Statute of Limitations Flashcards
What is the general rule for statute of limitations?
A tort action must be brought before the statute of limitations expires.
What are three ways SOL periods are defined? Brief description
- Statutory: established by legislature
- Judicial: some subjectivity in determining what type of cause of action exists in order to apply the applicable statutory SOL
- Contract: parties may alter and may provide tolling agreements
When does an SOL begin to run?
When a statute of limitations begins to run depends on whether it is governed by a damage rule or occurrence rule.
What is the damage rule for SOL?
The damage rule begins the statute of limitations from the date that the plaintiff actually suffers damages.
What is the occurrence rule for SOL?
The occurrence rule begins the statute of limitations from the date of the incident/accident giving right to the present or prospective damages.
What is tolling SOL?
When the SOL is paused in special circumstnaces
What is the discovery rule for tolling of SOL?
Under the discovery rule, the SOL is tolled until the plaintiff knew or with reaonable diligence should have known of injury. In other words, the SOL begins to run when the plaintiff discovers (1) she has been injured OR (2) she has been injured by the defendant OR (3) facts that would lead a reasonable person to know they were injured.
What do some courts require as to the facts underlying the discovery rule?
Some courts require the underlying facts to ahve been inherently undiscoverable (not just unknown to the plaintiff).
What is the minor tolling rule for SOL?
Many states will tolls a SOL until a minor plainitff reaches the age of majority.
What is the continuous representation doctrine for tolling SOL?
Tolls the SOL in legal malpractice (and sometimes medical malpractice) cases so long as the lawyer continues to represent the plaintiff’s interests in the matter in question.
What is a statute of repose?
A “drop dead” date after which no claim can be brought. They are statutory and vary by type of claim.
When does a statute of repose begin to run? Is tolling available? How long?
Almost always begins to run from the date that the product was manufactured, botched surgery performed, bad advise given, etc. Tolling is generally not available. It’s usually a long period, usually 5-10 years.
