D.C. Court Finds A Piggyback Statute Of Limitations In Segway-Crash Case

According to court filings, on October 11, 2019, a Segway struck Marilyn Kubichek and Dorothy Baldwin as they strolled along a D.C. sidewalk.

On December 20, 2022, they filed two complaints in the Superior Court based on the Segway incident – one against the operator of the Segway that they said hit them, and one against the tour organizer.  The cases were consolidated into one proceeding, Kubichek et al. v. Unlimited Biking  et al.

Unfortunately for Ms. Kubichek and Ms. Baldwin, the statute of limitations for negligence in D.C. is three years.  Their claims had become untimely before they filed their complaints. 

Defendant Eduardo Samonte asserted the statute of limitations in a motion to dismiss, which was granted.

In fact, the order granting Mr. Samonte’s motion actually dismissed the case against both defendants.  But the other defendant, Unlimited Biking, had not asserted the statute of limitations.

The question for the Court of Appeals was whether the complaint against Unlimited Biking could be dismissed based on Mr. Samonte’s motion.

Generally speaking, it’s on a defendant to assert the statute of limitations as a defense to the claims against it.  Courts don’t do that on their own, and a defendant that fails to assert the statute in its answer to the complaint, or in a motion to dismiss, typically waives the defense.

The Court of Appeals returned to a 1993 case called Feldman, which had suggested that a trial court might have the power to invoke the statute-of-limitations defense on its own, but only if it “is clear from the face of the complaint” that the statutory period has expired.  

In the Kubichek case, the Court of Appeals found that it was not clear from the complaints that the statute of limitations had expired.

So – back to court for Unlimited Biking, right?

Not so fast.  The Court of Appeals proceeded to fashion a new, “narrow exception” whereby the dismissal of the complaint against Unlimited Biking could be affirmed.

The rule used by the Court appears to work this way: 

One defendant asserts the statute of limitations.

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The plaintiffs have a chance to litigate the issue.

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The facts relevant to the application of the statute of limitations are not disputed.

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The relevant facts are the same with respect to both defendants.

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The trial court may dismiss claims against a defendant that did not assert the statute of limitations.

No litigator or party should neglect to assert a statute-of-limitations defense at the earliest opportunity in a case where the defense may apply.  But, after Kubichek, if you are so neglectful, your co-defendant may save you.

Just one more reason why persons who have been harmed and believe they have legal claims should be careful not to wait too long to go to court.