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Stanley v. Denning

DECEMBER 3, 1970.




APPEAL from the Circuit Court of Boone County; the Hon. THOMAS J. MORAN, Judge, presiding.


The plaintiff was injured on May 7, 1965, when a county road grader, operated by Harold J. Denning, turned left in front of his motorcycle.

On May 5, 1967, the plaintiff filed a three count complain for damages against the County of Boone, the Township of Flora, and Denning. The complaint alleged, in the alternative, that Denning was an employee of the two corporate defendants. No notice of injury was served upon any of the defendants. The complaint was dismissed on the basis that the plaintiff failed to comply with certain provisions of the Tort Immunity Act and this appeal followed.

On December 19, 1959, our Supreme Court rendered an opinion which has been credited with sounding the death-knell to the common law doctrine of sovereign immunity from tort liability enjoyed by local governmental units. (Molitor v. Kaneland Community Unit District, 18 Ill.2d 11.) The change in the common law rule of law prompted the response of the Legislature through a variety of enactments granting immunity to certain local governmental units under specific situations. This proving unsatisfactory, the General Assembly, in 1965, set forth a comprehensive new enactment, The Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, sec. 1-101 et seq.) which defined this state's policy in the field of tort immunity as applied to all local governmental entities and their employees.

The Legislature did not, by the Act, overrule the Molitor case, which is still the law in Illinois; rather, the Act set forth the situations and conditions excepting the local entity or its employee from liability. (See, Article II, Parts 1 and 2.)

• 1 The sections of the Act, pertinent to this appeal, are sections 8-101, 8-102 and 8-103 (Ill. Rev. Stat. 1965, ch. 85, pars. 8-101, 8-102 and 8-103) which respectively set forth that any such action against a local entity must be commenced within one year of the injury, that notice of the contemplated action be given within 6 months from the date of the injury and, that failure to serve notice shall bar the injured from further suing.

The issue presented for review is whether these provisions of the Act, as they relate to the instant case, are to be given prospective or retrospective application since the claim herein arose during the transitional period of the tort immunity law in Illinois; i.e., the time between the Molitor decision and the effective date of the new Act. (August 13, 1965.)

Plaintiff's cause of action on the date of the occurrence was governed by the general Limitation Act (Ill. Rev. Stat. 1963, ch. 83, par. 15) which allowed suit to be brought within two years, without the necessity of filing a six month's notice. However, defendants argue that the provisions of sections 8-101 through 8-103 of the Tort Immunity Act are to be considered as statutes of limitation, effecting procedural rather than substantive rights of the plaintiff and that such statutes have always been accorded retrospective application by the courts.

As a general rule, statutes are to be construed prospectively unless the legislative intent that they be given retroactive operation clearly appears from the express language of the act or by necessary or unavoidable implication. Retrospective legislation is not favored. (U.S. Steel Credit Union v. Knight (1965), 32 Ill.2d 138, 142.) The roots of the policy embodied in this principle run deep in the common law. Champaign County Bd. & Tr. v. Jutkins (1963), 29 Ill.2d 253, 256, 50 Am. Jur., Statutes, Sec. 478.

• 2 The is a presumption that a statute is to operate prospectively and not retrospectively. In Country Mutual Ins. Co. v. Knight (1968), 40 Ill.2d 423, 426, it was stated:

"Because the Illinois Act makes no express provision concerning retroactivity, it becomes necessary to closely scrutinize the provisions of the Act to divine, if possible, an expression of legislative intent on this issue. Any equivocal expressions of intent must, of course, be judged in light of accepted rules of statutory interpretation, two relevant rules being: (1) that statutes are presumed to operate prospectively and not retroactively, unless the statutory language is so clear as to admit of no other construction (citations omitted); (2) that where a statute is susceptible of two constructions, one constitutional and the other unconstitutional, the interpretation favoring its constitutionality will be adopted. Hogan v. Bleeker, 29 Ill.2d 181."

Conversely, where the act requires retroactive application, it is the duty of the court to so apply it. U.S. Steel Credit Union v. Knight, supra, page 142.

• 3 Plaintiff relies upon Schear v. City of Highland Park (1968), 104 Ill. App.2d 285, decided by this court, for the proposition that all three sections in question should be given prospective effect. In that case we acted upon the notice of injury provision (sec. 8-102), but did not consider the limitation of actions (Sec. 8-101) issue raised therein. See pp. 288-289 of the opinion.

We adhere to our former decision. In Schear we found the notice provision to be substantive rather than procedural. This was based upon the fact that the six months' notice required was a condition precedent to the cause of action. As such, it becomes an additional element necessary to be alleged and proved, the same as the other basic elements in the plaintiff's cause of action. Failure to so allege would be failure to state a cause of action. ...

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