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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

Grey v. Stamford Health System, Inc., 282 Conn. 745, 751-56 (2007); Blanchette v. Barrett, 229 Conn. 256, 275-77 (1994); Fichera v. Mine Hill Corp., 207 Conn. 204, 209 (1988). 

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

Zielinski v. Kotsoris, 279 Conn. 312, 322, 330 (2006); Blanchette v. Barrett, 229 Conn. 256, 275-76 (1994); Fichera v. Mine Hill Corp., 207 Conn. 204, 210 (1988).

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

General Statutes § 52-595; Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 105 (2007); Bartone v. Robert L. Day Co., 232 Conn. 527, 533 (1995); Connell v. Colwell, 214 Conn. 242, 250-51 (1990).
 


 

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