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A statute of limitations is the time period in which a plaintiff must file a lawsuit against a defendant. A statute of limitations benefits the defendant. It gives the defendant an opportunity to defend the lawsuit while witnesses are available and while the facts are fresh in the minds of the witnesses. The plaintiff is barred from filing a lawsuit after the statute of limitations has expired.

A statute of limitations in a tort case limits the time in which a plaintiff may file his or her lawsuit after his or her cause of action has accrued. A cause of action normally accrues when the plaintiff sustains damages. However, under the delayed discovery rule, the plaintiff’s cause of action may not accrue until the plaintiff discovers his or her injury or until the plaintiff should have discovered his or her injury with reasonable diligence.

A statute of limitations is a privilege that is granted to a defendant. If the defendant fails to properly raise the defense of the statute of limitations, it will be considered to be waived.

Although a plaintiff must file his or her lawsuit within the statute of limitations that is applicable to his or her cause of action, the mere filing of the lawsuit will not interrupt or toll the running of the statute of limitations. The plaintiff must also exercise due diligence in the issuance of a summons and service of process on a defendant. The defendant must be named in the plaintiff’s original complaint. If the plaintiff adds the defendant to his or her amended complaint, the statute of limitations is interrupted or tolled only when the defendant is brought into the plaintiff’s lawsuit.

If a plaintiff amends his or her complaint, which amendment does not add a new cause of action against a defendant, the amendment will relate back to the original complaint for purposes of the statute of limitations. In other words, the amendment will not be subject to the statute of limitations if the original complaint was timely. If the amendment adds a new cause of action, a new counterclaim, or a new defense, the amendment does not relate back to the original complaint and is not protected by the filing of the original complaint for purposes of the statute of limitations.

A statute of limitations is an affirmative defense. In order to rely on a statute of limitations as a defense, a defendant must specifically raise and plead the defense. A mere denial in an answer to a complaint will not raise the defense. If the defendant fails to specifically plead the defense, it will be deemed to be waived.

A defendant who raises a defense based on a statute of limitations has the burden of proving that a plaintiff’s cause of action is barred by the statute of limitations. If the defendant raises the defense based on the plaintiff’s delay in serving process on the defendant, the defendant has the burden of proving that the delay was the plaintiff’s fault. The plaintiff then has the burden of explaining the delay.

The statutes of limitations that are applicable to tort cases depend upon each state’s statutes. In most states, tort actions, such as personal injury cases, are governed by a two-year to four-year statute of limitations. Some tort actions, such as libel or slander, may be governed by a one-year statute of limitations. Healthcare and medical malpractice claims are generally governed by not more than a two-year statute of limitations. Some states have enacted 10-year statutes of limitations for actions that are based on defective or unsafe real property, defective construction, or defective improvements to real property. Each state’s statutes must be consulted in order to determine the applicable statute of limitations for a particular cause of action.


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