Time – Barred?

by Nicholas Walsh, PA

Suppose one day you were sued for something you did, or didn’t do, twenty-five years ago. How would you defend yourself? It’s hardly possible you’d come up with an alibi, for you’d have no idea where you were on that long-ago date and time. Your witnesses would either be dead or they’d know as little as you. Yet you’d be up against an accuser who testified exactly where you were, when, and what you did. Chances are you wouldn’t stand a chance.

Statutes of limitation are legislative acts (statutes) written to protect people from being tried for a crime, or for a civil wrong, that happened so long ago that evidence is likely to have gone stale as witnesses died, memories faded and documents disappeared. In Maine, most civil actions (for example, suits to enforce a debt, or a suit on a slip and fall) must be brought within six years of the default on the mortgage or credit card agreement or the slip and fall. If the suit is on a promissory note signed under seal, the statute of limitations is a long twenty years.

So if some unhappy client wants to sue me, he or she better do so within six years of my screw-up. Not so for doctors (and all other health care professionals, including nurses, nursing homes, etc.), who have a better lobby than lawyers do. You have to sue such a person within two years of the medical error.

In some states the two years starts to run when you did or should have discovered the medical error. Maine doesn’t have this so-called “discovery rule,” with one exception: if a surgeon leaves an instrument or sponge inside you, you can sue within two years of learning about that.

Suits against architects, engineers and other “design professionals” (including surveyors) must be brought within four years of the error being discovered. Design professionals can, in the contract, provide for a shortened statute of limitations, something lawyers and doctors cannot do.

Actions for assault, false imprisonment, slander and libel are barred after two years, a recognition of the rapidity with which evidence of such wrongs may fade, and perhaps of society’s general distaste for such actions.

You can see that statutes of limitation are, like every other statute, shaped by political influence. There is a sense that society is better off if it is hard to sue doctors, and they get a short two-year statute of limitation. Banks have lots of political clout and they want to be able to sue on notes long after six years, so a note signed with the words “under seal” can be sued on any time short of twenty years. And for someone who, either truthfully or falsely, claims to have been the minor victim of a sexual assault, there is no statute of limitation at all. It’s right there in Title 14 section 752-C: “Actions based upon sexual acts toward minors may be commenced at any time.” I don’t know how one is supposed to defend against such an accusation, say, forty years after the alleged act, especially given the secret, unwitnessed nature of such crimes. Clearly society has decided that the price of giving a voice and a remedy to victims of long-ago child sexual assault, surely in itself a good thing, is that some folks will be wrongly found liable for abusing a child.

It’s important to know that suits against government have their own set of rules. First, a notice of claim, with specific requirements, must be given to the state, town etc. within 180 days of the cause of action accruing (that is, within 180 days of the slip and fall or whatever). Then suit must be brought within two years of the cause of action accruing. These are tricky, short requirements and if you have such a claim get to a lawyer pronto.

Finally, keep in mind that the statute of limitations for a minor generally does not begin to run until the child turns eighteen. So if, for example, a little child were struck by a car, the child could sue by age twenty-four, the statute of limitations being six years.

There are two take-aways for this column. First, if you have a claim, don’t wait around. Cases rarely get better with age. Witnesses forget, evidence disappears and statutes of limitation run. Second, do not assume that an action is time-barred. There are exceptions to what I wrote above, and sometimes a clever lawyer can bring an action back to life.

Nicholas Walsh is an admiralty attorney with an office in Portland, Maine. He may be reached at 207-772-2191, or nwalsh@gwi.net.