dissenting.
The result reached by the majority opinion is unacceptable because (1) it is based on an indefensible view of what constitutes a cause of action and, in effect, bars a cause of action before it has come into existence and (2) it violates the “open courts” provision of the Texas Constitution.
By ignoring the elementary and traditional concept that actual loss or damage is necessary to the existence of a cause of action for negligence, the Texas decisions which the majority opinion follows produce “a result so absurd and unjust” that it “ought not to be possible.” Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1973).
*263A suit based on negligence cannot be maintained until the defendant’s negligent conduct has proximately caused actual loss or damage to the plaintiff. W.L. PROS-SER & W.P. KEETON, THE LAW OF TORTS, § 30, p. 165 (5th ed. W.P. Keeton, ed., 1984).
As stated in RESTATEMENT (SECOND) TORTS, § 907, comment a:
When a cause of action for a tort exists but no harm has been caused by the tort ... judgment will be given for nominal damages consisting of a trivial award against a wrongdoer who has caused no harm of an insignificant harm. If actual damages is necessary to the cause of action, as in negligence, nominal damages are not awarded.
The notion that a cause of action “accrues” before it comes into existence is based on the somewhat arcane theory of a “legal” injury which, despite the absence of harm, occurs at the time the negligent conduct takes place. The courts may rightfully claim sole credit for the existence of this harmless injury. The idea seems to be that if I am crossing a street and a motorist roars past me at an excessive rate of speed I have a cause of action against him even though he did not strike me. For those who experience some difficulty in accepting the concept that a cause of action exists even though an attempt to assert it must of necessity result in a judgment that plaintiff take nothing, the explanation offered in Zidell v. Bird, 692 S.W.2d 550, 557 (Tex.Civ.App.— Austin 1985, no writ), which is quoted in the majority opinion, will undoubtedly make the concept less comprehensible.
What Zidell language declares, apparently in all seriousness, is that the risk of harm, which is the only circumstance which justifies characterization of conduct as negligent, itself constitutes injury, although but for this “legal” injury, no harm or damage has resulted. The necessary result is that every negligent act, even if it produces no actual loss, damage or harm subjects the actor to “liability,” although it is clear that he will be liable for nothing. This is a strange kind of liability. If the defendant is not liable because of the lack of actual injury, it should be clear that plaintiffs cause of action is purely illusory.
The prevention of stale claims, which is the purpose of statutes of limitation, is generally considered a desirable objective. The same cannot be said for a rule which bars a claim before it comes into existence.
In Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985), a statute which attempted to impose the rule adopted by the majority in this case was held to violate the open courts provision of the Texas Constitution.1 TEX. CONST, art. 1, § 13. It is true that Neagle involved a case of medical, rather than legal, malpractice. But if the provisions of our constitution protect a citizen from legislative acts that abridge his right to sue before he has a reasonable opportunity to discover the wrong and bring suit, there is no defensible reason for not applying the same rule to attorneys, unless we simply desire to extend protection to lawyers which is denied to other professionals.
I would reverse the judgment of the trial court and remand the cause for trial under the “discovery” rule.
. After the Neagle decision, the Supreme Court decided that the Medical Liability Act, which eliminated the discovery rule in medical malpractice cases, could be constitutionally applied to a case where plaintiff discovered his injury (hole in bladder) 2 years before he filed suit. The Court also pointed out that plaintiff had a reasonable length of time in which to file suit after he discovered his injury. Morrison v. Chan, 699 S.W.2d 205 (Tex.1985). None of the factors relied on in Morrison to distinguish Nea-gle is applicable to this case.
Morrison in no way affects the holding in Neagle that a rule barring plaintiff's claim before he has a reasonable opportunity to discover the wrong is unconstitutional.