Injured Parties Must Act Timely in Filing Lawsuit

By Tracy E. Sagle
Formerly of Lang, Richert and Patch

Many people suffering from personal injuries or other types of damages are unclear about how long they have to file a lawsuit before their ability to prosecute their claims expires. The law recognizes various limitations periods (commonly referred to as the statute of limitations) for the different legal avenues designed to address a legal wrong.   While the state legislature has attempted to make these periods clear, a problem that frequently arises is when the limitations period begins to run: is it when the facts giving rise to the lawsuit occurred, or rather when the injured party discovers their injury? Given that the failure to file a lawsuit timely prevents a court from ever considering it (regardless of the merits of the claim), issues surrounding the statute of limitations are of critical importance.

Nowhere is this more significant than in the area of personal injuries. In 2003, the legislature enacted legislation extending the statute of limitations for personal injury lawsuits from one year to two years from the date of the incident or injury. (Code of Civil Procedure section 335.1.) While this longer period is certainly helpful to the injured plaintiff, the law also provides for an extension for filing suit by delaying the event which triggers the running of the limitations period. The “delayed discovery rule” provides that, notwithstanding the date of the incident, the statute of limitations begins to run when a reasonable person should have known that his or her injury was caused by the tortious wrongdoing of another. This rule was firmly established by the California Supreme Court in the cases of Norgart v. Upjohn Co. (2000) and Jolly v. Eli Lilly & Co. (1988). Thus, even though more than two years may have elapsed since the incident occurred, a plaintiff may nevertheless still retain the right to prosecute a legal action.

While the foregoing has been a helpful to potential plaintiffs, the 2003 law left one question unanswered: does the new statute of limitations apply retroactively to actions which were not already time barred prior to January 1, 2003? For example, if the incident or injury occurred on December 1, 2002, and assuming the delayed discovery rule does not apply, the plaintiff may have had only until December 1, 2004, to bring an action. Under the prior statute, the action would have been barred as of December 1, 2003. Some courts have upheld the dismissal on the grounds that Section 335.1 does not apply “retroactively to claims already time-barred” under the former statute, while others have applied the statute retroactively. A potentially troubling issue will be for those injured persons where the incident occurred before January 1, 2003 but discovery of the wrongdoing occurred thereafter. Given the complex interaction of the law and the facts of any given case, an attorney should be consulted at the earliest opportunity. You may be asking yourself, “Which type personal injury and wrongful death claims are effected by these rules?” These actions include any type of negligence claim, except professional negligence actions against healthcare providers, which continue to be governed by the one year limitation. (Code Civ. Proc. § 340.5.) Negligence actions encompass car accidents, slip and fall claims, premises liability, and negligent manufacturing or design of a product. In addition, the new statute applies to most strict liability claims for defective products and for abnormally dangerous activities.

Intentional tort claims (claims arising from the intentional action of the defendant), raise varying statutes of limitation, depending upon the legal wrong involved. Assault and battery, for example have a one year limitations period. The same is true of libel, slander, and false imprisonment claims. However, cases involving fraud and trespass to property provide a three year limitations period.

One very critical point: notwithstanding the other limitations periods, a six month limitations period applies for all actions against governmental entities, despite the type of claim involved. If you think you have been injured by a government entity, it is always prudent to seek legal advice immediately.

Tracy E. Sagle, formerly,  an owner in Lang, Richert & Patch and one member of the firm’s personal injury and medical malpractice practice group. Any and all of the type of actions discussed above can be prosecuted by LR&P’s litigation team. As a result of the firm’s tremendous successes in major personal injury and medical malpractice litigation over the past four decades, Lang, Richert & Patch is the central valley’s leading plaintiff’s firm in this arena.