statute of limitations(redirected from Waiving the Defense)
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Statute of Limitations
A type of federal or state law that restricts the time within which legal proceedings may be brought.
Statutes of limitations, which date back to early Roman Law, are a fundamental part of European and U.S. law. These statutes, which apply to both civil and criminal actions, are designed to prevent fraudulent and stale claims from arising after all evidence has been lost or after the facts have become obscure through the passage of time or the defective memory, death, or disappearance of witnesses.
The statute of limitations is a defense that is ordinarily asserted by the defendant to defeat an action brought against him after the appropriate time has elapsed. Therefore, the defendant must plead the defense before the court upon answering the plaintiff's complaint. If the defendant does not do so, he is regarded as having waived the defense and will not be permitted to use it in any subsequent proceedings.
Statutes of limitations are enacted by the legislature, which may either extend or reduce the time limits, subject to certain restrictions. A court cannot extend the time period unless the statute provides such authority. With respect to civil lawsuits, a statute must afford a reasonable period in which an action can be brought. A statute of limitations is unconstitutional if it immediately curtails an existing remedy or provides so little time that it deprives an individual of a reasonable opportunity to start a lawsuit. Depending upon the state statute, the parties themselves may either shorten or extend the prescribed time period by agreement, such as a provision in a contract.
A majority of states have a statute of limitations for all crimes except murder. Once the statute has expired, the court lacks jurisdiction to try or punish a defendant.
Criminal statutes of limitations apply to different crimes on the basis of their general classification as either felonies or misdemeanors. Generally, the time limit starts to run on the date the offense was committed, not from the time the crime was discovered or the accused was identified. The running of the statute may be suspended for any period the accused is absent from the state or, in certain states, while any other indictment for the same crime is pending. This suspension occurs so that the state will be able to obtain a new indictment in the event the first one is declared invalid.
In determining which statute of limitations will control in a civil action, the type of Cause of Action that the claim will be pursued under is critical. States establish different deadlines depending on whether the cause of action involves a contract, personal injury, libel, Fraud, or other claim.
Recovered Memory: Stopping the Clock
Statutes of limitations are intended to encourage the resolution of legal claims within a reasonable amount of time. Courts and legislatures have had to reconsider the purpose of time limits in dealing with the controversial issue of Recovered Memory by child Sexual Abuse victims. For the most part, the clock has been stopped until a victim remembers the abuse.
In the 1980s some mental health therapists began exploring the nature of child sexual abuse. They contended that memories of childhood trauma are so disturbing that the child represses them. Many years later, while in therapy or by happenstance, the person remembers the traumatic events. Therapists built on this concept, working with patients to fully recover these memories.
Victims of child sexual abuse who sought to sue their abusers for damages faced a statute of limitations question: Had the time expired to file a civil lawsuit because the memory of abuse was not recovered until many years after the actual abuse? Courts that faced this issue for the first time sought ways to circumvent the time barrier. One method was to apply the "discovery rule" found in Tort Law. The discovery rule applies if the injury is one that is not readily perceptible as having an external source. Thus, a person who has serious mental health problems but does not know the cause will be allowed to toll (suspend the running of) the statute of limitations until he or she discovers that the injury was caused by the defendant's tortious conduct.
Legislatures have been urged to amend their statutes of limitations to permit recovered memory plaintiffs to sue their abusers. Between 1989 and 1995 24 states had amended their laws. By 2003, 42 states had codified some form of a recovered-memory law on their books, while one state admitted recovered-memory evidence pursuant to its Common Law rules. Typically recovered-memory laws provide that the action must be filed within a certain number of years after the plaintiff either reaches the age of majority or knew or had reason to know that sexual abuse caused the injury. Because of these judicial and legislative changes, many lawsuits have been filed alleging child sexual abuse that occurred many years before, sometimes as long as 20 years earlier.
Isaac, Rael Jean. 2001. "Down Pseudo-Memory Lane." Priorities for Health 13.
Pezdek, Kathy, and William P. Banks, eds. 1996. The Recovered Memory/False Memory Debate. San Diego: Academic Press.
Once the cause of action is determined, the date of the injury must be fixed. A cause of action ordinarily arises when the party has a right to apply to the proper court for relief. Some states, for example, require a person to bring a lawsuit for breach of contract within six years from the date the contract was breached. The action cannot be started until the contract has actually been violated, even though serious disagreements between the parties might have occurred earlier. Conversely, the time limit within which to bring an action for fraud does not begin until the fraud has been discovered.
Waiving the Defense
A court cannot force a defendant to use a statute of limitations defense, but it is usually in the person's best legal interests to do so. Nevertheless, defendants do sometimes waive the defense. The defense may be waived by an agreement of the parties to the controversy, provided that the agreement is supported by adequate consideration. For example, a debtor's agreement to waive the statute of limitations in exchange for a creditor's agreement not to sue is valuable consideration that prevents the debtor from using the defense.
