Study guide
16.7 Statute of Limitations & Claim Accrual
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1 Introduction & FYLSE Examination Guide
1.1 FYLSE Exam Structure, Passing Standard & Administration 1.2 Study Method, Pacing & MBE-Style Technique
2 Contracts: Mutual Assent, Capacity & Contract Formation
2.1 The Offer & Objective Theory of Assent 2.2 Termination & Irrevocability of Offers 2.3 Acceptance & the Mailbox Rule 2.4 Mirror Image Rule & UCC 2-207 Battle of the Forms 2.5 Mistake in Contract Formation 2.6 Fraud, Duress, Undue Influence & Illegality 2.7 Capacity to Contract
3 Contracts: Consideration, Estoppel & Implied Obligations
3.1 Consideration & the Bargained-For Exchange 3.2 Past & Moral Consideration, Pre-Existing Duty & Modification 3.3 Promissory Estoppel & Detrimental Reliance 3.4 Implied-in-Fact Contracts & Quasi-Contract 3.5 Implied Covenant of Good Faith, Fair Dealing & Indefinite Terms
4 Contracts: Third-Party Beneficiaries, Assignment & Delegation
4.1 Third-Party Beneficiary Contracts 4.2 Assignment of Rights 4.3 Delegation of Duties
5 Contracts: Statute of Frauds, Parol Evidence & Interpretation
5.1 Statute of Frauds: Contracts Within the Statute 5.2 Satisfying the Statute: Writing, Signature & Exceptions 5.3 The Parol Evidence Rule 5.4 Contract Interpretation & Canons of Construction
6 Contracts: Performance, Conditions, UCC Warranties & Breach
6.1 Conditions: Express, Constructive & Excuse 6.2 Substantial Performance vs. Perfect Tender 6.3 Cure, Rejection, Revocation & Installment Contracts 6.4 UCC Article 2 Warranties & Risk of Loss 6.5 Anticipatory Repudiation & Insecurity
7 Contracts: Remedies, Discharge & Changed Circumstances
7.1 Expectation Damages & Their Limitations 7.2 Reliance, Restitution & Liquidated Damages 7.3 Specific Performance & Injunctive Relief 7.4 UCC Article 2 Buyer's and Seller's Remedies 7.5 Impossibility, Impracticability & Frustration of Purpose 7.6 Discharge by Agreement: Rescission, Novation & Accord and Satisfaction
8 Criminal Law: Principles of Criminal Liability & Mens Rea
8.1 Actus Reus, Voluntary Acts & Omissions 8.2 Criminal Causation & Intervening Causes 8.3 Common Law & Model Penal Code Mens Rea 8.4 Mistake of Fact, Mistake of Law & Concurrence
9 Criminal Law: Inchoate Offenses & Accomplice Liability
9.1 Criminal Attempt & Impossibility 9.2 Solicitation & the Merger Doctrine 9.3 Conspiracy & Merger Doctrine 9.4 Accomplice Liability: Actus Reus & Mens Rea 9.5 Scope of Accomplice Liability, Withdrawal & Parties to Crime
10 Criminal Law: Homicide & Crimes Against the Person
10.1 Common Law Murder & Malice Aforethought 10.2 Degrees of Murder, Premeditation & Deliberation 10.3 The Felony Murder Rule & Its Limitations 10.4 Voluntary & Involuntary Manslaughter 10.5 Non-Homicide Crimes Against the Person
11 Criminal Law: Property Crimes, Theft & Habitation
11.1 Common Law Larceny 11.2 Embezzlement & False Pretenses 11.3 Robbery & Extortion 11.4 Receiving Stolen Property 11.5 Burglary 11.6 Arson
12 Criminal Law: Defenses: Capacity, Justification & Excuse
12.1 Insanity: The Four Legal Tests 12.2 Intoxication, Diminished Capacity & Infancy 12.3 Self-Defense & Defense of Others 12.4 Defense of Property, Habitation & Law Enforcement Privileges 12.5 Duress & Necessity 12.6 Entrapment & Mistake as an Excuse
13 Torts: Intentional Torts to Persons & Property
13.1 Intent, Motive & Incapacity in Intentional Torts 13.2 Transferred Intent 13.3 Battery & Assault 13.4 False Imprisonment 13.5 Trespass to Land 13.6 Trespass to Chattels & Conversion
14 Torts: Privileges & Defenses to Intentional Torts
