United States District Court, Southern District of Illinois
October 13, 1982
SUE PARDY, ETC., PLAINTIFF,
UNITED STATES OF AMERICA, AND MALLINCKRODT, INC., DEFENDANTS.
The opinion of the court was delivered by: Foreman, Chief Judge:
Before the Court is a Motion to Dismiss Count 3 of
plaintiff's complaint filed by defendant Mallinckrodt, Inc.,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. Defendant argues that Count 3 is barred by
Ill.Rev.Stat., ch. 83, para. 15, which requires that actions
for personal injury be brought within two years of the date of
the injury. Plaintiff's injury occurred on November 6, 1978.
This action was not filed until December 4, 1981.
For purposes of the Motion to Dismiss, the complaint is
construed in the light most favorable to plaintiff and its
are taken as true. Hampton v. City of Chicago, Cook County,
Ill., 484 F.2d 602, 606 (7th Cir. 1973). Thus, the complaint
must merely allege facts that when applied to existing law
protects plaintiff's claim from being barred by the statute of
limitations. Plaintiff alleges that her husband was injured by
a drug manufactured by defendant Mallinckrodt. Plaintiff
contends her husband was rendered incompetent by the drug and
that under Ill.Rev.Stat., ch. 83, para. 22, incompetence tolls
the running of limitations statute. Plaintiff's assertion that
her husband was rendered incompetent by the drug will be
accepted as true for purposes of this motion.
Ill.Rev.Stat., ch. 83, para. 22, provides: If the
person entitled to bring an action, mentioned in
the 9 preceding sections, is, at the time the cause
of action accrued, within the age of 18 years, or
incompetent, or imprisoned on a criminal charge, he
or she may bring the action within two years after
the disability is removed. (Emphasis added.)
Plaintiff claims that immediate incompetence caused by the
tortious conduct of a defendant is included in the language
"at the time the cause of action accrued." Defendant relies on
the plain meaning of the statute to argue that incompetence
caused by tortious conduct occurs concurrently with or after
the cause of action accrues, and, thus, is not included in the
tolling statute. The weight of authority and policy
considerations persuade this Court that plaintiff's action
implicates paragraph 22, and, therefore, is not barred by the
statute of limitations.
Neither the Seventh Circuit nor the courts of Illinois*fn1
have directly addressed whether the statute of limitations is
tolled under the facts of this case. However, courts have
consistently accepted the argument that disabilities caused by
tortious conduct tolls the statute. In Graboi v. Kibel,
432 F. Supp. 572 (S.D.N.Y. 1977), the court construed Section 208 of
the Civil Practice Law and Rules of New York which tolled the
statute of limitations for up to ten years for plaintiffs who
are insane at the time the cause of action accrues. The court
held that this tolling provision would also apply to plaintiffs
rendered insane by the occurrence which is the basis of the
suit. 432 F. Supp. at 578.
A majority of the state courts that have addressed the issue
have adopted the principle that the tolling statute applies to
mental incompetency resulting from and closely following the
tortious conduct. Foster v. Allbright, 631 S.W.2d 147 (Tenn.
App. 1982); Corsey v. State of Louisiana, et al.,
375 So.2d 1319 (La. 1979); Klamm Shell v. Berg, 165 Colo. 540,
441 P.2d 10 (1968); Kyle v. Green Acres at Verona, Inc., 44 N.J. 100,
207 A.2d 513 (1965); Emery v. Chesapeake & O.R. Co., 372 Mich. 663,
127 N.W.2d 826 (1964); Pannell v. Glidewell, 146 Miss. 565,
111 So. 571 (1927); Nebola v. Minnesota Iron Co.,
102 Minn. 89, 112 N.W. 880 (1907).
The purpose behind the tolling statute also supports
including direct and immediate incompetence within the tolling
statute. Paragraph 22 reflects an attitude that justice would
not be served by barring an individual from pursuing his claim
when he cannot by his own actions comply with the statute's
time limit for bringing his suit. Hurst v. Hederman,
451 F. Supp. 1354 (N.D.Ill. 1978) citing Gordon & Tennebaum,
Conclusive Presumption Analysis: The Principle of Individual
Opportunity, 71 N.W.L.Rev. 579, 604 (1976). Were the Court to
accept defendant's argument that paragraph 22 applies only when
incompetency is present before a cause of action accrues,
individuals, like Mr. Pardy, would be effectively barred from
pursuing an action. Furthermore, assuming Mr. Pardy has been
incompetent since the alleged tortious conduct by defendants,
he is indistinguishable for purposes of paragraph 22 from an
individual who suffers from incompetence prior to the tortious
conduct. See Hurst v. Hederman, supra, at 1355.
Defendant argues further that even if Mr. Pardy falls within
paragraph 22, the Statute of Limitations has run because Sue
Pardy has been empowered to bring suit on behalf of her
husband for more than two years. The record indicates,
however, that Sue Pardy was appointed legal guardian of the
estate of her husband less than two weeks before suit was
filed. Nonetheless, assuming for the sake of argument that Sue
Pardy was her husband's legal guardian for purposes of
bringing suit for more than two years, the statute of
limitations is still tolled.
The courts of Illinois again have not directly addressed the
issue of whether the appointment of a guardian for an
incompetent person starts the running of statute, but they
have held that the appointment of a guardian to represent a
minor does not affect the tolling provision of paragraph 22.
Eiseman v. Lerner, 64 Ill. App.3d 185, 20 Ill.Dec. 824,
826-827, 380 N.E.2d 1033, 1035-36 (1978); In Re Estate of
Sheehan, 290 Ill. App. 551, 554-55, 9 N.E.2d 63, 65 (1937).
These decisions are based on the reasoning that the tolling
statute focuses on the minor and not on his guardian since the
minor is the true owner of the action. Like minors, incompetent
persons retain title to their estates. Matter of Estate of
Brach, 76 Ill. App.3d 1050, 32 Ill.Dec. 353, 358,
395 N.E.2d 583, 587 (1979). Therefore, it is consistent to hold that
because Mr. Pardy is the owner of the cause of action the
statute of limitations must run, if at all, against him and not
his guardian. In so finding, the Court is in agreement with the
majority of jurisdictions that have addressed the issue.*fn2
Therefore, on the basis of the above discussion, plaintiff's
action is not barred by the statute of limitations.
Accordingly, defendant's Motion to Dismiss is hereby DENIED.
IT IS SO ORDERED.