Statute Of Limitations

A law establishing the time limit within which a lawsuit must be brought is called a statute of limitation. Different types of cases have different statutes of limitation. Knowing which statute of limitation applies is critical, since if a lawsuit is not brought within the time limit that applies to the case, the right to sue and recover damages is forever lost. The statute of limitations for a personal injury lawsuit is usually relatively short, ranging from as brief as 90 days to up to three years in most cases, subject to a number of factors. It is critical that you contact an attorney immediately after suffering any injury so that the appropriate statute of limitations can be determined. You may have less than 90 days to file a Notice of Claim from the date of the incident which led to your injuries. At McPhillips Fitzgerald & Cullum, we make sure to explore all aspects of your case as soon as possible to ensure that no claims are lost as a result of untimely action.

The Discovery Rule

Measuring the statute of limitations for a particular situation can be a complex issue. The time usually begins “to run” at the time the injury occurs, however, if a person suffers a hidden injury, the discovery rule may apply. Under the discovery rule, the time begins to run from when the person who is injured knew, or by the exercise of reasonable diligence should have known, that he or she was injured, and what the proximate cause of that injury was. The discovery rule is commonly applied in cases involving exposure to toxic substances such as asbestos. In such cases, an injured victim normally does not manifest symptoms of injury until well after damaging exposure occurred. Obviously, such is not normally the case in situations involving motor vehicle collisions and other accidents, where injuries are generally immediately apparent.


Special rules may apply when calculating the statute of limitations in cases involving persons with severe mental disability, in cases involving children or in cases involving members of the military. The statute of limitations may not begin to run until after a person has overcome the disability or the child reaches the age of 18 years. Oddly enough, in medical malpractice cases, the statute of limitations cannot be extended for more than 10 years, less than in other types of cases. This is the result of the lobbying efforts with the New York State Legislature by the medical profession and their insurance companies. These special rules may also apply to people who are mentally impaired or who leave the state for particular kinds of reasons such as for military service. Of course, regardless of the possible availability of an exception, it is always beneficial to bring a lawsuit as soon as it is practical to do so, since the availability (and memory) of witnesses to an accident and related physical evidence is much greater shortly after an accident than after years have passed.


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