Find Legal Information

FIRST DIVISION

March 4, 2002

JUSTICE McNULTY delivered the opinion of the court:

Jerome and Eve Lubin adopted Miriam Lubin in 1963. In 1999the Lubins sued the Jewish Children's Bureau of Chicago, allegingthat the Bureau fraudulently told them, before the adoption, thatMiriam came from a family with no known mental or emotionalproblems. The trial court dismissed the complaint as untimely. We hold that the trier of fact must decide the issue of when theLubins should have known that they had suffered an injury thatwas wrongfully caused. Therefore, we reverse the judgment of thetrial court and remand for further proceedings.

Jerome and Eve Lubin adopted Philip Lubin in 1960. The nextyear they told the Bureau that they wanted to adopt a secondchild, but they would accept only a normal, healthy child whoseparents had no known mental, intellectual or emotional problems. The Bureau placed a girl, Miriam with the Lubins. The Bureautold the Lubins Miriam met their adoption criteria.

The Lubins had difficulty with Miriam during her infancy. Prior to adoption, the Lubins brought Miriam to a pediatrician todetermine whether the difficulties presented signs of possiblefuture mental health problems. The pediatrician said Miriam "wasa difficult but normal child," without outward signs of mentalhealth problems. The Lubins also consulted the Bureau's employeewho had worked on Miriam's placement with the Lubins. TheBureau's employee tested Miriam and told the Lubins she found nosigns of possible mental health problems. The Lubins decided toadopt Miriam in 1963.

When Miriam was 13 years old, doctors diagnosed her asschizophrenic. Miriam later had two children. Because Miriamlacked the ability to care for the emotionally disturbedchildren, a social service agency recommended placing them foradoption. Such placement required medical records for Miriam andMiriam's biological parents. The Lubins contacted the Bureau. In a letter dated June 26, 1997, the Bureau informed the Lubinsthat Miriam's birth mother came from a "family situation [that]was disturbed, and the whole family was in treatment. Accordingto the record, the birth mother suffered from emotional problems,and was in treatment."

On June 25, 1999, the Lubins sued the Bureau for fraud andnegligence, alleging that they would not have adopted Miriam ifthe Bureau had disclosed to them what it knew about Miriam'sbiological mother and her family. The Bureau moved to dismissthe complaint based on the statute of limitations.

At the hearing on the motion the Lubins argued that untilthey received the letter in 1997, they had no way of knowing thatMiriam's family had emotional problems, or that the Bureau knewof such problems. The court said:

"Here you have 30 years from the time of adoption andit's a fairly difficult situation. ***

***

*** As a practical matter in terms of how far theCourt goes with an obligation, in keeping somebodyobligated for something, for how long a time.

It's your contention, forgetting human mortality,that this thing could have gone on if the person werethere for as long as the parties lived in the country. There's no termination period in your theory of thecase.

*** Except for *** the letter, the time wouldnever run to keep you from filing. That's what you'resaying. And one of the things that we're supposed todo as judges is never lose our common sense. ***

*** How about when they knew or should have knownthat the child suffered from hereditary mental illness?

The real problem is do they have the right to waitfor twenty years for the letter to pop up before theydo anything ***.

***

*** I think you've waited too long.

I just think you're out of luck under the Statuteof limitations."

The Lubins appended a proposed amended complaint to theirmotion to reconsider. The court denied the motion and deniedleave to amend because the amendment did not substantially affectthe limitations period.

We review de novo the decision to dismiss the complaint onthe pleadings. Zurich Insurance Co. v. Amcast Industrial Corp.,318 Ill. App. 3d 330, 333, 742 N.E.2d 337 (2000). The partiesagree that section 13-205 of the Code of Civil Procedure statesthe applicable limitations period. 735 ILCS 5/13-205 (West1996). That section provides that "all civil actions nototherwise provided for[] shall be commenced within 5 years nextafter the cause of action accrued." 735 ILCS 5/13-205 (West1996). A cause of action accrues, within the meaning of thestatute, when the plaintiff "knew or reasonably should have knownthat it was injured and that the injury was wrongfully caused." Superior Bank FSB v. Golding, 152 Ill. 2d 480, 488, 605 N.E.2d514 (1992).

In this context, plaintiffs reasonably should know that aninjury is wrongfully caused when "they possess enough informationabout the injury to alert a reasonable person to the need forfurther inquiries to determine if the cause of the injury isactionable at law." LaSalle National Bank v. Skidmore, Owings &Merrill, 262 Ill. App. 3d 899, 902, 635 N.E.2d 564 (1994). Butif the injury could develop naturally, without any wrongfulcause, knowledge of the injury does not immediately put theplaintiff on inquiry concerning a potential wrongful cause. McIntyre v. Christ Hospital, 181 Ill. App. 3d 76, 81, 536 N.E.2d882 (1989). "The limitations period begins to run when theplaintiff becomes aware that the cause of his problem stems fromanother's negligence and not from natural causes." Saunders v.Klungboonkrong, 150 Ill. App. 3d 56, 60, 501 N.E.2d 882 (1986).

Ordinarily, the trier of fact must decide the point at whicha plaintiff reasonably should have known that a wrongful actcaused his injury. Witherell v. Weimer, 85 Ill. 2d 146, 156, 421N.E.2d 869 (1981). But the court properly decides the issuewithout trial if all reasonable persons would draw the sameconclusion from the undisputed facts. Witherell, 85 Ill. 2d at156. The court should permit the trier of fact to decide closequestions concerning the commencement of the limitations period. McIntyre, 181 Ill. App. 3d at 81.

