A statute of limitations is a law that places a specific time limit on pursuing a legal action in relation to wrongful conduct. After the expiration of the period designated in state law (statute), unless some sort of legal exception applies, the injured person can no longer file a lawsuit seeking money damages or other types of relief.

Every state establishes its own statute of limitations for various legal actions, including personal injury cases, and the specific time limits vary by state from one year in Kentucky and Tennessee to six years in Maine and North Dakota. In Colorado, the statute of limitations for bringing a personal injury action is two years, or three years if the injury arose from the use or operation of a motor vehicle.

The Discovery of Harm Rule

Although a statute of limitations may specify that a personal injury lawsuit must be filed within a certain amount of time after an accident or injury, the time period usually does not begin to run, or toll, until the moment the victim knew (or reasonably should have known) that he or she suffered an injury. This is known as the discovery of harm rule.

So if someone suffers a personal injury but doesn’t discover it until several years after the accident, the discovery rule allows the statute of limitations to begin tolling from the time the injury is discovered, not when it actually occurred.

How could someone not know that they suffered an injury until later? One example might be a medical malpractice claim in which a surgeon mistakenly left a sponge inside the body of a patient, but the error was not discovered until many years later, during another surgical procedure to address pain and complications resulting from the original negligent act.

Potential Exceptions to the Statute of Limitations

In addition to late discovery, sometimes the statute of limitations may be avoided by arguing that the statute has been stopped from running for a certain period of time. Some of the reasons a statute might be tolled include:

  • The victim was a minor at the time that the injury occurred.
  • The victim of the injury was not mentally competent at the time of the injury.
  • If the defendant has filed a bankruptcy action, the statute of limitations will be tolled until the bankruptcy is resolved or the automatic stay is lifted.

Under Colorado law, except in cases of medical malpractice, the statute of limitations begins to run on a minor’s 18th birthday. In cases of medical malpractice, a claim related to a child injured before the age of six must be filed by his eighth birthday.

Duty to Mitigate

The delay in discovery must be one that is reasonable under the circumstances, so if the patient was experiencing pain and other symptoms after the first procedure but failed to seek medical treatment until years later, his lawsuit might still be barred by the statute of limitations due to his failure to mitigate his damages.

The discovery of harm rule does not usually apply in most car accidents and slip-and-fall incidents since the nature of these accidents is apparent and nothing is left to discover as far as the source and nature of any injury suffered.

Image by Alexander Boden

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