DIGGES, J., delivered the opinion of the Court. MURPHY, C.J., and RODOWSKY, J., concur in the result. RODOWSKY, J., filed a concurring opinion at page 638 infra, in which MURPHY, C.J., joins.
After the Court of Special Appeals affirmed the summary judgment entered by the Circuit Court for Washington County in favor of respondent-defendant Donald E. Risser, we granted certiorari to consider the propriety of the trial court's determination that this suit instituted by petitioner Howard W. Poffenberger was barred by limitations.
There being no supporting or opposing affidavits relevant to the issues before us, we extract from the pleadings, attached exhibits, deposition and admissions the following: Howard W. Poffenberger, Jr., purchased in the summer of 1972 an unimproved lot in Brightwood Acres, a planned development located in Hagerstown, Maryland. The property
The statute relied on by Mr. Risser in support of his limitations plea is Maryland Code (1974, 1980 Repl. Vol.), section 5-101 of the Courts Article, which reads:
There being an absence of statutory direction, the question when an action accrues is left to judicial determination. Harig v. Johns-Manville Products, 284 Md. 70, 75, 394 A.2d 299, 302 (1978). Thus, when the statutory bar of limitations is made an issue, it becomes necessary to judicially determine the date the suit accrued because that time triggers the
In Maryland, the general rule heretofore has been stated to be that the running of limitations against a right or cause of action is triggered upon occurrence of the alleged wrong, and not when it is discovered. Leonhart v. Atkinson, 265 Md. 219, 223, 289 A.2d 1, 3-4 (1972). However, the harshness of this general rule was readily observed and has in this State led to the creation of both legislative and judicial exceptions to it — one among them, the "discovery rule."
Reasoning that "[l]ike the victim of undiscoverable malpractice a person incurring disease years after exposure cannot have known of the existence of the tort until some injury manifests itself," this Court just three years ago in Harig v. Johns-Manville Products, supra at 80, 394 A.2d at 305, extended the discovery rule beyond malpractice actions to suits involving latent disease. In doing so, we noted that a growing number of our sister states had recognized that, in many cases not involving professional malpractice, "plaintiffs may, in appropriate circumstances, `be blamelessly ignorant' of the fact that a tort has occurred and thus, ought not be charged with slumbering on rights they were unable to ascertain." Id. at 83, 394 A.2d at 306. Moreover, Harig does not represent the first time we have applied the discovery rule beyond cases involving professional malpractice, for we have previously utilized the rule in a case involving faulty construction. See Callahan v. Clemens, 184 Md. 520, 41 A.2d 473 (1945). See also Steelworkers Holding v. Menefee, 255 Md. 440, 258 A.2d 177 (1969); Mettee v. Boone, 251 Md. 332, 247 A.2d 390 (1968). So, as we noted a little more than a year ago in again utilizing the discovery rule in a non-professional malpractice context, "fairness to a plaintiff who has not slept on his rights justifies exceptions to [the] general rule." Sears, Roebuck & Co. v. Ulman, 287 Md. 397, 401, 412 A.2d 1240, 1242 (1980) (defamation action for false credit report). Cf., Goldstein v. Potomac Elec. Power Co., 285 Md. 673, 404 A.2d 1064 (1979).
Having already broken the barrier confining the discovery principle to professional malpractice, and sensing no valid reason why that rule's sweep should not be applied to prevent an injustice in other types of cases, we now hold the discovery rule to be applicable generally in all actions and the cause of action accrues when the claimant in fact knew or reasonably should have known of the wrong.
In the case before us the respondent seems to concede, as a reading of the record clearly indicates he should, that unless constructive notice gained through the plats and deeds recorded among the land records of Washington County precludes a finding that the wrong was inherently unknowable at the time the building of the house commenced (and thus satisfied the requisite "known or should have known" requirement), there exists sufficient factual controversy to prevent summary judgment. It follows, on the other hand, that if constructive notice provides sufficient discovery to trigger the running of the time bar enactment, as the respondent argues, summary judgment was properly entered in this case.
