No Tolerance For Tardiness

No Tolerance For Tardiness

No Tolerance For Tardiness: Courts Unforgiving In Response to Inaccurate Assumptions of Statute of Limitations Tolling

Smith Freed & Eberhard partner Matt Ukishima recently achieved a speedy dismissal of a personal injury and dram shop claim against his client by maintaining that the statute of limitations begins to accrue when a plaintiff becomes of his/her injuries and their cause, not when the plaintiff recovers to the point of being well enough to make a claim.

The Background Story

In this case, Mr. Ukishima defended the Confederated Tribes of the Siletz Indians (“the Tribe”) against claims filed in Tribal Court. The Tribe owned and operated the Chinook Winds Casino in Lincoln City, Oregon, at which Plaintiff was physically assaulted by two drunk patrons. Plaintiff alleged that the Casino served alcohol to the two assailants when they were already visibly intoxicated. Plaintiff further alleged the Casino was negligent and breached statutory and common-law duties to maintain safe premises by failing to provide proper security, by over-serving alcohol to patrons, and by failing to train bartenders to identify intoxicated persons. Plaintiff claimed to have sustained severe and permanent head and traumatic brain injuries as a result of the attack.

The Strategy

Although Plaintiff had filed her tort claim notice in a timely manner, it appeared that she had commenced her lawsuit two days after the applicable statute of limitations expired. The altercation occurred on July 8, 2007 and plaintiff did not file her complaint until July 10, 2009. The applicable tribal code provided that the statute of limitations must be brought within two years from when the cause of action accrues. On these grounds, Mr. Ukishima filed a motion for summary judgment to dismiss the case. As expected, however, Plaintiff argued that the statute of limitations was tolled because she was legally incapacitated immediately following the incident due to the head injuries she sustained in the altercation. She argued that the statute of limitations should not have begun to accrue until she had received more detailed information from law enforcement on July 12, 2007. The court rejected plaintiff’s arguments and granted Mr. Ukishima’s motion for summary judgment, with the tribal judge determining that the statute of limitations began to accrue when plaintiff knew of her injury and its cause on July 8, 2007, and that she therefore had failed to file her complaint until two days after the expiration of the statute of limitations on July 8, 2009.

The Outcome

By achieving this dismissal on procedural grounds, Mr. Ukishima saved his client significant fees/costs associated with discovery, depositions, independent medical evaluations (IME), mediation, expert fees, and possibly trial. His strict adherence to the rules and ordinances specific to the venue in which he was practicing provided Mr. Ukishima a clear, efficient, and low cost path to victory for his client.