TRENTADUE v. BUCKLER

WEAVER, J. (dissenting).

I dissent from the majority's conclusion that MCL 600.5827 exclusively governs the time of accrual of plaintiffs claims. I would affirm the Court of Appeals decision applying the common-law "discovery rule," which operates to toll the statutory period of limitations when a plaintiff could not have reasonably discovered the elements of a cause of action within the limitations period.

Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963). See also Moll v Abbott Laboratories, 444 Mich 1, 16-17; 506 NW2d 816 (1993).

Further, I concur with Justice KELLY that under the test set forth in Robinson v Detroit, the discovery rule "has become so embedded, so accepted, so fundamental, to everyone's expectations that to change it would produce not just readjustments, but practical real-world dislocations."

462 Mich 439; 613 NW2d 307 (2000).

Id. at 466.

FACTS

In 1981, Dr. Margarette Eby moved to Flint, Michigan, and began leasing a two-story gatehouse located near the entrance to the Ruth R. Mott estate (Mott Estate). Evidently Mrs. Mott lived a hermitic lifestyle on the Mott Estate grounds known as "Applewood." Virtually all her personal dealings were handled by the Mott Family Office (MFO).

MFO was formed in 1969 to attend to the financial and personal needs of Ruth Mott, her children, and her nieces and nephews.

The gatehouse was remotely located some distance from Mrs. Mott's home, and the gatehouse basement contained the valves and piping that supported the sprinkler system for the entire Mott Estate grounds. In January 1985, Dr. Eby complained to Mrs. Mott about breakins she experienced at the gatehouse, including an incident on January 23, 1985, during which Dr. Eby's compact disc player and purse were stolen. Paul Yager, then the chief executive officer of MFO, responded to Dr. Eby's complaint on behalf of Mrs. Mott. In response to Dr. Eby's complaint and her request for installation of a security alarm system, Mrs. Mott had new deadbolt locks installed. No alarm system was installed.

Nearly two years later, late in the evening on November 7, 1986, Dr. Eby returned to the gatehouse after a dinner party. Two friends accompanied her to the gatehouse door and waited until she was safely inside before departing. Two days later, Dr. Eby was found dead in the gatehouse. She had been attacked, raped, and knifed to death. The police investigation of Dr. Eby's death focused primarily on persons who might have been known to Dr. Eby because there appeared to be no sign of forced entry. Police interviewed a number of suspicious persons, but there was never any evidence developed that implicated those persons in Dr. Eby's death. The evidence collected included deoxyribonucleic acid (DNA) evidence (semen) from Dr. Eby's body, as well as a partial fingerprint from a faucet inside the gatehouse.

In 1991, Nancy Ludwig, an airline attendant, was attacked, raped, and knifed to death in a hotel near the Detroit Metropolitan Airport. The circumstances surrounding her death were strikingly similar to Dr. Eby's, and at the request of Dr. Eby's son, the police reopened the investigation into Dr. Eby's death. After additional DNA testing on evidence collected from both victims, and after comparing fingerprints left at both crime scenes, investigators were able to determine that Jeffrey Gorton committed both murders.

Gorton was apprehended in Florida and sentenced to life in prison on February 13, 2003, after pleading no contest to first-degree murder, MCL 750.316, and first-degree criminal sexual conduct, MCL 750.520b.

Before Dr. Eby's death in 1986, Jeffrey Gorton was an employee of Buckler Automatic Lawn Sprinkler Company (Buckler), which serviced the Mott Estate's sprinkler system. Buckler was owned by Jeffrey Gorton's parents, Laurence and Shirley Gorton. Jeffrey Gorton was provided access to the sprinkler system controls housed in the gatehouse basement through Mott Estate staff members Victor Nyberg and Todd Bakos, both allegedly employed by MFO.

On August 2, 2002, six months after discovering the identity of Dr. Eby's murderer through the arrest of Gorton, plaintiff Dayle Trentadue, daughter of Dr. Eby and personal representative for the estate of Margarette F. Eby (estate of Eby), filed a wrongful death complaint against multiple defendants. The defendants included Buckler, its owners Laurence and Shirley Gorton, Jeffrey Gorton, Ruth Mott, MFO, and MFO employees Nyberg and Bakos. The complaint alleged, among other things, negligent hiring and negligent supervision of Dr. Eby's killer, Jeffrey Gorton.

With regard to her claims against Buckler and the Gortons for negligent hiring and negligent supervision, plaintiff alleged that in 1985, a year before Gorton killed Dr. Eby, Gorton's parents were aware that Gorton had just been released from a Florida prison after serving time for assault crimes. Evidently Jeffrey Gorton had a history of violence against women, and his felony convictions in Florida involved physical assaults on women.
His paternal grandparents even appeared for his sentencing in Florida and begged the judge to permit Gorton to get psychiatric help for his violent outbursts against women. Yet, despite this knowledge, the Gortons employed their son in the family business and sent him to service the sprinklers at the Mott Estate.

With regard to her claims against the Mott Estate, MFO, and Nyberg and Bakos for negligent hiring and negligent supervision, plaintiff alleged that on November 5, 1986, MFO employees Nyberg and Bakos provided Gorton with unsupervised access to the gatehouse basement to winterize the sprinklers and that it was by this means that Gorton was subsequently able to come back on November 7 to attack and kill Dr. Eby. Moreover, despite Dr. Eby's earlier and repeated requests to defendants Ruth Mott and MFO to improve the security of the gatehouse, plaintiff alleged that defendants were negligent in failing to provide adequate security, thereby permitting Jeffrey Gorton's access to the gatehouse.

Plaintiff suggests that when Nyberg and Bakos gave Gorton access on November 5, they failed to resecure the gatehouse basement access so that Gorton was then later able to enter the gatehouse on November 7 through the unlocked basement door.

All defendants filed motions for summary disposition, but the circuit court granted summary disposition only to defendants Mott and MFO, and only on one count (count VIII, which alleged that the premises were unsafe). The parties appealed, and the Court of Appeals reversed the summary disposition for MFO on count VIII, affirmed in all other respects, and remanded the matter to the circuit court for further proceedings. In so ruling, the Court of Appeals concluded that the discovery rule tolled the period of limitations because plaintiff had no basis to assert claims against any defendant until the murderer's culpability was discovered.

Trentadue v Buckler Automatic Lawn Sprinkler Co, 266 Mich App 297; 701 NW2d 756 (2005). The decision was initially unpublished, but the Court later granted plaintiffs publication request.

Defendants appealed, and we granted leave, directing the parties to include among the issues to be briefed:

[W]hether the Court of Appeals application of a common-law discovery rule to determine when plaintiffs claims accrued is inconsistent with or contravenes MCL 600.5827, and whether previous decisions of this Court, which have recognized and applied such a rule when MCL 600.5827 would otherwise control, should be overruled. [Trentadue v Buckler Automatic Lawn Sprinkler Co, 475 Mich 906 (2006).]

ANALYSIS

MCL 600.5805(10) provides that in wrongful death actions, "[t]he period of limitations is 3 years after the time of the death or injury . . . to recover damages for the death of a person" Further, MCL 600.5827 states:

Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.

Both of these provisions appear in the Revised Judicature Act, MCL 600.5801 et seq., in chapter 58, the chapter entitled "Limitation of Actions." The policy considerations behind the enactment of statutes of limitations were noted by this Court in Lothian v Detroit:

They encourage the prompt recovery of damages, Buzzn v Muncey Cartage Co, 248 Mich 64, 67; 226 NW 836 (1929); they penalize plaintiffs who have not been industrious in pursuing their claims, First National Bank of Ovid v Steel, 146 Mich 308; 109 NW 423 (1906); they "afford security against stale demands when the circumstances would be unfavorable to a just examination and decision", Jenny v Perkins, 17 Mich 28, 33 (1868); they relieve defendants of the prolonged fear of litigation, Bigelow [v Walraven], supra, [ 392 Mich at] 576 [;221 NW2d 328 (1974)]; they prevent fraudulent claims from being asserted, Bailey v Glover, 88 US (21 Wall) 342; 22 L Ed 636 (1875); and they "`remedy . . . the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert'". Lenawee County v Nutten, 234 Mich 391, 396; 208 NW 613 (1926).