This issue posed by builder Risser causes us to focus on the nature of the knowledge necessary, under the discovery rule, to start the running of the limitations period. With respect to the acquisition of knowledge, Judge McSherry in speaking for this Court nearly a century ago said:
As the knowledge imputed by the just defined constructive notice, if deemed to be sufficient to activate the running of limitations, would recreate the very inequity the discovery rule was designed to eradicate, we now hold this type of exposure does not constitute the requisite knowledge within the meaning of the rule. Affirmatively speaking, we determine the discovery rule contemplates actual knowledge — that is express cognition, or awareness implied from
As earlier indicated, the record seems to establish no contest as to the fact that the respondent lacked express knowledge with respect to the side lot line infringement until the time the adjoining lot was surveyed. However, there is reflected a factual dispute regarding whether, sometime prior to that survey, the petitioner possessed knowledge from which actual notice may be inferred. Consequently, the granting of summary judgment was error and its entry must be reversed.
Judgment of the Court of Special Appeals reversed and case remanded to that court with instructions to reverse the judgment of the Circuit Court for Washington County and remand for further proceedings.
Costs to be paid by respondent.
Rodowsky, J., concurring:
I agree that the discovery rule applies in this case and that constructive notice from the land records, in and of itself, does not constitute the requisite knowledge of circumstances which ought to have put the plaintiff on inquiry. However, I am unable to join in the reasoning by which the majority reaches the conclusion on the first issue.
Here on Risser's motion for summary judgment the facts are that he undertook to construct the Poffenberger home in the center of the lot and in compliance with all relevant restrictions, including the side yard set back. In Mattingly v. Hopkins, 254 Md. 88, 253 A.2d 904 (1969) the limitations analysis was in terms of the discovery rule where a survey crew employed by civil engineers failed to mark out subdivision lots on the ground in accordance with the record plat.
The majority holds, in essence, that "[a] civil action at law," governed by the three years limitation provision of Md. Code (1974, 1980 Repl. Vol.), § 5-101 of the Courts and Judicial Proceedings Article, "accrues" when the claimant in fact knew or reasonably should have known of the wrong. It is much the same as if knowledge, or the reasonable means of knowledge, on the part of the plaintiff were made an additional element of whatever cause of action is presented under the statute. Previously this Court approached application of the discovery rule on a case by case basis. The majority today has prescinded from these rulings and announced a principle of general application. This is a major step which is unnecessary to the decision of the present case.
I cannot make the majority's generalization that this sweeping expansion of the discovery rule will prevent an injustice in the enlarged class of cases. Because a claim can survive limitations only under an expanded discovery rule is no greater indication that it has legal merit than is the assertion of a limitations defense an indication that there is no defense to the merits. Further, and unlike the majority, I do sense a valid reason why this case should not be the vehicle for making the discovery rule's sweep generally applicable. In certain types of claims the operation of a pure and unrestricted discovery rule under our prior decisions has been limited by the General Assembly. As to health care providers, the time limit for filing a claim is now basically 5 years from the time of injury under § 5-109 of the Courts Article. The time limit is 10 years "after the date the entire improvement first became available for its intended use," as to certain claims against "any architect, professional engineer or contractor" under Code (1980 Supp.), § 5-108 of the Courts Article.
Since every legal relationship in society gives rise to rights and obligations, and thereby potential litigation, it is impossible to foresee the types, volumes and merits of claims which will hereafter present the assertion that the claimant reasonably did not know of the facts comprising each of the traditionally constituent elements of the alleged wrong within three years after they occurred. Rather than predict that the principle announced today will be dispositive of limitations issues in all of these unknown cases in a manner which is just to the parties and society, I would simply decide only that which it is necessary to decide in the instant case. That decision can be made by analogy to the facts presented here from the rules applied in our prior cases. Particularly in light of the legislative limitations placed in certain situations on a judicially unrestricted discovery rule, I would not pronounce the discovery rule to be a general principle and accordingly would not decide this case deductively from it.
Chief Judge Murphy has authorized me to state that he joins in the views expressed in this concurring opinion.
The opinion and judgment of the intermediate appellate court, rendered by the majority of a divided three-judge panel acting for that court, is reported as Poffenberger v. Risser, 46 Md.App. 600, 421 A.2d 90 (1980).