In Illinois, statutes of limitations set a time limit on how long after being injured a person can file a lawsuit. If a lawsuit is filed after the statute of limitations has run—that is, after the time limit expires—then the defendant can ask the court to dismiss the lawsuit as untimely. Different statutes of limitations apply to different kinds of injuries. In general, a person has two years after being injured to file a lawsuit for his or her personal-injury claim. Some legal doctrines serve to extend the time limit imposed by a statute of limitations, but they should not be relied on. This post discusses the statutes of limitations in Illinois that apply to personal-injury claims, as well as some of the doctrines that can extend the applicable statute of limitations.
Illinois Statutes of Limitations for Personal Injury
In general, a person has two years after being injured to file a lawsuit for his or her personal-injury claim, but different statutes of limitations apply to different kinds of injuries. Plus, some legal doctrines can serve to extend the time limit imposed by a statute of limitations in Illinois, as we’ll see below.
General Personal Injury
The statute of limitations that generally applies to personal-injury claims in Illinois is found in 735 ILCS 5/13-202. That section says that “[a]ctions for damages for an injury to the person . . . shall be commenced within 2 years next after the cause of action accrued.” The phrase “cause of action” refers to the personal-injury claim. Normally, that claim “accrues” on the date the injury occurrs. However, as explained in more detail below, the date of accrual may be changed by one or more legal doctrines in some cases.
Illinois has a separate statute of limitations for personal injury that results from medical malpractice. 735 ILCS 5/13-212 imposes a two-year statute of limitations on such claims. The statute begins to run on the date when a person (1) knew, (2) should have known, through the use of reasonable diligence, or (3) received written notice of the injury.
Statute of Repose in Illinois
Section 13-212 also includes a statute of repose in Illinois. Statutes of repose are similar to statutes of limitations, in that they both set time limits for filing a lawsuit, but statutes of repose are measured from a date specified in the statute, not the date when a claim accrues. A lawsuit will be barred if it is filed after the statute of repose expires, even if the statute of limitations has not yet run.
The statute of repose in 735 ILCS 5/13-212 sets a four-year time limit from the date when the act, omission, or occurrence that caused the injury occurred.
Some Exceptions to Statutes of Limitations
Courts have developed legal doctrines that serve to extend the statute of limitations in Illinois in some circumstances. Some of these have been codified by the Legislature. These doctrines include the discovery rule and the tolling of a statute of limitations while a plaintiff is under a legal disability.
As it turns out, you’ve already seen this rule: The Illinois Legislature expressly built it into the statute of limitations for medical malpractice.
As explained earlier, a personal-injury claim normally “accrues”—and the statute of limitations begins running—on the date an injury occurs. But in cases where the discovery rule applies, the claim does not accrue until the date when a person knows, or through the exercise of reasonable diligence should have known, of the injury. This doctrine protects people in circumstances where they cannot discover their injury until after the statute of limitations has run.
The Illinois statute of limitations is also tolled while a person is under a legal disability, such as a child under 18 years old. In such cases, the statute of limitations does not run until the legal disability is removed. That means that the time limit for a child to file a lawsuit on a personal-injury claim is measured from when the child turns 18, not from when the injury occurs.
However, there is also a different rule that applies in the medical-malpractice context. A child’s medical-malpractice claim must be brought within eight years of the act, omission, or occurrence that caused the injury, or before the child’s 22nd birthday, whichever comes first.
Word of Warning: Don’t Rely on an Exception
Ultimately, exceptions to a statute of limitations are exceptions, and in practice, narrowly construed. Courts don’t like to ignore the time limits that the Legislature has imposed on filing a lawsuit. As a result, they police the boundaries of any exceptions closely.
The Illinois First District Appellate Court provided an excellent, but tragic, example of this principle in February 2018, when it issued its opinion in the case Giles v. Parks. In Giles, the plaintiff’s brother was struck by a tow truck while crossing the street on December 22, 2012. He was unconscious thereafter until his death next day, December 23.
On December 23, 2014, two years after his brother’s death, but two years and one day after the accident that eventually killed him, Giles filed a lawsuit against the tow truck’s owner, asserting a survival claim, but not a wrongful death claim. Under a survival claim, the representative of a deceased person’s estate asserts a legal claim that the deceased person could have asserted in his or her own right, but was prevented from doing so by death.
But Giles had a problem: Although the statute of limitations for wrongful death in Illinois is two years from the date of death, the statute of limitations for survival claims in Illinois is two years after the cause of action accrues—which is, again, normally the date when an injury occurs. In Giles’ case, that date was December 22, 2012.
Giles’ lawsuit was one day late.
Giles tried to save his lawsuit with two clever arguments: First, that the statute of limitations should have been tolled by his brother’s incapacity during his last day alive. But the court rejected that legal-disability claim, because only the person under a disability him- or herself could rely on the exception.
Second, Giles tried to amend his lawsuit to add a wrongful death claim. He hoped that the wrongful death claim would “relate back” to the original date of filing. To be sure, Giles could have filed a wrongful death suit up until December 23, 2014, but because the claim he did file was untimely, the court rejected his “relation back” theory.
As Giles makes clear, statutes of limitations are complicated and dangerous. If you don’t comply with them in filing a lawsuit, you can lose the right to sue at all for your claim. But which statute of limitations applies, and whether a longer period might be available in your circumstances, can be hard to determine.
That’s why you should contact the attorneys at Costa Ivone as soon as you are injured, or even as soon as you merely suspect you’ve been injured. We offer free consultations, and would be happy to discuss your claim with you.
Statutes of limitations in Illinois are complicated and dangerous. If you don’t comply with them in filing a lawsuit, you can lose the right to sue at all for your claim. But which statute of limitations in Illinois applies, and whether a longer period might be available in your circumstances, can be hard to determine. That’s why you should contact the attorneys at Costa Ivone, LLC as soon as you are injured, or even as soon as you merely suspect you’ve been injured. We offer free consultations, and would be happy to discuss your claim with you.