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When the discovery rule is applicable, the statute of limitations does not begin to run until the potential plaintiff discovers, or with reasonable diligence should have discovered, the injury. Although the Nebraska Supreme Court has not explicitly so stated, it is implicit in its prior rulings that in those cases in which the discovery rule applies, the beneficence of the discovery rule is not bestowed on a potential plaintiff where the potential plaintiff in fact discovers, or in the exercise of reasonable diligence should have discovered, the injury within the initial period of limitations running from the wrongful act or omission. However, in a case where the injury is not obvious and is neither discovered nor discoverable within the limitations period running from the wrongful act or omission, the statute of limitations does not begin to run until the potential plaintiff discovers, or with reasonable diligence should have discovered, the injury.
In 1995, the student's English composition instructor set up a website using the university's computer service. At some time in 1995, the instructor uploaded certain papers written by the student to the website. The student alleged that these papers contained intimate details of her private life. The university contended that the student's claim accrued in 1995 when the instructor uploaded the papers to the website and that the student's claim filed in February 1998 was filed beyond the two years allowed under Neb. Rev. Stat. § 81-8,227(1) (Reissue 1996). The student argued that her claim did not accrue until June 1997 when her parents downloaded the papers from the website and she first learned that they had been posted to the website. The district court granted the university’s motion for summary judgment, holding that the student’s negligence cause of action was time barred. The student appealed, arguing that the district court erred in concluding that the statute of limitations barred her negligence cause of action against the university.
Was the student’s action time-barred, thereby making the grant of summary judgment in favor of the University proper?
The Court concluded that the discovery rule was applicable to certain cases brought under the Nebraska State Tort Claims Act, and in a case such in which the plaintiff cannot reasonably become aware of the injury at the time of the act or omission, the discovery rule applied, and the period of limitations under the Act would begin to run when a potential plaintiff discovered, or in the exercise of reasonable diligence should discover, the existence of the injury. In this case, the Court held that there were genuine issues of material fact regarding when the student should have discovered the presence of her papers on the website. Accordingly, the Court concluded that the trial court erred in concluding the student's action against the university was time barred and erred in sustaining its motion for summary judgment.