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Calaway ex rel Calaway v. Schucker12/9/2005
3d 916 (Tenn. 2005), that the statute of repose is not tolled by the plaintiff's minority.
The two statutes at issue here state, respectively, as follows:
Tennessee Code Annotated section 28-1-106:
If the person entitled to commence an action is, at the time the cause of action accrued, either within the age of eighteen (18) years, or of unsound mind, such person, or such person's representatives and privies, as the case may be, may commence the action, after the removal of such disability, within the time of limitation for the particular cause of action, unless it exceeds three (3) years, and in that case within three (3) years from the removal of such disability.
Tennessee Code Annotated section 29-26-116:
(a)(1) The statute of limitations in malpractice actions shall be one (1) year as set forth in ยง 28-3-104. (2) In the event the alleged injury is not discovered within such one (1) year period, the period of limitation shall be one (1) year from the date of such discovery.(3) In no event shall any such action be brought more than three (3) years after the date on which the negligent act or omission occurred except where there is fraudulent concealment on the part of the defendant, in which case the action shall be commenced within one (1) year after discovery that the cause of action exists.(4) The time limitation herein set forth shall not apply in cases where a foreign object has been negligently left in a patient's body, in which case the action shall be commenced within one (1) year after the alleged injury or wrongful act is discovered or should have been discovered.
We begin our analysis by noting the distinction between statutes of limitations and statutes of repose. A statute of limitation normally governs the time within which legal proceedings must be commenced after a cause of action accrues. A statute of repose, on the other hand, limits the time within which an action may be brought and is unrelated to the accrual of any cause of action. Jones v. Methodist Healthcare, 83 S.W.3d 739, 743 (Tenn. Ct. App. 2001).
A further distinction is that statutes of repose are substantive rather than procedural. "Statutes of repose are substantive and extinguish both the right and the remedy while statutes of limitations are procedural, extinguishing only the remedy." Id. Thus, a statute of repose typically does not bar a cause of action; its effect, rather, is to prevent what might otherwise be a cause of action from ever arising. . . . The injured party literally has no cause of action. The harm that has been done is damnum absque injuria-a wrong for which the law allows no redress. The function of the statute is thus rather to define substantive rights than to alter or modify a remedy. Rosenberg v. Town of North Bergen, 293 A.2d 662, 667 (N.J. 1972) (emphasis in original). A statute of repose, however, does not always extinguish the cause of action before it accrues: "`Where the injury occurs within the [repose] period, and a claimant commences his . . . action after the [repose] period has passed, an action accrues but is barred. Where the injury occurs outside the [repose] period, no substantive cause of action ever accrues, and a claimant's actions are likewise barred.'" Penley, 31 S.W.3d at 184 (quoting Gillam v. Firestone Tire & Rubber Co., 489 N.W.2d 289, 291 (Neb. 1992)). In short, " tatutes of repose operate differently than statutes of limitation" because statutes of repose impose "an absolute time limit within which action must be brought." Penley, 31 S.W.3d at 184 (emphasis added).
In light of the distinction between statutes of limitations and repose, we note that this Court has consistently c
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