Statute Of Limitations

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Statute Of Limitations

Statute Of Limitations

THE PITFALLS OF TIME LIMITATIONS

A “statute of limitations” is basically the amount of time that a person has to file a lawsuit in order to obtain the relief they may be entitled to. In New Jersey, the basic statute of limitations for personal injury actions is two years. However, as with any legal issue, there are many twists and turns in the law that requires the expertise of an attorney to determine when suit must be filed or pre-suit notice must be served. Under some circumstances, the time frame within which suit may be filed may be extended beyond two years. Under other circumstances, one may be required to take some action with reference to their injury long before the applicable statute of limitations expires. Here is some guidance concerning time limits, but it should not be considered a substitute for sound legal advice available only through a consultation with an attorney. Avoid these pitfalls, and make sure you have the full advantage of one of our expert attorneys, by scheduling a free legal consultation at 732-440-3950 as soon as possible.

Although a person generally has two years in which to file a lawsuit to obtain monetary (money) damages in New Jersey, there are a number of situations where this two-year period may be extended. One example is where the injured person is “incapacitated” due to a disability. In such circumstances the two-year period will be “tolled” until such time that the disability ends. A minor is considered “incapacitated” until such time they reach the age of majority (eighteen years old) because a minor is incapable of filing suit on their own behalf under New Jersey law. A person who is declared mentally incompetent is also incapable of filing suit on his/her own behalf and is also considered “incapacitated.” In many instances where the person is considered “incapacitated,” the two-year limitations period will begin to run only when the disability ends.

Another example of when the statue of limitations may be extended is when something called the “discovery rule” applies. The discovery rule will also act to “toll” the two-year statute of limitations until such time a person knows or “discovers” their injury. Under this rule, the statute of limitations will start to run when a person knows of their injury and that the injury was caused by the wrongful act of another. For instance, where a surgeon inadvertently leaves a sponge in a patient, the patient may not begin to experience the symptoms of the improperly placed sponge until more than two years after their surgery. Thus, they would not have knowledge of an injury until after the two year time limitation expires. Further, the patient may have symptoms from the misplaced sponge right after the surgery but not discover that there was a “wrongful act” until the sponge is detected. Thus, he/she would not be aware that the doctor’s wrongful act caused their injury until after the two year period expires. Under such circumstances, the statute of limitations will be tolled until a person knew or reasonably should have known of the existence of their injury and that another’s wrongful act caused it. Obviously, the tolling period under the “discovery rule” differs from case to case depending upon the facts.

More important are those situations under the law where a case may not be brought unless the injured person takes some action prior to the two-year limitation period. Unfortunately, there are a number of them. Where someone is injured as a result of the negligence of a public entity (a town, city, county, the State of New Jersey or one of its subdivisions) or a public employee, New Jersey’s Tort Claims Act requires that written notice must be served on the entity within ninety (90) days of the injury or occurrence. If such notice is not served within the initial ninety (90) days, a court may use its discretion to extend the period of time for up to one year. However, recent case law suggests that mere ignorance of the ninety (90) day time limit by the injured party is not a good enough reason to extend it. Other situations where written notice is required to be served prior to the two year statute of limitations include where the injury is the result of negligence or a wrongful act associated with an amusement park ride, the use of a ski area within a ski resort, or the riding of a horse. Skiing injuries and amusement park injuries must be reported, in writing, to the operator of the establishment within ninety (90) days of the injury, while equestrian or horse-related injuries must be reported within one hundred and eighty (180) days. The court may also extend these time periods at its discretion, but ignorance of these requirements as a reason is also not enough.

Finally, there are situations where New Jersey’s two-year statue of limitations is either inapplicable or significantly reduced. One example is when the negligent act or injury occurred in another state and that state’s statute of limitations may apply. Another example is when the negligent act or injury occurs on a cruise ship or other boat where a fee has been paid for passage. Under these circumstances, the applicable statute of limitations may be reduced to periods of less than two years if indicated on the ticket or in the contract for passage. The typical reduced limitations period for cruise ship injuries is one year, although the times will differ from cruise line to cruise line.

Although these rules may seem rather straightforward and easy to apply, situations often arise where one or more of these rules apply and conflict with each other. What happens if a minor is injured on an amusement park ride? Will the ninety (90) day notice requirement be tolled until the minor reaches eighteen years old or only the statute of limitations? What is the applicable time limitation period when one becomes mentally incapacitated immediately after the injury and then regains capacity before the two-year time period expires? Will such a disability toll the statue of limitations if a guardian is appointed? Will such a disability toll the notice requirements set forth above? Will the discovery rule apply to cruise ship injuries? The “short” answers to these questions are “it depends.”

Based on all of the above, it is safe to say that if you or a family member are injured as a result of another’s wrongful act, it is imperative to seek legal advice as soon as possible in order to preserve your ability to recover any potential monetary (money) damages by filing a personal injury or negligence claim. There are too many pitfalls and unfortunate mistakes that relate to the requirements of time limitations in the state of New Jersey, and you must comply with these requirements before your personal injury case may be pursued. You may think that you have the entire two years before taking legal action when, in reality, you must first comply with one of the notice provisions set forth above. You may believe that the applicable two year statute of limitations or notice requirement has expired, when in reality one of the tolling provisions may be applicable to your case. In order to fully determine your rights and obligations, there is no article or publication that will effectively substitute a consultation with an attorney.

Contact our firm at 732-440-3950 or online as soon as possible to schedule a free consultation. Avoid these pitfalls, and make sure you have the full advantage of one of our expert attorneys.

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Chamlin, Rosen, Uliano & Witherington of West Long Branch, New Jersey, provides representation throughout Monmouth County including Asbury Park, Belmar, Colts Neck, Deal, Eatontown, Freehold, Hazlet, Holmdel, Howell, Lake Como, Long Branch, Manalapan, Manasquan, Marlboro Township, Middletown, Neptune, Oakhurst, Ocean Township, Redbank, Shrewsbury, Spring Lake, Tinton Falls, Wall Township, West Long Branch, and Freehold Township; Ocean County including Bayville, Brick, Jackson, Lakewood, Lakewood Township, Mantoloking, Point Pleasant, Point Pleasant Beach, and Toms River; Middlesex County including East Brunswick, Milltown, New Brunswick, Old Bridge Township, Perth Amboy, Sayreville, South Amboy, South River, and Spotswood.

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