Deadlines for Minors and Other Tolling Rules Under R.C. 2305.16

Published December 22, 2015 · Injury Law Basics

Near the end of every year I get a version of the same call. A child was hurt in a crash a year or two ago. The family was told, by a relative, by an adjuster, sometimes by a lawyer, that "you have until he turns twenty" to do anything about it, so they have been waiting. Some of what they were told is true. Some of it is dangerously incomplete. This post explains what Ohio's tolling statute actually does, who it protects, who it does not, and why "we have time" is rarely a good reason to wait.

The general rule: two years

Under R.C. 2305.10(A), a claim for bodily injury in Ohio must be filed within two years after the cause of action accrues, which for most injuries means two years from the date of the crash or fall. We covered the basics in an earlier post on the two-year deadline. Miss it and the claim is gone, no matter how strong.

What R.C. 2305.16 does

Ohio's tolling statute, R.C. 2305.16, pauses that clock for two groups of people. If the person entitled to bring the claim is, at the time the claim accrues, under the age of eighteen or "of unsound mind," the person may bring the claim within the usual time limit after the disability is removed. In plain terms:

• A child injured at age ten has until two years after her eighteenth birthday, that is, until she turns twenty, to file her own injury claim.
• A person of unsound mind at the time of the injury, for example someone with severe dementia or a profound cognitive disability, has two years after the condition ends. For many people in that situation the disability never ends, and the claim is effectively open until it does.

The statute also addresses a person who becomes of unsound mind after the claim accrues. In that case the clock stops only while the person is adjudicated incompetent by a court or is confined in an institution or hospital under a diagnosed condition that renders him of unsound mind. A person who is simply struggling, without an adjudication or confinement, does not get the benefit of the pause.

Finally, the statute provides that where the interests of two or more parties are "joint and inseparable," one party's disability protects all of them. That sentence matters more than it looks. In Fehrenbach v. O'Malley, 113 Ohio St.3d 18 (2007), the Supreme Court of Ohio held that a parent's claim for an injured child's medical expenses and loss of companionship is joint and inseparable from the child's own claim, so the parents' deadline can be paused along with the child's.

The parents' own claim. When a child is injured, the child has a claim for her pain, suffering, and permanent injury. The medical bills belong, as a matter of Ohio law, to the parents, who are legally responsible for them. Under Fehrenbach, the parents' claim for those expenses can share the child's paused deadline. But the parents' claim and the child's claim generally must be brought together, and every year of delay gives the defense more room to argue about what the bills were for and whether the treatment was related. Families should not plan on waiting. We discussed the structure of a child's case, including the probate court's role in approving settlements, in our 2014 post on child injury claims.

Who does not get extra time

This is where families get hurt.

Wrongful death. Ohio's wrongful-death statute, R.C. 2125.02, requires that the action be commenced within two years after the decedent's death. The tolling statute, by its own terms, applies to deadlines in R.C. 2305.04 through 2305.14; the wrongful-death deadline lives in a different chapter and does not contain its own tolling provision for minors. A wrongful-death claim is brought by the personal representative of the estate for the benefit of the family, so the fact that the surviving children are minors does not extend it. Two years from the death is the rule.

Insurance policy deadlines. Your own uninsured and underinsured-motorist coverage, and your medical-payments coverage, are contracts. Many policies impose notice requirements and their own time limits for making a claim or filing suit. Those are matters of contract, and the tolling statute does not rewrite them. Read the policy, or have a lawyer read it, promptly.

Claims against the government: tolled, but watch the other rules

Here the news is better than many people assume. Claims against cities, counties, townships, and school districts must generally be filed within two years under R.C. 2744.04(A), and claims against the State of Ohio in the Court of Claims within two years under R.C. 2743.16(A). Both statutes expressly provide that their two-year periods are tolled under R.C. 2305.16. So a child's own claim against a city or the state is paused during minority, just as a claim against a private driver would be.

But do not let that lull you. Government cases carry other requirements, immunity defenses, and evidence problems that have nothing to do with the filing deadline, which we outline on our claims against the government page.

Why "we have until he turns twenty" is dangerous thinking

Even where tolling applies, waiting is a mistake, for reasons that have nothing to do with the statute.

Evidence disappears. Tolling pauses a deadline. It does not preserve a single piece of evidence. Surveillance video is overwritten in days. Vehicles are repaired or scrapped. Witnesses move and forget. Phone records are purged. A case filed when the child is nineteen about a crash that happened when she was twelve may be legally timely and factually unprovable.

Insurance disappears. The at-fault driver's policy may lapse, the insurer may become insolvent, or the driver may die, which triggers a separate short deadline for claims against an estate. The sooner a claim is presented, the sooner coverage is confirmed and preserved.

Medical causation gets harder. A child's injury at ten, evaluated at nineteen, invites every argument about intervening causes: sports injuries, growth, a later fall. Prompt evaluation ties the injury to the crash while the connection is fresh.

Settlement value may be higher, not lower, early. For permanent injuries, we often want to wait until a child's prognosis is clear before settling. That is a strategic decision about when to resolve a claim that has already been investigated and preserved, which is very different from doing nothing for seven years.

How tolling actually helps

Used correctly, R.C. 2305.16 is valuable. It means a child's claim does not have to be rushed to filing before the full extent of a growth-plate fracture, a brain injury, or facial scarring is known. It means a family that only learned of the law when the child was seventeen has not lost the child's claim. And it protects adults with cognitive disabilities who cannot protect themselves. The right approach is to investigate, preserve evidence, confirm coverage, and plan to bring the family's claims together once the medical picture is clear, rather than letting years slide by.

What this means for you

If your child was injured, treat the longer deadline as breathing room for the medical prognosis, not as permission to wait. If a family member with a serious cognitive disability was injured, the deadline may be tolled, but the proof will not keep. And if someone has died, two years from the date of death governs the wrongful-death claim regardless of the age of the survivors. In every case, the cheapest and safest step is a conversation with a lawyer now.