414 Mich 160, 166-167; 324 NW2d 9 (1982).

In Lemmerman v Fealk, we further noted that "`the primary purposes behind statutes of limitations are: 1) to encourage plaintiffs to pursue claims diligently, and 2) to protect defendants from having to defend against stale and fraudulent claims.'" And certainly, had plaintiff herein failed to diligently pursue her claim, or attempted to file a fraudulent claim, this Court would not hesitate to summarily apply these statutes of limitations to bar plaintiffs suit.

449 Mich 56, 65; 534 NW2d 695 (1995) (citation omitted).

However, neither of these policy considerations will be furthered by application of these provisions given that plaintiff was deprived of the evidence necessary to even establish that a claim existed until long after the period of limitations had expired. It is precisely in situations such as the one plaintiff faces here that this Court has applied the discovery rule to prevent a statute of limitations from foreclosing a plaintiffs right to bring suit. And, in fact, the law in this state in 1986, the year of Dr. Eby's murder, was that a cause of action did not accrue until the elements forming the basis of the complaint could be pleaded:

In the case of an action for damages arising out of tortious injury to a person, the cause of action accrues when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.

Those elements are four in number.

(1) The existence of a legal duty by defendant toward plaintiff.

(2) The breach of such duty.

(3) A proximate causal relationship between the breach of such duty and an injury to the plaintiff.

(4) The plaintiff must have suffered damages.

At the time of Dr. Eby's death, not all the elements of a wrongful death action had "occurred." The majority disagrees with this contention, ante at 389 n 10, arguing that each element of plaintiff's claim had "occurred" at the time Dr. Eby was murdered; however, while I concede that the events had "occurred," the fact is that plaintiff did not have enough information to allege that Dr. Eby's death was the result of the negligent acts of Ruth Mott, MFO and its employees, and Buckler Automatic Lawn Sprinkler Company and its employees and owners. In other words, the information available to plaintiff at the time of Dr. Eby's death did not put plaintiff on notice that a claim could be made against the various defendants. Plaintiff was not alerted to the availability of a claim to be made against defendants until plaintiff learned the identity of the killer and the killer's connection to defendants. Plaintiff was not aware of the killer's identity, nor was plaintiff aware of the connection the killer had to any of the potential defendants. Consequently, there was no basis for pleading that any duty was owed to the plaintiff by any potential defendant. The evidence collected tended to show that Dr. Eby was killed by an acquaintance, given that there was no sign of forced entry into the gate-house. Because the police evidently theorized that Dr. Eby knew the killer, their investigation focused on Dr. Eby's known acquaintances. Consequently, the police never questioned killer Jeffrey Gorton, the Buckler employee, nor was there ever any investigation into the relationship between Buckler, MFO, and Ruth Mott. Dr. Eby's murder remained unsolved until years after the period of limitations had expired; thus, plaintiff lacked the essential piece of evidence — the fact that Buckler employee Jeffrey Gorton attacked, raped, and killed Dr. Eby. It was only upon discovering this critical information that plaintiff was able to establish, after reopening the investigation, that the elements necessary to bring a wrongful death claim were in fact all present and could be alleged in a complaint.

And while defendants have asserted that despite the absence of the critical information pertaining to how Dr. Eby in fact died, plaintiff could still have adequately alleged a general negligence claim within the statutory period, had she done so, her claim likely would have been deemed legally deficient given that the criminal evidence collected at the time of Dr. Eby's death tended to indicate that Dr. Eby herself allowed the killer into her own home.

As we stated in Stephens v Dixon, this case presents the unique situation in which this Court has traditionally applied the discovery rule:

449 Mich 531, 534-536; 536 NW2d 755 (1995).

In Michigan, the limitation period for ordinary negligence actions such as the case at bar is three years. MCL 600.5805(8); MSA 27A.5805(8). The most complicated problem associated with statutes of limitation, and the problem presented in this case, is that of determining when they begin to run. MCL 600.5805(8); MSA 27A.5805(8) provides that "[t]he claim accrues at the time . . . the wrong upon which the claim is based was done regardless of the time when damage results." MCL 600.5827; MSA 27A.5827. We have held that the term "wrong," as used in the accrual provision, refers to the date on which the plaintiff was harmed by the defendant's negligent act, not the date on which the defendant acted negligently. Connelly v Paul Ruddy's Equipment Repair Service Co, 388 Mich 146; 200 NW2d 70 (1972). Otherwise, a plaintiffs cause of action could be barred before the injury took place.

Another accrual problem associated with statutes of limitation occurs when a plaintiff is injured but is unaware of the injury. If the statute of limitation begins to run at the time of injury, it is possible that plaintiffs with perfectly valid claims could be prevented, through no fault of their own, from bringing their actions within the specified period of limitation. In situations such as these, the common law has developed equitable rules to mitigate the harsh effects of the statute of limitation. One such exception is the discovery rule. The discovery rule, based on principles of fundamental fairness, "was formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action." Hammer v Hammer, 142 Wis 2d 257, 264; 418 NW2d 23 (1987).

We explained the discovery rule in Chase v Sabin, 445 Mich 190, 196-197; 516 NW2d 60 (1994). In Chase, a 1963 eye operation failed because of an event that occurred during the operation. The plaintiff was not told of the occurrence. In 1988, while pursuing an unrelated worker's compensation claim, the plaintiffs attorney obtained a hospital record of the surgery and learned of the event. We stated:

"Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cause of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances. Last term . . . we held that the discovery rule controls the date a pharmaceutical products liability action accrues. `If the three-year period of limitation began to run at the time of the defendant's breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks "to declare the bread stale before it is baked."' (Citation omitted.)"

We note that while the discovery rule serves as an important limit on a mechanical and unjust termination of a legitimate cause of action, there can be equitable problems with the imposition of the discovery rule as well. As one commentator has stated:

"While providing equitable relief to plaintiffs otherwise barred by a strict application of the statute of limitations, the discovery rule also threatens legitimate interests of the defendant which the statute protects. While it may be harsh to bar the action of a plaintiff who, through no fault of his own, did not discover his injury until after the running of the statute, it is also unfair . . . to compel a defendant to answer a charge arising out of events in the distant past. The discovery rule tends to undermine the sense of security that the statute of limitations was designed to provide, namely, that at some point a person is entitled to put the past behind him and leave it there. [Olsen, The discovery rule in New Jersey: Unlimited limitation on the statute of limitations, 42 Rutgers L R 205, 211-212 (1989)]".

Given the competing interests of balancing the plaintiffs right to bring a claim once a plaintiff learns of the injuries with the defendant's right not to have to defend a stale claim, the Stephens Court went on to discuss when to apply the discovery rule:

In the present case, the plaintiff proposes that we take a step beyond the rule of Chase [v Sabin, supra]. There, we held that "the discovery rule governs the accrual date for negligence claims, pursued against hospitals and their agents, which are similar to malpractice claims." Id. at 201. By contrast, the present case involves allegations of ordinary negligence.

In Moll v Abbott Laboratories, 444 Mich 1, 12-13; 506 NW2d 816 (1993), we noted this Court's adoption of the discovery rule for medical malpractice cases in Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963), in negligent misrepresentation cases in Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974), and in products liability actions for asbestos-related diseases in Larson v Johns-Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986). In Moll, we extended the application of the discovery rule to products liability actions for pharmaceutical products liability actions. Defendant correctly points out that in these contexts, evidentiary records are rarely diminished by the passage of time. Hence, as we stated in Larson, supra at 312, quoting Eagle-Pitcher Industries, Inc v Cox, 481 So 2d 517, 523 (Fla App, 1985), "the concern for protecting defendants from `time-flawed evidence, fading memories, lost documents, etc' is less significant in these cases." That is not the case in automobile tort liability cases, where the evidence for liability defense is often dependent on fading memories of individual witnesses.

We hold that the discovery rule is not available in a case of ordinary negligence where a plaintiff merely misjudges the severity of a known injury. [Id. at 537.]

