Defenses to Negligent Torts - Defenses Not on the Merits

Question 1

Crumpton v. Humana

Date of Injury and Negotiations

Answer 1

The statute of limitation starts at the date if injury and will not be tolled during settlement negotiations. Crumpton was injured after surgery and waited three years to sue. In the meantime, she received treatment and tried to negotiate a settlement. Court granted Humana summary judgment.

Question 2

Special Rule for Medical Malpractice

Answer 2

Some states say the statute of limitation is delayed until the treatment for which the patient consulted the doctor is over.

Question 3

Traditional Rule for Statutes of Limitation

Answer 3

The clock begins to run on the plaintiff’s claim as soon as the suit could have been brought, theoretically, even if the plaintiff was not aware of the negligent and or the injury

Question 4

Lincoln Electric Co. v. McLemore

Discovery Rule

Answer 4

The statute of limitation starts when the plaintiff discovers he has an injury, not when he discovers he has a claim. Plaintiff worked for the defendant and was exposed to material that cause him to get manganism. However, he was first falsely diagnosed with Parkinson’s, which might have been caused by the exposure. Because plaintiff waited until he found he had a disease that was definitely caused by his exposure, he missed the statute of limitation.

Question 5

Discovery Rule

Answer 5

Typically the statute of limitations will not start until

• All the elements of the tort are present and
• The plaintiff discovers, or a reasonable person should have discovered, that
  
  • She is injured and
  • The defendant had a causal roll, or there was enough chance that the defendant was connected to the injury to require further investigation

Question 6

Duty to Discover

Answer 6

Many courts applying the discovery rule stress the plaintiff’s duty to investigate

Question 7

Defendant’s Negligence

Answer 7

Some courts delay the statute of limitation until the plaintiff knew, or should have known, about the defendant’s negligence

Question 8

Identity of the Defendant

Answer 8

Courts are split about whether the plaintiff must know the identity of the defendant before the statute of limitation starts. If a defendant intentionally conceals his identity, he may be estopped from claiming the statute of limitations

Question 9

Partial Injury, Latent Potential

Answer 9

Accrual of a claim under the discovery rule is not delayed simply because the plaintiff does not know the full extent of her injury or damages. A plaintiff can only get damages for future harm if she proves it’s more likely than not that the harm will occur. So the plaintiff can either sue and hope to win or wait and hope that the harm manifests before the statute of limitations runs out.

Question 10

Separate Claims for Separate Harms

Answer 10

If a plaintiff is exposed to something that causes immediate harm and then a different harm later, some courts will let the plaintiff sue for both.

Question 11

Exposure Without Symptoms

Answer 11

If a plaintiff is exposed to a toxin but won’t experience symptoms for years, she might have a claim for fear of future harm or on-going medical monitoring expenses

Question 12

Tolling

Answer 12

A statute of limitation might be tolled until an obstacle to suing is removed. Such an impediment might be the age of the plaintiff or her mental capacity.

Question 13

Tolling for Minority

Answer 13

Some state laws toll the statute of limitation for torts against minors until the children come of age.

Question 14

Tolling for Unsound Mind

Answer 14

Some state laws toll the statute of limitation for torts against people with unsound minds. This usually means the person cannot manage his business affairs or estate or comprehend his legal rights or liabilities.

Question 15

Repressed Memory

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Answer 15

In courts that accept the idea of repressed memories, expert witnesses and specific evidence must support the claim.

Question 16

Grace Periods

Answer 16

Many courts have replaced tolling with grace periods, which extend the statute of limitations.

Question 17

Dasha v. Maine Medical Center

Tolling Rules

Answer 17

In Maine, tolling rules do not apply when a patient of sound mind consents to a treatment and the treatment makes him incompetent. Defendant misdiagnosed and treated Plaintiff for a brain tumor. The treatment caused brain damage that made plaintiff incompetent. Two years later another doctor discovered plaintiff was misdiagnosed, but by the time plaintiff’s guardian sued it was past the statute of limitations.

Question 18

Elements of Equitable Estoppel

Answer 18

• A delay in filing an action that is induced by the defendant
• The defendant misled the plaintiff and
• The plaintiff must have acted on the information in good faith to the extent that he failed to pursue the action in a timely manner

Question 19

Force or Threat

Answer 19

If a defendant prevented a suit by physical force or threats, he might be estopped from pleading the statute of limitations as a defense

Question 20

Fraudulent Concealment

Answer 20

If a defendant fraudulently conceals a tort from the plaintiff, the statute of limitations may be tolled until

• The plaintiff discovers, or should have discovered, the concealment or
• The plaintiff discovers, or should have discovered, the facts that establish a cause of action.

Question 21

Equitable Tolling

Answer 21

A court may decided to toll the statute of limitation when a litigant has pursued his rights diligently but some extraordinary circumstances prevents him from bringing a timely action.

Question 22

Durre v. Wilkinson Development Inc.

Statutes of Repose

Answer 22

A statute of reposes bars recovery even when improvements to property negligently creates a risk that causes personal injury. A restaurant sign fell on Plaintiff’s truck, injuring him and killing his wife. Plaintiff sued the restaurant and the city but couldn’t recover because it was past the statute of repose.

Question 23

Statute of Repose

Answer 23

An outer limit on the right to bring a claim that is measured from the defendant’s conduct instead of when the plaintiff is injured or the claim otherwise accrues

Question 24

Effect of Tolling, the Discovery Rule on Statutes of Repose

Answer 24

Tolling and the discovery rule don’t affect statutes of repose, but fraudulent concealment might.

Question 25

Applicability of Statutes of Repose

Answer 25

Many statutes of repose are targeted to particular defendants and particular situations, so a plaintiff may be able to argue that the statute doesn’t apply in a particular case

Question 26

Article VI, Clause 2

Answer 26

Congress has the power to override state law as long as it acts within the limits of its constitutional power

Question 27

Scope of Preemption

Answer 27

If the intent to preempt the state law is the clear purpose of Congress in enacting a particular law or regulation, then the state law that conflicts with the federal provisions cannot be enforced

Question 28

Vreeland v. Ferrer

Federal Preemption

Answer 28

In Florida, the federal law does not preempt Florida law regarding the liability of an aircraft owner under the dangerous instrumentality doctrine. Defendant leased a plane to decedent and Plaintiff sued Defendant under Florida’s dangerous instrumentality doctrine. Defendant claimed federal law preempted state law but the court rejected this.

Question 29

Four Facts Lawyers Must Know About the Statute of Limitation

Answer 29

• Amount of time allowed
• Date the period begins on
• What needs to be done to comply with the timeframe
• Whether the statute of limitation can be tolled.