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10/22/87 Laurence E. Kirby Et Al., v. the Town of Somer

October 22, 1987





515 N.E.2d 342, 162 Ill. App. 3d 463, 113 Ill. Dec. 533 1987.IL.1576

Appeal from the Circuit Court of Champaign County; the Hon. George S. Miller, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.


Plaintiffs, Laurence E. Kirby and Eva Kirby, appeal the order of the circuit court of Champaign County dismissing their complaint which alleged nuisance caused by defendant, town of Somer. The court dismissed the complaint because plaintiffs failed to serve notice of their injury in compliance with the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, pars. 8-101, 8-102, 8-103).

On March 20, 1986, plaintiffs filed a complaint alleging defendant intentionally caused or negligently permitted its park to be used in a way that unreasonably interfered with the use and enjoyment of plaintiffs' property. Plaintiffs' land and home are adjacent to the public park.

Plaintiffs allege the nuisance began in 1984 after defendant changed the park's facilities and equipment. Specifically, defendant upgraded the baseball diamond, changed the lighting and installed a public address system. These improvements allegedly increased the light, noise and traffic on plaintiffs' property during baseball season. Plaintiffs requested an injunction and damages.

Defendant filed a motion for involuntary dismissal alleging the complaint was time barred by the then two-year statute of limitations. Defendant also made an argument supported by affidavit requesting the complaint be dismissed because plaintiffs failed to satisfy the notice requirement of the Tort Immunity Act. The circuit court granted defendant's motion to dismiss.

Plaintiffs filed a motion to vacate the order of dismissal, arguing that since the tort is of a continuing nature, the statute of limitations does not begin to run until the last tortious act has occurred. An affidavit of plaintiff, Laurence Kirby, submitted in support of the motion stated the nuisance began on May 16, 1984, and reoccurs each summer. The circuit court denied plaintiffs' motion to vacate the order of dismissal and plaintiffs appeal.

When this case was filed, section 8-101 of the Tort Immunity Act provided: "No civil action may be commenced in any court against a local entity for any injury unless it is commenced within 2 years from the date that the injury was received or the cause of action accrued." (Ill. Rev. Stat. 1985, ch. 85, par. 8-101.) The initial question is whether the plaintiffs' cause of action accrued when the park improvements were complete, whether separate causes of action accrue and start new periods of limitation each time the park is used, or whether the period of limitation started when plaintiffs became aware of their injury on the first day of the baseball season in 1984.

Defendant argues the statute of limitations began to run upon completion of the park's improvements, which were permanent in nature and not unlike the construction of a permanent structure. "Where a structure has been erected either on or next to real property which causes permanent injury to the land by its mere erection, existence and reasonably anticipated operation, a cause of action accrues when the structure is built." (Aetna Life & Casualty Co. v. Sal E. Lobianco & Son Co. (1976), 43 Ill. App. 3d 765, 770, 357 N.E.2d 621, 625.) Here, plaintiffs were not injured the day defendant completed the construction, but when citizens began to utilize the park's new facilities and equipment.

Plaintiffs maintain their injury is continuous and the tortious act has not ceased. Therefore, the time period has not yet begun to run. In support of their position, plaintiffs rely on cases citing the following rule: Where a tort involves a continuing or repeated injury, the limitation period does not begin until the date of the last injury. City of Rock Falls v. Chicago Title & Trust Co. (1973), 13 Ill. App. 3d 359, 364, 300 N.E.2d 331, 334; Johnson v. Tipton (1982), 103 Ill. App. 3d 291, 300, 431 N.E.2d 464, 473.

In City of Rock Falls, the defendant city and its mayor had continuously engaged in various acts of tortious interference with the utilization of plaintiff's property over a period of three years. By contrast, the instant defendant made one set of improvements and plaintiffs ...

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