— When SOL begins to run for medical malpractice in Illinois: two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action. — When SOL begins to run in negligence cases: When the injury occurs, or when a reasonable person discovers her injury and perceives the role ∆’s negligence played in causing it. TOLLING THE SOL IN EMOTIONAL HARMS: REPRESSED MEMORY AND INSANITY DISABILITY — MINORITY VIEW: Discovery rule may toll the SOL bc ∏’s interest in compensation for injuries caused by ∆’s acts, especially where the abuse and its causal connection to ∏’s injuries were discovered decades after the abuse took place, outweighs any interest ∆ has in putting such claims to rest. (The discovery rule in child sexual abuse cases can be applied even without independent corroborative evidence of abuse. Minority view that repressed memory of sexual abuse may trigger application of the discovery rule to toll the SOL.) — MAJORITY VIEW: Discovery rule did not apply to toll the SOL bc repressing a memory and forgetting it are indistinguishable scientifically and legally. There is no empirical evidence that repression, psychologists disagree on the subject, and recovered memories can be manipulated by therapists. (Majority view does not recognize repressed memory of past sexual abuse as triggering the discovery rule to toll the SOL.) — More courts are holding repressed memory of sexual abuse as a disability that tolls the SOL until the disability is removed. ∏ must show that the disability was such that she was not aware of her rights. Very difficult burden. Usually requires psychiatric proof that the plaintiff was under such a disability due to the abuse that she was not aware of her injury or that it was caused by the sexual abuse. When the disability is removed and the plaintiff recognizes her injury and the fact that the injury was caused by the abuse, then the SOL begins to run. SOR Legislative provisions which completely extinguish a claim, even if not discovered until after the running of the SOR. SOR for med mal in IL: 4 years from date of occurrence. The discovery rule can get around the SOR in some states. Otherwise, it’s ruled unconstitutional. (e.g. In IL, constitutional and absolute.) PRODUCTS LIABILITY CLAIMS NEGLIGENCE DUTY: suppliers (manufacturers, wholesalers and retailers) have a duty to provide (design, manufacture and sell) products that are safe to users, consumers or bystanders under foreseeable uses, including foreseeable misuses. BREACH: Suppliers conduct resulted in a defective product reaching ∏. Difficult to prove. Most usually use res ipsa loquitur. ACTUAL CAUSATION: but-for the failure to provide a defective product, ∏ would not have been injured. LEGAL CAUSATION: the foreseeable risks of providing the defective product ∏’s harm.
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- Fall '16
- Tort Law, duty, assumption of risk, Product liability