Wisconsin attorneys seeking to bring an action for damages in a libel, assault, or false imprisonment case may soon have another year to do so.
The Senate and Assembly have passed legislation that would extend the statute of limitations for intentional torts from two to three years, consistent with the limitations period for negligent torts.
Senate Bill 182 and Assembly Bill 354 are awaiting Gov. Jim Doyle’s signature.
Plaintiff’s lawyer Kevin Lonergan said the changes will eliminate confusion, especially in cases which may present opportunity for both types of claims, such as a bar fight.
He said it’s not unusual to have a situation where a bar patron commits an intentional act such as punching another person, but the establishment could also be negligent for providing inadequate security.
In those cases, said Lonergan, of Herrling Clark Law Firm Ltd., it can be difficult to bring both claims at the same time, especially since the victim of the intentional act often waits until after criminal proceedings conclude to file a civil suit.
“That delays the decision to go see an attorney and [as a result] that person may lose the opportunity to seek a remedy,” he said.
The change could also help avoid attempts to blur the line between the two claims, suggested defense attorney Ronald G. Pezze, Jr.
Pezze said he’s been involved in cases where a plaintiff was barred from bringing an intentional tort claim because the two-year period had expired, and then tried to present the claim as a negligence action.
But “pleading it as a negligent act doesn’t convert it into intentional,” Pezze said. “Someone punching another person isn’t a negligent act.”
Pezze, of Peterson, Johnson & Murray SC, said the two-year time period for intentional torts was originally designed to make it easier for the defense to track down important evidence and witnesses.
But in his experience, the shorter statute of limitations hasn’t made much difference.
“As a practical matter, those of us that practice in this area have not found more witnesses or better evidence simply because there was a two-year statute of limitations, versus three,” he said.
Neither the plaintiffs’ nor the defense bar expect a flood of new cases.
Plaintiff’s attorney Frank T. Pasternak noted that the majority of cases are negligence claims and that many people who commit intentional torts are judgment-proof.
“I would not say this will open the floodgates by any means,” said Pasternak, of Pasternak & Zirgibel SC.
But the change should make it less likely that an attorney will miss the deadline for filing an intentional tort claim, he noted, which will mean fewer malpractice cases.
Defense attorney Patrick W. Brennan of Crivello Carlson SC said uniformity will benefit both sides.
“You never know how certain kinds of activity will be considered down the road,” he said. “Having both negligence and intentional claims wrapped up in the same statute of limitations prevents a trap for the unwary.”
A separate piece of legislation that seeks to extend the statute of limitations for medical malpractice cases involving state-run institutions is currently awaiting a Senate committee vote on Feb. 4.
Senate Bill 127 would eliminate the current 180-day period during which patients treated by a medical professional at a state or governmental body must notify the entity of a medical malpractice claim. The new statute of limitations would be three years, consistent with that for med-mal claims against privately run health systems.
According to attorney Barbara J. Zabawa, chair of the State Bar of Wisconsin Health Law Section Board, the impact “depends on what is considered a state or publicly-operated facility.”
A spokesperson from co-sponsor Sen. Fred Risser’s office said the bill is primarily designed to cover health care professionals within the University of Wisconsin system.
Risser introduced the bill after he was contacted by a constituent. The constituent’s daughter died while under the care of UW health care professionals and the timeline to file a medical malpractice claim had expired.
Zabawa said she expects an increase in claims if the bill passes, because patients will have more time to determine if they have a case.
It can “take a long time to decide if a case is worthwhile and figure out if you want to pursue it,” she noted.