The “statute of limitations” in a California personal injury case is the window of time in which someone can bring a personal injury lawsuit. In most personal injury cases, the statute of limitations is two (2) years.
The statute of limitations begins to run from the time the plaintiff knows or should have known, of the injury. However, when the injury victim is a minor, the statute of limitations may be tolled, or paused. When the victim is a minor, the statute of limitations generally does not begin to run until the victim turns 18.
Medical malpractice claims have different rules for minor victims. Generally, when someone under the age of 18 is injured by medical negligence, a claim must be commenced within the later of:
- three years from the date of the alleged wrongful act, or
- If the minor is under six years old at the time of injury, prior to the child’s eighth birthday.
A personal injury lawsuit allows the victim to recover compensatory damages. If a plaintiff does not file a lawsuit within that time, he or she may lose the legal right to recover damages. This may mean the victim loses out on the ability to recover:
To help you better understand the laws on the statute of limitations for minors, our California personal injury lawyers discuss the following frequently asked questions:
- 1. What is the statute of limitations for a minor for a California personal injury claim?
- 2. When is the statute of limitations “tolled” or paused?
- 3. What happens if I never knew about the accident until after the statute of limitations passed?
- 4. What damages are available for minors injured in a personal injury case?
- 5. Statute of Limitations for Minors Under the California Tort Claims Act
- 6. Can I do anything after the statute of limitations has passed?
The statute of limitations is the amount of time in which someone can bring legal action. There are statutes of limitation for both criminal and civil lawsuits. The amount of time allowed to file a lawsuit in a civil case depends on the type of claim.
The statute of limitations depends on a number of other factors, including when the injury was discovered and the age of the victim. Most personal injury claims have a two-year statute of limitations. However, when the victim is under the age of 18, the statute of limitations generally begins to run once the victim turns 18.
Example: Daniel turned 16 years old on June 14, 2012. The next day, June 15th, Daniel and his friends went to Anaheim Adventure Amusement Park. Daniel suffered a back injury when he was thrown from a roller coaster with a broken seat restraint.
The statute of limitations would generally be two years from the date of the injury, or June 15, 2014. However, Daniel was a minor at the time of the roller coaster accident. The two-year statute of limitations begins to run on June 14, 2014, when Daniel turns 18. Daniel can file a lawsuit against the amusement park as late as June 14, 2016.
When the plaintiff in a personal injury case does not file a claim within the time limit, the plaintiff may have his or her claim denied. This means the plaintiff will not be able to claim damages for their losses and injuries.
The statute of limitations can be an affirmative defense in personal injury claims. The defendant can admit to causing the accident or injury but argue that they are not liable because the statute of limitations has passed. In order to use this affirmative defense, the defendant has to show:
“The plaintiff’s claimed harm occurred before the applicable date for the statute of limitations.”1
Example: Joe was injured in a slip & fall accident on July 4, 2014. Frank is a property owner who failed to repair broken stairs that caused Joe’s injury. Joe filed a personal injury lawsuit on July 5th, 2016.
Frank admits that he was negligent in causing Joe’s injury. However, the statute of limitations for a personal injury accident is two years. Frank is not liable for Joe’s damages because the harm occurred before July 5th, 2014.
The deadline for filing a personal injury claim can depend on a number of factors, including the injury victim’s age and discovery of the harm. Talk to your California personal injury attorney as soon as possible to make sure your claim is filed in time.
The limitation period begins once the “cause of action” begins. This generally means the clock begins to run once “all essential elements are present and a claim becomes legally actionable.”2
For example, in a personal injury claim based on negligence, the statute of limitations would begin to run once all the elements of the claim become actionable. The elements in a negligence claim include the following:
- The defendant owed the plaintiff a duty of care;
- The defendant breached such duty through negligence; and
- The defendant’s negligence was a substantial factor in causing the plaintiff’s harm.3
The statute of limitations on the plaintiff’s personal injury claim based on negligence would begin once all the above elements become actionable.
Example: Declan borrowed a ladder from his neighbor Evelyn. On October 31, 2011, Declan accidentally ran over the ladder with his car, breaking off two of the rungs. Declan didn’t want Evelyn to be mad at him so he glued the rungs back on to make it look like the ladder wasn’t broken. Declan returned the ladder to Evelyn who did not notice the ladder was broken.
Evelyn was using her ladder to put up lights on her house on December 10, 2011. When Evelyn was climbing up the ladder, the glued rung fell off and Evelyn fell to the ground, breaking her hip.
Declan’s negligent actions occurred on October 31st. However, Evelyn was not injured until December 10th. The statute of limitations for the ladder accident begins to run when Evelyn is injured on December 10, 2011.
In most personal injury cases, the statute of limitations is two years.4 The statute of limitations in a personal injury claim begins to run when the plaintiff knows, or, in the exercise of reasonable diligence, should have known of the injury.
In some cases, the statute of limitations may be tolled or extended. The statute of limitations can be tolled for minors who are injured when under the age of 18. The timeline can also be extended because of “delayed discovery.”
Most medical malpractice claims have a statute of limitations of three years.5 The statute of limitations in a medical malpractice claim begins to run when the plaintiff knows, or, in the exercise of reasonable diligence, should have known of the injury.
The statute of limitations in a medical malpractice case may be different when a minor is injured. When a minor is injured due to medical negligence, the lawsuit must be commenced the later of:
- Within three years of the alleged wrongful act; or
- If the minor is under the age of six years old, prior to his or her eighth birthday.6
|Medical Malpractice Victim||Time to File a Claim|
|Adult (18 or over)||Within three years of the alleged wrongful act.|
|Age 6 to 17||Within three years of the alleged wrongful act.|
|Age 5 and under||Prior to the eighth birthday, or three years of the alleged wrongful act, whichever is longer.|
In some situations, the statute of limitations is “tolled” or paused. This means the clock stops running on the deadline to file a claim. The statute of limitations may be tolled when the defendant is:
- Under the age of 18,
- Out of the state,
- In prison, or
- Legally insane.
