Torts II – Pittman
I. DEFENSES
A. Statutes of Limitations and Repose
1. Statutes of limitation
· Both are complete bars to recovery after allotted time has passed.
· General rule: Most s.o.l. provide that the time w/in which to file begins to run when cause of action accrues.
· Accrual:
1. when injury occurs OR
2. when injury is discovered or should have been discovered (MAJORITY RULE AND MS RULE)
· #2 is called “discovery rule”. It is the majority rule in the states.
· Regardless of which rule is followed, accrual starts with injury or discovery, NOT W/ THE INITIAL NEGLIGENCE
· Reason for above: w/o some type of injury, there is NO CAUSE OF ACTION.
· Must have:
1. Duty
2. Breach
3. Causation, AND
4. Injury
· General policy reason for s.o.l.: at some pt, person should NOT be held liable for things that happened in past
· Other reasons for s.o.l: people die, documents are lost, memories fade, etc.
· MS: s.o.l. for:
1. MCA 15-1-49 (general tort) – 3yrs from accrual
2. MCA 15-1-35 (intentional tort) – 1 yr. from accrual
3. MCA 15-1-59 – tolls running of SOL for P w/ a disability (minors and insane people)
4. MCA 15-1-36 (medical malpractice) – 2yrs from act OR discovery
· NOTE on 15-1-36: reduces the tolling of the SOL for minors:
a. If child is <6 at time of injury AND has parent or guardian, SOL begins running at age 6
b. If child is <6 at time of injury AND has NO parent or guardian at age 6, SOL begins running when he gets a guardian
*********ASK ABOUT ABOVE*************
· concealment: when the D knows of an injury to P but hides it from P.
· SOL will NOT run during concealment (until discovery)
· General rule as to procedure: If D does NOT raise SOL in initial response OR before trial, he can be deemed to have waived defense of SOL
2. Statute of Repose
· completely bars claim at some point, even if injury has NOT been discovered
· MCA 15-1-41: protects builder and architect:
– any claim arising out a defect in the building is barred if not brought w/in 6 yrs after building has been turned over to owner
· Example: builder finishes building and turns it over to owner in 1980. In 1989, building collapses b/c of defect. Action is barred by SOR
· Differences:
1. SOR bars actions BEFORE they accrue, but SOL bars action at some point AFTER accrual
2. SOR bars action for injury that has NOT yet occurred, but SOL bars action for injury that HAS occurred.
· Res adjudicata and second disease rule: Generally, once P receives a satisfaction of judgment for a claim, the P cannot bring a 2nd suit for a more serious condition caused by original injury
· EXCEPTION: asbestos – for abestositis and lung cancer
· Laches: C/L doctrine, usually an equity action. D in the suit has relied to his detriment upon the fact that no claim will be brought
B. Immunities
· modern trend is to do away w/ most immunities
· This is true, in part, b/c of prevalence and availability of insurance
1. Families
· MAJORITY RULE: is NOT to recognize interspousal immunities
· Reason: the risk of fraud and collusion can be dealt w/ by the courts and insurance cos.
· MS: Burns v. Burns and McKennon v. McKennon : SP ct said that ther
97-7/1/2001 – up to $250,000
iii. after 2001 – up to $500,000
iv. NO punitives, interest, or attny’s fees against gov’t
v. waiver is only up to policy coverage limits
vi. NO waiver if employee acts intentionally, defrauds, defames, criminal conduct
C. 23 exceptions:
i. legislative, judicial or administrative action
ii. enforcing or not any law
iii. police or fire protection
iv. discretionary functions of gov’t employees (Very important)
v. spending money (buying, hiring, etc.)
vi. issuing or not licenses, certificates, permits, etc.
vii. assessing/collecting taxes
viii. planning, designing, building any structure
ix. weather conditions on any roads
x. adequacy of personnel or facilities at hospitals or prisons
xi. loss of public benefits/welfare
xii. riots, demonstrations, etc.
xiii. any claim where claimant is in jail
xiv. arising out of work done by prisoner
D. Procedures:
i. 1 yr. SOL w/ 90 notice of claim before suit
ii. venue is court in county where injury occurred OR where gov’t headquarters are
iii. tried by judge w/o jury
iv. act provides exclusive remedy for claims
v. gov’t employee may be joined BUT NOT personally liable
vi. Gov’t provides defense for employees
vii. Employees presumed to be w/in scope of employment (Very good for P)
