How to Calculate the Statute of Limitations in Illinois

One of the most nerve-wracking parts of practicing as a litigator is investigating and docketing a client’s statute of limitations for their claims.  I can’t count how many times I have double- and triple-checked my docketing for the date a tolling agreement expires and notes out of fear that a deadline might have been miscalculated or missed.  This article provides a brief overview of determining the proper deadline for certain statutes of limitations.

The statute of limitations for a claim begins on its accrual date.  However, the accrual date will differ, depending on the type of claim that is brought.  For example, in tort claims, the clock starts ticking when the party suffers an injury.  Further, for tort claims, you will want to docket not only the normal accrual date but also the date your client potentially discovered that their injury was a result of tortious conduct.  See Moon v. Rhode, 2016 IL 119572 (2016) (holding discovery rule applies to Wrongful Death and Survival actions); see also Carlson v. Fish, 2015 IL App (1st) 140526 (discussing the application of discovery rule in legal malpractice actions). Conversely, in breach of contract cases, the claim’s accrual begins when the contract is breached, not the date when damages occur.

Once you determine your claims’ accrual dates, you will want to determine the appropriate deadline to file the action.  One of the most frequent errors I see is miscalculating a claim’s deadline.  Section 5 ILCS 70/1.11 sets forth the proper procedure to calculate filing times, and states the following:

“The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Saturday or Sunday or is a holiday as defined or fixed in any statute now or hereafter in force in this State, and then it shall also be excluded.  If the day succeeding such Saturday, Sunday or holiday is also a holiday or a Saturday or Sunday then such succeeding day shall also be excluded.”

In simpler terms, if a written contract was breached on November 9, 2019, a party must file their breach of contract action on or before November 10, 2029, because the first day is excluded.  However, the date in this example, November 10, 2029, falls on a Saturday. Therefore, the deadline is extended to November 12, 2029. See Anglin v. Dearth, 175 Ill. App. 3d 367, 369 (1st Dist. 1988); see also Pettigrove v. Parro Constr. Corp., 44 Ill. App. 2d 421, 426-27 (2d Dist. 1963) (holding petition to vacate was timely filed thirty-three days after default because thirty days fell on a Saturday and the following Monday was a legal holiday).  But I recommend filing an action well before any anticipated statute of limitations deadline.

Originally posted on - https://cbaatthebar.chicagobar.org/2020/03/11/calculating-the-deadline-for-the-statute-of-limitations-in-illinois/

Indiana Court of Appeals Reinstates Missed Statute of Limitations Legal Malpractice Claim

One reason legal malpractice cases are difficult to prosecute is due to having to prove the underlying case on top of the attorney’s negligence.  Defendants commonly argue that despite their negligence, they did not cause the plaintiff any injury because the plaintiff would not have prevailed in their underlying case anyway.  Essentially attacking the third element of professional negligence actions – proximate cause.  This type of defense strategy was employed in Roumbos v. Vazanellis. 2017 Ind. App. LEXIS 83 (Ind. App. Ct. 2017).

There, the plaintiff in 2011 was visiting her husband at a hospital and tripped over wires that ran flush along the floor, which resulted in a severe injury.  She hired defendants to file a negligence claim against the hospital; but, they failed to file the claim within the applicable statute of limitations period.  Afterwards, the plaintiff filed a legal malpractice action against the Defendants due to their failure to file within the required period of time.

Defendants moved for summary judgment in 2016 based upon the supposed inability to win the underlying case.  During her deposition, the plaintiff acknowledged that she knew of the wires existence and consciously avoided them because she knew if she stepped on them there was the possibility that she could have fallen.  Additionally, she testified that the day that she fell, she had not looked down at where the wires were located and, if she had done so, she probably would have seen the wires and avoided them.  Based on these statements, the trial court granted summary judgment reasoning that the plaintiff was aware of the dangerous condition. 

But, the Indiana Court of Appeals reversed this decision because the trial court did not consider the entirety of Section 343 Restatement (Second) of Torts when reaching its decision.  Rather, qualifying circumstances exist under Section 343(a)(1) where a landowner may be liable for an invitee’s injury despite their knowledge or the obviousness of a dangerous condition. In such cases, the landowner is not relieved of the duty of reasonable care that it owes to the invitee for their protection.  The Court relied upon an illustration in the Restatement to reach its conclusion.  In the illustration, an invitee was aware of an open and obvious condition but forgets about and it and is injured.  Despite being aware of the condition, under this illustration the landlord was nevertheless still liable because the it could reasonably anticipate the event.  Consequently, the Indiana Court of Appeals reversed and remanded for further proceedings.

Alex Passo and the Patterson Law Firm, LLC handle legal malpractice actions throughout Illinois and Indiana.  Alex can be reached at (312) 750-1820 or apasso@pattersonlawfirm.com.