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1-00-2152

First Division
June 18, 2001

JUSTICE COHEN delivered the opinion of the court:

Plaintiff, Stephen Greb, filed a negligence complaintagainst defendant, City of Chicago (the City), seeking damagesfor injuries he sustained while riding his motorcycle on RiverRoad as the street was undergoing repair. The trial courtdismissed plaintiff's claim against the City for failure to filesuit within the period described in the applicable statute oflimitations. We affirm.

Background

On August 28, 1994, plaintiff was driving his motorcyclenorth on River Road when he encountered road repair work. Asplaintiff followed the routing of traffic through theconstruction site, he drove over some loose stones, skidded, lostcontrol of his vehicle and, colliding with one of the barricades,suffered personal injuries.

On August 28, 1995, plaintiff filed a negligence complaintagainst the Forest Preserve District of Cook County, the State ofIllinois, the Illinois Department of Transportation and theCounty of Cook. Plaintiff alleged that those entitiesnegligently maintained and marked a barricaded water mainmaintenance job site on River Road in the village of SchillerPark. On October 25, 1996, plaintiff filed an amended complaintnaming Western Industries, Inc., and Vulcan Materials Company asadditional defendants. The State of Illinois and the IllinoisDepartment of Transportation were omitted as defendants in thefirst amended complaint. Plaintiff filed a second amendedcomplaint on February 18, 1997, adding the City of Chicago as adefendant. The City filed a motion to dismiss pursuant toSection 2-619 of the Illinois Code of Civil Procedure (the Code)(735 ILCS 5/2-619 (West 2000)), alleging that plaintiff failed tocomply with the one year statute of limitations in the LocalGovernment and Governmental Employees Tort Immunity Act (the TortImmunity Act) (745 ILCS 10/8-101(West 2000)).

Plaintiff argues that the circuit court should have appliedthe four year statute of limitations for causes of actionrelating to construction design management and supervision foundin section 5/13-214 of the Code. 735 ILCS 5/13-214(West 2000). At issue is whether the controlling statute of limitations is theone year designated in section 8-101 of the Tort Immunity Act orthe four years designated in section 5/13-214 of the Code. Wereview de novo the circuit court's order granting the City'smotion to dismiss. Phelan v. Keiser, 312 Ill.App.3d 573, 574,727 N.E.2d 390, 391 (2000).

Analysis

The purpose of a statue of limitations is "to discourage thepresentment of stale claims and to encourage diligence in thebringing of actions." Tom Olesker's Exciting World Fashion, Inc.v. Dunn & Bradstreet, Inc., 61 Ill. 2d 129, 137, 334 N.E.2d 160,164 (1975). When deciding which of two conflicting statutes oflimitations is more specifically applicable to a plaintiff'scase, courts in Illinois have traditionally considered the natureof the claims and the type of injuries sustained. Cleaver v.Marrese, 253 Ill. App. 3d 778, 782-83, 625 N.E.2d 1129, 1132-33(1993). However, in Tosado v. Miller, 188 Ill. 2d 186, 720N.E.2d 1075 (1999), a medical malpractice case, the IllinoisSupreme Court held that when choosing between the statute oflimitations contained in the Tort Immunity Act and that found insection 13-212 of the Code (735 ILCS 5/13-212 (West 2000)), thefocus "should be on the nature of the defendants rather than onthe type of cause of action." Tosado, 188 Ill. 2d at 195, 720N.E.2d at 1080.

The Tosado court's departure from the general rule waspredicated on the court's belief that the legislature intendedthe Tort Immunity Act to protect a special class of defendants,namely, local governmental entities and their employees.

"The legislature *** specifically stated that itspurpose was 'to protect local public entities andpublic employees from liability arising from theoperation of government.' 745 ILCS 10/1-101.1(a)(West 1994). In enacting the Tort Immunity Act thelegislature focused on a particular category ofpotential defendants and granted local governmentalentities and their employees greater protection thannon-governmental entities and their employees."  Tosado, 188 Ill. 2d at 195, 720 N.E.2d at 1080.

The Tort Immunity Act represents a narrowing of thelimitations period applicable to suits against local governmentalentities. As the supreme court stated:

"This court recognized the legislative intent behindthe Tort Immunity Act in Saragusa v. City of Chicago,63 Ill.2d 288, 348 N.E.2d 176 (1976). *** In Saragusa,this court stated that the purpose of the limitationperiod contained in section 8-101 'is to encourageearly investigation into the claim asserted against thelocal government***' Saragusa, 63 Ill.2d at 293, 348N.E.2d 176. Such an investigation permits promptsettlement of meritorious claims and allowsgovernmental entities to plan their budgets in light ofpotential liabilities. Reynolds v. City of Tuscola, 48Ill. 2d 339, 342, 270 N.E.2d 415 (1971). The court inSaragusa further stated that '[b]ecause a localgovernment entity must anticipate that the number ofclaims made against it will far exceed those broughtagainst a private individual, the provision of anabridged period of time within which a claim must beasserted is reasonable.' Saragusa, 63 Ill.2d at 293,348 N.E.2d 176." Tosado, 188 Ill. 2d at 195, 720N.E.2d at 1080.