Ultimately, the Stephens Court declined to extend the discovery rule in that case because, unlike plaintiff herein, the plaintiff in Stephens not only knew she was injured, but knew the cause of her injury before the period of limitations expired. The plaintiff in Stephens had argued that even though she knew she was injured, she did not know the true extent of her injuries until after the period of limitations had expired. Citing Connelly, supra, the Court declined to apply the discovery rule and restated the rule that "a cause of action for tortious injury accrues `when all of the elements of the cause of action have occurred and can be alleged in a proper complaint.'"

Stephens, supra at 539, quoting Connelly, supra at 150.

In contrast to the plaintiff in Stephens, plaintiff Trentadue, as personal representative of the estate of Eby, did not have the information available to bring a wrongful death claim until she knew who the killer was and how the killer managed to get access to Dr. Eby's private residence. Essentially, the "injury," that is, the wrongful death, was not apparent until 16 years after Dr. Eby's death. Nor was the "cause" of that injury apparent until after the period of limitations had expired.

In determining when the wrongful death claim accrued, we turn to MCL 600.5827:

Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results. [Emphasis added.]

The statute does not define "wrong" or "damage," but this Court has already examined these terms and provided the following analysis:

Defendants argue that the statutory provision "* * * the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results" means, in the context of this case, that claims against them are barred, since breach of duty claimed against them must have occurred prior to March 15, 1965, more than 3 years before action was commenced.

Defendants contend that the word wrong refers to an act of carelessness or negligence in repairing or handling the press. By their view, the word damage refers to the personal injury suffered by the plaintiff on May 12, 1965, the day that the press malfunctioned.

Defendants claim that interpreting the word wrong to mean actionable wrong, tort, harm or injury is to broaden the meaning of that word, and render the word damage entirely meaningless.

It is argued by the plaintiff that under such a view, her claim is barred before she was hurt. She would never have been able to commence an action at all.

By that interpretation, plaintiff says, the statute is not one of limitation but one of abolition, completely destroying her cause of action before it arises.

Defendants counter by pointing out that the statute of limitations is a statute of repose, designed to protect defendants from stale claims; that this is an industrial state and it is therefore reasonable to conclude that the Legislature intended to protect industrial and commercial interests by fixing a certain limit upon exposure to liability for faulty products and workmanship.

We cannot accept the defendants' view. However desirable the stated objectives might be, it is doubted that such was the legislative purpose. The statute in question is the Revised Judicature Act. It was drawn, as defendants point out, by a distinguished committee of lawyers, known as the Joint Committee on Michigan Procedural Revision. The purpose of the Act was to effect procedural improvements, not advance social, industrial or commercial policy in substantive areas.

The word damage is not rendered meaningless in a fair reading of the statute, even where the word wrong is understood to mean actionable wrong.

It is quite common in personal injury actions to allege and prove future loss of earning capacity, future medical expenses, future pain and suffering. Indeed all of these elements must be alleged and proved in a single cause of action. Once all of the elements of an action for personal injury, including the element of damage, are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they give rise to no new cause of action, nor does the statute of limitations begin to run anew as each item of damage is incurred. [ Connelly, supra at 150-151 (emphasis added).]

Thus, for purposes of a wrongful death action in which a plaintiff seeks damages for tortious injuries and death suffered by the decedent, the time that the claim first accrues is the point in time when "all of the elements of an action for personal injury, including the element of damage, are present. . . ." Id. at 151. Because plaintiff, through no fault of her own, lacked the information necessary to establish the elements of wrongful death until 16 years after Dr. Eby's death, the claim did not accrue until plaintiff became aware of that information.

Today, the majority overrules Johnson and its progeny, effectively depriving plaintiff, and future potential injured parties, from seeking compensation when their injuries are not known to them before the statutory period of limitations expires. As a result, statutes of limitations will be imposed not on those who would sit on their rights, but on the innocent, who, through no fault of their own, have been deprived of the information necessary to bring an otherwise valid claim.

The majority's justification for the abolition of the discovery rule is that, with the enactment of MCL 600.5801 et seq., the Legislature created a comprehensive statutory scheme meant to supersede any existing common law dealing with the subject matter. Ante at 390-391. Yet the authority cited in support of the majority's argument is unpersuasive. The majority points to Hoerstman Gen Contracting, Inc v Hahn as the basis for its conclusion that MCL 600.5801 et seq. were enacted to abrogate the common-law discovery rule. However, in Hoerstman, the statute at issue was article 3 of the Uniform Commercial Code, MCL 440.3101 et seq. The question we faced was whether after the enactment of MCL 440.3311, the common-law defense of accord and satisfaction was eliminated. In finding that the Legislature did so intend, we stated:

474 Mich 66, 74; 711 NW2d 340 (2006), quoting Millross v Plum Hollow Golf Club, 429 Mich 178, 183; 413 NW2d 17 (1987), citing 2A Sands, Sutherland Statutory Construction (4th ed), § 50.05, pp 440-441.

As already noted, Article 3 of the UCC is comprehensive. It is intended to apply to nearly every situation involving negotiable instruments. See MCL 440.3102. The language contained in MCL 440.3311 completely covers the details of accord and satisfactions.

MCL 440.3311(3) and (4) contain exceptions or conditions. Their enumeration eliminates the possibility of their being other exceptions under the legal maxim expressio unius est exclusio alterius. The maxim is a rule of construction that is a product of logic and common sense. This Court long ago stated that no maxim is more uniformly used to properly construe statutes.

Therefore, the language of the statute shows that the Legislature covered the entire area of accord and satisfactions involving negotiable instruments. It clearly intended that the statute would abrogate the common law on this subject. [Id. at 74-75 (citations omitted; emphasis added).]

The rationale from Hoerstman is not applicable to the statutory scheme at issue here because MCL 600.5801 et seq. lack the comprehensive enactment language found in the negotiable instruments statute. Importantly, MCL 440.3102 defines the scope of the statute and its reach, whereas the same cannot be said of MCL 600.5805. In particular, MCL 440.3102(1) provides: " This article applies to negotiable instruments. It does not apply to money, to payment orders governed by article 4a, or to securities governed by article 8." (Emphasis added.) Chapter 58 of the Revised Judicature Act does not contain a comparable provision defining the scope of the chapter.

The majority claims that Hoerstman and Millross are not distinguishable on this basis, ante at 390 n 12, because these cases do not establish that the Legislature must use certain language to abrogate the common law. However, as the Hoerstman Court correctly noted, "[t]he Legislature has the authority to abrogate the common law." And "[w]hen it does so, it should speak in no uncertain terms." Thus, language defining the scope of a chapter is just one example of the kind of language that the Legislature has used to convey its intent to abrogate the common law. What is important in conveying such intent is that the legislation be comprehensive.

Hoerstman, supra at 74.

Id.

For example, the Hoerstman Court cited Millross, supra, for the proposition that comprehensive legislation abrogates the common law. Millross provides even stronger evidence that the statutory scheme herein is distinct from the statutory schemes at issue in both Hoerstman and Millross. Specifically, in Millross, this Court noted that abrogation was appropriate because it was clear that "the Legislature intended the dramshop act to be a complete and self-contained solution to a problem not adequately addressed at common law and the exclusive remedy for any action arising under `dramshop-related facts.'" "Indeed," the Court went on to note that

Id.

Millross, supra at 185-186.

the Legislature has amended the act to expressly codify this intent in 1986 PA 176, which provides in pertinent part, " This section provides the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor." MCL 436.22(11); MSA 18.993(11). [Millross, supra at 186 (emphasis added).]

In contrast, nowhere in chapter 58, Limitations of Actions, is there a provision establishing that that chapter is exclusive. Nor is there any language evidencing an intent by the Legislature to abolish the common-law discovery rule in order to provide "complete and self-contained" legislation limiting the time in which actions could be brought and thereby replace the discovery rule.

The majority asserts, ante at 391, that because the Legislature included MCL 600.5855, the application of the common-law discovery rule will render § 5855 meaningless. I disagree, given that in order for a plaintiff to avail himself or herself of § 5855, there must still be evidence of fraudulent concealment. Here, where there does not appear to be evidence of fraudulent concealment on the part of any of the named defendants, plaintiff would not be able to use this provision. Thus, the fraudulent concealment provision would not be helpful to this plaintiff, nor to other plaintiffs who, in the absence of fraudulent concealment, are unable to pursue a claim because they did not have the information necessary to establish a claim until after the period of limitations had expired.

