Know when the deadline expires and when the clock begins to run on your personal injury lawsuit
You might have heard the phrase “time is of the essence.”
Often, this phrase is used in contract law and it means that whoever is fulfilling the contract has to do so within a certain amount of time. In other words, if you don’t do whatever you’re contractually obligated to do within a specified period of time, you’re breaching (breaking) the contract.
Some people use the phrase to mean that timing is important and if you don’t do something on time, you can lose your right or ability to continue.
That’s exactly what happens if the statute of limitations runs out on your personal injury claim in North Carolina.
If you’ve suffered an injury caused by someone’s negligence, you might be thinking of filing a lawsuit. There are a lot of reasons why you should take the first steps — like finding a lawyer — as soon as possible.
Why are there statutes of limitations?
Statutes of limitations exist to protect both parties against a court making decisions based on stale evidence. It’s an incentive for an injured person to file a claim promptly and provides notice to the defendant that they should preserve evidence.
For most tort lawsuits, the statute of limitations in North Carolina is 3 years. But that time can pass faster than it seems. Your lawyer has a significant amount of preparation to do before they file a lawsuit, and they need time to do that.
5 reasons why you should pursue a lawsuit as soon as possible after an injury
- It might take some time to find the lawyer who’s a good fit for you and your case.
- It will take time for your lawyer to become familiar with the evidence, determine the value of your losses, and prepare a claim. Your lawyer will need to perform research, obtain records and documents, determine what claims should be made and what parties to sue, and select the correct court for filing the lawsuit.
- Evidence can disappear or become less trustworthy as more time elapses.
- Witnesses might become unavailable, be lost or pass away.
- Witnesses who are available might not remember the events as clearly after more time passes. Even your own memory might become less reliable over time and that could cause you to make mistakes under cross-examination.
When does the clock begin to run after an injury?
North Carolina law says the 3-year statute of limitations begins to run on the date when “bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.”
In other words, the time begins on the date of the injury or accident. If the injury was caused by a condition that occurred over time (such as cancer caused by exposure to toxins like asbestos), the time begins to run on the date of diagnosis or when the plaintiff reasonably should’ve known that the injury or illness was the result of negligence.
If you miss the 3-year deadline, the case isn’t automatically thrown out of court. It’s up to the defendant to file a motion to dismiss based on an expired statute of limitations.
Exceptions to the 3-year statute of limitations in North Carolina
There are a few reasons why the 3-year clock doesn’t work for every single case.
Tolling for minors
If the injured person is a minor, the clock pauses (or “tolls”) until they turn 18.
The injured person has 3 years from their 18th birthday (so, by their 21st birthday) to file a lawsuit for an injury that happened before they were 18. So, whether the child was age 5, age 15, or age 17 ½ when they were injured, the lawsuit can be filed until they turn 21.
Tolling for minors doesn’t prohibit a lawsuit. An injured minor’s parent or guardian may file a lawsuit on their behalf. The law protects a child whose parent or guardian chooses not to file a lawsuit within the statute of limitations by giving the minor the option to do so on their own when they reach age 18.
Tolling for mental incapacity
Tolling is also effective for a plaintiff who is declared “incompetent” or “insane” according to North Carolina law. The clock would begin to run when the person is declared sane or competent.
Wrongful death
There is a 2-year statute of limitations on a North Carolina wrongful death claim.
The family member of someone who has died may file a lawsuit for wrongful death within 2 years of the person’s date of death.
But even that rule has an exception.
A wrongful death claim is derivative. The family is filing a lawsuit on behalf of the person who died. The family must file within the statute of limitations the injured person would’ve been subject to if they’d survived. If the victim was injured in an accident but died of their injuries 5 years later, the family won’t be able to file a wrongful death action because their original 3-year statute of limitations for the claim has expired.
Medical malpractice or reasonable discovery of an injury
There are instances when a plaintiff might become aware many years later that they were injured by medical or pharmaceutical malpractice.
Here are a few situations when the statute of limitations for a North Carolina medical malpractice claim could be more than 3 years:
- The injury isn’t discovered right away. The claim must be filed within one year of discovery of the injury, but no more than four years from the date the injury was caused.
- Foreign object left in the body after surgery or procedure. The claim must be filed within one year after the patient discovers the item, but no more than ten years from the date it was left in the body.
- Medical malpractice on a minor is complicated, and your lawyer will evaluate based on the child’s age, guardianship status and other factors.
Defendant’s unavailability
If the defendant moves out of North Carolina and is continuously outside the state for 1 year or more, the period of time during which they’re absent usually isn’t counted as part of the 3-year statute of limitations period. This can come into play if the injured person is enlisted in the military and is given an assignment out of state (or country).
Product liability
If a person is injured by a dangerous or defective product, they may file a lawsuit for up to 6 years from the date they purchased the item.
Overview of North Carolina’s civil statute of limitations laws
| Type of tort | General statute | Statute of limitations |
|---|---|---|
| Personal injury | §1-52 | 3 years |
| Libel or slander | §1-54 | 1 year |
| Fraud | §1-52(9) | 3 years |
| Injury to property | §1-52(4) | 3 years |
| Professional malpractice | §1-15 | 2 years from the last damaging act of the defendant, up to 4 years. For a foreign item left in the body, 1 year from discovery, up to 10 years. |
| Trespass | §1-52(3) | 3 years |
| Collection of rents | §1-52 | 3 years |
| Breach of contract | §1-52 | 3 years |
| Judgment | §1-47 | 10 years |
| Wrongful death | §1-53(4) | 2 years |
| False imprisonment | §1-52(19) | 3 years |
Statutes of limitations for lawsuits against the government
Some legal matters have different rules when it comes to lawsuits against a government agency or employee. The North Carolina State Tort Claim Act applies the same statute of limitations for a lawsuit against the government as for a private person or company.
A claim against the federal government must be filed within 2 years from the date of injury.
When should I start looking for a lawyer?
As soon as you’ve been injured.
Three years might sound like a long time, but things can move slowly within the legal system. Whether you’re able to reach a settlement or need to go to trial, if you have medical or other expenses that need to be paid, you want to get your money as soon as possible.
If there are any circumstances around your claim that might affect the length of the statute of limitations, your lawyer will advise you on how to proceed. You can start now by using the free Enjuris personal injury directory to find a North Carolina lawyer who can help.
See our guide Choosing a personal injury attorney.