14.1 Consent: Express, Implied & Capacity 14.2 Exceeding & Vitiating Consent 14.3 Self-Defense & Defense of Others (Tort) 14.4 Defense of Property & Recapture of Chattels 14.5 Public & Private Necessity 14.6 The Shopkeeper's Privilege
15 Torts: Negligence — Duty of Care & Breach
15.1 Duty of Care & the Foreseeable Plaintiff 15.2 Affirmative Duties to Act & Special Relationships 15.3 Standard of Care: The Reasonable Person & Children 15.4 Professional Negligence, Informed Consent & Negligence Per Se 15.5 Land Possessor Liability & Premises Duties 15.6 Breach of Duty & Res Ipsa Loquitur
16 Torts: Causation, Defenses, Multiple Tortfeasors, Wrongful Death & Damages
16.1 Cause in Fact & Multiple Actors 16.2 Proximate Cause & Intervening Forces 16.3 Contributory, Comparative Negligence & Assumption of Risk 16.4 Joint and Several Liability, Contribution & Indemnity 16.5 Vicarious Liability & Non-Delegable Duties 16.6 Wrongful Death & Survival Actions 16.7 Statute of Limitations & Claim Accrual 16.8 Tort Damages: Compensatory, Nominal, Punitive & Mitigation
17 Torts: Strict Liability & Products Liability
17.1 Strict Liability for Animals 17.2 Abnormally Dangerous Activities & Scope of Risk 17.3 Strict Products Liability & Defect Categories 17.4 Products Liability Under Negligence, Warranty & Misrepresentation 17.5 Defenses to Products Liability
18 Torts: Emotional Distress, Defamation, Privacy & Economic Torts
18.1 Intentional Infliction of Emotional Distress 18.2 Negligent Infliction of Emotional Distress 18.3 Common Law Defamation: Elements, Libel & Slander 18.4 Constitutional Limits, Privileges & Defenses to Defamation 18.5 Invasion of Privacy 18.6 Nuisance & Economic Torts
16.7 Statute of Limitations & Claim Accrual
Key Takeaways Explain This Topic AI
A statute of limitations runs from accrual of the claim and can be tolled, while a statute of repose runs from a fixed event such as the sale of a product and can extinguish a claim before it ever accrues.
Under the traditional rule a claim accrues on the date of injury, while the discovery rule delays accrual until the plaintiff knew or should have known of both the injury and its probable cause, and inquiry notice alone is enough to start that clock.
The limitations period is tolled during the plaintiff's minority or legal incompetence, and during the defendant's absence from the jurisdiction or fraudulent concealment of the claim.
Special accrual rules decide close cases: for a continuing nuisance or trespass the period runs from the last tortious act rather than the first, a survival action inherits the decedent's own limitations clock and fails if that claim was already barred, and a wrongful death claim ordinarily runs from the date of death.
The statute of limitations is an affirmative defense that the defendant must plead and prove, and it is waived if not timely raised.
Last updated: September 2026
Statute of Limitations & Claim Accrual
Content map item 120 sits under Pervasive Issues in the Torts map, next to damages and proximate cause, because it can defeat any tort claim no matter how strong the merits. A limitations question is never about whether the defendant behaved badly; it is about when the clock started and whether anything stopped it .
Keep the vocabulary straight from the outset. A statute of limitations starts running when the claim accrues , and it can be tolled. A statute of repose starts running from a fixed external event — typically the sale of a product or the completion of construction — and it runs regardless of whether the plaintiff has yet been injured or could possibly have known. A statute of repose can therefore extinguish a claim before it ever accrues , which is why it is the harsher device and why products liability defendants rely on it.
