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Statutes Which Affect Liability Evaluation

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by Dixon Law Office

Statues of limitation mean things. They do not entertain fools or tolerate excuses. With a few notable exceptions they cannot be extended, changed, or altered.

A statute of limitation is a fixed time after which courts will not entertain a case. The idea behind a statute of limitation is to set a reasonable time for an injured victim to pursue a claim or seek to enforce a right. The idea is to encourage prompt investigation in filing of claims. Additionally, they allowed defendants (wrong doers) a reasonable time to gather information after a claim has been filed. Conceptually, statutes of limitation prevent stale claims. In reality they stop valid causes of action from being brought.

Statutes of limitation are typically stated in days or years. It is to be an exact number that is readily quantifiable by the injured victim. Statutes of limitation are to be construed liberally but fairly and reasonably so they can fulfill the objectives stated by legislature when they were enacted.

Statutes of limitation are a procedural remedy. This is an important point for a savvy practitioner to understand. Because they are procedural in nature, their application will depend on the law of the forum state in which the action is brought. Thus there may be an opportunity for an extended statute of limitations in multiple sates have the potential for enforcing the right.

Because Statues of limitation are procedural, they are not related to the deprived right itself. The passing of the statute of limitation does not extinguish the claim. Rather it deprives the court of the opportunity to enforce that claim.

Perhaps most important to understand, statutes of limitation, therefore, do not prevent the court from hearing the case. Rather they simply provide an affirmative defense to a defendant. Like all affirmative matter, it may be waved. Waver may be done in multiple ways including by express agreement and/or contract.

Statutes of limitation generally only apply to cases at law. The doctrine of laches applies to equitable claim. Again should a victim have the right to bring both a law case and an equitable case? The equity claim might have a longer limitation.

Statutes of limitation apply to claims for injuries that had causes of action existing at common law. This is why they are procedural in nature. However, in common parlance, not all statutes of limitations are created equally. Some “statutes of limitation” not only set a time limit by which date a cause of action must be brought but also create a cause of action that did not exist at common law. Example of these would be dram shop claims and wrongful death causes of action. Because these create a right and also settle limitation, the passing of one of these dates deprives the court of jurisdiction. Consequently they are not truly a statute of limitation.

It is often stated that statutes of limitation are determined based on the type of injury at issue. In this author’s judgment, this is incorrect. Rather, statutes of limitation are determined based on liability of the at fault party not the injury.

For example, a person could sustain an injury in a car accident. That injury is fixed and known. However, the statute of limitation will vary based on the accused wrongful conduct. If it is negligent or intentional or dram shop, all of these have different statutes of limitation.

Additionally, statutes of limitation will vary based on the type of defendant. The most common example of this is governmental agencies. Governmental entities almost always have a short in statute of limitations for claims against them.


Awareness is not required

One of the particularly mean aspects of a statute of limitation is that awareness of an injury is not necessarily required. Thus for example, a child could be injured by an adult and not even be aware of it.  Still the statute of limitation begins to run. Doe v. Montessori School of Lake Forest, 287 Ill. App 3rd 289 (2nd Dist. 1997). Likewise, if the injury is latent the statute of limitation still continues to run if it occurs as a result of a traumatic event Golla v. General Motorist Cooperation , 167 Ill. 2d 353 (1995). At the same time injuries that are de minimis also triggers statutes of limitation to start running Gonzalez v. Entress, 133 F.3d 551 (7th Cir. 1998)



Because statutes of limitation are procedural remedies, there are times in which the statute of limitation can be stopped. It is in these circumstances in which legislature believes that it would be fundamentally unfair for someone to have the statute of limitation start to run and thus it is tolled. For example, a minor child who is injured typically has their statute of limitation tolled until they turn 18. Thus, it is like the hands of time stop until their minority ends. It is at that time that the limitations period starts to run.

This can create some odd circumstances. Take for example, a family that is injured in an automobile accident. Mom and dad would have their statutes of limitation start to run the minute the car accident happened. However, their 17 year old daughter would have an extra year to bring their claim because she is a minor. Their 2 year old son would have a full 18 years (16+2) to bring his negligence cause of action against the same driver. One car accident, four different statutes of limitation.


Confounding members of the public and many lawyers, statutes of repose work differently from statutes of limitation. While statute of limitation is triggered based on an injury, a statute of repose begins to run based on some other event or date. Statutes of repose are designed to end all litigation regardless of when the cause of action actually accrued. Thus, a statute of limitation can continue to run but a statute of repose can end the ability of the claimant to bring the right sooner than the statute of limitations. In some circumstances, a statute of repose can run even before the cause of action accrues to the injured victim.

Perhaps the easiest way to think of a statute of repose in relationship to a statute of limitation is to think of two clocks. The statute of limitation clock starts to run at the time of the injury. The statute of repose clock starts to run based on a fixed point and time usually before the statute of limitation starts (but not always).

Statutes of repose are particularly nasty entities because of their draconian effect. By most, they are considered unfair.

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