MCL 600.5855 states:

If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.

This Court discussed fraudulent concealment in Int'l Union United Auto Workers v Wood, 337 Mich 8, 13-14; 59 NW2d 60 (1953):

Fraudulent concealment was defined in De Haan v. Winter, 258 Mich 293, 296[; 241 NW 923 (1932), superseded by statute on other grounds Morgan v Taylor, 434 Mich 180 (1990)], as meaning the "employment of artifice, planned to prevent inquiry or escape investigation, and mislead or hinder acquirement of information disclosing a right of action. The acts relied on must be of an affirmative character and fraudulent."

* * *

Fraudulent concealment is more than mere silence. McNaughton v. Rockford State Bank, 261 Mich 265, 268[; 246 NW 84 (1933)].

* * *

. . . Concealment by one other than the one sought to be charged is not within the prohibition of the statute. See Stevenson v. Robinson, 39 Mich 160 [1878].

Further, I disagree with the majority's assertion that a narrowly drawn statute purports to change an entire body of common law in the absence of the Legislature explicitly stating that it so intends. The majority's assertion incorrectly assumes that a narrowly tailored statute, which is silent with regard to the broad scope of the discovery rule, somehow changes the entire application of the discovery rule.

While the majority asserts incorrectly that the fraudulent concealment statute is "subsumed," ante at 399, by the discovery rule because the discovery rule encompasses both fraudulent concealment claims and non-fraudulent concealment claims, the fact that the discovery rule has a broader application than the fraudulent concealment statute does not mean that the Legislature sought to allow the use of the discovery rule only with respect to fraudulent concealment claims. Nor does the continued existence of the discovery rule vitiate the fraudulent concealment statute, which merely represents the Legislature's decision to specify how the common-law discovery rule applies to fraudulent concealment claims.

Given the distinct need for the common-law discovery rule to assist these innocent plaintiffs, it cannot be said that the continued existence of the discovery rule makes § 5855 superfluous. The two provisions can peacefully coexist because they serve different purposes.

Indeed, it is evident that when the Legislature wanted to supersede the common-law discovery rule, it did so specifically with regard to certain claims. For example, MCL 600.5838 establishes the time in which a malpractice claim accrues:

(1) Except as other provided in section 5838a, a claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.

(2) Except as otherwise provided in section 5838a, an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred. [Emphasis added.]

In contrast to the malpractice limitation provisions, which indicate with specificity how the discovery rule should be applied, the wrongful death limitation provisions at issue here do not bar the use of the common-law discovery rule, nor do they limit the application of the discovery rule in certain instances. Given the co-existence of these various limitation provisions, it is apparent that the Legislature recognized the continuing existence and viability of the common-law discovery rule and saw fit to limit it in certain instances (§§ 5838 and 5838a), but not in all instances. Specifically, MCL 600.5805 does not contain any provisions limiting the application of the discovery rule, but instead provides:

(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.

* * *

(10) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.

Ultimately, if plaintiff is denied her day in court on the basis of the majority's interpretation of MCL 600.5827, plaintiff will be denied due process. This Court has held that while the Legislature has the power to enact statutes of limitations, those provisions will be deemed unconstitutional if they unreasonably deprive a plaintiff from bringing an otherwise valid claim:

The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. A statute which forbids any suit for the recovery of lands is not a statute of limitations, but a statute to pass to adverse possessors the title of all other claimants; and its validity cannot depend upon the name bestowed upon it. It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought; and a statute that fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law. [Price v Hopkin, 13 Mich 318, 324-325 (1865) (citations omitted).]

More recently, this Court cited Price to support this Court's long history of applying the discovery rule when a statute of limitations would wrongfully deprive a plaintiff of a reasonable time in which to bring a claim:

A statute of limitation should provide plaintiffs with a reasonable opportunity to commence suit. For over one hundred years, this Court has sought to fulfill this purpose, construing statutes accordingly.

* * *

Our adherence to this principle resulted in our holding that the term "wrong," as stated in the accrual statute, designated the date on which the plaintiff was harmed by the defendant's negligent act, as opposed to the date the defendant acted negligently. Connelly v Paul Ruddy's Equipment Repair Service Co, 388 Mich 146; 200 NW2d 70 (1972). Necessity dictated such a conclusion because an opposite interpretation could potentially bar a plaintiffs legitimate cause of action before the plaintiffs injury.

Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cause of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances. Last term, in Moll, supra at 13, we held that the discovery rule controls the date a pharmaceutical products liability action accrues. "If the three-year period of limitation began to run at the time of the defendant's breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks `to declare the bread stale before it is baked.'" (Citation omitted.) The same reasoning compelled our application of the discovery rule to products liability actions premised on asbestos related injuries, Larson, supra. In Southgate School Dist v West Side Construction Co, 399 Mich 72, 82; 247 NW2d 884 (1976), we held that the discovery rule governs the date a breach of warranty claim accrues, providing plaintiffs with an adequate opportunity to bring suit. See also Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974) (the discovery rule governs the accrual of negligent misrepresentation cases), and Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973) (the discovery rule governs the accrual of medical malpractice cases).

Chase v Sabin, 445 Mich 190, 195-197; 516 NW2d 60 (1994).

The majority opinion disputes the applicability of Price, yet this Court adopted the rationale from Price in both Moll and Chase on the basis that in each case, where the plaintiff was not aware of the injury or its cause, the discovery rule was appropriately invoked to permit the plaintiff to go forward on an otherwise time-barred claim. A statute of limitations that effectively deprives a plaintiff of the substantive right to bring an action is unreasonable.

Taxpayers Allied for Constitutional Taxation v Wayne Co, 450 Mich 119, 125-126; 537 NW2d 596 (1995) ("The one-year limitation is not in the class of limitation periods that are `so harsh and unreasonable in their consequences that they effectively divest plaintiffs of the access to the courts intended by the grant of the substantive right.' Forest v Parmalee, 402 Mich 348, 359; 262 NW2d 653, citing Buscaino v Rhodes, 385 Mich 474; 189 NW2d 202.").
While the Taxpayers Court upheld the one-year statute of limitations at issue, what is notable about that decision is the fact that the Court acknowledged that when a limitations period effectively deprives a plaintiff of judicial access, it will not be upheld. That is the very situation we face here if this Court deprives plaintiff of the right to apply the common-law discovery rule.

CONCLUSION

As a result of the majority's conclusion that MCL 600.5827 exclusively governs the time of accrual of plaintiffs claims and that the discovery rule is therefore no longer available to a plaintiff who could not reasonably have discovered the elements of a cause of action, the majority has succeeded in depriving plaintiff, and those similarly situated, from having their day in court.

Because I disagree with the majority's conclusion that with the enactment of the Revised Judicature Act, the Legislature sought to abrogate the discovery rule, I would affirm the Court of Appeals decision applying the common-law discovery rule and tolling the period of limitations where plaintiff could not have reasonably discovered the elements of a wrongful death cause of action within the limitations period.

CAVANAGH, J., concurred with WEAVER, J.

KELLY, J. (dissenting).

In this wrongful death action, the majority frames the issue as whether the common-law discovery rule tolls the statutory period of limitations or whether MCL 600.5827 alone governs when plaintiffs claims accrued. It concludes that MCL 600.5827 alone controls.

I strongly disagree with this decision for three reasons. First, MCL 600.5827 does not apply to this case. Second, even if it does apply, the majority commits a tragic mistake by abandoning Michigan's decades-old common-law discovery rule. Third, even accepting the majority's decision to abolish the discovery rule from now on, this particular plaintiff should be allowed to claim the benefits of the rule. Accordingly, I respectfully dissent.

FACTS

This case arises from the murder of Mrs. Margarette Eby. From 1981 to 1986, she rented the gatehouse on the Mott Estate (Applewood) where she was found dead on November 9, 1986.

