dissenting.
I respectfully dissent.
The majority announces the rule that the fact-finder, in cases such as this, is to determine when the injured party discovered, or in the exercise of reasonable diligence, should have discovered the cause of the injury. I do not disagree with this rule. In my view, however, this is precisely what the fact-finder here did, and accordingly, we are not at liberty to reverse its ruling. Gebhardt v. Gebhardt, 198 Colo. 28, 595 P.2d 1048 (1979).
The majority states that it was not until the plaintiff was aware of the rationale behind her arrest that she knew the cause of her injuries or the basis of her claim. However, this analysis looks to the later-developed legal theories and not to the factual underpinnings of the case.
The fact is that the plaintiff knew of her alleged injuries when she was arrested, and knew at that time that she had a potential action for damages. See Carroll v. RTD, -Colo.App.-, 638 P.2d 816 (1981). As the trial court found, the basis of plaintiff’s claim is the arrest. She seeks compensation for the emotional distress and physical discomfort resulting therefrom. These resulted from the arrest and not from the negligent misfiling of the traffic summons. The negligence itself, without more, caused the plaintiff no injury. Thus, the fact that the plaintiff chose to sue on a negligence theory is irrelevant to the issue of when the plaintiff had knowledge of the cause of her injury. See Housing Authority v. Daly Co., 35 Colo.App. 244, 533 P.2d 937 (1975).
The majority cites Crownover v. Gleich-man, 194 Colo. 48, 574 P.2d 497 (1977), cert. denied 435 U.S. 905, 98 S.Ct. 1450, 55 L.Ed.2d 495 (1978), for the proposition that the aggrieved party may not wait until all the elements of the claim mature, but must sue within the time prescribed by the applicable statute from the discovery of the basis of the claim. Here, however, contrary to Crownover, the majority is permitting the plaintiff to wait until she has developed her legal theories before allowing the notice period to start running.
It is my view, therefore, that the trial court properly applied the rule announced by the majority, and accordingly, I would affirm.