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At Leopold & Associates, LLC, we stay up to date on the changes in the law and recent activity involving Illinois personal injury cases to give my clients the advantages they need to win. By staying up to speed, we can build a solid case for your recovery if you have suffered damages due to another's negligence.

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Too Late for Justice? Maybe Not

March 23rd, 2015

All civil lawsuits in Illinois have certain time periods in which they have to be filed called statutes of limitations and statutes of repose. For example, in Illinois, an action for personal injury or medical malpractice generally must be filed within two years when the injured person knew or should have known of their claim but in no even over four years from the date of the injury. Actions not filed within these time periods are considered too late and all recovery may be barred.

The policy behind statutes of limitations and repose are usually concerned with protecting the rights of potential defendants by not allowing so much time to pass that a defendant is disadvantaged by not having valuable defensive evidence, either physical or witness testimony, still available to enable a successful defense. Accordingly, duty is placed upon a plaintiff to not sleep on his or her rights to the detriment of the defendants. So a balance is struck: an injured party is given a reasonable amount of time to realize that they may have a right and need to sue but the time allotted is limited to prevent stale claims.

There are, however, numerous exceptions to these usually strict time limits. The exceptions stem from an underlying concern to protect the injured party and prevent a viable action from being unfairly pre-maturely prevented. So, for example, if a plaintiff is somehow prevented or hindered from recognizing or pursuing his or her claim, exceptions exist that toll or prevent the time period from running. The following are some examples of when a limitations period may be tolled or extended:

  • Minors Are Treated Differently: When a plaintiff is a minor the limitations period does not begin to run until the child reaches the age of majority. 735 ILCS 5/13-211. Conversely, some actions have specific statute of limitation extensions for minors, such as medical malpractice which allows a minor’s claim to be brought within eight years of the injury or two years after reaching majority, whichever is earlier.
  • Disability Tolls the Statute: When someone is legally mentally disabled they may be unaware of their rights an unable to bring a lawsuit. Accordingly, the statute of limitations is tolled until the disability is removed. 735 ILCS 5/13-211. While the disability must be real, it is not necessary that the person b adjudicated disabled to have a legal disability. Parks v Kownacki, 193 Ill. 2d 164 (2000).
  • Military Service: Under the Soldiers and Sailors Civil Relief Act, any statute of limitations period for any action brought by or against any person in military service is tolled during the individual’s term of service. 50 U.S.C. App. 525.
  • Fraudulent Concealment: If a potential defendant actively conceals a cause of action from the person entitled to sue, that behavior can extend the time period for filing for up to five years after the plaintiff discovers his or her cause of action. 735 ILCS 5/13-215. This provision is obviously designed to prevent someone from benefitting by being able to hide their mistakes or misconduct. The rule generally requires something more than mere silence as a defendant does not have to confess their wrongdoing; the person just cannot conceal it. Smith v. Cook County Hospital, 164 Ill. App. 3d 857 (1st Dist. 1987). In some situations however, where there is a fiduciary relationship such as lawyer/client, doctor/patient, church/parishioner there may be a duty not to remain silent.
  • Equitable Estoppel: Whereas with fraudulent concealment applies when a defendant hides a cause of action from a plaintiff, equitable estoppel can help a plaintiff who may have had some knowledge but was mislead or lulled into not asserting his rights because of some actions by the defendant. 735 ILCS 5/13-215. In these situations, a plaintiff may bring a claim within five years of learning of the cause of action.

To further complicate matters, there are even exceptions to these exceptions and special statute of limitation rules when governmental or public entities or employees are involved. The important thing to remember is if you have been injured and someone else may have caused the injury, check with a competent attorney before assuming your claim is too late or before waiting too long to file. Get the information you need to protect and assert your rights!

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