During that five-year period, Mrs. Eby experienced occasional break-ins at the gatehouse and complained about them to Ruth Mott. Ruth Mott was Mrs. Eby's landlord. She also lived at Applewood. Mrs. Mott's affairs were handled by the MFO (Mott Family Office) Management Company, which acted on her behalf in virtually every aspect of her business and personal life, including Applewood. The responses that Mrs. Eby received from letters written to Mrs. Mott in 1986 regarding break-ins at the gatehouse was typified by the following:

While Mrs. Mott regrets the occurrence of last Wednesday night, it seems apparent that no system would have prevented your loss when the keys to make the system effective were left in your unlocked car in front of the house. Further, when you leave the gate open frequently and fail to provide visual security through drags, curtains or blinds, unnecessary temptation to unwelcome intruders is evident.

On November 7, 1986, Mrs. Eby attended a dinner party with three friends. Two of them accompanied her home, arriving at Applewood sometime after 11:00 p.m. Mrs. Eby's companions observed her attempt to unlock the front door. When she was unable to do so, she asked her friends to walk her to the side door. She was able to open the side door and her companions saw her lock the door before they left.

Two days later, the gatehouse door was found open. What was discovered inside has been described by the Flint Police Department officers who arrived at the scene as perhaps the most gruesome murder scene they had ever encountered. Mrs. Eby's body was found in her upstairs bedroom. She had been attacked, raped, and knifed to death.

The physical evidence provided little of value. Besides a partial fingerprint on a bathroom faucet, the police uncovered virtually nothing to link the crime to a particular individual. As a result, it appears that the Flint Police Department pursued the only theory that seemed to suit the murder scene, that Mrs. Eby voluntarily allowed the killer into her home. However, because Mrs. Eby had not been killed by an acquaintance, this theory proved fruitless. It is unclear why the police never considered that a complete stranger might have been Mrs. Eby's killer.

What no one knew at the time was that the MFO had given the killer, Jeffrey Gorton, access to the common area beneath Mrs. Eby's home. Gorton was a lawn service employee of Buckler Automatic Lawn Sprinkler Company (Buckler). Two days before Mrs. Eby was raped and murdered, Gorton arrived at Applewood to perform sprinkler winterization. The MFO supervised the process and gave Gorton unsupervised access to the gatehouse basement. It is believed that, while in the house, Gorton unlocked an entry point that allowed him to reenter the building on the night of the murder.

Gorton was first identified as a suspect when, about 16 years later, Mrs. Eby's son recognized the similarities between his mother's murder and the murder of Northwest Airlines flight attendant Nancy Ludwig. Alerted to the similarities, the police eventually conducted deoxyribonucleic acid (DNA) testing on evidence collected from both victims. It showed that the same man killed both women. The fingerprint found on the faucet was also reexamined, and more sophisticated fingerprint techniques revealed that it belonged to Jeffrey Gorton, who was then living in Florida. A police surveillance operation resulted in gathering a DNA sample from Gorton that matched the samples retrieved from both victims.

On February 8, 2002, Jeffrey Gorton was arrested and charged with murder. On January 6, 2003, he pleaded no contest to a charge of murdering Mrs. Eby more than 16 years earlier. He is currently serving a life sentence for the crime.

On August 2, 2002, Mrs. Eby's estate filed a wrongful death complaint against Mrs. Mott's estate (Mrs. Mott died in 1999), the MFO, MFO employees Todd Bakos and Victor Nyberg, Buckler, Jeffrey Gorton, and Gorton's parents, Shirley and Laurence Gorton, who owned and operated Buckler. In the complaint, plaintiff alleged that (1) Jeffrey Gorton killed plaintiffs decedent, (2) Mrs. Mott, the MFO, Bakos, and Nyberg gave Jeffrey Gorton unsupervised access to the decedent's home, (3) Mott and the MFO were responsible on a respondeat superior theory for the negligence of Bakos and Nyberg, (4) Mrs. Mott and the MFO had a duty but failed to provide adequate security for the residence despite the decedent's repeated requests for it and notice of prior criminal activity at the site, (5) Buckler and Shirley and Laurence Gorton breached their duty to conduct adequate employment investigations to determine if prospective employees presented any danger, (6) Shirley and Laurence Gorton failed to supervise Jeffrey when they knew or should have known he was a threat, (7) and Shirley and Laurence Gorton had respondeat superior liability because they put Jeffrey in a position to rape and kill the decedent.

Each defendant, except Jeffrey Gorton, filed a motion for summary disposition, arguing that the claims were barred by the statute of limitations. Genesee Circuit Judge Robert M. Ranson ruled on the motions on October 28, 2003. With the exception of the claim against the MFO and Mrs. Mott's estate that were premised on a generalized duty to keep Mrs. Eby safe, the motions were denied. The trial court ruled that, because plaintiff did not know who killed Mrs. Eby before 2002, plaintiff did not know that someone had breached a duty. Hence, plaintiff lacked knowledge of the causation component of the claims until 2002.

The Court of Appeals granted defendants' applications for leave to appeal. In a unanimous, published opinion, the Court affirmed the part of the trial court's decision that denied defendants' motions for summary disposition. But it reversed the part that granted summary disposition to the MFO and Mrs. Mott's estate on the claim alleging failure to provide adequate security. Trentadue v Buckler Automatic Lawn Sprinkler Co, 266 Mich App 297, 299; 701 NW2d 756 (2005). The panel found that the common-law discovery rule tolled the statute of limitations with respect to all the claims. It ruled that plaintiff could not have been aware of a possible cause of action against defendants until Jeffrey Gorton was identified as the killer. Id. at 303-305.

This Court granted defendants' applications for leave to appeal, directing the parties "to include among the issues to be briefed whether the Court of Appeals application of a common-law discovery rule to determine when plaintiffs claims accrued is inconsistent with or contravenes MCL 600.5827, and whether previous decisions of this Court, which have recognized and applied such a rule when MCL 600.5827 would otherwise control, should be overruled." 475 Mich 906 (2006).

STANDARD OF REVIEW

In the absence of disputed facts, whether a cause of action is barred by a statute of limitations is a question of law that we review de novo. Boyle v Gen Motors Corp, 468 Mich 226, 229-230; 661 NW2d 557 (2003). We also review de novo a trial court's decision on a motion for summary disposition. Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 40; 709 NW2d 589 (2006).

MCL 600.5827 DOES NOT APPLY TO PLAINTIFF'S CLAIMS

This Court asked the parties to answer whether the common-law discovery rule conflicts with MCL 600.5827 and, if so, whether decisions of this Court recognizing the rule should be overruled. MCL 600.5827 is Michigan's accrual statute. It states:

Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.

In deciding that the common-law discovery rule conflicts with § 5827, a majority of this Court errs by deciding that § 5827 applies to plaintiffs claims. Because I find that § 5827 is not implicated by this case, I conclude that this Court overreaches and unnecessarily decides that the common-law discovery rule is inapplicable when § 5827 applies.

All tort causes of action are governed by a statute of limitations. MCL 600.5805 is the statute that governs personal injury actions. The specific subsection that applies to plaintiffs claims is MCL 600.5805(10). It provides:

The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.

Subsection 10 differs from the other subsections of § 5805. The other subsections provide a specific period during which a case must be filed. But they do not provide an accrual period. When these subsections apply, § 5827 determines when the limitations period begins to run. Unlike these subsections, subsection 10 provides not only a specific period for filing (within 3 years), it provides when the action accrues (the time of death or injury).

Examples of these other subsections illustrate this point: § 5805(2) specifies only that "[t]he period of limitations is 2 years for an action charging assault, battery, or false imprisonment." Similarly, § 5805(5) provides that "the period of limitations is 2 years for an action charging malicious prosecution."

Given that § 5805(10) contains its own accrual provision, whenever § 5805(10) is applicable, one need not consider § 5827. Indeed, § 5827 states that its accrual provision is to be applied "[e]xcept as otherwise expressly provided." When § 5805(10) controls, the accrual of the limitations period is "otherwise expressly provided." Hence, because § 5827 does not apply, it is unnecessary for this Court to address whether the discovery rule is applicable when § 5827 applies, and this Court overreaches by answering that question.

