Statute of Limitations – One Day Late Too Late

           In Redmond v. Walmart Stores, Inc., No. M2014-00871-COA-R3-CV (Tenn. Ct. App. Dec. 22, 2014), plaintiff filed a premises liability claim after she slipped and fell on a puddle of water in a Nashville Wal-Mart. The incident occurred on August 12, 2012, but during plaintiff’s first conversation with her attorney he recorded that it had occurred on August 13th. On August 13, 2013, plaintiff’s attorney filed the complaint in this action.

            Defendant moved for summary judgment on the basis that the action was time-barred by the one-year statute of limitations. The trial court granted the motion. Plaintiff appealed, asserting that the discovery rule tolled the statute of limitations and that “the trial court should have granted an enlargement of the statute of limitations under Tennessee Rule of Civil Procedure 6.02.” The Court of Appeals, however, rejected both of these arguments and affirmed the trial court’s decision.

            Plaintiff’s first argument was that even though she was injured in the initial fall, she had additional injuries that she could not have discovered on the day of the incident, and thus the statute of limitations should have been tolled by the discovery rule as to at least those injuries. The Court explained, though, that “a plaintiff’s cause of action accrues when he or she knows or, in the exercise of reasonable care and diligence should know, that he or she has sustained an injury as a result of the defendant’s wrongful conduct.” Here, plaintiff was aware on the day of the fall that she had sustained an injury; she filed a report with the store on the day she fell and suffered from pain and bruising. Accordingly, she knew that her fall “would support an action for tort against the tortfeasor” and the discovery rule did not apply. The fact that her injuries got worse following the day of her fall did not entitle her to invoke the discovery rule to escape the one-year statute of limitations.

            Plaintiff’s second argument, that the trial court should have found excusable neglect and thus enlarged the statute of limitations under Rule 6.02, was also rejected. Rule 6.02 does allow the trial court to enlarge certain time periods, but it has never been held to apply to statutes of limitation. In fact, the Court of Appeals stated that “had the trial court granted an enlargement of time as requested…, to do so would have been an abuse of its discretion.” Since the one-year statute of limitations applied to the case and plaintiff’s complaint was filed one year and one day after her fall, the trial court rightly granted summary judgment to defendant.

            Although harsh, this result is correct. I would be interested in knowing more about how this situation occurred.   When did the plaintiff first see the lawyer?  is she claiming that she told the lawyer the correct date?  What pre-suit investigation was done by the lawyer?  What communication was there with the defendant before suit was filed?  Was the defendant aware that the plaintiff’s lawyer was working under the wrong assumption on the date of the occurrence?   Did the defendant send any correspondence, emails, etc. that referenced the correct date?  (It is not uncommon for communications with defendants or their insurers to contain a claim number and reference the date of occurrence.)  

            There are lots of reasons not to wait until the last day of the statutory period of limitation to file a lawsuit.  

             Now there is another one.