Every state has passed its own statute of limitations. In fact, most states have passed several different statutes of limitations that apply to different types of claims. This article is concerned with the Illinois personal injury statute of limitations.
Personal injury law is state law, not Chicago municipal law. Since personal injury victims frequently die from their injuries, the Illinois wrongful death statute of limitations is also relevant.
Why Have a Statute of Limitations?
There are two main reasons why a statute of limitations deadline is essential to a functional judicial system. First, without one, the courts would be clogged with old cases just now being litigated. Second, the evidence supporting old claims would deteriorate (for example, as witness memories fade).
The Standard Illinois Statute of Limitations Deadline
The standard Illinois personal injury statute of limitations is two years after the date of the accident. It applies to the following types of claims, among others:
- Bicycle accidents
- Car accidents
- Construction accidents
- Dog bites
- Motorcycle accidents
- Negligent security
- Nursing home abuse and neglect
- Pedestrian accidents
- Premises liability matters
- Product liability claims
- Slip and fall accidents
- Truck accidents
- Workplace accidents (excluding workers’ compensation claims)
When the claim is based on a continuing course of conduct, the two-year statute of limitations countdown begins running on the date of the most recent conduct. In addition, some types of claims that are based on property damage only (and not an injury) may have a five-year time limit instead.
The Wrongful Death Statute of Limitations
The Illinois wrongful death statute of limitations is two years, but the countdown doesn’t begin until the date that the victim actually dies.
Exceptions to the Standard Deadline: “Tolling” the Statute of Limitations
Think of the statute of limitations deadline as an hourglass, the sand from which takes two years to fall from the top section to the bottom section. “Tolling” the statute of limitations deadline is like stopping up the hourglass so no sand falls from the top section to the bottom section for a while. Once you remove the blockage, the sand is free to fall again. When it runs out, the statute of limitations deadline expires.
The Discovery Rule
The discovery rule tolls the statute of limitations deadline until you realize, or should realize, that you have a claim. Suppose, for example, that you suffer an injury from a defective prescription medication. There might be no way for you to immediately realize the cause of your physical symptoms.
Consequently, the two-year statute of limitations countdown doesn’t begin until you either realize the source of your symptoms, or you should have realized the source through the exercise of due diligence.
Minority (Underage Victims)
If you suffer a personal injury as a minor (under 18 years old), the statute of limitations is tolled until you turn 18. Even before you turn 18, an adult can file a personal injury lawsuit on your behalf, as long as they can convince a court to appoint them your guardian ad litem.
Incompetence
Illinois will toll the statute of limitations while you are mentally incompetent or unable to communicate. The statute will start running again as soon as you regain your competence.
The Statute of Repose
You could call the statute of repose the “Mother of All Deadlines.” In Illinois, the statute of repose primarily applies to product liability and medical malpractice claims.
For product liability claims, you’ll have no more than ten years maximum to file your lawsuit. There is also a four-year hard deadline for filing a medical malpractice claim.
Note that there may be further exceptions to these rules as well, depending on the facts of the specific case.
How To Beat the Statute of Limitations Deadline
Take the following steps to beat the statute of limitations deadline:
- File a Complaint, a Summons, and a Civil Division Action Cover Sheet with the appropriate court clerk. You must file your claim with the Civil Division if it is for less than or equal to $30,000. If your claim is for less than $30,000 you can file in small claims court (also a part of the Civil Division). If your claim is for $30,000 or more, you must file your claim with the Law Division.
- Pay the court clerk a filing fee of at least several hundred dollars. The exact amount depends on the size of your claim.
- You must have a copy of the Complaint and the Summons delivered to the defendant through the Sheriff’s Office (personal service by a neutral third party) or by Certified Mail. You may serve the defendant by Certified Mail if your claim does not exceed $10,000 and the defendant is present in the State of Illinois. This is known as “service of process.”
Technically, you beat the statute of limitations if you file your complaint and pay the filing fee within the statute of limitations deadline. Even then, a court might declare you in violation retroactively if you fail to diligently pursue service of process. Nevertheless, the defendant cannot force you to miss the statute of limitations deadline by intentionally evading service of process.
Suing the Government
The Illinois Tort Claims Act restricts your ability to sue the government or its employees for an official act. You can sue the Illinois state government, one of its agencies, or one of its municipalities for personal injury. Nevertheless, you must comply with certain special limitations.
- You must file a notice with the Attorney General and Clerk of the Court of Claims within one year of your accident.
- Alternatively, you can just file a lawsuit within one year of your accident. The filing of the lawsuit constitutes sufficient notice for statute of limitations purposes.
Failure to bring your claim within this one-year deadline will result in the permanent dismissal of your claim.
Workers’ Compensation Claims
Workers’ compensation claims are subject to their own set of deadlines. A workers’ compensation claim is an administrative claim, not a judicial claim, and you do not have access to the courts until deep in the appeals process. The first major workers’ compensation deadline is the deadline for reporting your workplace accident to your employer–45 days after it occurs.
Missing the Deadline: The Statute of Limitations Defense
If you file a lawsuit after the statute of limitations deadline has expired, the defendant will simply ask the judge to dismiss your case. The judge will certainly do so.
Missing the Deadline: Effect on Settlement Negotiations
If you miss the statute of limitations deadline to file a lawsuit, you will have no bargaining leverage against the defendant. Consequently, the defendant can safely ignore you.
Personal Injury Law and the Contingency Fee System
Most Chicago personal injury lawyers don’t charge legal fees the same way that other lawyers do. Most attorneys charge by the “billable hour,” or they charge a flat fee for a defined task (drafting a contract, for example).
Personal injury lawyers are different. Since a successful personal injury claim generates income, the lawyer can set their legal fees as a percentage of this income. That is what almost all personal injury lawyers do.
It works like this. First, there are no upfront fees. Second, your legal fees do not come due until you win your case and the other side actually pays. Your legal fees will equal a pre-agreed percentage of your total compensation, whether you obtained it through a settlement agreement or courtroom verdict.
If you don’t win your claim, your legal fees are zero. Using this system, there is almost no such thing as being too poor to pursue a personal injury claim. You can also set up a free initial consultation with most lawyers in this area of the law to get some initial legal advice. Contact our lawyers at Attorneys of Chicago Personal Injury Lawyers today. You can call us at (312) 929-2884.