The majority recognizes that MCL 600.5805(10) provides both the specific statutory period of limitations and the date when that period begins to run. It follows that the majority also implicitly recognizes that MCL 600.5827 has no application to this case. Yet it proceeds to decide the case as if MCL 600.5827 applies. Of course, this makes it possible to use this case to decide whether the common-law discovery rule conflicts with MCL 600.5827. Reaching out to decide an issue that need not be decided is generally considered a form of judicial activism.
Apparently, the majority deems it appropriate to decide whether the discovery rule can save a claim when MCL 600.5827 otherwise applies because the result would be the same under MCL 600.5827 and MCL 600.5805(10). Regardless of whether this is true, it is well established that a court should only decide issues that are necessary to resolve the case at hand. Because MCL 600.5827 does not apply, the case should not be decided as if it did, regardless of whether the same result would apply under either MCL 600.5827 or MCL 600.5805(10). The more prudent course would he to decide this case under MCL 600.5805(10). The Court should wait for a case implicating MCL 600.5827 to decide whether the discovery rule can save a plaintiffs claims from the running of the period of limitations when § 5827 would otherwise apply.

THIS COURT SHOULD NOT OVERRULE ITS OWN PRIOR DECISIONS RECOGNIZING THE COMMON-LAW DISCOVERY RULE

As demonstrated earlier in this opinion, MCL 600.5827 does not apply to plaintiff's claims. But, if it did, the issue would be whether the common-law discovery rule saves plaintiffs claims from the running of the statutory period of limitations or whether § 5827 alone determines when plaintiffs claims accrued. The majority has decided that plaintiffs claims cannot be saved by the common-law discovery rule and has overruled the prior decisions of this Court that recognized the rule. In so doing, it has wiped out caselaw with a foundation stretching back well over 100 years. Yet each of the factors articulated in Robinson v Detroit for deciding when it is appropriate to overrule the precedent of this Court counsel in favor of retaining those decisions.

See the discussion of this Court's recognition of the fundamental right of access to the courts on pages 442-443 of this dissent.

462 Mich 439; 613 NW2d 307 (2002).

The four justices who are in the majority in this case were also in the majority in Robinson. Looking back, one must question the majority's statement in Robinson that stare decisis is generally "`the preferred course.'" Id. at 463 (citation omitted). This majority has never relied on the doctrine to uphold a prior decision of this Court.
The majority attempts to turn the argument around and questions "whether [my] ongoing criticism truly concerns [their] attitudes toward precedent or merely [my] attitude toward specific previous decisions of the Court." Ante at 394 n 16. In support of this allegation, the majority cites my opinion in People v Smith, 478 Mich 292; 733 NW2d 351 (2007), and my opinion in Haynes v Neshewat, 477 Mich 29; 729 NW2d 488 (2007). My opinions in these cases are easily distinguishable from a decision like the majority's that eradicates a rule with a foundation stretching back well over 100 years. In Smith, the majority overruled People v Robideau, 419 Mich 458; 355 NW2d 592 (1984). I preferred to retain Robideau. My position in Smith does not support a claim that I do not respect precedent. And in Haynes, I wrote the unanimous majority opinion. The opinion carefully considered the Robinson factors and concluded that no factor counseled against overruling our decision in Kassab v Michigan Basic Prop Ins Ass'n, 441 Mich 433; 491 NW2d 545 (1992). Kassab interpreted the Civil Rights Act to allow discriminatory behavior. We decided that it would be inappropriate to retain an erroneous interpretation of an act meant to protect against discrimination solely because some individuals may rely on the decision to discriminate. Every member of the Court agreed.
Rather than look to Smith and Haynes, the majority would do better to look to my recent opinions in Liss v Lewiston-Richards, Inc, 478 Mich 203; 732 NW2d 514 (2007), Rohde v Ann Arbor Pub Schools, 479 Mich 336; 737 NW2d 158 (2007), and Michigan Citizens for Water Conservation v Nestle Waters North America Inc, 479 Mich 280; 737 NW2d 447 (2007).
In Liss I stated, "[G]iven the language and purpose of the [Michigan Consumer Protection Act, MCL 445.901 et seq.], I believe that this Court interpreted the exemption correctly in [Attorney General v] Diamond Mortgage [ 414 Mich 603; 327 NW2d 805 (1982)] and incorrectly in Smith [v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999)]. Even so, because I do not think the compelling interests necessary to overrule a prior decision of this Court are present, I do not advocate overruling Smith." Liss, 478 Mich at 226 (KELLY, J., dissenting). In Rohde, I stated, "I recognize with regret that this Court's decisions in Lee [v Macomb Co Bd of Comm'rs, 464 Mich 726; 629 NW2d 900 (2001)] and [Nat'l Wildlife Federation v] Cleveland Cliffs [Iron Co, 471 Mich 608; 684 NW2d 800 (2004)] now constitute binding precedent." Rohde, 479 Mich at 362 n 5 (KELLY, J., dissenting). And in Nestle, I wrote "Justice WEAVER reaches the opposite conclusion. In so doing, she rejects the standing test adopted by the majority. . . . While I agree with Justice WEAVER'S conclusion and her analysis of these decisions, I also recognize that Lee and Cleveland Cliffs now constitute binding precedent of this Court." Nestle, 479 Mich at 324-326 (KELLY, J. dissenting). Hence, even though I did not agree with the precedent in these cases, I said nothing about overruling it. The majority cannot point to a single case where, having expressed its disagreement with precedent, it has not overruled it or signaled its intent to overrule it.

THE ROBINSON FACTORS

The Robinson factors are used to determine when it is appropriate to overrule the precedent of this Court. The first is whether the earlier decision was wrongly decided. Robinson, 462 Mich at 464. Finding that an earlier decision was wrongly decided is not the end of the inquiry, however. Id. at 465. The Court must also weigh the effects of overruling the decision. Id. at 466. This consideration involves a review of whether the decision "defies `practical workability,' whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision." Id. at 464.

The first question, therefore, is whether this Court's prior decisions recognizing the common-law discovery rule were wrongly decided. The majority claims that the language of MCL 600.5827 indicates that the Legislature did not intend to allow plaintiffs to claim the benefit of the common-law discovery rule when § 5827 applies. I disagree. The majority erroneously ignores deliberate actions of the Legislature that have recognized and ratified prior decisions of this Court applying the common-law discovery rule. These actions signify the Legislature's approval of the rule.

The common-law discovery rule has been a part of Michigan limitations law for many years and has been applied in a variety of contexts. And after this Court recognized the discovery rule, the Michigan Legislature twice passed statutes that expressly limit the operation of the rule.

See, e.g., Johnson v Caldwell, 371 Mich 368; 123 NW2d 785 (1963) (rule applied in medical malpractice cases); Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974) (rule applied in negligent misrepresentation cases); Larson v Johns-Manville Sales Corp, 427 Mich 301; 399 NW2d 1 (1986) (rule applied in products liability cases); Moll v Abbott Laboratories, 444 Mich 1; 506 NW2d 816 (1993) (rule applied in pharmaceutical products liability cases).

MCL 600.5838 and MCL 600.5838a describe how the limitations period operates in professional negligence cases. The Legislature added language to both of these statutes specifying that the period of limitations applies "regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." This demonstrates that the Legislature recognizes the discovery rule and is aware of what it needs to do to prevent the rule from applying in particular cases. Therefore, MCL 600.5838 and MCL 600.5838a are important because they demonstrate that the Legislature has limited the discovery rule where it saw fit.

More importantly § 5838 and § 5838a represent legislative acceptance of the discovery rule. By specifically limiting the discovery rule in professional negligence cases, the Legislature has implicitly acknowledged the applicability of the rule in other types of cases. As a result, in professional negligence cases, a plaintiff may no longer claim the benefit of the common-law discovery rule. But the Legislature has not prohibited application of the rule outside the areas addressed in § 5838 and § 5838a.

