Torts II

Statute of Limitations

Statutes of limitations bar claims after a specified period of time after the claim accrues.


Usually a claim accrues at the time of the injury.

Discovery Doctrine

Under the discovery doctrine, the cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.

The majority applies the discovery doctrine in all medical malpractice cases.

Under the discovery doctrine, the claim accrues when the plaintiff first discovers some form of actionable harm, not when he learns the fullest manifestation of the harm.

  • This is excepted to in asbestos cases, where a plaintiff can sue again when diagnosed with a separate injury.

If a tort is continuing—such as continuing treatment in medical malpractice or in continuing relationships with domestic violence—the claim accrues when the tort ceases to continue.

If the injury happened in one state but suit is brought in another, choice of law rules provide that the statute of limitations in the state where the suit is filed is used.

Borrowing Rule

Most states have "borrowing" rules, which say that if a claim arises outside of the forum state, the shorter of the states' statutes of limitations will be used.


A statute of limitations can be tolled to stop the running of the time one has to file suit for a claim.

A statute of limitations is usually tolled by statute.

Common times a statute of limitations is tolled are for minors, other incompetent people, fraud where the defendant's identity is unknown, and suing sovereigns.

Statute of Repose

A statute of repose is a statute that limits the time during which a claim can arise, such preventing claims from arising against aircraft manufacturers more than 18 years after the plane was sold.

A statute of repose is similar to a statute of limitations, except a statute of repose is substantive and concerns when a claim can arise, while a statute of limitations is procedural and concerns when a suit can be filed.