How Long Do I Have to File a Lawsuit After an Incident That Causes Injury?
Clients often ask how long they have to file a lawsuit following an accident. Like many answers involving legal matters, it depends.
It depends on what caused the injury and how that injury came about. For instance, if you are involved in an automobile accident in New York State, the time that you have to file a lawsuit is three (3) years from the date that the accident occurred. In fact, any case involving negligence carries a three-year statute of limitations. Negligence cases involve accidents that occurred as a result of someone’s acts or omissions that caused harm to someone else.
There are other types of incidents that have different statutes of limitations. An assault, for instance, is an intentional act. Actions that are brought as a result of an intentional act have a one (1) year statute of limitations from the time that the assault was committed. That’s different from negligence, which is a three-year statute of limitations. This often comes up in the context of situations like a barroom brawl where someone is injured. Was the injury caused by negligence because someone fell into somebody else as they were backing away from a fight? Did someone get punched and suffer a broken nose as the result of an intentional act? These gray areas and fine lines are for the lawyers to sort out.
Actions that are brought as a result of someone’s wrongful death, meaning that the death was occasioned by someone’s negligence or wrongdoing, carry a two (2) year statute of limitations from the date of the death.
If someone dies during the course of a lawsuit, then a different time limitation applies. It’s not a statute of limitations. It has to do with the court dismissing actions that are dormant. If someone brings action and during the course of that action they die, either for related or unrelated reasons, the case is stayed. That means the court will not allow anyone to do anything with that case until a personal representative is appointed on behalf of the person who died. The law allows up to a year after a death for someone to be appointed through the Surrogate’s Court. This would involve appointment of an executor if the person who died, called the decedent, had a will, or an administrator if they did not have a will. Once someone is appointed on behalf of the estate and the personal representative is substituted into the caption, then the action is no longer stayed and the case can move forward again.
Medical malpractice involves a completely different set of time periods and limitations. The statutes of limitations in a medical malpractice case are measured from different points in time, depending on what occurred. For instance, if an instrument was left inside someone during the course of an operation, a lawsuit can be brought, and will be measured based upon the date that you discovered that this instrument was left inside you, as opposed to the date when the operation occurred.
Medical malpractice cases that come about because of other types of malpractice on a doctor’s part have different statutes of limitations. They can be rather fact-specific. Rather than go into the details, suffice it to say that if you were a victim of medical malpractice, you should speak with a lawyer regarding the particulars to see if an argument can be made that your case can be brought within an applicable statute of limitations.
An additional consideration in determining whether there is still time to bring a lawsuit is the concept of “tolling.” Tolling stops the clock from ticking on the statute of limitations period that is running.
If a child under the age of 18 was involved in an accident, they are entitled to a “toll” of the statute of limitations, which stops the clock from ticking on the deadline. Tolling is based upon the fact that minors are not old enough to start a lawsuit on their own. That doesn’t mean that we don’t start lawsuits for children. We do! Using a parent’s or guardian’s name, we can bring a lawsuit for a minor’s injuries. There certainly is no reason to wait until a minor turns 18. It is better in most cases to bring a lawsuit soon after an incident or accident occurs.
Tolling for children exists because a parent or guardian may not bring a lawsuit on behalf of a child. When the child turns 18, the law assumes that if they had a viable case that wasn’t brought on their behalf, then they should have the right to bring it themselves, now that they are old enough to understand what occurred. For a negligence case, the law will allow the three years to start running from the time that the child turns 18. In effect, they have until they’re 21 to start a lawsuit for something that could have happened 10 or more years earlier.
Tolling also exists for disability. If someone has a mental disability, they are entitled to a tolling of the statute of limitations as well. That tolling is based upon the appointment of someone to speak on their behalf. For instance, if someone has the need for a guardian, the statute of limitations might be tolled, depending upon the circumstances, until that person has a guardian appointed for them. Then the statute of limitations would start to run from the time that the guardian was appointed. The fact that tolling can greatly extend the time between an accident or incident does not require that the injured person still have some disability. For instance, if they had a fracture that required surgery, and they’re healed, they can still bring a case seeking compensation years later.
There are, however, other complicating factors as a result of allowing time to pass due to tolling for many years:
- Witnesses and evidence may be difficult to find.
- Serving the person responsible may be challenging.
- Dealing with insurance coverage issues may be complex.
All of these situations require analysis by a lawyer who has the experience, who is willing to investigate the facts to see which particular statute applies. Therefore, you need to contact attorneys like those at Leonick Law who are familiar with this subject matter and can advise you properly on whether there is enough time for you to bring a lawsuit. Call us, the consultation is free and we handle cases like this on a contingency basis (no fee unless we recover an award or settlement).
James F. Leonick
Leonick Law, P.L.L.C.
TEL: (631) 486-9500