COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 61129 KENNETH LIDDELL : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION SCA SERVICES OF OHIO, INC. : : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : DECEMBER 17, 1992 CHARACTER OF PROCEEDING : Civil appeal from Court of Common Pleas : Case No. CP 168,616 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellant: For defendant-appellee: CLAUDIA R. EKLUND, ESQ. ALAN M. PETROV, ESQ. RYAN H. FISHER, ESQ. TIMOTHY FITZGERALD, ESQ. 910 Leader Building Bulkley Building, Seventh Floor 526 Superior Avenue, East 1501 Euclid Avenue Cleveland, Ohio 44114 Cleveland, Ohio 44115 - 2 - JOHN F. CORRIGAN, J., Appellant, Kenneth Liddell, appeals from the order of the trial court granting summary judgment in favor of appellee, SCA Services of Ohio, Inc. For the reasons set forth below, we affirm. I. Appellant commenced this action on April 26, 1989 seeking damages for injuries he sustained as a result of inhaling toxic fumes while directing traffic at an accident scene on September 21, 1981. Appellant was an East Cleveland Police Officer at that time. The toxic fumes containing calcium hypochlorite emanated from a burning truck owned by appellee. Appellee moved for summary judgment on the basis of the "Firemen's Rule" and the statute of limitations. Appellee established that appellant was treated at a hospital on September 21, 1981 for inhaling toxic fumes. Appellee further established that appellant applied for workers' compensation in October of 1981. Furthermore, appellee presented a medical report from the Industrial Commission of Ohio dated March 2, 1983, in which the doctor indicated that appellant was suffering from an irritation of the throat which was connected to the exposure in 1981. Appellant filed a reply brief and affidavits with the court in response to appellee's motion. In his affidavit, appellant asserted that he was injured by inhaling toxic fumes on September 21, 1981, and was treated at a hospital that same day. Appellant further asserted that he was stricken by several sinus infections - 3 - after the original exposure. Finally, appellant asserted that "plaintiff's first notice that he had sustained injury from his exposure to chlorine gas was in January, 1988 when he learned of his diagnosis of cancer." In further support of his case, appellant submitted the affidavit of Donald J. Nittskoff. Mr. Nittskoff attested that he is a chemist, that calcium hypochlorite is toxic and its transportation is subject to federal regulation. On December 10, 1990, the trial court granted summary judgment in favor of appellee on the ground that appellant's claim was barred by the statute of limitations. This appeal timely follows. II. For his sole assignment of error, appellant argues that the trial court erred in granting summary judgment on statute of limitations grounds. Civ. R. 56 provides that before summary judgment may be granted, it must be determined that: (1) no genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion and, viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party. Petrey v. Simon (1984), 19 Ohio App.3d 285. - 4 - R.C. 2305.10 provides in pertinent part that: "An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose." In O'Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, the Supreme Court applied the "Discovery Rule" to R.C. 2305.10. The O'Stricker court stated that: "When an injury does not manifest itself immediately, the cause of action arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured, whichever date occurs first." Id. at 90. In the present case, appellant realized that he was injured due to exposure to toxic gas on September 21, 1981. He was taken to the hospital and treated. Appellant was further treated for sinus infections periodically from that day forward. Although appellant was not diagnosed with benign polyps in his nasal cavity until January, 1988, it is clear that he was aware that he suffered injury on the date of exposure. Furthermore, appellant failed to support his brief in opposition to summary judgment with any evidence that he had "been informed by competent medical authority" that he had been injured. In short, appellant has failed to raise a genuine issue of material fact under either prong of the O'Stricker test. - 5 - The case at bar is factually similar to this court's recent decision in Bajzel v. Air Tool Service Co. (June 7, 1990), Cuyahoga App. No. 57047, unreported. In the Bajzel case: (1) Bajzel knew in the summer of 1982 that a co-worker reportedly had suffered nasal injuries from exposure to the chromium solution; (2) Bajzel read the warning labels and knew the chromium solution was dangerous; (3) Toward the end of 1982, Bajzel began to suffer headaches and soreness of the eyes and nose, and he thereby requested and received a mask; (4) Bajzel requested and received a pulmosan rubber mask two months later because the fumes got worse and the nostril soreness continued; (5) Bajzel suffered severe nosebleeds in 1983, primarily at work, at a rate of six to seven times a day; (6) Bajzel admitted he knew prior to December 1983 that the fumes were bad and he believed they were irritating his nose; (7) In January 1984, a physician confirmed Bajzel's suspicion that chromium exposure caused his problems; and (8) Bajzel did not file suit until December 4, 1985. We found in Bajzel, based upon these facts, that it was not sufficient under O'Stricker to simply file a cause of action within two years of the diagnosis. We find similarly in this case. Appellant's injury was sudden and he was aware of the cause immediately. The injury manifested itself repeatedly on several occasions within two - 6 - years of the accident. Appellant's cause of action is in no way similar to asbestos related injuries, where the fact of exposure or manifestation of symptoms may not come to light for years after the exposure. For the reasons set forth herein, we are compelled to find that appellant's assignment of error is not well taken. Judgment affirmed. - 7 - It is ordered that appellee recover of appellant their costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, P.J., and JAMES D. SWEENEY, J., CONCUR. JUDGE JOHN F. CORRIGAN N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .