CHILD ABUSE VICTIMS

STATUTE OF LIMITATIONS — REFORM

We have previously reported regarding efforts in the New York State Legislature to open up a one year “window of opportunity” to victims of childhood sexual abuse. It would have extended the Statute of Limitations on bringing “civil” lawsuits so that virtually anyone, at any age, that suffered sexual abuse, could sue, regardless of the number of years that have passed since the abuse occurred.

Unfortunately, we can now report that for the FIFTH year, the legislation intended to expand the rights of child sex abuse victims has died in the New York Legislature.

The hope on the part of proponents of the legislation was that with the increased outrage over new developments regarding clergy sexual abuse coming to light in the Catholic Church in Europe, that public opinion here would lead to passage. That assessment was wrong.

Since 2002, fifteen states have proposed such legislation. Only Delaware and California have actually passed it. In New York, the legislation “died” in the State Senate committee that deals with that area of law. The legislation is known as the “CHILD VICTIMS ACT.” Sponsors will continue to attempt to get it passed in the future.

Some opponents did indicate that while they opposed eliminating the Statute of Limitations on civil child abuse cases, which could bankrupt some organizations, they would favor lifting the Statute of Limitations on criminal cases so that abusers could be prosecuted.

INTENTIONAL TORTS

We noted previously that a “tort” is simply a civil, as opposed to a criminal, wrong, committed against another. While criminal acts often result in incarceration to the perpetrator, the consequence flowing from the performance of a civil wrong, or “tort”, is the imposition of money damages imposed upon the “tortfeasor” and awarded to the injured party.

“Torts” are divided into those that are “intentional” and those that are unintentional.

They can be distinguished rather easily by answering the question:  Did the person (“tortfeasor”) engaging in the particular action, purposely want the results of that act to occur OR was it “substantially certain” that a reasonable person could see that the results of that action would occur.

D, driving his car, sees T, who insulted D’s wife last week, on the sidewalk.    D wants to scare the daylights out of T so he decides to drive his car on to a busy sidewalk.  T is not hurt but, as D swerves, he hits P, an uninvolved pedestrian, severely injuring him. D committed an  ”intentional tort”  with respect to P !

The distinction between an intentional and unintentional tort, in the field of Personal Injury law, could be crucial and devastating.     The “Statute of Limitations” for unintentional torts is virtually always three years in New York State (with certain exceptions such as in the field of medical malpractice).   However, lawsuits based on “intentional torts” have a Statute of Limitations (the time within which a lawsuit MUST be brought) in New York of only ONE year.   Consequently, for this and many other reasons we have been pointing out, consulting with an experienced Personal Injury Attorney just as soon after you suffer an injury as possible can mean the difference between realizing compensation for the injury you sustained or forfeiting that possibility through ignorance and inaction.

PART III : BEGINNING LITIGATION

The beginning of litigation refers to the start of an actual lawsuit. In cases where a NOTICE OF CLAIM was required to be filed, the law prohibits the commencement of legal action before the Notice of Claim is filed AND before the agency or governmental subdivision against which it was filed has had an opportunity to question the claimant. This questioning is called a “50 H Hearing”, the statutory name for what is simply an oral deposition of the claimant. Sometimes the “50 H Hearing is waived by the governmental entity, sometimes not. Once the hearing is held, or waived, the papers to begin the lawsuit may be filed in court, and then served on the defendant or defendants. (You, the person bringing the lawsuit, is known as the PLAINTIFF). The filing of the papers in court BEGINS the actual lawsuit.

In cases that do not require the filing of a Notice of Claim, the papers to begin the lawsuit, generally a Summons and Complaint, may be filed in court and then served upon the defendant (or defendants) at any time. The service of the Summons and Complaint is usually performed by a professional process server that works for a Process Service company. There are legal requirements as to when and how legal documents may be served, and cases can arise where the method of service will be vital to the viability of that case. This is especially true in cases that are begun very near the expiration of the Statute of Limitations, when improper service can mean the time limit within which a lawsuit MUST be brought has expired, and there is no recourse!

Just a special note regarding Statutes of Limitations:

Never, ever think you have enough time to contact your attorney about a possible lawsuit “because my friend told me that I have three years…” Time limits within which you MUST bring lawsuits vary greatly. Most negligence actions have three year time limits, most medical malpractice have two and a half, most intentional acts require lawsuits within one year, and so on. However, there are exceptions to virtually every rule. Get to an experienced attorney by calling our New York City Law Firm at The Orlow Firm before your opportunity to litigate disappears!