first date of use of the keyboard, relying upon Blanco v. American Tel. & Tel., 223 A.D.2d 156, 646 N.Y.S.2d 99. In Blanco, the Appellate Division, First Department, held "that each plaintiff's cause of action accrued upon the commencement of their use of the allegedly defective keyboard." Id. at 164, 646 N.Y.S.2d at 104. This court is unpersuaded that the New York Court of Appeals will adopt the Blanco rationale because to do so would mean that the statute of limitations would begin to run from the very first use of the keyboard, regardless of the frequency or intensity of its use. See id.
As noted above, it is well settled that an action cannot accrue until the plaintiff can maintain a legally enforceable claim. See Kronos, 81 N.Y.2d at 94, 595 N.Y.S. at 934. If the court were to hold a plaintiff's action accrues the very first time she strikes an allegedly defective keyboard, then, at that moment, she must be able to maintain an action in which she can truthfully allege all of the elements of her claim. In RSI cases, however, a plaintiff cannot maintain such an action because, without sustaining an injury, she would be incapable of truthfully alleging that she suffered an injury.
The very nature of a repetitive stress injury is, as its name implies, that the injury results from repetitive and stressful tasks over a period of time. In fact, it is entirely possible that a plaintiff may never develop a repetitive stress injury from continued and repetitious use of a keyboard. Therefore, the court concludes that a plaintiff's cause of action has not accrued for purposes of the statute of limitations at the first use of an allegedly defective keyboard.
See Piper, 219 A.D.2d at 61-62, 639 N.Y.S.2d at 626 ("there is no basis for measuring accrual from plaintiff's first use of the computer equipment."); see also Dorsey v. Apple Computers, Inc., 941 F. Supp. 319, 322 (E.D.N.Y., 1996) (the decision in Blanco "cannot be accepted as an accurate statement of New York law."). To conclude otherwise "simply places an undue strain upon common sense, realty [sic], logic and simple justice." See generally Flanagan, 24 N.Y.2d at 431, 301 N.Y.S.2d at 26.
The court additionally declines to follow the Blanco rationale because the cases relied upon by the Blanco court in support of its rationale are distinguishable from an RSI case, and therefore not directly applicable. Blanco, 223 A.D.2d at 162-165, 646 N.Y.S.2d at 103-105. In Blanco, the court relied primarily on toxic tort cases-- which traditionally held an injury occurs at the initial exposure to an offending substance-- for the proposition that in an RSI case the action accrues upon the commencement of the use of the keyboard. See id. In toxic tort cases under New York law, however, the injury indeed does occur at the initial exposure, even though the damages stemming from such exposure may not manifest themselves until many years later, if at all. By contrast, in an RSI case, the injury does not occur upon first striking a keyboard. Moreover, unlike the toxic tort exposure cases, an RSI case does not present a situation where "the forces of harm [were] inexorably set in motion" when plaintiff was first exposed to the alleged injury-causing product. Martin, 60 N.Y.2d at 427, 469 N.Y.S.2d at 923. The court therefore declines to apply the Blanco holding to the instant case because the court does not believe the New York Court of Appeals will adopt its rationale given the distinction between toxic tort cases and RSI cases.
In contrast to the two extreme positions taken by the parties here, the Appellate Division, Fourth Department, in Piper v. International Bus. Mach. Corp., 219 A.D.2d 56, 639 N.Y.S.2d 623, thoroughly analyzed New York law with respect to the issue of accrual in an RSI case and concluded that the date of accrual should be measured from the date of the onset of symptoms (i.e., a "date of injury rule"). Id. at 59-61, 639 N.Y.S.2d at 625-626. Under a date of injury rule, a plaintiff's cause of action accrues for statute of limitations purposes at the earlier of two dates, the date the plaintiff develops symptoms of an injury or the date of the last use of the keyboard. See id. ; Wallen v. American Tel. & Tel. Co., Index No. 91-12336 (N.Y. Sup.Ct., N.Y. County, Sept. 17, 1992), aff'd, 195 A.D.2d 417, 601 N.Y.S.2d 796 (for the reasons stated by Supreme Court), leave to appeal denied, 82 N.Y.2d 659, 605 N.Y.S.2d 5 (1993), see also Dorsey, 941 F. Supp. 319 (federal court applying New York law adopts date of injury test); Parajecki v. International Bus. Machs. Corp., 899 F. Supp. 1050 (E.D.N.Y. 1995) (same); Kuechler v. 805 Middlesex Corp., 866 F. Supp. 147 (S.D.N.Y. 1994) (same).
In the court's view, the date of injury rule "'reflects a policy that there must come a time after which fairness demands that a defendant should not be harried,' along with 'a balancing sense of fairness to the [plaintiff] that she shall not unreasonably be deprived of [her] right to assert [her] claim.'" Piper, 219 A.D.2d at 61, 639 N.Y.S.2d at 626 (citing Caffaro v. Trayna, 35 N.Y.2d 245, 250, 360 N.Y.S.2d 847, 850-851, 319 N.E.2d 174 (1974)). The court therefore adopts the date of injury rule as it believes this test is the best method for determining the accrual of RSI cases and is the method that will be adopted by the New York Court of Appeals.
Applying the date of injury test to the instant action, the court observes that plaintiff Debra Evans testified at her deposition that in July, 1988, she began experiencing symptoms of her carpel tunnel syndrome in her left hand and, as her medical records indicate, in the fall of 1988 she began experiencing symptoms of carpel tunnel syndrome of her right hand.
See Affidavit of Marylou K. Roshia, Esquire (June 28, 1996) ("Roshia Aff."), exh. "A," (deposition transcript of Debra C. Evans (December 28, 1994) at 27, 42), exh. "B," (medical records). Therefore, according to the record before the court, the latest plaintiff's cause of action could accrue is in July 1988 for her left hand and September 1988 for her right hand. Although, as defendants point out, plaintiff's September 23, 1988 medical records set forth that plaintiff had been experiencing "progressive discomfort" over "the past six months," such evidence creates no more than a question of fact and cannot serve as the basis for granting summary judgment against plaintiffs at this stage in the litigation.
See Roshia Aff., exh. "B."
Plaintiffs commenced their action against defendant Visual Technology on June 20, 1991, and a question of fact exists as to whether it is within three years of when the record reveals plaintiff Debra Evans testified and the medical records show that she developed symptoms of her carpel tunnel syndrome. Therefore, the court must deny defendant Visual Technology's motion for summary judgement. See N.Y.C.P.L.R. § 3018(b) (McKinney 1991); Martin, 60 N.Y.2d at 428, 469 N.Y.S.2d at 929 (it is the defendant's burden to establish the defense of untimeliness);
Plaintiffs commenced their action against defendant Ontel on March 20, 1992, and against defendant Lockheed on May 12, 1992, in both instances more than three years after plaintiff Debra Evans testified that she developed symptoms of her carpel tunnel syndrome in her left hand and more than three years after her medical records indicate she developed symptoms in her right hand. See Roshia Aff., exh. "A," "B." Therefore, the court grants defendants Ontel and Lockheed's motions for summary judgment.
Accordingly, for the reasons stated herein, defendants Ontel Corporation and Lockheed Corporation's motions for summary judgment dismissing plaintiffs' complaints as barred by the statute of limitations are GRANTED. Defendant Visual Technology Incorporated's motion for summary judgment is DENIED.
IT IS SO ORDERED.
Dated: February 19, 1997
Syracuse, New York
Neal P. McCurn
Senior United States District Judge