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Hager v. Il In One Contractors, Inc.

Case Date: 09/05/2003
Court: 1st District Appellate
Docket No: 1-01-4222 Rel

1-01-4222



STEVEN HAGER and EMILIE HAGER, ) Appeal from the
) Circuit Court
                                     Plaintiffs-Appellants, ) of Cook County.
)
            v. ) No. 00 L 12872
)
II IN ONE CONTRACTORS, INC., an Illinois )
Corporation, THE CITY OF CHICAGO, a Municipal )
Corporation, and PUBLIC BUILDING COMMISSION )
OF CHICAGO, ) Honorable
) Phillip L. Bronstein,
                                     Defendants-Appellees. ) Judge Presiding.

 

JUSTICE REID delivered the opinion of the court:

At issue in this case is the question of which of two statutes of limitations applies to theunderlying dispute: the one-year or the four-year statute. The trial court, after holding that theone-year statute of limitations applied, granted a motion to dismiss. For the reasons that follow,we reverse the trial court's decision and remand the matter for further proceedings.

BACKGROUND

Steven Hager, an employee of Walsh Construction (Walsh), was injured while working asa construction worker on a jobsite controlled by the City of Chicago (City) through the auspicesof the Public Building Commission of the City of Chicago (Commission). The project involvedthe design and construction of the new Chicago police headquarters located at 3510 SouthMichigan Avenue. Hager and his wife filed suit against II in One Contractors (II in One), theCity, and the Commission. II in One, a subcontractor on the project, was hired to provide, pour,place and finish the concrete for the project. Hager was injured when he slipped and fell ondebris resulting from concrete overpour and pieces of loose concrete left on the ground. Thecomplaint, filed one day short of two years following the date of the occurrence, allegednegligence and loss of consortium. Hager's complaint contains many allegations of negligenceon the part of the defendants, which can be grouped as follows: (1) failure to make reasonableinspections, (2) improper operation, management, maintenance and control of the concrete work,(3) failure to provide a safe place to work, (4) failure to warn of the dangerous conditions whenthe defendants knew or should have known the dangers, and (5) failure to provide adequatesafeguards and instructions, including safety training.

A default judgment was entered against the Commission for its failure to appear, answeror otherwise plead. That default judgment was subsequently vacated. The City and theCommission then filed a motion seeking dismissal pursuant to section 2-619 of the Code of CivilProcedure and section 8-101 of the Local Governmental and Governmental Employees TortImmunity Act (745 ILCS 10/8-101 (West 2000)) (Tort Immunity Act). The City andCommission argued their status as local public entities required the application of a shorterstatute of limitations. Hager argued that the controlling statute of limitations is four years, basedupon section 13-214 of the Code of Civil Procedure (735 ILCS 5/13-214 (West 2000))(hereinafter Construction Act). The trial court dismissed the complaint at issue pursuant tosection 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2000). In granting themotion, the trial court relied heavily upon the holding in Greb v. Forest Preserve District, 323 Ill.App. 3d 461 (2001).

ARGUMENTS OF THE PARTIES

Hager argues that the trial court erred in granting the motion to dismiss because the four- year statute of limitations governs. He claims the trial court's ruling violates the plain languageof the Construction Act and fails to treat both statutes consistently, giving each full effect. Hagersuggests that the court's main goal should be to give effect to the intent of the legislature. Hebelieves the inquiry should start with the plain language of the statute itself. Hager argues that,when two legislative schemes do not seem completely compatible, they should be interpreted sothat meaning is given to both. Hager believes the statute of limitations identified in section 13-214 should control because the action arises out of the supervision and management of theconstruction of an improvement to real property.

According to Hager, pursuant to the Tort Immunity Act, the government is only immunefrom specific things in the Act. Hager contends that the two statutes can be read together,holding that general claims against a municipality are governed by a one-year statute, unless theclaim involves construction activities. Hager acknowledges the holdings in Tosado v. Miller,188 Ill. 2d 186 (1999), and Ferguson v. McKenzie, 202 Ill. 2d 304 (2001), that the statute oflimitations in the Tort Immunity Act controls over the medical malpractice statute of repose (735ILCS 5/13-212(a) (West 2000)) but argues that those cases are different from this one, in thatthose cases involve a general medical malpractice limitation. Hager argues that Greb failed toanalyze the language of the statute first. Hager also urges this court not to follow the Tosadocase because that case was a plurality without precedential value.

The City responds that, under Illinois precedent and public policy, the Hagers' cause ofaction against the City and Commission, both public entities, is barred by the one-year statute oflimitations. The City directs this court to Greb, a case involving a plaintiff injured when hismotorcycle encountered road repair work. As the Greb plaintiff followed the rerouting ofconstruction traffic, he drove over loose stones, skidded and lost control. Greb collided with abarricade, suffering personal injury. Greb filed a second amended complaint 2