Don’t Sleep on Your Rights – Not All Negligence Claims Are Governed by the Same Statute of Limitations
Many are familiar with the general concept that a claimant must commence a lawsuit within a specific amount of time to maintain a viable cause of action. This concept is often referred to as a “limitations period” or a “statute of limitations.”
Some may have heard or read that tort claims in Washington are subject to a three-year statute of limitations. In many circumstances, that is correct. When it comes to negligent injury to real property claims, however, assuming the claim is subject to a three-year statute of limitations can have harsh consequences. This article addresses a nuance in Washington law that some may be unfamiliar with.
Title 4, Chapter 4.16 of the Revised Code of Washington (“RCW”) contains statutes of limitation. Relevant to this article, one statute frequently cited for the often correct proposition that tort claims must be commenced within three years provides that the following actions are subject to a three-year limitations period: (1) An action for waste or trespass upon real property; and (2) An action for taking, detaining, or injuring personal property, including an action for the specific recovery thereof, or for any injury to the person or rights of another not hereinafter enumerated. RCW 4.16.080(1)-(2). While other statutes in Title 4, Chapter 16, RCW, outline limitation periods for other types of claims, a “catch-all” statute exists which provides that “[a]n action for relief not hereinbefore provided for, shall be commenced within two years after the cause of action shall have accrued.” RCW 4.16.130.
Based on RCW 4.16.080 (1) and (2), some may assume a claimant has three years to pursue a claim for negligent injury to real property. After all, negligent injury to real property sounds at least somewhat like “waste or trespass upon real property” or at least “injury to the person” — so, close enough, right? According to multiple Washington cases, making such an assumption is legally incorrect and can result in an otherwise viable claim being dismissed on statute of limitations grounds.
Over 100 years ago, the Washington Supreme Court issued several decisions holding that the applicable statute of limitations for negligent injury to real property claims differs from the statute of limitations applicable to trespass upon real property claims. In Suter v. Wenatchee Water Power Co., 35 Wn. 1, 76 P. 298 (1904), the Court concluded that damage to real property caused by Wenatchee Water Power Company’s negligent construction of an irrigation canal did not constitute a trespass claim such that the three-year statute of limitations applicable to trespass upon real property claims applied. Suter, 35 Wn. at 4-9. The Court concluded a two-year statute of limitations applied, and because the property owners did not file a suit within two years, their claim could not stand. Id., 35 Wn. at 9.
In 1918, the Washington Supreme Court reiterated the distinction set out in Suter in a case involving alleged negligence by King County in changing the grade of a highway, which resulted in water and slush accumulating on the plaintiff’s property. White v. King County, 103 Wn. 327, 174 P. 3 (1918). The Court concluded the claim was governed by a two-year statute of limitations instead of the three-year statute of limitations applicable to trespass upon real property claims:
The Complaint is based on injuries arising from an alleged tortious act in making a change of grade in the highway, which was fully consummated by its acceptance by the respondent on December 2, 1912. The complaint herein was filed with the county clerk on March 16, 1915, more than two years after the cause of action arose. We have heretofore held that actions of this character, involving negligent injury, do not fall within the three-year limitation provided for trespass on real property, but are governed by Rem. Code, § 165, declaring a two-year limitation on all actions not otherwise specifically provided for.
White, 103 Wn. at 329.
The distinction set forth in cases like Suter and White has been applied in more recent decisions issued by Washington appellate courts. For example, in Will v. Frontier Contractors, Inc., 121 Wn. App. 119, 89 P.3d 242 (20024), Division 2 of the Washington Court of Appeals concluded that a negligence claim against a contractor premised on flooding on the plaintiff’s real property allegedly caused by a contractor was subject to the “catch-all” two-year statute of limitations provided by RCW 4.16.130. In Will, Frontier Contractors (“Frontier”) sold a home it had constructed to Will in 1994. Will, 121 Wn. App. at 122. In 1996, Will experienced severe flooding, caused in part by runoff from the construction of a school on adjoining property. Id. Said flooding continued through June 1999. Id. In May 2000, Will sued Frontier, alleging, inter alia, that Frontier had been negligent. Id.
On appeal, Division 2 analyzed the trial court’s decision to grant Frontier’s motion for summary judgment, premised in part on the position that Will’s negligence claim was barred by the two-year statute of limitations provided in RCW 4.16.130. Id., 121 Wn. App. at 125. Division 2 agreed that Will’s negligence claim should be dismissed because Will was aware of the flooding more than three years before Will filed suit, and therefore the two-year statute of limitations pursuant to RCW 4.16.130 barred Will’s negligence claim against Frontier. Id.
By way of another example, in Wolfe v. Department of Transportation, 173 Wn. App. 302, 293 P.3d 1244 (2013), certain property the plaintiffs purchased in 2003 and 2004 experienced erosion. Wolfe, 173 Wn. App. at 304. An environmental engineer concluded bridge piers that the State installed in 1986 constituted the cause of the erosion. Id. In response to a lawsuit the property owners filed against the Department of Transportation in 2010 alleging, inter alia, negligence on the part of the State (i.e., the Department of Transportation), the Department of Transportation asserted the negligence claim was barred by the two-year statute of limitations provided by RCW 4.16.130. See id. Both the trial court and the appellate court (Division 2) agreed. Id., 173 Wn. App. at 305. The appellate court (Division 2) noted that “RCW 4.16.130 prescribes a two-year statute of limitations for actions asserting negligent injury to real property.” Id., 173 Wn. App. at 306 (citing Wallace v. Lewis County, 134 Wn. App. 1, 13, 137 P.3d 101 (2006)). Because the plaintiffs did not file suit within the applicable two-year limitations period, their negligence claim against the Department of Transportation was barred. Id.
While other issues relevant to whether a statute of limitations applies may exist, including when a cause of action is deemed to have accrued, as cases like Suter, White, Will, and Wolfe demonstrate, assuming a specific statute of limitations governs a claim can have devastating consequences for a potential claimant. For a defendant, knowing what defenses may exist to a claim is paramount. In short, understanding of the nuances in Washington law regarding what statute of limitations applies to a claim can make or break a case.
If you have an issue related to alleged negligent injury to real property, it is imperative to speak with an attorney as soon as possible to ensure you timely initiate a claim or, from the defense perspective, do not miss an opportunity to assert a potentially dispositive defense.
The lawyers at Beresford Booth have extensive experience to guide you through the complex issues involved. Do not hesitate to contact us at info@beresfordlaw.com or by phone at (425) 776-4100.
