Lachenmeier, Enloe & Rall - July, 1998 Publication

Statutes of Limitations for Children-No Minor Issue
July, 1998

The question of just how long a claimant who happens to be less than 18 years of age at the time of an accident has to file his or her injury case is complicated at best. From the defense standpoint, it is important to know the rules relating to calculating the statute of limitations for minors, both because you need to know if the claim being presented is still viable and because when making advance payments (see LE&R Litigation Report December 1997) you need to know what date to put in the notice that is given to the claimant.

The rules relating to calculating the statute of limitations for a minor's claim are found in the Oregon statutes at ORS 12.160. As with statutes generally, however, the language of this statute is not a picture of clarity. Nevertheless, the statute can be boiled down into the following rules that are usually applied relatively easily:

If the minor is at least 17 years old as of the date of the accident, the statute of limitations is exactly the same as it would be for an adult.
If the minor is less than 17 years old as of the date of the accident, the statute of limitations is "tolled" (meaning it does not even start running), thereby extending the usual statute of limitations, subject to the following qualifications:

a. The usual statute of limitations will never be extended past the minor's 19th birthday.

example. If the minor is 16 years old at the time of the accident, the statute of limitations for an injury claim will run on his or her 19th birthday.

b. The usual statute of limitations will never be extended longer than five years beyond its usual expiration.

example. If the minor is 6 years old at the time of the accident, the statute of limitations for an injury claim will run on the 7th anniversary of the accident (the usual two years, plus five).

ORS 12.160 does not apply to all statutes of limitation. By its terms, it does not deal with death claims or product liability claims. It does, however, apply to the standard two-year statute of limitations for bodily injury claims arising from auto accidents and slip and falls, the one-year statute of limitations for landlord-tenant claims, as well as the six-year statute of limitations for property damage claims.

Keeping these rules in mind will make it easier to calculate the statute of limitations for a minor's claim, for purposes of analyzing whether the claim is still viable, as well as for purposes of completing an advance payment notice. If you have any questions about any of this, please feel free to call any of the attorneys at Lachenmeier, Enloe and Rall.