The majority claims that there is no "reason to equate the Legislature's `approval of the rule' — by its codification of some of this Court's uses of the rule — with the Legislature's approval of every application of the rule." Ante at 395. Yet the well-established maxim of expressio unius est exclusio alterius, which this majority has often invoked in deciding cases, states that the Legislature's mention of one thing implies the exclusion of all others. E.g., Miller v Chapman Contracting, 477 Mich 102; 730 NW2d 462 (2007); Pittsfield Charter Twp v Washtenaw Co, 468 Mich 702, 712; 664 NW2d 193 (2003). By expressly providing that the discovery rule does not apply in professional negligence cases, the Legislature implied that it was to apply in all other contexts.
The majority implies that MCL 600.5838 and MCL 600.5838a support its position. In both of these statutes, the Legislature specifically limited the operation of the common-law discovery rule by providing that the period of limitations described in these sections applies "regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." The only possible reason the Legislature would have included this language is to take professional negligence claims outside the scope of the common-law discovery rule. But, as a result of the majority's decision, this language is reduced to a redundancy. When a "plaintiff discovers or otherwise has knowledge of the claim" is completely irrelevant if there is no common-law discovery rule. The majority has decided that the Legislature wrote this language in order to remove professional negligence claims from the scope of a rule that the Legislature never recognized as existing.
The majority claims that MCL 600.5838(2) undercuts my position because that section provides a statutory discovery period. The Legislature's decision to provide a statutory discovery period does nothing to weaken my position. Through MCL 600.5838(1), the Legislature took professional negligence claims outside the scope of the common-law discovery rule. It was entirely consistent for the Legislature to provide a statutory discovery period. In so doing, it took some of the sting out of removing professional negligence claims from the scope of the common-law rule.

Given that the actions of the Legislature strongly suggest its approval of most of this Court's prior decisions recognizing the common-law discovery rule, the rule should not be discarded. However, even if one believes that earlier cases applying the rule were wrongly decided, it does not follow that these cases must be overruled. Robinson, 462 Mich at 465. Rather, stare decisis is generally "the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Id. at 463 (citation omitted).

Before jettisoning precedent, this Court must determine "whether overruling such decision would work an undue hardship because of reliance interests or expectations that have arisen." Robertson v DaimlerChrysler Corp, 465 Mich 732, 757; 641 NW2d 567 (2002). In assessing these reliance interests, "the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental, to everyone's expectations that to change it would produce not just readjustments, but practical real-world dislocations." Robinson, 462 Mich at 466. The common-law discovery rule has become so embedded in the fabric of Michigan limitations law that the state's jurisprudence will be seriously damaged by destroying it.

This Court has recognized a fundamental right of access to courts for a great many years. As it stated in 1877, "[e]very man is entitled to his day in court before his rights can be finally disposed of, and even the Legislature could not deprive him of the right." Ehlers v Stoeckle, 37 Mich 260, 262-263 (1877). The genesis of Michigan's common-law discovery rule goes back even further and can be traced to Justice COOLEY over 140 years ago:

The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy; all remedy whatsoever may be taken away. . . . It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought. [Price v Hopkin, 13 Mich 318, 324 (1865).]

The discovery rule, based on principles of fundamental fairness, "`was formulated to avoid the harsh results produced by commencing the running of the statute of limitations before a claimant was aware of any basis for an action.'" Stephens v Dixon, 449 Mich 531, 535; 536 NW2d 755 (1995) (citation omitted).

Elimination of the common-law discovery rule will have a drastic, adverse effect on plaintiffs' rights in Michigan. Cutting off plaintiffs' actions before plaintiffs even know they have a cause of action is the very definition of a "practical real-world dislocation." And people will lose confidence in the courts when they learn that the courts deny them compensation for their injuries simply because it took too long to discover their causes of action.

Aside from the real-world dislocation created by abolishing the common-law discovery rule, there are other factors to consider in determining whether to overrule the prior decisions of this Court. They include whether the decisions defy practical workability and whether changes in the law or the facts no longer justify the questioned precedents. Robinson, 462 Mich at 464. It has not been shown that the discovery rule is un-workable. To the contrary, the near universal acceptance of this rule around the country is a strong indication of its workability. And no facts or law have changed to call into question those cases recognizing the discovery rule. Indeed, the Legislature's decision to abolish the rule solely in the context of professional negligence cases indicates its approval of this Court's decisions that have applied the rule in other contexts.

In addition to Michigan, 35 states plus the District of Columbia have embraced the discovery rule. See, e.g., Alaska: Hanebuth v Bell Helicopter Int'l, 694 P2d 143 (Alas, 1984). Arkansas: State v Diamond Lakes Oil Co, 347 Ark 618; 66 SW3d 613 (2002). California: Norgart v Upjohn Co, 21 Cal 4th 383; 981 P2d 79; 87 Cal Rptr 2d 453 (1999). Colorado: Rauschenberger v Radetsky, 745 P2d 640 (Colo, 1987). Connecticut: Champagne v Raybestos-Manhattan, Inc, 212 Conn 509; 562 A2d 1100 (1989). Delaware: In re Asbestos Litigation West Trial Group, 622 A2d 1090 (Del Super Ct, 1992). Florida: Johnson v Szymanski, 368 So 2d 370 (Fla, 1979). Georgia: King v Seitzingers, lnc, 160 Ga App 318; 287 SE2d 252 (1981). Hawaii: Yoshizaki v Hilo Hosp, 50 Hawaii 150; 433 P2d 220 (1967). Indiana: Wehling v Citizens Nat'l Bank, 586 NE2d 840 (Ind, 1992). Iowa: Roycroft v Hammons, 203 F Supp 2d 1053 (SD Iowa, 2002). Louisiana: Harvey v Dixie Graphics, Inc, 593 So 2d 351 (La, 1992). Maine: Johnston v Dow Coulombe, Inc, 686 A2d 1064 (Me, 1996). Maryland: Georgia-Pacific Corp v Benjamin, 394 Md 59; 904 A2d 511 (2006). Minnesota: Johnson v Winthrop Laboratories Div of Sterling Drug, Inc, 291 Minn 145; 190 NW2d 77 (1971). Mississippi: Sweeney v Preston, 642 So 2d 332 (Miss, 1994). Nebraska: Condon v AH Robins Co, 217 Neb 60; 349 NW2d 622 (1984). Nevada: Siragusa v Brown, 114 Nev 1384; 971 P2d 801 (1998). New Hampshire: Big League Entertainment, Inc v Brox Industries, 149 NH 480; 821 A2d 1054 (2003). New Jersey: Mancuso v Mancuso, 209 NJ Super 51; 506 A2d 1253 (1986). New Mexico: McNeil v Rice Engineering Operating Inc, 139 NM 48; 128 P3d 476 (NM App, 2005). North Dakota: Wells v First American Bank West, 598 NW2d 834 (ND, 1999). Ohio: Collins v Sotka, 81 Ohio St 3d 506, 692 NE2d 581 (1998). Oklahoma: Resolution Trust Corp v Grant, 901 P2d 807 (Okla, 1995). Rhode Island: Wilkinson v Harrington, 104 RI 224; 243 A2d 745 (1968). South Carolina: Gattis v Chavez, 413 F Supp 33 (D SC, 1976). Tennessee: Hathaway v Middle Tennessee Anesthesiology, PC, 724 SW2d 355 (Tenn App, 1986). Texas: McDade v Texas Commerce Bank, Nat'l Ass'n, 822 SW2d 713 (Tex App, 1991). Utah: Klmger v Rightly, 791 P2d 868 (Utah, 1990). Vermont: Leo v Hillman, 164 Vt 94; 665 A2d 572 (1995). Virginia: Locke v Johns-Manville Corp, 221 Va 951; 275 SE 2d 900 (1981). Washington: White v Johns-Manville Corp, 103 Wash 2d 344; 693 P2d 687 (1985). West Virginia: Gaither v City Hosp, 199 W Va 706; 487 SE2d 901 (1997). Wisconsin: Hansen v AH Robins Co, Inc, 113 Wis 2d 550; 335 NW2d 578 (1983). Wyoming: Olson v AH Robins Co, Inc, 696 P2d 1294 (Wyo, 1985). District of Columbia: Burke v Washington Hosp Ctr, 293 F Supp 1328 (D DC, 1968).

It is the majority's decision to abolish the common-law discovery rule that threatens to defy practical workability by leading to absurd results and constitutional violations. This Court has held that "[s]tatutes should be construed so as to prevent absurd results, injustice or prejudice to the public interest." McAuley v Gen Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998). See also Cameron v Auto Club Ins Ass'n, 476 Mich 55; 718 NW2d 784 (2006). Without the discovery rule, plaintiffs will lose the right to pursue certain causes of action before they have or could have had knowledge of them. The plaintiff in this case falls within that group.

