Statutes have limits, and can also repose
Vail, CO, Colorado
Somewhere along the road to life you’ve likely stumbled across the term “statute of limitations.” I’ll bet you a nickel, though, that few of you have ever heard of 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 conjure up sugarplum visions of peace, harmony and throwing back your cares beneath a bright blue sky cozied in a bed of springtime flowers. “Repose,” in fact, literally means “to rest” or “to lie at rest.” But what do such tranquil images have to do with the battlefield of law?
You will recall that a statute is a law concocted by the legislature. A statute of limitation is the time 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. 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. I’ll explain.
Certain types of actions may have “triggering” events, which start the statue of limitations running. It’s sort of like a timer’s thumb on a stopwatch. If you think of a particular 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 cannot be advanced.
What may constitute a triggering event? In the case of medical malpractice, for example, the triggering event is when the injury occurred or when the injured party knew, or should have known, that the injury occurred. But wouldn’t someone know when they were injured? Well, maybe yes and maybe no.
Say you’ve had an operation. You don’t, to use an Amish phrase, “feel so pretty good.” That’s to be expected. After all, 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, 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. You keep going to the doc who keeps insisting that your pain is in your head. You continue not to convalesce. At last you see another doc who discovers a mitten precisely in the first doc’s size 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. From that moment of discovery, the statute of limitations applicable to your action against the de-mittened doc begins to run.
What then of the statute of repose? Haven’t we left it orphaned?
As I said, a statute of repose is like an exclamation point. What it says is: 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 margin, 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 to simply let things lie.
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. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 926-4461 or by e-mail at firstname.lastname@example.org.
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