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WARD v. WESTINGHOUSE CANADA

September 21, 1992

CHARLES WARD AND GLENNA JO CANUM WARD, Plaintiffs,
v.
WESTINGHOUSE CANADA, INC.; ENGINEERING SERVICE DIVISION, a division of Westinghouse Electric Corporation; WESTINGHOUSE ELECTRIC CORPORATION; KEY TRONIC CORPORATION and DOES 1-35, inclusive, Defendant.



The opinion of the court was delivered by: BARBARA A. CAULFIELD

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

 On October 16, 1990, plaintiffs Charles and Glenna Ward ("Ward") filed their complaint against defendants Westinghouse Canada, Incorporated and Westinghouse Electric Corporation ("defendants") in California state court. The Wards' complaint alleges that defendants manufactured and distributed a computer system which Charles Ward had used during his employment as a reservation clerk at Delta Airlines ("Delta"), and that he had developed cumulative trauma disorders and attendant emotional distress from that use. Charles Ward sues for his alleged tendonitis of the wrists. His wife, Glenna Ward, sues for loss of consortium.

 Defendants have filed a motion for summary judgment maintaining that plaintiffs' action is barred by the applicable statute of limitations. *fn1" Upon consideration of the briefs and arguments of the parties, and good cause appearing, defendants' motion for summary judgment is GRANTED.

 I. FACTS AND BACKGROUND

 Plaintiff Charles Ward was employed by Delta from February 26, 1979 through June 25, 1990 as a reservations agent. During his tenure at Delta, plaintiff worked, on average, seven hours per day entering reservations into a computer terminal. At least for purposes of this motion, it is undisputed that defendants manufactured and distributed a computer terminal which Mr. Ward had used during many of his years of employment as a reservation clerk.

 During deposition, Charles Ward testified that he first noticed pain in his wrists as early as 1984. He further testified that he experienced continual pain and aching numbness in his arms and wrists at some time between 1988 and 1989. As early as September 6, 1989, he consulted Doctor Mark Whitemyer complaining of neck, shoulder, arm and wrist pain. Mr. Ward testified that he originally consulted Dr. Whitemyer for general chiropractic treatment; however, he also testified that as early as 1988 and into 1989 the pain in his arms and wrists had become "pretty bad". On forms filled out in connection with Mr. Ward's visit to Dr. Whitemyer on September 6, 1989, it was indicated that Mr. Ward suffered from "Carpal Tunnel Syndrome". *fn2" He further testified that by October 1989 the pain became so bad that he sought treatment from a specialist. On October 4, 1989, Mr. Ward reported his symptoms to his supervisor at Delta and requested to see a specialist about his pain.

 On October 16, 1989, Mr. Ward consulted Dr. Paul Mills. Later that day, Dr. Mills wrote a letter to Delta detailing his findings from the examination. In his letter, Dr. Mills stated that Mr. Ward's history was compatible with a repetitive overuse phenomenon and that it was work-related. Mr. Ward further indicates that he has had symptoms of his condition since May 1989 in his left wrists and since August 1989 in his right wrist.

 II. DISCUSSION

 A. Legal Standard

 Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to summary judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment should be granted when it can be determined that judgment may be entered as a matter of law. Pepper and Tanner, Inc. v. Shamrock Broadcasting, Inc., 563 F.2d 391 (9th Cir. 1977). All reasonable inferences from the evidence are to be drawn in favor of the non-moving party. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Defendants' motion addresses the statute of limitations applicable to this case. As statute of limitations is an affirmative defense, defendants will bear the burden of proof on that issue at trial. When, as here, the movant bears the burden of proof at trial on the issues raised in the summary judgment motion, his showing must be sufficient for the court to find that no reasonable trier of fact could find other than for the moving party. Calderone v. United States, 799 F.2d 254, 259 (6th Cir. 1986).

 B. Applicable Statute of Limitations

 The Wards' claims are controlled by California Code of Civil Procedure § 340(3). Section 340(3) requires that any action for personal injuries must be brought within one year after the cause of action accrued. The one-year statute of limitations also controls a spouse's claim for loss of consortium. Priola v. Paulino, 72 Cal. App. 3d 380, 386, 140 Cal. Rptr. 186 n.4 (1977). Plaintiffs argue that claims for fraud and breach of warranty are governed by three and four-year statutes of limitations, respectively. However, the gravamen of the complaint is a claim for personal injuries. Accordingly, as plaintiffs' personal injuries claims are governed by § 340(3), so are their claims for fraud and breach of warranty. See Wyatt v. Union Mortgage Co., 24 Cal. 3d 773, 786, 157 Cal. Rptr. 392, 598 P.2d 45 n.2 (1979).

 C. Accrual of Cause of Action

 Traditionally, the limitations period for personal injury actions began to run as soon as plaintiff was aware that he suffered harm, however slight. Recently, however, California courts have modified the traditional rule in an attempt to avoid punishing a plaintiff who has suffered some nominal injury which would support only a suit for insignificant damages. Miller v. Lakeside Village Condominium Association, Inc., 1 Cal. App. 4th 1611, 1622 (1991). Accordingly, the California Supreme Court has held that a plaintiff is aware of his ...


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