16.7 Statute of Limitations & Claim Accrual
Key Takeaways
- A statute of limitations runs from accrual of the claim and can be tolled, while a statute of repose runs from a fixed event such as the sale of a product and can extinguish a claim before it ever accrues.
- Under the traditional rule a claim accrues on the date of injury, while the discovery rule delays accrual until the plaintiff knew or should have known of both the injury and its probable cause, and inquiry notice alone is enough to start that clock.
- The limitations period is tolled during the plaintiff's minority or legal incompetence, and during the defendant's absence from the jurisdiction or fraudulent concealment of the claim.
- Special accrual rules decide close cases: for a continuing nuisance or trespass the period runs from the last tortious act rather than the first, a survival action inherits the decedent's own limitations clock and fails if that claim was already barred, and a wrongful death claim ordinarily runs from the date of death.
- The statute of limitations is an affirmative defense that the defendant must plead and prove, and it is waived if not timely raised.
Statute of Limitations & Claim Accrual
Content map item 120 sits under Pervasive Issues in the Torts map, next to damages and proximate cause, because it can defeat any tort claim no matter how strong the merits. A limitations question is never about whether the defendant behaved badly; it is about when the clock started and whether anything stopped it.
Keep the vocabulary straight from the outset. A statute of limitations starts running when the claim accrues, and it can be tolled. A statute of repose starts running from a fixed external event — typically the sale of a product or the completion of construction — and it runs regardless of whether the plaintiff has yet been injured or could possibly have known. A statute of repose can therefore extinguish a claim before it ever accrues, which is why it is the harsher device and why products liability defendants rely on it.
I. When Does a Claim Accrue?
| Rule | When the clock starts | Typical application |
|---|---|---|
| Traditional accrual | On the date of the injury, whether or not the plaintiff knew of it | Ordinary negligence, intentional torts |
| Discovery rule | When the plaintiff knew, or with reasonable diligence should have known, of both the injury and its probable cause | Medical malpractice, latent disease, toxic exposure, professional negligence |
| Continuing tort | On the date of the last tortious act | Continuing nuisance, continuing trespass |
The discovery rule exists because the traditional rule produced indefensible results: a surgical sponge left in a patient's abdomen, a mesothelioma that manifests thirty years after asbestos exposure, or a slow subsurface contamination would all be time-barred before the victim had any way of knowing they had been injured.
Two limits on the discovery rule are heavily tested:
- Inquiry notice is enough. The plaintiff does not need to know the full legal significance of the facts, or that a particular defendant is liable. Once the plaintiff knows of the injury and its likely cause, the clock starts, and a plaintiff who sits on obvious symptoms cannot claim the benefit of the rule.
- It does not extend a statute of repose. A claim discovered after the repose period expires is gone, and that is the whole point of the device.
II. Tolling — What Stops the Clock
Tolling suspends the running of the period; it does not restart it. When the disability ends, the remaining time resumes.
- Minority. The period is tolled while the plaintiff is a minor, and typically begins to run on the eighteenth birthday. This is the most commonly tested tolling rule, and it is why a claim arising from an injury to a young child can be brought many years later.
- Mental incompetence. Tolled while the plaintiff is legally incompetent, though many states cap the total extension.
- Defendant's absence or concealment. Tolled while the defendant is absent from the jurisdiction or has fraudulently concealed the existence of the claim. Fraudulent concealment requires an affirmative act of concealment beyond the original wrong.
- Defendant's death. Typically tolled for a limited period while an estate is opened.
- Pendency of a prior action. Many states provide a savings statute giving the plaintiff a short window to refile after a timely action is dismissed on non-merits grounds.
III. Typical Periods
Limitations periods are set by each state's statutes and vary, but the relative ordering is consistent enough to reason with:
| Claim type | Typical range |
|---|---|
| Defamation, and often the other dignitary torts | 1 year (the shortest) |
| Personal injury negligence | 2–3 years |
| Products liability | 2–3 years, subject to a statute of repose |
| Trespass and injury to property | 3–6 years |
| Medical malpractice | 1–3 years from discovery, with an outer cap |
Never assert a specific number of years unless the question supplies it. FYLSX items give you the period in the facts; the analytical work is accrual and tolling.
IV. Procedural Character
The statute of limitations is an affirmative defense. Three consequences follow:
- The defendant bears the burden of pleading and proving it.
- It is waived if not raised in a timely fashion, so a defendant who answers on the merits without asserting it loses it.
- It bars the remedy rather than extinguishing the right in most states, which is why a time-barred debt can still be revived by a new promise and why the defense is not jurisdictional.
Contrast this with a statute of repose, which many jurisdictions treat as extinguishing the underlying right itself and therefore as non-waivable.
V. Interaction With Wrongful Death and Survival Claims
The limitations analysis for a death case is a favourite trap:
- A survival action carries the decedent's own claim, so it carries the decedent's own limitations clock. If that claim was already time-barred before death, the survival action is barred too.
- A wrongful death action is a new claim, so its period ordinarily runs from the date of death, not the date of the injury. A victim injured in year one who dies in year four may leave a barred survival claim and a perfectly timely wrongful death claim.
VI. Exam Checklist
- Identify the claim and note the period the facts supply.
- Fix the accrual date. Is this an obvious injury governed by traditional accrual, or a latent one triggering the discovery rule? For a continuing trespass or nuisance, find the last tortious act.
- Apply any tolling. Was the plaintiff a minor or incompetent? Did the defendant conceal or leave the jurisdiction?
- Check for a statute of repose, especially in a products or construction fact pattern — it can cut off the claim regardless of accrual and tolling.
- Confirm the defense was raised. An answer choice reciting that the court should dismiss on its own motion because the period has run misstates the procedural posture.
A patient undergoes abdominal surgery in 2018. She experiences intermittent discomfort she attributes to ordinary recovery. In 2024 an X-ray taken for an unrelated reason reveals a surgical clamp left in her abdomen, and she sues that year. The jurisdiction has a three-year limitations period for medical malpractice and applies the discovery rule. Is the claim timely?
A defendant is sued four years after an automobile collision in a jurisdiction with a two-year limitations period for personal injury. The defendant files an answer contesting liability and damages but never raises the limitations period, and the case proceeds to trial. What is the most likely result?
A worker is exposed to a toxic chemical in 2015 and is diagnosed with a resulting illness in 2022, dying from it in 2024. The jurisdiction has a two-year period for personal injury measured from discovery, and a two-year period for wrongful death. The estate and the surviving spouse sue in 2025. Which claims are timely?