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FOURTH DIVISION

October 15, 1998

No. 1-97-4643

PRESIDING JUSTICE SOUTH delivered the opinion of the court:

Plaintiff, John Doe, through his mother and next friend,appeals from an order of the circuit court of Cook Countydismissing his amended complaint against defendants, the clericsof St. Viator High School (St. Viator).

Plaintiff's two-count amended complaint seeks recovery fordamages arising out of an alleged sexual abuse committed againsthim from 1980 to 1987 by a teacher and counselor at St. Viator. Count I of the amended complaint alleged institutional negligenceagainst the Catholic Archbishop of Chicago (the Bishop), theclerics and St. Viator for failing to prevent the abuse. CountII alleged willful and wanton conduct. The alleged perpetratordied in 1988. Plaintiff's claims against the Bishop weredismissed with prejudice. Defendant filed a section 2-619 motionto dismiss based on plaintiff's failure to commence this actionwithin the two-year statute of limitations period (735 ILCS 5/2-619 (West 1996)). The court granted defendant's motion todismiss plaintiff's amended complaint for not being timely filedunder section 13-211 of the Code of Civil Procedure (735 ILCS5/13-211 (West 1996)).

Plaintiff was born on July 12, 1966. On July 12, 1996, whenhe was 30 years old, plaintiff filed a complaint allegingchildhood sexual abuse by a former teacher and counselor whotaught at St. Viator. The complaint alleged that the abuse beganin 1980 when plaintiff was a 14-year-old student at St. Viatorand continued until 1988. Defendants filed a motion to dismissunder section 2-619 of the Illinois Code of Civil Procedure (735ILCS 5/2-619 (West 1996)). In their motion, defendants arguedthat the two-year statute of limitations applicable to a minorbegan to run on July 12, 1984, when plaintiff reached the age of18 and ended on July 12, 1986, when plaintiff turned 20.Defendants also contended that plaintiff's allegations oflaboring under a legal disability due to attention-deficitdisorder and post-traumatic stress syndrome were insufficient asa matter of law to toll the statute of limitations.

On May 19, 1997, defendants served plaintiff with a requestto admit facts. Specifically, the request asked plaintiff toadmit that in 1984, plaintiff graduated from St. Viator andapplied for admission to and was accepted by Concordia College inRiver Forest, Illinois, where he began his studies in the fall of1985; that in 1987, plaintiff applied for admission and wasaccepted by Concordia College in California; that in 1989,plaintiff was awarded a bachelor of arts degree from ConcordiaCollege; and that in 1996, plaintiff was awarded a master of artsdegree from California State University in Fullerton. Therequest also asked plaintiff to admit that in November 1985, heconsulted a physician because he had engaged in sexual contactwith a man and feared that he might have contracted AIDS. Plaintiff neither admitted, denied nor objected to the requestfor admissions within the 28 days permitted by Supreme Court Rule216 (134 Ill. 2d R. 216).

In response to defendant's motion to dismiss, plaintiffsubmitted a letter from his therapist, I. Lee Gislason, M.D.,dated July 15, 1997. In the letter, Dr. Gislason stated that hehad been treating plaintiff for the past two years for post-traumatic stress disorder; that plaintiff has autism and is"totally mentally and functionally incapable of making completelyvoluntary and informed decisions about his personal care andsupport and he is unable to attend to his personal matterswithout assistance."

Defendants moved to strike Dr. Gislason's letter as unswornand consisting solely of conclusions rather than facts admissibleinto evidence. On June 5, 1997, the court granted defendants'motion to strike and allowed plaintiff leave to file areplacement affidavit that would comply with Supreme Court Rule191 (134 Ill. 2d R. 191). On July 28, 1997, plaintiff soughtleave to amend his complaint to incorporate all of his theoriesof legal disability that were listed in his therapist's letter. He filed his amended complaint on August 7, 1997, along with aresponse to defendants' May 1997 request to admit facts. At notime did plaintiff seek leave to file a late response to therequest to admit facts.

In his amended complaint, plaintiff alleged that at alltimes relevant to the case, he suffered from "post-traumaticstress disorder, autism, attention-deficit hyperactivitydisorder, auditory perception disability, social imperception andsocial-emotional developmental delay with concurrent deficits andimpairments in adaptive behavior relative to his age," and "requires the appointment of a guardian for life decisions,financial matters and affairs for life."

