What's the Statute of Limitations again?
Way back in October of 2016, we talked about the Statute of Limitations and its effect on civil claims in North Carolina. Basically, the Statute of Limitations is a window of time within which you can file your lawsuit or lose your right to sue forever. This is an extremely simple idea, but because the law can never make it too easy on us, there are a few exceptions that can change what that window of time looks like, when it opens, and when it closes.
Exception 1: Incompetent or Incapacitated Plaintiffs.
When the prospective plaintiff is mentally incompetent or otherwise incapacitated, the "clock" on the statute of limitations doesn't start to tick until the plaintiff is no longer incompetent. If the incompetence lasts forever, then guess what? So does the plaintiff's ability to bring a claim!
But what does incompetence mean, exactly? In an ideal world (at least for legal purposes), your plaintiff has been declared incompetent by a North Carolina court. In these cases, there's no question. In the absence of a judicial determination, however, the standard comes down to whether the plaintiff is capable of managing his or her own affairs. My old boss used to say that if a person could go down to McDonalds and buy a Big Mac, then that person is probably competent.
Let's look at an example, going on the normal three-year statute of limitations (or "SOL") for negligence and medical malpractice claims in North Carolina. Ty is undergoing a surgical procedure when a nurse bumps the surgeon's elbow, causing the surgeon to slip and sever one of Ty's arteries. Ty loses so much blood that he slips into a coma, and he doesn't wake up until five years later.
Under these facts, the clock doesn't start to tick until Ty wakes up, even though that time is way later than when the SOL normally would have expired. Ty's going to have three years from the time that he woke up in which he can bring a claim for medical malpractice. Keep in mind that if Ty wakes up and has severe brain damage such that he's now legally incompetent, Ty (through his guardian or estate) can bring a claim at any time.
Exception 2: Minors.
Minors, or children, are considered to be incompetent under North Carolina law. So if you look at Exception 1 above, the SOL doesn't start to tick until after the incompetence is removed. In the case of minors, that incompetence is removed when the minor reaches the age of adulthood; that means that the SOL clock doesn't start to tick until the minor's eighteen birthday.
Let's say that Mariah was celebrating her tenth birthday on June 1, 2005. She and her friends were playing hide and seek when she ran into the road and got hit by a car. Since Mariah is a minor and is therefore considered incompetent until she turns eighteen, her SOL clock doesn't start until her eighteenth birthday. Math whizzes that we all are, we know that Mariah will turn eighteen on June 1, 2013, and therefore her SOL doesn't expire until June 1, 2016. Pretty cool, huh?
Exception 3: Hidden Injuries.
Believe it or not, there are times when a party's negligent behavior doesn't become evident until years down the road. When that happens, the SOL clock doesn't begin until the negligence (i) is discovered, or (ii) reasonably should have been discovered. Keep in mind, though, that there's an important exception to the exception here! Pursuant to § 1-52(16) of the North Carolina General Statutes, there can never be an action instituted more than ten years after the negligent conduct.
Example time! Imagine with me that Eddie is having a hernia surgically repaired. The surgeon places a piece of mesh over the hernia and secures it in place. When the surgeon sews Eddie up, though, he leaves a length of surgical thread inside of Eddie's body. The thread stays in place for six years without causing any symptoms or side effects before it makes its way into Eddie's bloodstream and causes a heart attack. Since Eddie couldn't reasonably have been expected to discover the surgeon's negligence before that time, he now has three years from the date of the heart attack in which to bring his claim. Remember that pursuant to the § 1-52(16) exception, however, that Eddie wouldn't have a claim if his heart attack came eleven years after the hernia operation.
Well that was fun!
These SOL exceptions can really change the game for disadvantaged plaintiffs. If you have any questions about this stuff, it's extremely important that you reach out to an experienced attorney. If you miss the SOL, there's really nothing that you can do to revive your claim. Good luck!