of     Act for damages allegedly caused by repetitive trauma to his knees, since
the opinion of the court   plaintiff’s cause of action was barred by the three-year statute of
but has been prepared      limitations where plaintiff reasonably should have known of his injury
by the Reporter of         and its cause more than three years before his complaint was filed,
Decisions for the          especially when his medical records showed he had had medical
convenience of the         treatment for his knees, including arthroscopic surgery and a knee
reader.)
                           replacement, more than three years before his complaint was filed.


Decision Under             Appeal from the Circuit Court of Madison County, No. 10-L-879; the
Review                     Hon. William A. Mudge, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Gerard B. Schneller and R. Seth Crompton, both of Holland, Groves,
Appeal                      Schneller & Stolze, LLC, of St. Louis, Missouri, for appellant.

                            Kurt E. Reitz and Crystal M. Campbell, both of Thompson Coburn LLP,
                            of Belleville, for appellees.


Panel                       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),1 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.


                1
                 In his complaint, the plaintiff also named National Railroad Passenger Corporation (also
        known as Amtrak) as one of the defendants, but, on the plaintiff’s motion, Amtrak was dismissed
        without prejudice on November 14, 2011, and does not participate in this appeal.

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¶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 knees over time by getting on and off moving equipment.
             10. My employers never informed me that my job, over time, could cause knee
         injuries.
             11. I do not remember any doctor ever informing me that my knee problems in the
         2000s were related to my work on the railroad.
             12. In discussing with other co-workers in 2009 or 2010, I began to wonder whether
         my knee problems were related to my railroad employment.”
¶7       On June 1, 2011, the trial court entered an order granting the defendants’ motion for
     summary judgment, finding that the plaintiff filed his complaint on August 23, 2010, and that
     his cause of action for repetitive trauma injuries to his knees must have accrued on or after
     August 23, 2007, in order to be timely under the FELA three-year statute of limitations. The
     court found that the plaintiff had been diagnosed with severe degenerative arthritis in both

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       knees on July 24, 2006, “almost four years after his retirement from the railroad,” and that
       his “employment and retirement status were noted at such time in the medical history.” The
       court pointed out that “the discovery rule make[s] it clear that actual knowledge is not the
       issue in cases involving latent, cumulative or repetitive trauma injuries; rather, it is when a
       reasonable person should have known of both the injury and its cause.” (Emphasis in
       original.) The court found that “when the specific date of injury cannot be determined
       because it resulted from continuous exposure to a harmful condition over a period of time,
       a plaintiff’s cause of action accrues when the injury manifests itself.” The court determined
       that both of the plaintiff’s knees were diagnosed with severe arthritis, and he underwent total
       left knee replacement surgery more than three years before he filed his complaint.
¶8          The court found that the plaintiff had not adequately addressed the issue of whether he
       reasonably should have known of the cause of his injuries because he had simply denied
       constructive knowledge without explanation and did not address his affirmative duty to
       investigate the cause as required by Fries v. Chicago & Northwestern Transportation Co.,
       909 F.2d 1092 (7th Cir. 1990), and Tolston v. National R.R. Passenger Corp., 102 F.3d 863
       (7th Cir. 1996). The court found that the plaintiff had ignored his duty to investigate the
       cause of his injuries and that “his discussion of a possible claim with co-workers on some
       unknown date in 2009” did not fulfill that duty. “Rather, a reasonably diligent person would
       ask his treating physician about the possible cause(s), especially in instances of injuries so
       severe to require total knee replacement surgery, and where he had chronic pain and knee
       complaints that had been going on for years prior to the diagnosis on July 24, 2006.”
       (Emphasis in original.) Based on these findings, the court ruled that the plaintiff’s claim was
       time-barred and granted the defendants’ motion for summary judgment, and this appeal
       followed.

¶9                                          ANALYSIS
¶ 10       The standard of our review from an order granting summary judgment is de novo. Doe
       v. Brouillette, 389 Ill. App. 3d 595, 604 (2009). Summary judgment is proper only if the
       pleadings, depositions, admissions, affidavits, and other relevant matters of record show that
       there is no genuine issue of material fact and that the movant is entitled to judgment as a
       matter of law. Id. “In determining whether a genuine issue of material fact exists, the
       pleadings, admissions and affidavits are construed strictly against the movant and liberally
       in favor of the nonmovant.” Id. A triable issue of fact will preclude summary judgment when
       the material facts are disputed or where reasonable persons might draw different conclusions
       from the undisputed facts. Id.
¶ 11       Cases filed under the FELA must be filed within three years of the date the cause of
       action accrued. 45 U.S.C. § 56 (2006). The worker/plaintiff bears the burden of proving that
       his cause of action commenced within the three-year limitations period. Bealer v. Missouri
       Pacific R.R. Co., 951 F.2d 38, 39 (5th Cir. 1991) (per curiam). Ordinarily, a statute of
       limitations begins to run at the moment of a plaintiff’s injury, which typically coincides with
       the defendant’s tortious act. DuBose v. Kansas City Southern Ry. Co., 729 F.2d 1026, 1028-
       29 (5th Cir. 1984). However, the plaintiff here has suffered a repetitive trauma injury that


