Delay May Cost You
All too often we operated under the rule of “why do today what can be done tomorrow.” But, under the law, that kind of delay may well result in certain rights being forever barred. Illinois law has specific rules regarding time limits within which claims must be brought as lawsuits. These rules are strictly enforced and many non-lawyers don’t know that they exist.
Lawyers refer to the rules as statutes of limitations. These statutes place time limits on pursuing legal remedies as a result of wrongful conduct. After the applicable time period expires, the wronged person loses his or her right to file a lawsuit – unless an exception applies. More about that later.
What follows are a sample of some of the more common statutes of limitation in Illinois. Note that it’s possible for multiple causes of action to result from certain wrongful conduct. Therefore, even if it appears that the relevant time period has expired, it may be possible to still bring a different claim. Also, there may well be an exception. This list is provided only for example. If you want to know what statute applies to your situation, consult your lawyer.
‚óè Medical Malpractice – 2 years
‚óè Negligence/Personal Injury – 2 years
‚óè Fraudulent Concealment – 5 years
‚óè Libel/Slander/Defamation – 1 year
‚óè Product Liability – 2 years
‚óè Contracts – 10 years for written, 5 years for oral
A statute of limitations starts running when a claim accrues. That’s usually the date that the injury is suffered. However, sometimes it’s not possible for a person to discover the cause of an injury or to even know that an injury has taken place until long after the act giving rise to the injury. For example, you might not know that your business partner has been looting your business for more than five years. Or you may not know that a surgeon left a lap sponge in your abdomen for quite some time.
For this reason, the courts have developed what’s called the “discovery rule.” The discovery rule means that a statute of limitations will begin to run at the time the injury is discovered or reasonably should have been discovered. For example, assume the applicable statute dictates a one year period. Normally, the clock starts ticking as soon as the injury occurs. But, if the injury is reasonably discovered one year after it occurs, the two-year period begins to run on the day of discovery. The discovery rule doesn’t apply to all civil actions, so don’t always count on it being available.
Statutes of limitation can also be extended under other situations – this is called “tolling.” When it is said that a statute is "tolled", it means that something has stopped the statute from running for a period of time. Typical reasons for tolling a statute of limitations include a minor claimant (that statute won’t start running until the claimant turns 18 years of age), mental incompetence (the victim of the injury was not mentally competent at the time the injury occurred), and the defendant's bankruptcy (the "automatic stay" in bankruptcy ordinarily tolls the statute of limitations until such time as the bankruptcy is resolved or the stay is lifted).
There’s another layer that has to be considered when analyzing statutes of limitation and the discovery rule. The law has also developed what’s known as statutes of repose. Like a statute of limitation, a statute of repose cuts off certain rights if they aren’t timely acted upon. However, a statute of repose puts an absolute bar on the date by which a lawsuit must be filed. For example, if there is a twenty year statute of repose on the manufacture of a farming implement, a claim cannot be filed against the manufacturer more than twenty years after the date of manufacture, even if a design or manufacturing defect is responsible for a later accident. The statute of repose applies irrespective of tolling. Likewise, a statute of repose may well result in a claim being barred even if it would have otherwise been viable due to the discovery rule.
Despite these somewhat complex and seemingly arcane rules, parties can sometimes alter the applicable limitations period through contract. For example, a written employment contract between employer and employee might dictate that any claim for wrongful termination must be brought within one year of the claimed wrongful conduct. Illinois courts will usually enforce these agreements, especially in the context of business transactions, even if the result is a shorter limitations period than would otherwise apply. Regarding the sale of goods, you should also be aware that the Uniform Commercial Code allows parties to shorten a statute to no less than one year, but doesn’t allow the parties to lengthen it.
Although not technically not statutes of limitation, there are other deadlines contained in the law that have real world consequences. Once filed, for example, mechanic’s liens are void if a suit to enforce (i.e. foreclose) the lien is not brought within two years. Or, judgments become stale (and hence unenforceable) within seven years of recording unless revived.
The overall point is that time limits are a fundamental part of law and life. As a lawyer, there are few things worse than telling a prospective client that a claim they want to enforce is barred by a statute of limitation or other deadline. Unfortunately, it happens more often than you might think. It’s understandable that people might delay doing anything about bringing a claim. However, at a bare minimum, you should consult your lawyer to make sure you understand just how long you can delay without forever losing your rights.