Plaintiff Attorney: Brett Hall
City, Co., State: Lincoln City, Lincoln, Oregon
Claims Alleged: Personal Injury
Injuries Alleged: Broken Leg
Admitted Liability: No
Amount Claimed: Not pled in complaint
Smith Freed Eberhard recently achieved a speedy dismissal of a personal injury and dram shop claim against its client by maintaining that the statute of limitations begins to accrue when a plaintiff becomes of his/her injuries and their cause, not when the plaintiff recovers to the point of being well enough to make a claim.
In this case, Smith Freed Eberhard defended the confederated tribes of the Siletz Indians (“the tribe”) against claims filed in tribal court. The tribe owned and operated the Chinook Winds Casino in Lincoln city, Oregon, at which plaintiff was physically assaulted by two drunk patrons. Plaintiff alleged that the casino served alcohol to the two assailants when they were already visibly intoxicated. Plaintiff further alleged the casino was negligent and breached statutory and common-law duties to maintain safe premises by failing to provide proper security, by over-serving alcohol to patrons, and by failing to train bartenders to identify intoxicated persons. Plaintiff claimed to have sustained severe and permanent head and traumatic brain injuries as a result of the attack.
Plaintiff’s counsel recognized the trouble with filing suit two days past the two year statute of limitations expiration. Such deadline, according to plaintiff, was permissibly neglected due to the fact that plaintiff allegedly was legally incapacitated as a result of her head wounds sustained in the altercation. She argued that the statute of limitations should not have begun to accrue until she had received more detailed information from law enforcement on July 12, 2007.
Although plaintiff had filed her tort claim notice in a timely manner, it appeared that she had commenced her lawsuit two days after the applicable statute of limitations expired. The altercation occurred on July 8, 2007 and plaintiff did not file her complaint until July 10, 2009. The applicable tribal code provided that the statute of limitations requires these types of actions be brought within two years from when the cause of action accrues. On these grounds, the defense filed a motion for summary judgment to dismiss the case.
As expected, however, plaintiff argued that the statute of limitations was tolled because she was legally incapacitated immediately following the incident due to the head injuries she sustained in the altercation. She argued that the statute of limitations should not have begun to accrue until she had received more detailed information from law enforcement on July 12, 2007. The court rejected plaintiff’s arguments and granted the defense’s motion for summary judgment, with the tribal judge determining that the statute of limitations began to accrue when plaintiff knew of her injury and its cause on July 8, 2007, and that she therefore had failed to file her complaint until two days after the expiration of the statute of limitations on July 8, 2009.
By achieving this dismissal on procedural grounds, Smith Freed Eberhard saved its client significant fees/costs associated with discovery, depositions, independent medical evaluations (IME), mediation, expert fees, and possibly trial. Our strict adherence to the rules and ordinances specific to the venue in which we were practicing provided our client with a clear, efficient, and low cost path to victory.
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