THE STATUTE OF LIMITATIONS IS TOLLED FOR SOME TRAUMATIC BRAIN INJURY VICTIMS

A statute of limitations is an enactment in a common law legal system that sets forth the maximum time after an event that legal proceedings based on that event may be initiated. For Arizona personal injury actions, the statute of limitations is usually, but not always, two years from the date the injury victim knew, or should have known, she was injured. Arizona law tolls the statute of limitations in two situations, i.e., for minors (those victims under age 18) and people of "unsound mind." See A.R.S. § 12-502.

Some personal injury victims who sustain serious traumatic brain injury are often considered by law to be of "unsound mind." A person of "unsound mind" is unable to manage his affairs or to understand his legal rights or liabilities. Sahf v. Lake Havasu City Assn’ for the Retarded, 150 Ariz. 50, 55, 721 P.2d 1177, 1182 (1986); Allen v. Powell's Int'l, Inc. , 21 Ariz. App. 269, 270, 518 P.2d 588, 589 (1974).

The Arizona Legislature enacted A.R.S. § 12-502 to protect the legal rights of individuals of "unsound mind" who are unable to make legal decisions on their own.

A.R.S. § 12-502 (emphasis added).

This statute has been analyzed on numerous occasions by the Arizona Courts. It is a well-settled principle that the appointment of a guardian and/or conservator does not remove an incompetent’s disability under A.R.S. § 12-502; therefore, the tolling period for a person like Mr. Bartell who is of "unsound mind" is unaffected by the appointment and decisions of a guardian and/or conservator. Sahf v. Lake Havasu City Ass'n for the Retarded and Handicapped, 150 Ariz. 50, 721 P.2d 1177, (App. 1986) (stating "the controlling consideration under Arizona law is the inability of the injured individual to bring an action on his own behalf, not the possibility that a guardian or parent will assert his rights. This is in accord with Arizona's clear policy of protecting the disabled from statutes of limitations"); Dugan v. Fujitsu Business Communications Systems, Inc., 188 Ariz. 516, 937 P.2d 706, (App. 1997) (stating "in order to protect the right of a mentally incompetent person to bring a personal injury action, A.R.S. § 12-502 must toll the statute of limitations regardless of whether a guardian has been appointed"); Doe v. Roe 191 Ariz. 313, 955 P.2d 951 (1998) (stating that statute which tolls operation of statute of limitations if plaintiff is of unsound mind is premised on equitable principles similar to those that underlie the discovery rule, as it is unfair to bar an action in which the plaintiff is mentally disabled, and thus unable to appreciate or pursue his or her legal rights); Kiley v. Jennings, Strouss & Salmon, 187 Ariz. 136, 927 P.2d 796 (App. 1996) (stating appointment of conservator does not prevent tolling of two-year statute of limitations for torts due to incompetency).

It does not matter if the personal injury victim has a guardian who could have brought the victim’s personal injury claim within the standard statute of limitations period. Arizona courts have considered this issue on numerous occasions. For example, in Sahf v. Lake Havasu City Ass'n for the Retarded and Handicapped, the defendants moved to dismiss the complaint of a mother/guardian who filed a complaint on behalf of her ward, arguing " that the tolling statute should not apply where a guardian with a legal duty to bring appropriate lawsuits on behalf of her ward has been appointed and where that guardian has full knowledge of the facts." Id. at 55, 721 P.2d at 1182. The court rejected this argument stating "we are not persuaded that A.R.S. § 12-502 is subject to such an interpretation." Id. The court equated the situation where a guardian has been appointed for a person of unsound mind to the effect of guardianship upon an infant’s right to bring a lawsuit. Id. at 54, 721 P.2d at 1181. In that situation, "the Arizona Supreme Court held that the personal injury action of an injured minor is tolled by A.R.S. § 12-502 regardless of whether the minor has a parent or guardian who could have brought suit on his behalf." Id. (quoting Barrio v. San Manuel Division Hospital for Magma Copper Co., 143 Ariz. 101, 692 P.2d 280 (1984)). The court went on to state

Arizona recognizes that an action for personal injury is a fundamental right guaranteed by the Arizona Constitution. Further, Barrio makes clear that the controlling consideration under Arizona law is the inability of the injured individual to bring an action on his own behalf, not the possibility that a guardian or parent will assert his rights. This is in accord with Arizona’s clear policy of protecting the disabled from statutes of limitations.

Id. (emphasis added).

In Kiley v. Jennings, Strouss & Salmon, the Court was called to answer whether the statute of limitations is tolled for an incompetent person who had a conservator appointed. The Court held that the statute of limitations is tolled for the incompetent person regardless of the appointment of a conservator because the incompetent is "helpless" to enforce his or her constitutionally guaranteed legal rights. 187 Ariz. at 140, 927 P.2d at 800.

So, if you or a loved one have sustained a serious brain injury and failed to file a claim within the standard statute of limitations, there is a possibility that you may still be allowed to file a claim. It is important that you contact a personal injury attorney right away to discuss your options.

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