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October 9, 2001

No. 2--00--1255

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE BOWMAN delivered the opinion of the court:

Aaron McKinnon, by his mother, plaintiff Frieda McKinnon,appeals from an order entered by the circuit court of Kane County dismissing with prejudice his cause of action against defendantsRick Thompson and West Aurora School District 129 (District 129)pursuant to section 2--619(a)(5) of the Code of Civil Procedure(Code) (735 ILCS 5/2--619(a)(5) (West 1998)). Washington MiddleSchool was also named as a defendant but was dismissed on othergrounds and is not a party to this appeal. Aaron argues that, indetermining that his action against Thompson and District 129 wastime-barred, the trial court erroneously applied the one-yearstatute of limitations provided in the Local Governmental andGovernmental Employees Tort Immunity Act (Act) (745 ILCS 10/8--101(West 1998)) instead of the statute of limitations applicable tocauses of action brought by minors (735 ILCS 5/13--211 (West1998)). We agree with Aaron that his complaint was timely filedand reverse the trial court's judgment.

The complaint alleged that on February 2, 1998, Rick Thompson,who was the vice-principal of Washington Middle School in District129, physically assaulted Aaron in the middle school's technologycenter. The complaint sought damages for both physical andemotional injuries that Aaron allegedly suffered as a result ofdefendants' negligence, wilful and wanton misconduct, assault andbattery, and intentional infliction of emotional distress. Aaronwas 12 years old when the alleged assault occurred. The complaintwas filed on September 15, 1999, at which time Aaron was 14 yearsold.

Defendants filed a motion to dismiss pursuant to section 2--619(a)(5) of the Code, which authorizes involuntary dismissal of anaction that was not commenced within the time limited by law. Theyargued that section 8--101 of the Act applied to Aaron's case andthat Aaron had not filed his cause of action within one year of thedate his cause of action accrued. The trial court agreed withdefendants and on July 26, 2000, entered an order dismissingAaron's cause of action with prejudice. The court's order statedthat "the one year statute of limitations found in the TortImmunity Act applies and prevails over the two year statute oflimitations for minors." Aaron filed a motion to reconsider thecourt's ruling. The court denied the motion to reconsider, andthis appeal ensued.

Our determination of which statute of limitation applies toAaron's cause of action is controlled by our supreme court's recentdecision in Ferguson v. McKenzie, No. 89144 (January 29, 2001). The issue before the court in Ferguson was whether the Act's one-year statute of limitations (745 ILCS 10/8--101 (West 1994)) tookprecedence over the statute of repose applicable to a minor'smedical malpractice claim (735 ILCS 5/13--212(b) (West 1994)). Under section 13--212(b), a minor who is entitled to bring amedical malpractice action must do so within eight years of theinjury-causing act or omission and may not bring the cause ofaction after his or her twenty-second birthday. The Fergusonminor's cause of action had accrued when she 17 years and 5 monthsof age, but her complaint was not filed until she was 19 years and5 months of age. The defendants in Ferguson contended that the one-year limitations period under section 8--101 began to run when theminor plaintiff turned 18 and, consequently, she was required tofile her complaint prior to her nineteenth birthday. The minorplaintiff, on the other hand, argued that she had until her twenty-second birthday to file her complaint pursuant to section 13--212(b). Unlike defendants in the case at bar, the defendants inFerguson did not assert that the statute of limitations expiredagainst the minor plaintiff while she was still a minor.

In determining whether the limitations period of section 8--101 or the repose period of section 13--212(b) applied, the courtstruck a compromise that recognized the principles underlying bothstatutes, namely, the need to encourage early investigation againsta local governmental entity while the matter is still fresh and theneed to protect minors' rights to bring suit. Ferguson, slip op.at 5. Accordingly, the court held that the medical malpracticestatute of repose applied insofar as the plaintiff was a minor whenher cause of action accrued. Ferguson, slip op. at 4. However, thecourt further held that "because defendants are a local governmententity and its employees, the one-year limitations period ofsection 8--101 of the Tort Immunity Act also applies to [theplaintiff]" and began to run when she reached 18 years of age. Ferguson, slip op. at 4. Thus, because the plaintiff in Ferguson failed to file her action before she turned 19, the court held thatit was time-barred. Ferguson, slip op. at 5.

Here, we are asked to determine whether section 8--101 of theAct takes precedence over section 13--211 of the Code. Section 8--101 provides:

"No civil action may be commenced in any court against alocal entity or any of its employees for any injury unless itis commenced within one year from the date that the injury wasreceived or the cause of action accrued." 745 ILCS 10/8--101(West 1998).

Section 13--211, on the other hand, provides as follows:

"If the person entitled to bring an action, specified inSections 13--201 through 13--210 of this Act, at the time thecause of action accrued, is under the age of 18 years, or isunder a legal disability, then he or she may bring the actionwithin 2 years after the person attains the age of 18 years,or the disability is removed." 735 ILCS 5/13--211 (West1998).

Section 13--211 is applicable because Aaron's cause of action isone for "damages for an injury to the person" as described insection 13--202 of the Code (735 ILCS 5/13--202 (West 1998)).

The rationale set forth in Ferguson applies to the issuebefore us. Under that rationale, Aaron must comply with bothsection 13--211 of the Code and section 8--101 of the Act. SeeFerguson, slip op. at 5. This means that the one-year limitationsperiod of section 8--101 applies, but it does not begin to rununtil Aaron reaches 18 years of age. Thus, Aaron's cause of actionwould not be time-barred as long as it was filed prior to hisnineteenth birthday. It is undisputed that Aaron has not yetturned 19 and was approximately 14 years of age when the complaintwas filed on his behalf. Accordingly, Aaron's cause of action isnot time-barred, and the trial court erred when it dismissed thecause of action.

For the reasons stated, we reverse the judgment of the circuitcourt of Kane County and remand this cause for further proceedingsconsistent with this opinion.

Reversed and remanded.

HUTCHINSON, P.J., and GEIGER, J., concur.