Torts 2 Outline
Professor Kuckolls Spring 2014
I. Negligence- Defenses:
A. STATUTE OF LIMITATIONS AND REPOSE
1. Statute of Limitations: A prescribed time period within which a claim or counterclaim must be brought (statute benefits the defendant)
· A statute of limitation prescribes a time within which a cause of action must be commenced.
· The statute acts as a complete bar to a claim regardless of its merits, if the claim is not timely filed.
· A statute of limitation is an affirmative defense that Defendant must plead in his first responsive pleading, if not pled, it is lost.
· Defendant has the burden of proving that the statute of limitations bars plaintiff’s claim.
· GR: SOL typically starts to run at the time of the injury/negligent conduct.
– Evaluating a SOL defense begins with determining when the COA accrued b/c it is the accrual date that starts the running of the limitation period.
– The law defines claim accrual to occur when all the elements of the claim are present ( i.e. when D’s car crashed against P’s)
Ø Exception to GR: Discovery Rule: (accrual statue)
– Under this rule the claim will not accrue ( SOL begin) until the P knows or should have known of the injury and it’s connection to D’s conduct
– For an accrual statute, the statute begins to run when all the facts necessary to plaintiff’s claim have occurred and plaintiff knows or should know that they have occurred
– Most often the claim accrues when the incident happens, ie: I am in an automobile accident and am injured. All the elements for my claim of negligence against the other driver are known to me (or should be known).
– But if the doctor performing surgery on me leaves a scalpel inside of me, I may not know that for some time later! Then the cause of action accrues when I know or should have known that the doctor left the scalpel in me
– Accrual of a claim under the Discovery Rule requires:
· The plaintiff discovers, or as a reasonable person should have discovered:
1) that she is injured, and
2) That the defendant, or the defendant’s product or instrumentality, had a causal role in the injury, or that there was enough chance that defendant was connected with the injury to require further investigation that in turn would have revealed the defendant’s connection.
i. If reasonable minds could differ as to when plaintiff actually discovered relevant facts or should have discovered them, then the question may be left to the jury.
ii. However, there are a number of cases where the undisputed facts allow the court to decide as a matter of law that the plaintiff actually discovered the relevant facts or that reasonable people would have discovered them
2. Tolling: this may stop/pause the running of the SOL, the limitation period will not run so long as certain conditions exist.
· Most jurisdictions allow statutes of limitation to be tolled: (the clock stops ticking):
· The statute is tolled until the reason for tolling has ended
· EX.
– The plaintiff is a minor.
– The plaintiff is mentally incompetent or in a vegetative state.
– Fraudulent concealment of the cause of action by defendant or defendant’s servants.
– A relationship between plaintiff and defendant which in equity, should toll the statute (attorney-client, doctor-patient, priest-penitent).
– When P files a lawsuit, the case may drag on for years, so the crt will pause the SOL.
3. Statute of Repose: provides a counter rule to the accrual/discovery rule by adding an alternate prescriptive period which begins running at the time of the defendant’s act rather than at the time harm was inflicted or discovered.
· Some jurisdictions have a Statute of Repose (usually in product liability, pharmaceutical or architect malpractice cases) which is a strict statute that does not allow tolling and is the final drop dead time in which these type of cases must be filed.
· Very unfair to plaintiffs and very strictly construed by the courts
– Ex. the clock will start at the time the faulty product was created instead of when P was injured by it.
– Ex. An architect negligently designs a building, the SOR will may bar actions against him if the limitation has expired. The clock starts when the design is complete.
· Similar to SOL
– Will bar any claim that is filed after the set time limit has expired
· Different than SOL
– The limitation period begins when D commits/finishes the act
– SOR is limited to specific types of cases:
a) Product Liability: starts to run when product is
as waived any right to sue in tort for injuries negligently caused by the charity's agents or employees
2) Trust fund theory-Under this theory, assets acquired for charitable purposes were held in trust for beneficiaries and should not be used to pay tort claims. These assets would be improperly depleted and the charity's work would be prematurely ended if its assets were subject to tort judgments
4. Governmental Immunity
· The state and federal government has sovereign immunity and can be sued only when they allow themselves to be sue
– Local is the easiest to sue , they have limited immunity
· GR: Public Duty Doctrine—police officers do not owe a duty to any single individual, but to society in general
Ø When looking for a duty created by Gov., think of Nonfeasance vs Misfeasance:
i. Nonfeasance: failure to act/intervene ,to confer a benefit upon another= no duty owed
ii. Misfeasance: doing something which creates the risk= creates a duty owed
– Ex. (Riss) But, duty created with 911 emergency response system AND operator responded that help was on the way (caller now relies on police). Both factors create the duty.
Ø Discretionary Functions:
· Many states and the federal government have passed detailed statutes modifying the immunities in specific instances. One instance where the Gov. Stills allows their immunity to remain is for discretionary functions but not ministerial functions .
i. Discretionary functions: policy-making decisions.
ii. Ministerial functions: constitute government conduct which implements or executes policy decisions.
