Statute of Limitations

A phrase familiar to us is the statute of limitations. Lay people are thoroughly familiar with that term and its meaning. As is commonly known, if you start a court action after that date, your claim is forever barred. Needless to say, no one wants to be in that position.

The way to avoid it is first to have some knowledge. A claim must be brought in a court within three years generally speaking, and hopefully brought in the proper court, though there are some saving mechanisms if you bring it in the wrong court. (No one wants to get into that problem, known as venue.) Additionally, there are time limits on the service of the complaint and no one would want their lawyer to serve the complaint after the deadline for service. I have seen many instances where the action is brought in the final days before the expiration of the statute of limitations only to have that tardy lawyer wait yet again, the second delay coming on the service of the complaint. (The complaint must be served within ninety days of the filing of the complaint as required by Rule 4(j) of the Massachusetts Rules of Civil Procedure.) Why people wait is beyond me.

The thing to remember is that the Massachusetts statute of limitations is three years from the time the cause of action accrues. Most of the time you can forget the fancy words in the last sentence but remember three years from the time of the accident is the deadline in Massachusetts. Other states have different statute of limitations and you must be mindful of that. Florida, where I am licensed to practice, has a four year statute of limitations. New Hampshire has three years, California, at one time, had a one year statute of limitations and that may still exist, I haven’t had occasion to research that. It is all dependent upon the jurisdiction’s limitation, i.e. how much time does the jurisdiction permit.

Let me say, you don’t want to wait until you’re up against a statute of limitations. The most obvious reason is witnesses will disappear and memories fade. Frankly, I think it also conveys an impression to the other side that your own view of the case is pessimistic. I have heard defense lawyers make note of that in dealing with cases where there is a last minute filing.

Now, I have said Massachusetts has a three year statute of limitations and obviously for personal injury actions, that’s correct, at least generally. But there are certain traps and those could involve the Tort Claims Act. If you’re bringing a claim against a municipality (or, as that statute, M.G.L. c. 258, says, “any political subdivision”), you must notify them within two years and sue within three. There are also claims involving the MBTA which are now governed by M.G.L. c. 258 as well. Defect in the way cases under c.84 require notice to be brought within 30 days. (Even worse, recovery is limited to $5,000.) Keep in mind then that there are a number of quirks that are superimposed on this three year statute of limitations.

What I said was merely a general guide and does not necessarily apply to your specific situation. You should really consult an attorney much sooner rather than later. Certainly fact gathering is much easier, as I said, but what if the other side or the landowner where you had an accident is unaware of the accident? That could be a problem. Recently, somebody came to me a year after his rather significant accident. In this situation, we certainly don’t have the statute of limitations to worry about, but I would be uncomfortable if there had not been any notice of this gentleman’s accident. Fortunately, people were well aware of his accident and we can verify that it took place. Still, there are witnesses to be tracked down after the year has passed. Hopefully, they can substantiate the fact that this accident took place and took place in the manner of which my client said. What if there is a dispute about when and where the accident happened? If the property owner had no record, if the client was taken away by ambulance, that’s irrefutable documentation.

Unfortunately, there may be situations where there is no corroborating person or no corroborating document or way of proving that the accident occurred. There may not be a way of proving that it occurred in the way in which your client says. Corroboration is key.

Certainly you want to get as many names as you can, you want to record them, you want to document them and you want to have somebody on your behalf go about the business of taking statements from witnesses. And, of course, you don’t want to miss the statute of limitations.