Abstract:
Any tort claim is barred by an applicable statute of limitations after the lapse of a prescribed period of time from its initial accrual. Where the occurrence giving rise to the claim has some continuing feature – e.g., continuous trespass, continuous environmental nuisance, continuous discrimination or sexual harassment, continuous professional malpractice, a continuous or repetitive publication which harms the right to reputation, the right to privacy or copyright, and so forth – it is generally agreed that the limitation period is effectively tolled, so that the claim may also be filed subsequent to that date. Yet, essential questions about the application of statutes of limitations to continuing tort claims remain unanswered, or are answered in a plethora of contradicting ways.
Various positions voiced by judges and scholars in this respect, under the confines of the so-called “continuing tort doctrine” or “continuing violation doctrine,” have not only failed to obtain consensus and infuse the issue with clarity, but are also generally problematic in several respects. First, while it is intuitively deemed justified to prolong the limitation period where the wrongful occurrence is continuous, such intuition has not been successfully translated into a distinct, coherent, and defendable policy rationale. Second, the tests devised to define when torts are legally continuing do not yield consistent, predictable results, both due to the lack of a proper theoretical foundation on which they may be based, and since it is often inherently difficult to separate a given tortious event into discrete factual and normative components. Third, little efforts have been made to design a remedy that would be particularly suitable for the continuing tort scenario.
This article wishes to address the aforementioned flaws by offering a new theoretical perspective for the continuing violation doctrine, which challenges the implied, unquestioned premises currently underlying it, and by deriving from it a more coherent proposal for the doctrine’s application. Under the proposed analytical framework, the doctrine should not entitle the victim of a continuing tort for any compensation for her past losses; her eligibility for such compensation is better dealt with by other limitations doctrines. Rather, the only legitimate concern of the continuing violation doctrine is preventing the potentially infinite continuance of torts into the future. This construction coincides with the general principles and objectives of statutes of limitations, yields a relatively simple practical test which is primarily forward-looking and thus obviates most of the chronology-related complications, and generates a more just, balanced and efficient remedy scheme, at the center of which stands an injunctive relief ordering the defendant to put an end to the injurious state of affairs.
Peled, Elad, Rethinking the Continuing Violation Doctrine: The Application of Statutes of Limitations to Continuing Tort Claims (May 13, 2014). Ohio Northern University Law Review, Vol. 41, No. 2, 2015, forthcoming.
First posted 2014-05-14 06:38:49
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