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Torts — wrongful death — statute of limitations

Wisconsin Court of Appeals


Torts — wrongful death — statute of limitations

Lane McIntyre appeals dismissal of this civil action against Curtis Forbes, alleging that Forbes was responsible for the wrongful death of McIntyre’s wife, Marilyn McIntyre, in 1980. The circuit court dismissed the complaint with prejudice, after concluding that McIntyre failed to file the complaint within the two-year statute of limitations set forth in Wis. Stat. § 893.57 (2007–08). The circuit court determined that McIntyre’s cause of action against Forbes accrued on March 30, 2009, the day the State of Wisconsin filed a criminal complaint against Forbes charging him with first-degree intentional homicide in the death of Marilyn McIntyre, and, thus, McIntyre’s civil lawsuit, which was filed on July 12, 2011, was not timely filed under § 893.57. On appeal, McIntyre argues that the statute of limitations does not bar his claims because, under the discovery rule, a criminal complaint cannot provide a sufficient basis for a potential plaintiff acting with due diligence to know, to a reasonable probability, that the person charged was responsible for conduct alleged in the criminal complaint. Instead, McIntyre argues, given the presumption of innocence and heavy burden of proof placed on the State in our criminal justice system, this civil action could not have accrued until Forbes was convicted of first-degree intentional homicide in November 2010.

We conclude that there is no merit to McIntyre’s argument that, as a matter of law, under no circumstances could allegations contained in a criminal complaint alert a potential plaintiff to a reasonable probability that a particular person committed an act that could be the subject of a tort action. Therefore, we affirm the decision of the circuit court dismissing McIntyre’s complaint with prejudice as barred by the statute of limitations. Not recommended for publication in the official reports.

2013AP611 McIntyre, et al. v. Forbes

Dist IV, Columbia County, Voigt, J., Blanchard, P.J.

Attorneys: For Appellant: Gergen, William H., Beaver Dam; For Respondent: Christensen, Robert A., Madison

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