§ 25-208 — Actions for libel, slander, malpractice, and recovery of tax

Nebraska § 25-208

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

The following actions can only be brought within the periods stated in this section: Within one year, an action for libel or slander; and within two years, an action for malpractice which is not otherwise specifically limited by statute.
In the absence of any other shorter applicable statute of limitations, any action for the recovery of any excise or other tax which has been collected under any statute of the State of Nebraska and which has been finally adjudged to be unconstitutional shall be brought within one year after the final decision of the court declaring it to be unconstitutional. This section shall not apply to any action for the recovery of a property tax.
The changes made to this section by Laws 2000, LB 921, shall apply to causes of action accruing on and after July 13, 2000.

Legislative History

Source: R.S.1867, Code § 13, p. 395; R.S.1913, § 7570; C.S.1922, § 8513; C.S.1929, § 20-208; Laws 1933, c. 42, § 1, p. 248; Laws 1937, c. 43, § 1, p. 187; C.S.Supp.,1941, § 20-208; R.S.1943, § 25-208; Laws 1972, LB 1132, § 2; Laws 1991, LB 829, § 2; Laws 2000, LB 921, § 2. Annotations: 1. Libel and slander 2. Assault and battery 3. Malicious prosecution 4. Penalty or forfeiture 5. Malpractice 6. Miscellaneous 1. Libel and slander Publication of slander occurs when the words are spoken to and understood by a third party to pertain to the individual slandered. The statute of limitations on slander under this section begins to run from publication and will not be tolled unless the slanderer wrongfully concealed a material fact necessary for the accrual of the cause of action. Mere ignorance concerning the alleged slanderer's identity will not toll the statute of limitations. Lathrop v. McBride, 209 Neb. 351, 307 N.W.2d 804 (1981). The statute of limitations in a libel action commences to run upon publication of the defamatory matter upon which action is based. Patterson v. Renstrom, 188 Neb. 78, 195 N.W.2d 193 (1972). Action for damages for wrongfully encumbering plaintiff's title to real estate is a slander of title action and barred in one year. Gentry v. State, 174 Neb. 515, 118 N.W.2d 643 (1962). Action for libel must be commenced within one year of publication of defamatory matter. Tennyson v. Werthman, 167 Neb. 208, 92 N.W.2d 559 (1958). Actions for slander of title must be brought within one year. Norton v. Kanouff, 165 Neb. 435, 86 N.W.2d 72 (1957). Action for libel must be brought within one year. Reller v. Ankeny, 160 Neb. 47, 68 N.W.2d 686 (1955). A cause of action for libel or slander accrues on the date of publication of the defamatory matter. Publication of an allegedly libelous statement occurs when it is communicated to someone other than the person defamed. Vergara v. Lopez-Vasquez, 1 Neb. App. 1141, 510 N.W.2d 550 (1993). 2. Assault and battery Action for a battery is founded upon an intentionally administered injury to the person. Newman v. Christensen, 149 Neb. 471, 31 N.W.2d 417 (1948). Action by husband for damages for assault and battery committed upon wife is barred unless brought within one year after the cause of action accrued. Markel v. Glassmeyer, 137 Neb. 243, 288 N.W. 821 (1939). Action of damages for assault and battery must be brought within one year. Borchert v. Bash, 97 Neb. 593, 150 N.W. 830 (1915). 3. Malicious prosecution Statute does not begin to run in a case of malicious prosecution until the criminal case is dismissed, or the prosecution otherwise finally terminated. Hackler v. Miller, 79 Neb. 209, 114 N.W. 274 (1907). 4. Penalty or forfeiture Plaintiffs' causes of action for refunds of taxes paid in years prior to decision determining illegality of tax were barred by statute of limitations. Wats Mktg. of America v. Boehm, 242 Neb. 252, 494 N.W.2d 527 (1993). A statute that permits injured party to recover treble damages authorizes the collection of a penalty. Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960). Action to recover amounts paid under Industrial Loan Act was not one to recover a penalty. Jourdon v. Commonwealth Co., 170 Neb. 919, 104 N.W.2d 681 (1960). Action against stockholder of a corporation for failure of corporation to publish annually notice of existing indebtedness is penal in nature, and must be brought within one year after cause of action accrued. Hoffman v. Geiger, 134 Neb. 643, 279 N.W. 350 (1938), reversed on rehearing 135 Neb. 349, 281 N.W. 625 (1938). Action against bank director for participating in or knowingly assenting to an excessive loan is not penal, and is not governed as to statute of limitations by this section. Department of Banking v. McMullen, 134 Neb. 338, 278 N.W. 551 (1938). Liability of stockholder, under Article XII, section 4, Constitution of Nebraska, is not a penalty, and is not barred in one year under this section. Bourne v. Baer, 107 Neb. 255, 185 N.W. 408 (1921). Action for statutory penalty is barred if not brought in one year from date of accrual. Sheibley v. Cooper, 79 Neb. 232, 112 N.W. 363 (1907), rehearing denied 79 Neb. 336, 113 N.W. 626 (1907). 5. Malpractice A single professional relationship will not be separated into various parts for the purpose of applying to one part of that relationship the fraud period of limitations found in section 25-207 and to another part the malpractice period of limitations found in this section. St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993). When an issue of consent to medical treatment is raised, the controlling statute of limitations is that for malpractice actions. Jones v. Malloy, 226 Neb. 559, 412 N.W.2d 837 (1987). A cause of action for medical malpractice does not accrue until the patient discovers, or in the exercise of reasonable diligence should have discovered, the malpractice. Taylor v. Karrer, 196 Neb. 581, 244 N.W.2d 201 (1976). Special two-year statute of limitations controlled action against doctor based on erroneous blood typing by his employee. Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976). In a malpractice action, the limitation does not begin to run until the patient discovers or with reasonable diligence could have discovered the injury, and a patient has used reasonable diligence where she fails to discover because of the surgeon's repeated assurances of recovery and recommendations for therapy to aid in recovery. Toman v. Creighton Memorial St. Joseph's Hosp., Inc., 191 Neb. 751, 217 N.W.2d 484 (1974). In a malpractice action against a physician, the statute of limitations does not commence to run until act of malpractice with resulting injury was, or by the use of reasonable diligence could have been, discovered. Acker v. Sorensen, 183 Neb. 866, 165 N.W.2d 74 (1969). Special statute as to malpractice was controlling over general statute of limitations applicable to actions based on fraud. Stacey v. Pantano, 177 Neb. 694, 131 N.W.2d 163 (1964). A cause of action against a physician for failure to remove a foreign object left in the body of a patient does not accrue until the patient discovers, or in the exercise of reasonable diligence should have discovered, the presence of the foreign object. Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962). Action in a malpractice suit does not commence to run until the treatment ends. Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121 (1941). 6. Miscellaneous The 1-year discovery exception provided for in this section only applies if the injured party did not know or could not reasonably have discovered the existence of the cause of action within the time period provided for in this section. The 1-year discovery exception provided for in section 25-222 does not apply in actions governed under this section if the injured party knew or could reasonably have discovered the cause of action within the time set forth in this section. Berntsen v. Coopers & Lybrand, 249 Neb. 904, 546 N.W.2d 310 (1996). The discovery doctrine set out in section 25-222 permitting commencement of the action within 1 year from discovery, if discovery could not reasonably have occurred sooner, applies to the period of limitations set forth in this section. St. Paul Fire & Marine Ins. Co. v. Touche Ross & Co., 244 Neb. 408, 507 N.W.2d 275 (1993). Action to recover amount paid by city on void contract was not barred under this section. Arthur v. Trindel, 168 Neb. 429, 96 N.W.2d 208 (1959). Section 25-219 was applicable to federal civil rights claim of former guidance counselor in action against school district on allegations dismissal was due to his race and his exercise of First Amendment rights. Chambers v. Omaha Public School Dist., 536 F.2d 222 (8th Cir. 1976).