Time Limitations

Time Limitations

TIME LIMITATIONS TO BRING PERSONAL INJURY AND OTHER CLAIMS

All injured persons, as well as attorneys involved in civil litigation and personal injury, whether representing plaintiffs or defendants, must always be concerned with time limitations for instituting a personal injury claim, an employment claim, property damage claim, or any claim for that matter. It is a complex area filled with land mines for the unwary. It cannot simply be said, for instance, that a potential case is a personal injury matter and therefore there are three years from the date of injury within which to file a claim. I can’t tell you how many times clients have come to me with potential claims which cannot be brought due to expired time deadlines.

Most attorneys are familiar with the statute of limitations in various cases. It is the first thing an attorney considers when initially interviewing a client about a potential case, be it a personal injury matter, employment claim, wage claim, contract dispute, etc. When did the incident (or series of incidents) occur and how much time do I have to file a claim?

However, in personal injury cases, it is not simply the three-year statute of limitations in MA that one has to worry about. There are various other time issues that must be considered. Is a public entity involved? Was this a trip and fall or personal injury that resulted from a defect on a municipal sidewalk or street? Is it an employment discrimination matter that requires an administrative filing prior to going to Superior or Federal Court? Does the matter arise out of an improvement to real property?

For example, Massachusetts municipalities and public entities are vigorously protected under MA law, and this is reflected in time limitations. When a potential claim involves a public entity, a red flag should go up for clients and their attorneys. The same goes for potential claims against federal employees acting in the scope of their employment.

The following are some of the important time deadlines with which clients and their attorneys should be aware.

INJURIES SUFFERED FROM DEFECTIVE STREETS OR SIDEWALKS

The shortest limitation (30 days) involves personal injuries suffered in slip and falls on public streets and sidewalks or other damages caused by defective public ways. There is a Massachusetts statute which governs injuries suffered on public sidewalks and streets, 84 M.G.L. § 15, which is entitled “Personal injuries or property damage from defective ways.” Recovery in such cases is limited to a maximum of $5,000 and Section 18 of the statute requires that the municipality be put on notice within 30 days of the fall or recovery may be barred. If a person falls on a defective Boston sidewalk and suffers a severe personal injury, the City must be notified of the claim within 30 days.

THE MASSACHUSETTS TORT CLAIMS ACT AND CLAIMS AGAINST PUBLIC ENTITIES

            There are further time limitations which must be taken into account when a public entity is identified as a potential defendant. For example, what must be done if an MA Highway Department employee negligently operates a vehicle while performing his job duties, and causes personal injury? Although there is a three-year statute of limitations in Massachusetts which governs personal injury claims, there is now an additional and shorter time restraint at play since a public employee is involved.

            In 1978, the Massachusetts legislature enacted the Massachusetts Tort Claims Act, 258 M.G.L. §1 et seq. This put in place a comprehensive framework that must be followed in order to bring a claim against a Massachusetts governmental entity, be it the state or a municipality. Prior to proceeding with a civil complaint about damages in the trial court, the claimant has to present the claim to the executive officer of the agency or municipality involved. This is called a “presentment letter,” a written claim outlining the incident and the damages suffered, and must be “presented” within two years from the date of the incident. The government entity is then given six months to respond to the claim and attempt settlement, or deny the claim. Only after this process is followed can a claim be filed in court, which still must be made within three years from the date the claim accrued.  If you miss the two-year presentment period, you’re out of luck.

            Likewise, under the Federal Tort Claims Act, if a person suffers a personal injury or property damage as a result of the negligence of a federal employee, for instance, a U.S. Postal worker, a written claim must be presented to the appropriate federal agency within two years of the incident.

STATUTES OF REPOSE

            While Statutes of Repose are not statutes of limitation, they nonetheless impose time constraints that practitioners and claimants must keep in mind. A statute of limitation tells you the time period within which a claim must be filed after it accrues. A statute of repose, on the other hand, is not concerned with the date on which a cause of action accrues, but states that after a certain time period a cause of action is eliminated and cannot be brought, no matter when the damage occurred.

            The most prevalent statute of repose in Massachusetts provides a significant defense to the construction industry, architects, tradespeople and contractors. Massachusetts General Laws c. 260, § 2B, states:

“An action of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property . . . shall be commenced only within three years next after the cause of  action accrues; provided, however, that in no event shall such actions be  commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.”

           For example, let’s say a person has an addition put on her home with a new electrical system. A fire starts in the new addition, and the homeowner is forced to jump out a second-floor window in order to escape, suffering severe personal injuries. The fire is investigated and a faulty, negligently installed electrical system is identified as the cause. The homeowner or her attorney can’t sit back and say I have three years from the date of the fire to file a claim. The date the addition was either substantially completed or open to use must be immediately ascertained. If the addition with the new electrical system was either substantially completed or open to use five years and 11 months ago, there are only thirty days left within which to file a complaint or the action will be forever barred, even if the fire and resulting personal injury occurred yesterday.

There is also a medical malpractice statute of repose. No claim may be brought more than seven years after the alleged negligence. The only exception is when a foreign object has been left in the body post -surgery and is not discoverable.

DISCRIMINATION AND SEXUAL HARASSMENT EMPLOYMENT LAW CLAIMS

Many times I have met with clients who tell me of terrible workplace discrimination and sexual harassment matters. I recall one potential client telling me of the unlawful things her former boss did to her: improper conversations, lewd comments, asking her for dates. When she rebuffed his advances, her work situation became unbearable, and she was thereafter terminated, and a “slowdown in business” was the proffered reason. She was privy to the employer’s sales and accounting information, and the prior year had been extremely profitable, one of their best. No one else was terminated. I was beginning to think I had a good case on my hands. I asked her when this happened, and she responded that it was two and one-half years ago. My heart sank.

In Massachusetts, employment discrimination claims must be filed with the Massachusetts Commission Against Discrimination (“MCAD”) or the EEOC within 300 days of the act of discrimination, or within 300 days of the last act of discrimination if there is a series of events. You can leave the case at the MCAD, or ask the MCAD for a right to sue letter after 90 days, and remove the claim from the MCAD and file the case in Superior Court or Federal Court.

However, if you don’t first file a claim with the MCAD within 300 days of the last act of discrimination, an act known as “pursuing your administrative remedies,” you will be unable to bring a claim in Superior Court or Federal Court and your claim will in all likelihood be barred.

SUMMARY

The above is not an exhaustive analysis of all statutes of limitation in MA, but describes some of the more prominent land mines. If you suffer a personal injury due to someone else’s negligence, don’t immediately think you have three years within which to make a claim. It may be as short as 30 days if a public way is involved, or two years if a public agency is the offending party. If it is an employment discrimination claim, remember you have 300 days to make a claim at the MCAD and/or EEOC, which is about ten months. Finally, if you or one of your clients has suffered personal injury or property damage as a result of a negligent improvement to real property, no claim may be brought more than six years after the improvement is open to use or after it is substantially completed.