There are a number of terms herein which will be repeated frequently. The following definitions will assist our readers in their understanding of the information provided. (The most frequently used terms, namely, statute of limitations and statute of repose, are abbreviated as SOL and SOR respectively – see definitions below).
- Comparative negligence
- Contributory negligence
- Discovery rule
- Federal Statute of Limitations
- Foreign object
- Fraud of defendant
- Intentional tort
- Nursing Home Litigation
- Punitive (exemplary) damages
- Statute of limitations (SOL)
- Statute of repose (SOR)
- Toxic substance
- Wrongful death
Refers to the date on which a statute of limitations begins to run. This is an especially important concept since it determines the date from which the particular statute of limitations is calculated. When using this website be aware that certain jurisdictions count the date of the accident (occurrence) while others do not. This difference is only one day, however, it can be a significant in cases where the statute is about to run out.
Refers to some limit placed on the amount that may be recovered in certain types of cases or against certain classes of defendants. It may be a specific monetary amount, an amount calculated by utilizing a particular formula, or the limit of available or required insurance coverage.
Refers to negligence or culpable conduct on the part of the injured party which usually acts to reduce his or her recovery to some extent. Different jurisdictions have different comparative negligence standards in terms of how, and to what extent, a plaintiff’s culpable conduct will affect his or her recovery.
Refers to negligence or culpable conduct on the part of the injured party which bars the injured party from any recovery regardless of the degree of the defendant’s negligence. Unlike comparative negligence, contributory negligence is not a concept that is open to varying interpretations. If the doctrine applies in a jurisdiction, it will bar a plaintiff from recovering anything.
Contributory negligence is a harsh doctrine which has been abandoned in almost all jurisdictions in favor of one or another version of comparative negligence.
Refers to some condition (infancy, insanity, incompetence) which the law recognizes as a basis for allowing a statute of limitations to be tolled or extended to some degree. In all jurisdictions the disability must exist at the time the cause of action accrues in order for the injured party to be given the benefit of any tolling provision.
Most jurisdictions have provisions for extending statutes of limitation in situations where the injury that has been suffered is incapable of immediate discovery.
Diseases caused by exposure to toxic substances and foreign objects left in the body during medical procedures are among the situations where the rule is applied. Usually “discovery” means when the condition in question is actually discovered or when it should have been discovery with the exercise of reasonable diligence.
Further reading: Discovery rule
There are a number of separate causes of action, such as those for securities fraud, which are governed by federal, and not state, law. One example is §804 of the Sarbanes-Oxley Act which sets the statute of limitations for private securities fraud cases from the longer of one year from the date of the occurrence or three years from the date of discovery to the longer of two years from the date of occurrence or five years from the date of discovery.
Thus, in any situation where a federal law is involved, you should always consult a qualified attorney to determine if a separate statute of limitations is involved as well as if your action must be brought in federal court.
Refers to something that has been negligently left in the body during surgery or some other medical procedure. The object must usually be something that was not intended to be left in the body. Thus, a surgical instrument left in someone’s stomach is a foreign object while a prosthetic device, no matter how defective it might be, is not.
In terms of statutes of limitation considerations this refers to conduct by a defendant which is intended to conceal his or her negligence or willful conduct with the intent of preventing the plaintiff from discovering its true nature or in an effort to have the statute of limitations run out before the plaintiff becomes aware of the wrongful conduct or the existence of an injury.
Each jurisdiction has its own interpretation of what constitutes fraud on the part of a defendant as well as to what degree, if any, such conduct should have on extending or tolling the applicable statute of limitations. Fraudulent concealment of tortuous conduct usually applies in cases of professional malpractice (especially medical and dental, but also legal, engineering and architectural), products liability (including those involving prescription drugs and other pharmaceutical products), and exposure to toxic substances.
Since the rules vary widely from jurisdiction to jurisdiction and are constantly being re-examined and revised as new factual situations are presented, anyone who suspects that fraud on the part of the defendant may have played a role in delaying the discovery of the tortuous conduct or the injury it may have caused is strongly urged to consult with a qualified attorney in the jurisdiction involved.
Refers to the exemption from lawsuits afforded certain entities (municipalities, charitable organizations). Most jurisdictions have either abolished these exemptions completely or, at least, substantially restricted them.
Some states, however, retain certain immunities or have monetary limitations beyond which recoveries are not permitted.
Refers to deliberate acts which cause injury.
Simply refers to the “place” or “location” where an action is brought or being litigated. Thus, this article covers the law of 53 separate jurisdictions (50 states, Puerto Rico, Washington D.C., and the U.S. Virgin Islands).
The term is a generic reference to any state, county, city, town, village, or other political subdivision. It also refers to any division, agency, commission, or other department operated by the state or by any of its political subdivisions. Law enforcement agencies are usually considered “municipalities” for statute of limitations purposes.
Refers to unintentional acts reasonable people would regard as careless or posing an unreasonable risk of harm to others.
Although not related to SOL, it should be noted that many states have rules regulating to the issue of damages in nursing home litigation.
Refers to the event which gives rise to a cause of action. Thus, “occurrence rule” means that the SOL involved runs from the date of the occurrence.
These are damages which are awarded over and above simple compensatory damages. They are not intended to compensate the plaintiff. Instead, they are designed to punish the defendant for actions which are willful, wanton, reckless, or undertaken with utter disregard for their potential consequences.
The goal is to discourage such actions in the future by the defendant or by others who would engage in similar conduct. While most states allow such damages, there are numerous caps, restrictions, and degrees of proof which vary from state to state.
In apition, many states do not permit punitive damages to be sought or awarded against municipalities or charities. In some jurisdictions a percentage of any punitive damage award is required to be given directly to the state involved or to some agency of that state.
Is the time in which a lawsuit must be commenced by the injured party. In almost all cases, unless there is some special circumstance, the SOL begins to run from the date of the occurrence that caused the injury. This is referred to as the date on which the cause of action accrued.
A statute of repose is quite different from a statute of limitations. SORs usually apply in products liability cases and are designed to limit the exposure of manufacturers and sellers. A statute of repose begins to run from some specified time or event regardless of whether any claim has accrued or any injury has occurred. Thus, a SOR may actually bar claims before they even accrue. As stated at 4 American Law of Products Liability 3d, §47:55: “Unlike statutes of limitation, that are designed to prevent plaintiffs from sleeping on their legal rights to the detriment of a defendant, repose statutes applicable in products liability cases focus on the age of a product, rather than on the plaintiff’s conduct. The repose period serves as an absolute barrier that prevents a plaintiff’s right of action. In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action from ever arising.”
A “civil” wrong that entitles the injured party to recover money damages from the responsible party. A tort may be intentional (assault, battery, libel, slander, intentional infliction of emotional distress, false imprisonment, malicious prosecution), or negligent (medical malpractice, products liability, automobile accidents, slip and fall accidents, construction accidents, and any other type of unintentional accident).
Refers to any material that has the potential to inflict injury through exposure (asbestos, certain molds, chemicals) or ingestion (lead paint, heavy metals, tobacco smoke).
Refers to a cause of action for pecuniary loss to the estate of a person who dies as the result of the negligent or intentional act of another.