I. When Does a Claim Accrue?
Rule When the clock starts Typical application
Traditional accrual On the date of the injury , whether or not the plaintiff knew of it Ordinary negligence, intentional torts
Discovery rule When the plaintiff knew, or with reasonable diligence should have known , of both the injury and its probable cause Medical malpractice, latent disease, toxic exposure, professional negligence
Continuing tort On the date of the last tortious act Continuing nuisance, continuing trespass
The discovery rule exists because the traditional rule produced indefensible results: a surgical sponge left in a patient's abdomen, a mesothelioma that manifests thirty years after asbestos exposure, or a slow subsurface contamination would all be time-barred before the victim had any way of knowing they had been injured.
Two limits on the discovery rule are heavily tested:
Inquiry notice is enough. The plaintiff does not need to know the full legal significance of the facts, or that a particular defendant is liable. Once the plaintiff knows of the injury and its likely cause, the clock starts, and a plaintiff who sits on obvious symptoms cannot claim the benefit of the rule.
It does not extend a statute of repose. A claim discovered after the repose period expires is gone, and that is the whole point of the device.
II. Tolling — What Stops the Clock
Tolling suspends the running of the period; it does not restart it. When the disability ends, the remaining time resumes.
Minority. The period is tolled while the plaintiff is a minor, and typically begins to run on the eighteenth birthday. This is the most commonly tested tolling rule, and it is why a claim arising from an injury to a young child can be brought many years later.
Mental incompetence. Tolled while the plaintiff is legally incompetent, though many states cap the total extension.
Defendant's absence or concealment. Tolled while the defendant is absent from the jurisdiction or has fraudulently concealed the existence of the claim. Fraudulent concealment requires an affirmative act of concealment beyond the original wrong.
Defendant's death. Typically tolled for a limited period while an estate is opened.
Pendency of a prior action. Many states provide a savings statute giving the plaintiff a short window to refile after a timely action is dismissed on non-merits grounds.
III. Typical Periods
Limitations periods are set by each state's statutes and vary, but the relative ordering is consistent enough to reason with:
- Claim type Typical range
- Defamation, and often the other dignitary torts 1 year (the shortest)
- Personal injury negligence 2–3 years
- Products liability 2–3 years , subject to a statute of repose
- Trespass and injury to property 3–6 years
- Medical malpractice 1–3 years from discovery, with an outer cap
Never assert a specific number of years unless the question supplies it. FYLSX items give you the period in the facts; the analytical work is accrual and tolling.
IV. Procedural Character
The statute of limitations is an affirmative defense . Three consequences follow:
The defendant bears the burden of pleading and proving it.
It is waived if not raised in a timely fashion, so a defendant who answers on the merits without asserting it loses it.
It bars the remedy rather than extinguishing the right in most states, which is why a time-barred debt can still be revived by a new promise and why the defense is not jurisdictional.
Contrast this with a statute of repose, which many jurisdictions treat as extinguishing the underlying right itself and therefore as non-waivable.
V. Interaction With Wrongful Death and Survival Claims
The limitations analysis for a death case is a favourite trap:
A survival action carries the decedent's own claim, so it carries the decedent's own limitations clock. If that claim was already time-barred before death , the survival action is barred too.
A wrongful death action is a new claim, so its period ordinarily runs from the date of death , not the date of the injury. A victim injured in year one who dies in year four may leave a barred survival claim and a perfectly timely wrongful death claim.
VI. Exam Checklist
Identify the claim and note the period the facts supply.
Fix the accrual date. Is this an obvious injury governed by traditional accrual, or a latent one triggering the discovery rule? For a continuing trespass or nuisance, find the last tortious act.
Apply any tolling. Was the plaintiff a minor or incompetent? Did the defendant conceal or leave the jurisdiction?
Check for a statute of repose , especially in a products or construction fact pattern — it can cut off the claim regardless of accrual and tolling.
Confirm the defense was raised. An answer choice reciting that the court should dismiss on its own motion because the period has run misstates the procedural posture.