In McIntyre the defendant surgically repaired theplaintiff's hernia when the plaintiff was 6 years old. After theplaintiff turned 20, a surgeon, in the process of removing akidney stone, found that the plaintiff had undescended testicles,requiring further surgery. In the surgeon's opinion, thedefendant should have detected and repaired the condition inexaminations following the hernia surgery. The plaintiff suedthe defendant for malpractice.

The defendant argued that the plaintiff should have knownthat he suffered from undescended testicles at least by his 18^thbirthday. In his deposition the plaintiff admitted that he knewhis testicle area looked different from other boys, and hethought the difference attributable to the hernia surgery. Thetrial court granted summary judgment in favor of the defendantbased on the statute of limitations.

The appellate court reversed the judgment and remanded forthe trier of fact to determine when the plaintiff should haveknown the condition was wrongfully caused. The court said:

"Although plaintiff admits he had knowledge of thecondition, and also thought it was caused by the herniasurgery, it does not necessarily amount to knowledgethat the condition could have been wrongfully caused asa matter of law. His deposition testimony reveals hethought the condition was 'part and parcel' of thesurgery, which he never questioned, and while a resultof the surgery, he didn't think it was wrongfullycaused because of repeated reassurances by his familydoctor that everything was fine." (Emphasis inoriginal.) McIntyre, 181 Ill. App. 3d at 82.

Similarly, in LaSalle National, the plaintiff hired thedefendant to install insulation materials as part of a uniqueheating system in its new building. The first tenants complainedthat the building was too cold, and the plaintiff beganinvestigating the cause of the problem in 1976. In 1978 and 1979the plaintiff made minor repairs that alleviated the problemsomewhat. But when utility rates increased in 1985 the plaintiffhired a consultant to reassess the entire heating system. Theconsultant found that the defendant had improperly installed theinsulation, and the insulation it installed did not conform todesign specifications. The plaintiff then sued the defendant fornegligence. The trial court granted the defendant summaryjudgment based on the statute of limitations, finding that theplaintiff had sufficient notice of the possibility of wrongfulcausation by 1977.

The appellate court reversed, finding that reasonablepersons could draw divergent inferences concerning when theplaintiff should have known of the wrongful causation. The courtobserved that the experts hired before 1985 gave the plaintiff

"conflicting explanations for the temperature loss: some pointed to actionable conduct by some of thecontractors and subcontractors who participated inconstruction. Others pointed to a failure of theApparel Center employees and tenants to followprocedures that would insure efficient operation of theheat-by-light system. That some explanations for thetemperature problems may have been actionable, whileothers pointed to the gremlins in any new, complexconstruction or the failure of the Bank itself tofollow procedures, does not trigger the statute. Thestatute is triggered when a person has in handsufficient facts such that a reasonable person knows orshould know the problem is wrongfully caused.

*** There was evidence that the insulation wasmissing in certain areas, but the Bank was presentedwith the explanation that the installers of theelectrical outlets caused these problems. Further, theBank presented the unrebutted testimony of an expertwho testified that the displacement of insulation inisolated spots was common to newly constructedbuildings and not below industry standards.

***

*** [I]t is possible that the severalnonactionable explanations for the heat loss wereenough to assuage the Bank's concern over the cause ofthe heating problem." LaSalle National, 262 Ill. App.3d at 904-05.

Here, the Lubins knew when they adopted Miriam that theBureau could not guarantee Miriam's future health and happiness. By adopting a child they took all the risks of child-rearing,including the possibility of mental illness. They sought toreduce the risks somewhat by requesting a normal, healthy childfrom a family with no known mental, intellectual or emotionalproblems. But even children from such families may sometimesdevelop severe mental problems, including schizophrenia. TheLubins assumed the risk that their normal healthy child from ahealthy family would later develop a mental illness. Miriam'ssubsequent development of schizophrenia did not conclusivelyprove that the Bureau engaged in any negligent conduct ordeceived the Lubins in any way about what the Bureau knew at thetime of the adoption. Reasonable persons could disagreeconcerning the question of whether Miriam's schizophrenia gavethe Lubins sufficient notice that the Bureau may have actedwrongfully. Following McIntyre and LaSalle National, we holdthat the trier of fact must determine when the cause of actionfor negligence and fraud accrued to the Lubins.

The trial judge made several comments at the argument on themotion to dismiss concerning the length of time from the allegedtortious act to the filing of the lawsuit. As the judgesuggested, under the discovery rule the cause of action mayaccrue almost a lifetime after the tort occurs, if the adoptingfamily does not discover the fraud until late in the adoptedchild's life. The discovery rule, as applied in medicalmalpractice and construction contexts, created similar problemsof long-tailed liability. In response, the General Assemblyenacted statutes of repose for those contexts. See 735 ILCS5/13-212(a), 5/13-214(b) (West 1998); O'Brien v. O'Donoghue, 292Ill. App. 3d 699, 702, 686 N.E.2d 688 (1997). But thelegislature has enacted no statute of repose applicable toadoptions. Regardless of the strength of the policy reasons foradopting such a repose period, this court lacks the legislativepower to create a repose period applicable to this case.

Following precedent concerning the discovery rule, we cannotsay as a matter of law that the diagnosis of Miriam'sschizophrenia imposed on the Lubins a duty to inquire whether theBureau acted negligently or fraudulently when it told the Lubinsthat Miriam was a normal, healthy infant from a family with noknown mental or emotional problems. We reverse the trial court'sdecision to award the Bureau judgment on the pleadings and remandfor proceedings consistent with this order.

Reversed and remanded.

McNULTY, J., with COHEN, P.J. and COUSINS, J., concurring.