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Demchuk v. Duplancich

OPINION FILED MAY 14, 1981.

PATRICIA DEMCHUK, CONSERVATOR OF THE ESTATE OF RICHARD DEMCHUK, SR., ET AL., PLAINTIFFS-APPELLANTS,

v.

MICHAEL DUPLANCICH ET AL., DEFENDANTS. — (MANNY PERL'S, INC., ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. MYRON GOMBERG, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 25, 1981.

On January 5, 1977, plaintiffs, Patricia Demchuk, individually and as conservator of the estate of Richard Demchuk, Sr., and Richard Demchuk, Jr., filed a complaint in the circuit court of Cook County against Michael Duplancich for negligence in operation of a motor vehicle that caused injuries to Richard Demchuk, Sr., and Richard Demchuk, Jr., on July 7, 1976. On April 15, 1977, plaintiffs filed an amended complaint adding Eli Boskovich, individually and doing business as Pershing Liquors, and Maurice Valenti as defendants under the Dramshop Act (Ill. Rev. Stat. 1975, ch. 43, par. 135). On October 19, 1977, plaintiffs filed a first amended count III to the complaint adding Boskovich and Company as an additional party defendant.

On March 8, 1979, plaintiffs filed an amended complaint, count IV, adding Manny Perl's, Inc., and/or First National Bank of Cicero, Trustee, under Trust No. 1260, as owner of the tavern located at 5647 West 35th Street, Cicero, Illinois, which tavern sold alcoholic beverages to defendant Duplancich. Plaintiffs also added Patrick T. LaCava as a defendant for negligently operating a motor vehicle. On May 29, 1979, defendants Manny Perl's, Inc., and First National Bank of Cicero moved for dismissal of count IV because suit was not filed within 1 year of the occurrence as required under the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135).

On February 15, 1980, the motion to dismiss was granted to defendant's Manny Perl's, Inc., and First National Bank of Cicero. On March 12, 1980, plaintiffs filed notice of appeal.

On appeal, plaintiffs present for review the issue of whether the 1-year limitations period of the Dramshop Act is tolled during minority and incompetency. We find it does, and we reverse and remand.

Plaintiffs initially filed a two-count complaint against Michael Duplancich alleging negligence and willful and wanton conduct arising out of Duplancich's operation of a motor vehicle on July 7, 1976. On that date, at approximately 6:30 p.m., the automobile driven by defendant Duplancich collided with the motor vehicle driven by Richard Demchuk, Sr. As a result of this collision, Richard Demchuk, Sr., sustained severe injury to diverse portions of his body and remained unconscious for approximately 1 month. He was adjudicated an incompetent on November 18, 1976. Plaintiff Richard Demchuk, Jr., a minor, also sustained serious injury to his body.

Plaintiffs discovered that defendant Duplancich had purchased and consumed a quantity of beer at a tavern, the identity of which was unknown to plaintiffs. Plaintiffs served a motion to accelerate discovery on Duplancich. Prior to the hearing, counsel for Duplancich produced him for the discovery deposition. Defendant Duplancich stated that he purchased beer at Pershing Liquors, where he regularly bought beer without proof of identification, although he was under the required age.

Due to defendant Duplancich's testimony, plaintiffs added, as additional party plaintiffs, Patricia Demchuk as mother and next friend of Michael Demchuk and James Demchuk, minor dependents of Richard Demchuk, Sr. Plaintiffs filed an amended complaint against Eli Boskovich, individually and doing business as Pershing Liquors, and Maurice Valenti under the Dramshop Act within 1 year of the occurrence. Later, Boskovich and Company was added as a party defendant.

Russell Barone was a passenger in the vehicle driven by defendant Duplancich. Barone's action for personal injuries against Duplancich was consolidated with this case. At Barone's discovery deposition, he stated that Duplancich purchased beer at a tavern known as Manny Perl's, Inc., in Cicero, and not at Pershing Liquors, as Duplancich had previously stated.

Plaintiffs, on March 8, 1979, filed count IV of their amended complaint, naming Manny Perl's, Inc., and First National Bank of Cicero, trustee under trust No. 1260. These defendants filed a motion to dismiss count IV because it was filed more than 1 year after the occurrence. The motion to dismiss was granted by the trial court.

Plaintiffs contend that the 1-year limitations period of the Dramshop Act (Ill. Rev. Stat. 1977, ch. 43, par. 135) is tolled during minority and incompetency. Additionally, plaintiffs argue that public policy of the State prevents the 1-year limitations from barring an action by a minor or incompetent. Defendants respond that the Dramshop Act created remedies which were unknown at common law. Accordingly, the 1-year time element is not a statute of limitations but, rather, an integral part of the right, a condition precedent created by statute.

Although defendants are correct in their statements that the right to recovery from dramshop owners and operators did not exist at common law, that it is a creature of statute, and that the limitations provision in the Dramshop Act is a condition precedent to the bringing of the action, it does not follow that the claims of the minor plaintiffs are barred. See Wilbon v. D.F. Bast Co. (1978), 73 Ill.2d 58, 382 N.E.2d 784.

The question whether limitations provisions are applicable to claims of minors and incompetents has been considered with reference to other statutes. In McDonald v. City of Spring Valley (1918), 285 Ill. 52, 120 N.E. 476, the court held that a statute requiring written notice within 6 months after an injury by any person intending to sue a city does not apply to a minor who is incompetent to give such notice. The statute was construed as having been passed with due regard to the established rules of law for the protection of incompetent persons. McDonald has been consistently followed. Later, in Walgreen Co. v. Industrial Com. (1926), 323 Ill. 194, 153 N.E. 831, the court decided that the unqualified term, "incompetent," included a minor. Therefore, the 6-month period for filing claims under the Workmen's Compensation Act did not begin to run against the minor employee until a guardian had been appointed for him. Finally, Haymes v. Catholic Bishop of Chicago (1965), 33 Ill.2d 425, 211 N.E.2d 690, held that sections 3 and 4 of the School Tort Liability Act, insofar as it bars ...


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