What is the test for maintaining a personal injury claim?

The only sure way to determine whether a suit can be maintained is to try it. The application of the statute of limitations cannot be made to depend upon the constantly shifting state of the law, and a suitor cannot toll or suspend the running of the statute by relying upon the uncertainties of controlling law. It is incumbent upon him to test his right and remedy in the available forums.

Id. at 524-25 (quoting Versluis v. Town of Haskell, 154 F.2d 935, 943 (10th Cir.1946)).