Once the tolling condition ends, the statute of limitations begins to run.
Example: Esther is eight years old and playing in her front yard after her birthday party on August 1, 2006. Drake is walking his dog when the dog pulls away from Drake and runs up and bites Esther. Esther suffers injuries to her arms and legs, requiring surgery and leaving her with multiple scars.
The two-year statute of limitations for a personal injury claim is tolled because Esther is eight years old. In ten years, Esther turns 18 on August 1, 2016. Esther is no longer a minor and the statute of limitations begins to run. Esther has until August 1, 2018 to file a claim against Drake for her dog bite injuries.
Some injuries are not discovered for weeks, months, or even years. When an injury victim or the surviving family members find out about an injury after the statute of limitations has passed, they may still be able to file a lawsuit based on delayed discovery.
Delayed discovery provides for a longer statute of limitations in some situations. This includes where the plaintiff:
- Did not know of facts that would have caused a reasonable person to suspect that he or she had suffered harm caused by someone’s wrongful actions; or
- A reasonable and diligent investigation would not have discovered that a harmful product or situation contributed to the plaintiff’s harm.7
Delayed discovery is common in medical malpractice cases and other types of personal injury where the victim is unaware of the injury or did not know the cause of the injury.
Example: Elaine had surgery to remove her appendix on February 14, 2002. The doctors said the surgery was successful; however, Elaine suffered stomach pains on and off ever since the surgery. In 2010, Elaine went in for surgery because of her increasing stomach pain. A doctor discovered a pair of surgical scissors had been left inside her body from the prior surgery.
Elaine files a lawsuit against the doctors and hospital involved in the 2002 surgery. The defendants argue
that the statute of limitations for a medical malpractice claim passed on February 15, 2005. However, the jury determines that a reasonable person would not have suspected the stomach pain was caused by medical negligence, such as leaving a pair of surgical scissors inside the patient. Based on delayed discovery, Elaine may still be able to file a medical malpractice claim.
The damages available in most personal injury accidents involving a minor accident may include:
- Medical bills,
- Continuing medical treatment,
- Physical therapy,
- Emotional harm,
- Loss of earning capacity,
- Compensation for disfigurement or scarring,
- Compensation for paralysis or loss of a limb, and
- Pain and suffering.
Damages for minors can be different than those suffered by adults. For example, adults may also be able to claim lost wages but minors may not have lost wages if they are not working.
When a minor has suffered serious or permanent injuries, the damages may be higher based on future projections. Damages experts calculate harm including loss of future income based on the estimated victim’s lifespan. A child who is no longer able to work would have a lifetime’s worth of loss of earning capacity.
If the victim requires continuing medical care, those damages may be much higher for a child than an adult because a minor may need care for many more years than an adult.
When a government employee or government agency is responsible for an injury, the victim may have to file a claim under the California Tort Claims Act. The California Tort Claims Act has a different statute of limitations than personal injury claims against a private party.
In most situations, a notice of claim against a government agency needs to be filed within 6 months. This includes most claims against a state, county, city, or other local government entity.
The notice requirement is not tolled when the minor is under 18. The situations that toll the statute of limitations do not apply to tort claims.8
However, the victim can file an application for a late claim. The Tort Claims Act allows a claimant to submit an application for permission to file a late claim. Generally, an application for a late claim cannot be filed beyond one-year from the expiration of the claim period.
A minor who was under the age of 18 during the entire claim period may be able to file a late claim.
Example: Eli was 17 when he was injured in a city bus accident on September 1, 2016. Eli had medical bills and lost wages from his part time job because of the accident. Eli turned 18 years old on December 1, 2016.
On March 15, 2017, Eli filed a claim against the city for damages. The city denied Eli’s claim because Eli did not file a notice within six months of the accident.
Eli applies to submit a late claim because he was under 18 when the accident occurred. However, the court may deny Eli’s late claim because Eli was not a minor during the entire six-month claim period.
If the statute of limitations has passed, there may be other ways to still seek compensation for damages. This includes filing a claim under an alternative cause of action with a longer statute of limitations. The statute of limitations may still be open if it was tolled based on the victim’s age. If the claim is against the government, the victim may be able to file a late claim.
Talk to your California personal injury attorney about the statute of limitations in your case to make sure the claim is filed in time. Your lawyer may also be able to identify any exceptions to an expired statute of limitations.
For additional help…
For questions about when the statute of limitations expires in a California personal injury claim or to discuss your case confidentially with one of our skilled personal injury attorneys, do not hesitate to contact us at Shouse Law Group.
We have local law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
- California Civil Jury Instructions (CACI) 454 — Affirmative Defense — Statute of Limitations. See Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103.
- Glue-Fold, Inc. v. Slautterback Corp. 98 Cal. Rptr. 2d 661 (Cal. Ct. App. 2000). “A limitation period does not begin until a cause of action accrues, i.e., all essential elements are present and a claim becomes legally actionable.”
- California Civil Jury Instructions (CACI) 400. See also California Civil Code Section 1714(a), (“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…”)
- California Code of Civil Procedure 335.1 (“Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”)
- California Code of Civil Procedure 340.5 (“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”)
- California Code of Civil Procedure 340.5 (“Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant’s insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.”)
- California Civil Jury Instructions (CACI) 455 — Statute of Limitations — Delayed Discovery.
- California Code of Civil Procedure 352(b) (“This section shall not apply to an action against a public entity or public employee upon a cause of action for which a claim is required to be presented…”)