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3.3-3 Statute of
Limitation Defense - Tolling
Doctrines
Revised to January
1, 2008
Connecticut
law recognizes that there are some
situations in which the period set in a
statute of limitation does not apply, or
in which the date when the period begins
to run is suspended or delayed. These
situations are referred to as “tolling”
the statute of limitations. The time
specified for bringing suit does not run
during a time when the statute of
limitations is tolled.
The plaintiff
has alleged that one [or more] of these
situations is present, and that the
statute of limitation therefore does not
apply in the way the defendant asserts.
The plaintiff has the burden of proving
that the statute of limitation is tolled
for the reason that (he/she) asserts.
A.
Continuing course of conduct
The statute
of limitation is applied differently if
the incident on which the claim is based
is part of a continuing course of
conduct between the parties. The
plaintiff has alleged that <describe
claim> was not an isolated
transaction but was part of a continuing
course of conduct in which the defendant
engaged over a period of time. To
establish a continuing course of
conduct, the plaintiff must present
evidence that the defendant assumed a
duty that remained in existence after
commission of what is alleged to be the
original wrong committed against the
plaintiff. If the incident at issue in
the suit was part of a continuing course
of conduct, then the plaintiff may
prevail on claims resulting from any act
that was part of that continuing course
of conduct, even if the particular act
was outside the ___ year limitation
period. If the incident was not part of
a continuing course of conduct, but a
separate instance of the defendant
undertaking a duty that ended with the
completion of the transaction, the
plaintiff cannot prevail on claims based
on those incidents that were not brought
within ___ years of bringing suit.
In deciding
whether there was a continuing course of
conduct, you must determine what duty
the defendant assumed, and when that
duty terminated. The fact that parties
may in fact have engaged in additional
transactions at a later date may be
evidence of a continuing course of
conduct, or it may be evidence only of a
series of separate transactions,
depending on what duty you find the
defendant assumed in each transaction.
You must decide whether the plaintiff
has proved that the conduct that
occurred outside the time limit for
bringing suit was or was not part of a
continuing course of conduct.
Even where
there is a continuing course of conduct,
the plaintiff’s claim is barred if
(he/she) failed to bring (his/her) claim
within ___ years of the most recent part
of that course of conduct.
Authority
B. Special
relationship
The plaintiff
has alleged that even though some of the
acts on which (his/her) claims are based
happened more than ___ years before
(he/she) brought suit, they are not
barred by the statute of limitation
because the acts arose from a special
relationship between the parties that
required the defendant to act in
accordance with a continuing duty of
care toward the plaintiff. The
existence of a special relationship must
be proved on the basis of the facts.
You must determine from the facts
whether the defendant had assumed a
relationship of trust and continuing
duty toward the plaintiff that continued
past the date of the incident on which
the claim is based. The fact that a
plaintiff may have had a special
relationship with the defendant (as
_____) at one point in time does not
necessarily establish that there was an
ongoing relationship. It may be that
the parties had a special relationship
that ended, or a series of times or
transactions when the defendant had a
special relationship with the plaintiff
that was not continuous but ended with
the completion of each transaction. If
the defendant had a special relationship
with the plaintiff that required
(him/her) to <describe>, then a
claim is not barred by the statute of
limitations if the plaintiff brought
suit within ___ years of the last date
on which that special relationship
existed. You must consider all the
facts to determine whether the plaintiff
has proved that the defendant assumed a
special relationship with the plaintiff
that subjected (him/her) to a continuing
duty to act in the plaintiff’s best
interest.
Authority
C.
Fraudulent concealment
The statute
of limitation period is tolled and does
not bar a claim if the plaintiff proves
that for all or part of the period the
defendant fraudulently concealed the
cause of action from the plaintiff. To
establish fraudulent concealment, the
plaintiff must prove all three of the
following things: 1) that the defendant
was actually aware of facts necessary to
establish the plaintiff’s claim; 2) that
the defendant intentionally concealed
those facts from the plaintiff; and 3)
that the defendant’s purpose in
concealing the facts was to obtain delay
on the plaintiff’s part in filing a
lawsuit based on the incident. If the
plaintiff has failed to prove any of
those things, then (he/she) has failed
to prove the elements necessary to
suspend the application of the statute
of limitation.
The proof
required on this issue is greater than
for most issues in a civil case. The
standard of proof for fraudulent
concealment is not simply “more likely
so than not so”; rather, the plaintiff
must prove fraudulent concealment by
clear, precise and unequivocal evidence.
A party from
whom a claim has been fraudulently
concealed must bring the claim within
___ years of the date when (he/she)
discovered the facts that give rise to
the claim, even if (he/she) proves that
the defendant intentionally concealed
those facts.
Authority
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