Mandated by the new direction set by the supreme court inTosado, Tosado's holding has been applied outside of the medicalmalpractice arena. In Roark v. Macoupin Creek Drainage Dist.,316 Ill.App.3d 835, 738 N.E.2d 574 (2000), plaintiff sued fordamages resulting from failure to maintain a drainage system. An issue on appeal was whether the controlling statute oflimitations was the one year designated in the Tort Immunity Actor the five years designated in section 5/13-205 of the Code (735ILCS 5/13-205 (West 1992)). The Roark court held that Tosado wascontrolling because the defendant was a local governmental entityand therefore section 8-101 was the statute of limitations to beapplied.⁽¹⁾ 316 Ill.App.3d at 846, 738 N.E.2d at 584.

Subsequent to Roark, the supreme court reinforced itsinterpretation of the Tort Immunity Act in Ferguson v. McKenzie,No. 89144 (Ill. Jan. 29, 2001). The court held in Ferguson thatbecause the purpose of the Tort Immunity Act is to protect localgovernmental entities from stale claims, Ferguson, No. 89144,slip op. at 5 (Ill. Jan. 29, 2001), the one year limitationsperiod of the Tort Immunity Act was applicable to wrongful deathclaims against Cook County. In Ferguson, the court had todetermine the appropriate limitations period where "an heir in awrongful death claim was a minor when the cause of actionaccrued, but whose claim against Cook County was not broughtuntil her nineteenth birthday." Ferguson, No. 89144, slip op. at1 (Ill. Jan. 29, 2001). The court struck a balance betweensection 13-212(b) of the Code (735 ILCS 5/13-212(b) (West 2000))which allows a minor eight years to file suit, and section 8-101of the Tort Immunity Act by holding that section 13-212(b)applies until the heir reaches the age of eighteen, at whichpoint the one year period designated in section 8-101 of the TortImmunity Act begins to run. Since the heir in Ferguson failed tofile suit within one year after the heir's eighteenth birthday,the claim was time-barred. Ferguson, No. 89144, slip op. at 5(Ill. Jan. 29, 2001).

Our supreme court has repeatedly stated that legislativeintent is the "primary inquiry and controls the court'sconstruction of a statute." Ferguson, No. 89144, slip op. at 4(Ill. Jan. 29, 2001), quoting Collins v. Board of Trustees of theFireman's Annuity & Benefit Fund, 155 Ill. 2d 103, 111, 610N.E.2d 1250, 1253 (1993). The legislative intent of the TortImmunity Act is to narrow the statute of limitations for any tortaction against local governmental entities and local governmentalemployees. Ferguson, No. 89144, slip op. at 5 (Ill. Jan. 29,2001); Tosado, 188 Ill. 2d at 195, 720 N.E.2d at 1080.

The analysis in Tosado is clearly applicable to any claim intort against a local governmental entity or local governmentalemployee. In his concurring opinion in Tosado, Justice Heiplestated "[b]y its very nature then, section 8-101 was designed toapply broadly to any possible claim against a local governmentalentity and its employees. This type of comprehensive protectionnecessarily controls over other statutes of limitations. ***[T]he fact that the legislature created an across-the-board rulelimiting the time in which to file 'any action' against a publicentity or its employees to one year is powerful evidence that thelegislature intended the more general statute to be controlling." Tosado, 188 Ill. 2d at 200, 720 N.E.2d at 1083 (Heiple, J.,concurring).

Given the clear intent of the legislature and the supremecourt's decisions in Tosado and Ferguson, we hold that when aparty seeks to sue a local governmental entity or its employeesin tort, the Tort Immunity Act's one year statute of limitationsapplies because the Tort Immunity Act is more specific to thetype of defendant than section 13-214 of the Code. As toplaintiff's assertion that the decision in Zimmer v. Village ofWillowbrook, 242 Ill.App.3d 437, 610 N.E.2d 709 (1993)⁽²⁾ shouldcontrol this court, we share with plaintiff's attorney thefollowing insight into the Illinois court system: as theappellate court, we have neither the authority to abandon supremecourt precedent (Bainter v. Village of Algonquin, 285 Ill.App.3d745, 755, 675 N.E.2d 120, 128 (1997)), nor do we have theauthority to amend or to annex a statute (In re M.M., 156 Ill. 2d53, 69, 619 N.E.2d 702, 711 (1993)). Plaintiff's assertion,which this court realizes is in essence a wing and a prayer, willnot fly. This court need not consider the point further.

Adding the City as a defendant two years after the firstcomplaint was filed exceeds the one year statute of limitationsprovided by the Act. Plaintiff's claim against the City isstale. The circuit court was correct to dismiss the claim underTosado.

We affirm the circuit court's order dismissing plaintiff'sclaim against the City.

Affirmed.

McNULTY, P.J., and O'MARA FROSSARD, J., concur.

1. In deference to the strong dissent in Tosado, the court inRoark also found section 8-101 of the Tort Immunity Act to be"more specifically applicable" to the type of action plaintiffbrought against the defendant. 316 Ill.App.3d 835, 846, 738N.E.2d 574, 584 (2000)

2. At issue in Zimmer, as in the present case, was whether,in a suit for property damage by flooding against a localgovernmental entity, the controlling statute of limitations wascontained in the Tort Immunity Act or section 5/13-214 of theCode. Decided six years before Tosado, the court in Zimmer heldthat the four year statute of limitations designated in section13-214 was a narrow exception to the Tort Immunity Act becausethe provision was more particular to the court's finding that thepond and culvert construction constituted an improvement to theland.