OK, so what are statutes of repose in the law?
Somewhere along the road to life you’ve likely stumbled across the term “statute of limitation.” In fact, for those of you who’ve been paying attention, we have discussed statutes of limitation in a prior column. I’ll bet you a nickel, though, that few of you have ever heard of, let alone are intimate with, statutes of repose. Well then, let’s get on with it. Enlightenment, or its rough equivalent, awaits.The word “repose” reminds me of that old George Carlin routine about how baseball is, in comparison to the blood, sweat and grime of football, a “pastoral” sport. Both words – “repose” and “pastoral” – conjure up sugarplum visions of peace, harmony and throwing back your cares beneath a bright blue sky cozied in a bed of springtime flowers. Think the Back Bowls in mid-June under a 75 degree wisp-of-a-breeze sky. “Repose,” in fact, literally means “to rest” or “to lie at rest.” Okay, you’re scratching your head; what do such tranquil images have to do with the battlefield of law? Let me explain.You will recall that a statute is a legal encodation, a law concocted by the legislature. Essentially, statues are “enacted” law as opposed to case law which is derived by judicial consideration of the particular facts. Case law may, in turn, be relied upon as precedent in subsequent cases with similar facts.A statute of limitation is the time-frame within which a particular action, based upon a particular theory of law, must be brought, or else the right to bring suit in the matter will be lost. It “limits” the time of exposure or legal liability of a potential defendant for an act he or she may have committed (or, conceivably, omitted) rather than leaving one’s fanny indefinitely on the line. It’s a “speak-now-or-forever-hold-your-peace” kind of thing. Well, a statute of repose is like that. Only different. Think of a statute of repose as an exclamation point, an “and I really mean it!” kind of thing. Okay, I’ll explain.Certain types of actions may have “triggering” events. A “triggering event” is one which starts the statue of limitations running. It’s sort of like a timer’s thumb on a stopwatch. When the triggering event takes place, the timer’s thumb depresses the crown and the time-frame within which the action must be brought begins to run. If you think of the applicable statute of limitations as a “qualifying time,” then the triggering event is the one that begins the race. If the action is not brought within the qualifying time, it simply cannot be advanced.What may constitute a triggering event? In the case of medical malpractice, for example, the triggering event – that is the one that starts the timer’s watch – is when the injury occurred or when the injured party knew, or should have known, that the injury occurred. But what a minute, you’re thinking; wouldn’t someone know when they were injured? Well, maybe yes and maybe no. Bear with me here a sec.Say you’ve had an operation. Your innards have been ripped out. You don’t, to coin an Amish phrase, “feel so pretty good.” That’s to be expected. After all, your innards have been yanked. Your insides are now your outsides. Not feeling good is to be expected. But as you begin your recovery you realize that while the operation was to remove your adenoids (which, by the way, are in the back of your throat), it’s your gut that’s got the devil in it. As you continue to recover, you don’t recover. The throat’s fine but your stomach keeps you doubled over like a stuffed calzoni. You keep going to the doc who keeps insisting that your pain in your head. You continue not to convalesce. At last you see another doc who orders tests. Lo and behold, a mitten precisely in the first doc’s size is found lodged in your duodenum (which, by the way, is just south of your stomach).At this point you know, or should know, you’ve been injured. A doctor’s mitten lodged in your duodenum just ain’t right. It simply couldn’t have gotten there without the first doc’s inattention. The timer’s thumb depresses on the crown. The stopwatch begins to tick. From that magic moment of discovery, the statute of limitations applicable to your potential action against the de-mittened doc begins to run.What then of the statute of repose? Haven’t we left it orphaned as we delved into the doctor’s cold malfeasance?Well, as I said, a statute of repose is like an exclamation point. What is says is this; there comes an absolute time after which things must be left to “rest.” Notwithstanding the applicable statute of limitations, there is an outer limit beyond which an action may not be maintained even if discovery/enlightenment/knowing or “should-have-knowing” was reasonably delayed, attenuated or ignored. Beyond this outer bridge, an action, even if not discovered until late in the fourth quarter, simply cannot be maintained. A statute of repose is the utter, absolute irrevocable, don’t-argue-with-the-ref-about-it out of bounds mark on the field of legal play.”Repose” is what its plain English definition first suggests. Even in law, there inevitably comes a time simply to let things be, to let things come to rest.Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. Robbins lectures for Continuing Legal Education for attorneys in the areas of real estate, business law and legal ethics. Hear him a 7 p.m. Wednesdays on KZYR radio (97.7 FM) as host of “Community Focus.” Reach Robbins at 926-4461 or firstname.lastname@example.org.Vail Daily, Vail, Colorado