A defendant may be unable to use the limitations defense due to her agreement, conduct, or representations. To be estopped, or prevented, from using this defense, a defendant need not have signed a written statement, unless required by statute. The defendant must, however, have done something that amounted to an affirmative inducement to the plaintiff to delay bringing the action. Statements that only attempt to discourage a person from bringing a suit or mere negotiations looking toward an amicable settlement will not estop a defendant from invoking the statute of limitations.
Tolling the Statute
Statutes of limitations are designed to aid defendants. A plaintiff, however, can prevent the dismissal of his action for untimeliness by seeking to toll the statute. When the statute is tolled, the running of the time period is suspended until some event specified by law takes place. Tolling provisions benefit a plaintiff by extending the time period in which he is permitted to bring suit.
Various events or circumstances will toll a statute of limitations. It is tolled when one of the parties is under a legal disability—the lack of legal capacity to do an act—at the time the cause of action accrues. A child or a person with a mental illness is regarded as being incapable of initiating a legal action on her own behalf. Therefore, the time limit will be tolled until some fixed time after the disability has been removed. For example, once a child reaches the age of majority, the counting of time will be resumed. A personal disability that postpones the operation of the statute against an individual may be asserted only by that individual. If a party is under more than one disability, the statute of limitations does not begin to run until all the disabilities are removed. Once the statute begins to run, it will not be suspended by the subsequent disability of any of the parties unless specified by statute.
Mere ignorance of the existence of a cause of action generally does not toll the statute of limitations, particularly when the facts could have been learned by inquiry or diligence. In cases where a cause of action has been fraudulently concealed, the statute of limitations is tolled until the action is, or could have been, discovered through the exercise of due diligence. Ordinarily, silence or failure to disclose the existence of a cause of action does not toll the statute. The absence of the plaintiff or defendant from the jurisdiction does not suspend the running of the statute of limitations, unless the statute so provides.
The statute of limitations for a debt or obligation may be tolled by either an unconditional promise to pay the debt or an acknowledgement of the debt. The time limitation on bringing a lawsuit to enforce payment of the debt is suspended until the time for payment established under the promise or Acknowledgment has arrived. Upon that due date, the period of limitations will start again.
Corman, Calvin W. 1991. Limitation of Actions. Boston: Little, Brown.
Hamilton, Marcie. 2003. "The Case for Abolishing Child-Abuse Statutes of Limitations." CNN.com: Law Center. Available online at <www.cnn.com/2003/LAW/07/17/findlaw.analysis.hamilton.settlement> (accessed September 30, 2003).
Lazo, Joy. 1995. "True or False: Expert Testimony on Repressed Memory." Loyola of Los Angeles Law Review 28 (June).
Levy, Adolph J. 1987. Solving Statute of Limitations Problems. New York: Kluwer Law.
statute of limitations
n. a law which sets the maximum period which one can wait before filing a lawsuit, depending on the type of case or claim. The periods vary by state. Federal statutes set the limitations for suits filed in Federal courts. If the lawsuit or claim is not filed before the statutory deadline the right to sue or make a claim is forever dead (barred). The types of cases and statute of limitations periods are broken down among: personal injury from negligence or intentional wrongdoing, property damage from negligence or intentional wrongdoing, breach of an oral contract, breach of a written contract, professional malpractice, libel, slander, fraud, trespass, a claim against a governmental entity (usually a short time), and some other variations. In some instances a statute of limitations can be extended ("tolled") based on delay in discovery of the injury or on reasonable reliance on a trusted person (a fiduciary or confidential adviser who has hidden his/her own misuse of someone else's funds or failure to pay). A minor's right to bring an action for injuries due to negligence is tolled until the minor turns 18 (except for a claim against a governmental agency). There are also statutes of limitations on bringing criminal charges, but homicide generally has no time limitation on prosecution. The limitations (depending on the state) generally range from 1 to 6 years except for in Rhode Island which uses 10 years for several causes of action. Louisiana has the strictest limitations, cutting off lawsuit rights at one year for almost all types of cases except contracts. California also has short periods, usually one year, with two years for most property damage and oral contracts and four years for written contracts. There are also statutes of limitations on the right to enforce a judgment, ranging from five to 25 years, depending on the state. Some states have special requirements before a lawsuit can be filed, such as a written warning to a physician in a claim of malpractice, making a demand upon a state agency and then waiting for the claim to be denied or ignored for a particular period, first demanding a retraction before filing a libel suit, and other variations. Vermont protects its ski resorts by allowing only one year for filing a lawsuit for injuries suffered in a skiing accident as an exception to that state's three-year statute of limitations for other personal injuries. (See: laches, toll, demurrer)