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       developed over the course of time. In latent injury situations such as this, the discovery rule
       avoids the mechanical and technical application of the statute of limitations. Id. at 1031.
       Causes of action accrue for statute of limitations purposes “when a reasonable person knows
       or in the exercise of reasonable diligence should have known of both the injury and its
       governing cause.” Fries, 909 F.2d at 1095. “Both components require an objective inquiry
       into when the plaintiff knew or should have known, in the exercise of reasonable diligence,
       the essential facts of injury and cause.” Id. It is not necessary that the plaintiff possess actual
       knowledge of causation in order to find that a cause of action has accrued. Id. at 1096. When
       a plaintiff is “armed with the facts about the harm done to him,” he can protect himself
       against the running of the statute of limitations by seeking advice in the medical and legal
       community about possible causes. United States v. Kubrick, 444 U.S. 111, 123 (1979).
¶ 12        In the case at bar, the record is undisputed that the plaintiff retired as a railroad conductor
       in 2002 and that he had been treated for severe degenerative arthritis in both knees before
       July 24, 2006. On that date, his treating physician noted that he presented with bilateral knee
       complaints that had been “going on for years,” that his right knee had historically been worse
       than his left, that the left knee was causing more problems at that time, and that his left knee
       bothered him with every step he took. The physician noted that the plaintiff was a retired
       railroad conductor.
¶ 13        The plaintiff did not present any evidence to show any steps he took to try to learn the
       cause of his degenerative arthritis, but he simply stated in his affidavit that he “began to
       wonder” if his knee problems were related to his railroad employment after a discussion with
       his former coworkers in 2009 or 2010. In his brief before this court, the plaintiff contends
       that the statute of limitations did not begin to run because “not one medical record from [his]
       doctors even mentions that his conditions were related to his work on the railroad.” From that
       lack of information, the plaintiff concludes that there is nothing to show that he knew or
       should have known that the pain was related to his former work. Essentially, the plaintiff’s
       position is that the statute of limitations did not begin to run until he had actual knowledge
       of the cause of his injury, that he bore no responsibility to seek out possible causes, but that
       the railroad had an undefined affirmative duty to warn him about the potential dangers of his
       job. The plaintiff’s argument is contrary to the law.
¶ 14        In Tolston, 102 F.3d at 864, the plaintiff brought an action against her former employer
       under the FELA and, like the plaintiff in the instant case, alleged that her severe and
       permanent knee injuries resulted from her employer’s negligence. The trial court in Tolston
       granted the defendant’s motion for summary judgment on the ground that the plaintiff’s case
       was barred by the three-year FELA statute of limitations. Id. The court of appeals found that
       the evidence that the plaintiff had suffered from extreme pain and had been regularly treated
       for that pain was sufficient, from an objective standpoint, “to require some investigation into
       the potential causes of her condition.” Id. at 866. The court accepted the plaintiff’s assertion
       that “she never asked anyone about the source of her pain,” and it found that she “knew about
       her medical condition” before the statute of limitations ran and “with the exercise of
       reasonable diligence should have known about its cause by that time.” Id.
¶ 15        The relevant facts of Tolston are indistinguishable from the case before us. In our case,
       the plaintiff was being treated for pain and severe degenerative arthritis in both knees before

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       July 24, 2006, but, for three years or more, he did not seek any advice from anyone in the
       medical or legal community about the cause of his painful knee problem. Although he retired
       in 2002, he waited until August 23, 2010, to file this lawsuit. The trial court did not err in
       finding that, in the exercise of reasonable diligence, the plaintiff should have known about
       the cause of his condition no later than July 24, 2006, and that the statute of limitations
       barred his cause of action that was filed more than three years after that date. There is no
       genuine issue of material fact to preclude the entry of judgment as a matter of law in favor
       of the defendants.

¶ 16                                      CONCLUSION
¶ 17      For all of the reasons stated, the judgment of the circuit court granting the defendants’
       motion for summary judgment is affirmed.

¶ 18      Affirmed.




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