law school is like Rowdy Roddy Piper. wrestling fans know his famous catch phrase, but for those of you who had terrible, WWF-less childhoods, his famous catch phrase is, "just when they think they know the answers, i change the questions". law school takes that attitude and runs with it, stops, hydrates, and stretches, then does a marathon with it. when you come to law school, it's a given that you're really, like really, really smart. you're generally a good writer, your study habits and work ethic are all top notch. then classes start and you realize that law school changed the definition of all those things, and buddy, what you knew before ain't it.
for example, drew everyday has always been a good writer. i was published for the FIRST time in SECOND F'N GRADE! i never got less than a 4 outta 4 on any standardized writing test i ever took. hell, in my college level creative writing course, i did so well that my work was used as an example of how to do it right for other classes, AND my professor wanted me to write for MORE PUBLICATION!
the following memo would have seen me deified by any undergrad professor i turned it in to. in law school, however, it was barely passable:
To: Senior Associate
From:
Re: Sean North Inquiry on Statute of Limitations
Date: 9/1/2011
MEMORANDUM
A court is likely to find that Sean has a right to file a claim on behalf of his sister, Stacy. A court will probably find 1) Sean is filing within the statute of limitations pursuant to Me. Rev. Stat. Ann. tit.24, § 2902 (West 2000 and Supp. 2001); 2) Stacy’s injury is sufficient to toll Maine’s statute of limitations pursuant to Me. Rev. Stat. Ann. tit.24, § 853 (West 1980 and Supp. 2001); 3) the statute of limitations for Stacy to file a claim have not accrued; 4) Sean’s guardianship over Stacy does not affect her protection under the statute; and a court may possibly find 5) the fact that Stacy’s injury caused her disability is of no consequence.
Maine’s statute of limitations rule as found in common law reads this way: 1) statute of limitations may be tolled until incompetence, by reason of mental illness or minority, is relieved; Mental illness is an overall inability to function in society as to prevent a plaintiff from protecting their legal right; Discovery is assumed to accrue on the date the injury occurred. 2) The statute of limitations for filing a claim for relief of injury is 6 years from the date on which the injury was reasonably discoverable; if a plaintiff is incompetent, the statute of limitations is tolled until their incompetence is removed.
Stacy’s injury is sufficient to toll the statue of limitations in Maine. MRSA §2902, sets the time limit in which to file a complaint for an injury at three years ex post the date the injury accrues. For incompetent persons, the statute of limitations is tolled until the disability is removed, see MRSA §853. In Maine, mental illness is defined as “an overall inability to function in society” such that the plaintiff is unable to protect their legal rights, McAfee v. Cole, 637 A.2d 463, 466 (Me. 1994), and as such, is sufficient to toll the statute of limitations, Bowden v. Grindle 675 A.2d 968, 971 (Me. 1996). The ability to function in familiar settings and relationships is not sufficient to assert competence to protect ones legal rights Chasse v. Mazerolle, 580 A.2d 155, 157 (Me. 1990) (marriage and divorce insufficient to prove competence). The statute can be tolled for professional negligence, Chasse, 580 A.2d at 156. Stacy’s injury was due to professional negligence, as it occurred in a hospital as she was recovering from surgery. Though Stacy can still function in familiar environments, because of her injury, she is no longer able to fully care for herself, see Bowden, 675 A.2d at 672 (difficulty cooking, etc.). Therefore, her injury is sufficient to toll the statute of limitations.
A court will likely find the statute of limitations for Sean to bring a claim has not yet accrued. MRSA §2902 now sets the statute of limitations at six years for all persons, Bowden, 675 A.2d at 972; McAfee, 637 A.2d at 465. MRSA §853 asserts that the statute of limitations for those with a mental illness shall be tolled until the disability is removed. Maine’s Supreme Court affirms, McAfee, 637 A.2d at 466. The injury in question occurred in April 2007, but Stacy’s incompetence has yet to be removed, therefore the statute of limitations has not yet accrued.
Sean should be able to file the claim as Stacy’s guardian. Though neither Maine’s statute nor their courts address this issue, there are sources we can draw from. In North Carolina, the rule is that an “insane” person who has a guardian when they sustain an injury has the statute of limitations accrue on that date, or otherwise on the date in which they acquire a guardian, First Citizens Bank & Trust Co. v. Wllis,125 S.E.2d 359, 361 (N.C. 1962). Accordingly, the statute of limitations for Stacy to file a claim accrued on the day when Sean became her guardian. The ruling in First Citizens Bank fails here for two reasons. First, Sean became Stacy’s guardian in 2007. The present year, 2011, falls well within the six year limit. Secondly, in a 1979 Massachusetts case, the court held that the appointment of a guardian has no affect on the tolling statute because the statute did not address guardians. O'Brien v. Mass. Bay Transp. Auth., 541 N.E.2d 334, 337 (Mass. 1979). The Massachusetts statute is similar to Maine’s. Thus it is conceivable to add as section 2(b) of the rule for Maine: the appointment of a guardian does not affect the tolling of statutes of limitation to those rendered incompetent. By that interpretation, Sean’s status as Stacy’s guardian has no effect on her protection under MRSA §853.
There was no relevant law to determine the standard for injuries which render the victim incompetent. The closest suggestion in the common law is that incompetence brought on by an incident allows for protection under the tolling provision until it is removed, Bowden, 675 A.2d at 972. Stacy’s disability began in April 2007 when her injury occurred and her protection should persist until her injury is removed.
I must note that not all of the present rulings support extending protection under the tolling provision. The rulings in Bowden, 675 A.2d at 972 (incompetence due to mental illness sufficient to toll statute), Chasse, 580 A.2d at 157 (prior competence not indicative of competence to exercise rights; ability to function in familiar settings not sufficient to establish competence), and O’Brien, 541 N.E.2d at 337 (protection under tolling statute not affected by appointment of a guardian) are clearly favorable to Sean’s cause. However, the findings in McAfee, A.2d at 465 (statute accrues when incompetence is removed and reasonably discoverable), and First Citizens Bank, 125 S.E.2d at 361 (Appointment of guardian ends protection under tolling statute) seem to be harmful. Both cases, though, have completely different facts from Sean’s. As I mentioned earlier, First Citizens Bank is outdated by O’Brien, 541 N.E.2d at 337. Moreover, the reasoning, to protect the certainty of real estate titles by strictly enforcing the time limit in which a dissent maybe filed, First Citizens Bank, 125 S.E.2d at 362, has no bearing on the present facts. Our facts concern a person’s health, not their property. Additionally, Sean is bringing his claim within the established limit. In McAfee there were significant time differences, McAfee, 637 A.2d at 466 (12 years after tolling of the limit ended).
In sum, a court will most likely find that Sean has a right to bring a cause of action against Bangor Memorial Hospital on behalf of his sister, Stacy, despite having passed the statute of limitations. A court should find that: 1) Stacy’s injury is sufficient to toll the statute of limitations in Maine; 2) the statute of limitations for Stacy’s right to file a claim has not accrued; 3) having a guardian has no effect on Stacy’s protection under the statute; and possibly find 4) the fact that Stacy’s injury caused her disability is inconsequential.
they changed the definition, bitches....