Moreover, given this Court's decision in Henry v Dow Chemical Co, the very real possibility exists that there will be cases in which a plaintiff will never be able to file suit. In Henry, this Court held that a plaintiff can pursue a tort claim only if he or she has suffered a present injury. Henry, 473 Mich at 74. Because there will be cases in which a person's injury will not be manifested for a prolonged time, there will be cases in which no cause of action can ever be pursued. These are cases in which a person's injury does not manifest itself until the established limitations period has expired. The absurdity of a system that deprives someone of his or her cause of action before it can be instituted is manifest. As Judge Jerome Frank stated:

473 Mich 63; 701 NW2d 684 (2005).

Except in topsy-turvy land you can't die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of legal "axiom," that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e., before a judicial remedy is available to the plaintiff. For a limitations statute, by its inherent nature, bars a cause of action solely because suit was not brought to assert it during a period when the suit, if begun in that period, could have been successfully maintained; the plaintiff, in such a case, loses for the sole reason that he delayed — beyond the time fixed by the statute — commencing his suit which, but for the delay, he would have won. [Dincher v Marlin Firearms Co, 198 F2d 821, 823 (CA 2, 1952) (Frank, J., dissenting).]

Today's decision to abolish the discovery rule also raises constitutional questions regarding the extent of the Legislature's authority to enact statutes of limitations. The Legislature can, if it chooses, completely eliminate common-law causes of action. But the enactment of a statute of limitations implicates other considerations. The purpose of a limitations statute is to "penalize plaintiffs who have not been industrious in pursing their claims," not to eliminate a valid cause of action when the plaintiff is without fault. Lemmerman v Fealk, 449 Mich 56, 65-66; 534 NW2d 695 (1995). For this reason, this Court has repeatedly held that a limitations period that does not provide a reasonable period in which to file suit is constitutionally suspect. See, e.g., Krone v Krone, 37 Mich 308 (1877); Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973).

Bean v McFarland, 280 Mich 19, 21; 273 NW 332 (1937).

Lothian v Detroit, 414 Mich 160, 166-167; 324 NW2d 9 (1982).

In Dyke, this Court prohibited a statute of limitations from extinguishing a right to bring suit before reasonable discovery of the cause of action was possible. The Court explained:

Since "[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought . . .", Price, supra, a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation. As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a cause of action, this statute has the effect of abolishing his right to bring suit.

Such a statute, if sustainable at all could be enforced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative intention to accomplish that end. We read it as a statute of limitation which applies in every case except where the plaintiff does not know of his cause of action. [Dyke, 390 Mich at 746-747.]

And this Court has also held that a limitations provision that does not afford a reasonable time to file suit cannot be constitutionally upheld, because it prevents access to the courts. Forest v Parmalee held that "statutes of limitations are to be upheld by courts unless it can be demonstrated that they are so harsh and unreasonable in their consequences that they effectively divest plaintiffs of the access to the courts intended by the grant of the substantive right."

402 Mich 348, 359; 262 NW2d 653 (1978).

In certain circumstances, the common-law discovery rule is necessary to ensure that plaintiffs have had a reasonable time to gain knowledge of their causes of action. By abrogating this rule, the majority decision raises serious constitutional questions. These constitutional concerns counsel in favor of retaining the discovery rule.

This Court, like most, has long recognized the value of stare decisis. Its decisions applying the common-law discovery rule should be upheld under that doctrine because (1) the decisions recognizing the rule were correctly decided, (2) a change in the discovery rule would have a drastic effect on plaintiffs' rights, (3) the discovery rule is workable, and (4) abolishing the rule will lead to constitutional violations as well as absurd and unjust results.

MCL 600.5869 REQUIRES APPLICATION OF THE COMMON-LAW DISCOVERY RULE TO PLAINTIFF'S CLAIMS

A majority of this Court decides that the common-law discovery rule is inapplicable when MCL 600.5827 applies. I strongly disagree with this decision. But, even accepting it, the Court need not reverse the Court of Appeals decision in this case.

MCL 600.5869 provides:

All actions and rights shall be governed and determined according to the law under which the right accrued, in respect to the limitations of such actions or right of entry.

The majority finds that "plaintiffs claims accrued at the time of Eby's death." Ante at 407. Mrs. Eby was murdered in 1986. At that time, this Court recognized the common-law discovery rule. Thus, as of 1986, the law in this state was that the cause of action did not accrue until "all of the elements of the cause of action have occurred and can be alleged in a proper complaint." Connelly v Paul Ruddy's Equip Repair Service Co, 388 Mich 146, 150; 200 NW2d 70 (1970). It follows that, although some future plaintiffs may not be able to claim the benefit of the common-law discovery rule, this plaintiff can. For this reason, the majority need not reverse the decision of the Court of Appeals.

The majority claims that § 5869 cannot save plaintiffs claim because the statutory law has not changed since 1986. This fact is irrelevant. Section 5869 states that "[a]U actions and rights shall be governed and determined according to the law under which the right accrued. . . ." This section is not confined to statutory provisions. Rather, § 5869 includes all law. It is well established that the law includes the common law. E.g., People v Blume, 443 Mich 476, 480 n 7; 505 NW2d 843 (1993); Myers v Genesee Co Auditor, 375 Mich 1, 7; 133 NW2d 190 (1965); Const 1963, art 3, § 7. Because it is clear that this Court recognized a common-law discovery rule in 1986, § 5869 requires that the discovery rule be applied to plaintiffs case. And because § 5869 requires application of the discovery rule, the majority's discussion about retroactive versus prospective application of decisions by this Court is misplaced.
The majority also claims that I present no authority or explanation for why the discovery rule is applicable. Ante at 400. In fact, I have made such a presentation. I will recap it here: MCL 600.5869 states that all actions shall be governed by the law as it existed when the claim accrued. The majority asserts that the claim in this case accrued in 1986. In 1986, this Court recognized the common-law discovery rule. Therefore, the discovery rule was the law of the land at the time the claim accrued. Accordingly, § 5869 requires us to apply the common-law discovery rule to plaintiffs claim. As I think is obvious, the authority I cite as requiring application of the discovery rule is § 5869.

APPLICATION OF THE COMMON-LAW DISCOVERY RULE TO THE FACTS OF THE CASE

Under the common-law discovery rule, a claim accrues when, on the basis of objective facts, a plaintiff can allege each element of the asserted claim. Moll v Abbott Laboratories, 444 Mich 1, 15-16; 506 NW2d 816 (1993). A claim for personal injury must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, (3) the defendant's breach was the proximate cause of the plaintiffs injuries, and (4) the plaintiff suffered damages. Chase v Sabin, 445 Mich 190, 201 n 15; 516 NW2d 60 (1994).

Here, it was not until after Jeffrey Gorton was arrested that plaintiff found out that Mrs. Eby's killer was a stranger. Plaintiff could not have alleged a breach of duty against any of the defendants before knowing that a stranger, Gorton, had killed Mrs. Eby. Therefore, it was not until Gorton was identified as the killer that the period of limitations began to run. Because plaintiff filed suit within three years of the identification of Gorton as the killer, plaintiffs claims are timely.

MCL 600.5805(10) provides the applicable period of limitations for plaintiffs claim. That period is three years.

CONCLUSION

With today's decision, the majority throws Michigan into topsy-turvy land, where a person's legal claim dies before it is born. The majority finds that plaintiffs tort cause of action disappeared before plaintiff could discover the tortfeasor. As a result, the judgment of the Court of Appeals has been reversed.

I disagree with this decision on numerous grounds. MCL 600.5827 does not apply here. Moreover, it is a grievous error to overrule the precedent of this Court that recognizes the common-law discovery rule. The Legislature has signaled its approval of this precedent and indicated that the rule should apply in all cases except those alleging professional negligence. The judgment of the Court of Appeals should be affirmed and the discovery rule should remain untouched. But, even if the discovery rule has no application in the future, this particular plaintiff should be allowed to claim the benefits of the rule. For these reasons, I dissent.