On September 29, 1997, plaintiff filed a second response todefendants' request for admissions in which he denied the tworequests relating to consultations with his physicians andcounselor. On October 6, 1997, the court granted defendants'motion to dismiss the amended complaint, holding that Dr.Gislason's affidavit was insufficient to raise a question of factas to whether plaintiff had a legal disability that prevented himfrom filing the lawsuit during the two-year limitations period. Because plaintiff never requested leave to file a late responseto defendant's requests to admit facts, the court considered thefacts admitted. The court found that because plaintiff attendedcollege, sought counseling and consulted with a physician becausehe had a fear of AIDS during the two-year statute of limitationsperiod, the affidavit did not raise a question of fact as towhether plaintiff was legally disabled. The court deniedplaintiff's motion to reconsider.

The purpose of a motion to dismiss under section 2-619 is toafford litigants a means to dispose of issues of law and easilyproved issues of fact at the outset of a case, reserving disputedquestions of fact for a jury trial. Zedella v. Gibson, 165 Ill.2d 181, 185, 650 N.E.2d 1000 (1995). On appeal, the standard ofreview is de novo. Kedzie & 103rd Currency Exchange, Inc. v.Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993).

Plaintiff argues that the court erred by dismissing hisclaim as being time barred. Specifically, plaintiff contendsthat he was legally disabled during the statute of limitationsperiod, thereby tolling the commencement of the limitationsperiod.

The circuit court granted a dismissal in favor of defendantsbecause plaintiff's complaint was not filed within the two-yearstatute of limitations period applicable to childhood sexualabuse actions. The alleged acts which form the basis for thelawsuit occurred between 1984 and 1988. Plaintiff's complaintwas not filed until July 12, 1996, approximately eight yearsafter the date of the last incident. Section 13-211 of the Codeof Civil Procedure tolls the statute of limitations for minorsand persons who are under a legal disability. The statute readsin pertinent part: "If the person is entitled to bring anaction, specified in Sections 13-201 through 13-210 of this Act,at the time the cause of action accrued, is under the age of 18years, or under legal disability *** he or she may bring theaction within 2 years after the *** disability is removed." 735ILCS 5/13-211 (West 1996).

A person suffers from a "legal disability" where he or sheis "entirely without understanding or capacity to make orcommunicate decisions regarding his person and totally unable tomanage his [or her] estate or financial affairs." Estate of Rihav. Christ Hospital, 187 Ill. App. 3d 752, 756, 544 N.E.2d 403(1989). In a case where a legal disability is alleged, therecord must contain sufficient allegations of fact from which onecould conclude that the person seeking to be found legallydisabled was incompetent or suffered from serious mental disorderwhich made that person entirely without understanding or capacityto make or communicate decisions regarding his person and totallyunable to manage his estate or financial affairs. Sille v.McCann Construction Specialties Co., 265 Ill. App. 3d 1051, 1055,683 N.E.2d 676, 679 (1994). In a personal injury case, a personis not legally disabled if he or she can comprehend the nature ofthe injury and its implications. Sille, 256 Ill. App. 3d at1055.

Plaintiff contends that his therapist's affidavit, whichconcludes that, due to his autism, plaintiff is "entirely withoutunderstanding or capacity to make or communicate decisionsregarding his person," is sufficient to raise autism to thestandard required for a legal disability. However, thetherapist's affidavit recites the legal disability standardwithout providing a factual basis for its conclusion. In fact,the conclusion is unsupported by the other admitted facts in therecord.

In this case, the court dismissed plaintiff's amendedcomplaint finding that he did not allege sufficient facts tosupport his contention that he suffered under a legal disability. Additionally, the court considered the evidence that during thetime plaintiff alleges he was under a legal disability, he applied to and graduated from college; consulted a physicianregarding the possibility of contracting AIDS due to his physicalrelationship with a man; and enrolled in a master's degreeprogram.

Plaintiff argues that autism is a legal disability for thepurposes of this statute. He cites section 1-106 of the MentalHealth and Developmental Disabilities Code (Ill. Rev. Stat. 1991,ch. 91