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05/05/88 Mary v. Wyness

May 5, 1988

MARY

v.

WYNESS, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF JAMES J. WYNESS, DECEASED, PLAINTIFF-APPELLANT,

v.

ARMSTRONG WORLD INDUSTRIES, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

525 N.E.2d 907, 171 Ill. App. 3d 676, 121 Ill. Dec. 600 1988.IL.679

Appeal from the Circuit Court of Cook County; the Hon. Dean M. Trafelet, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The plaintiff, Mary V. Wyness, brought this action individually and as special administrator of the estate of her deceased husband, James J. Wyness, to recover damages under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 1 et seq.). The plaintiff filed her complaint within two years of her husband's death but more than two years after she discovered that he was suffering from asbestos-related lung cancer. The defendants, various manufacturers and distributors of asbestos products, moved for summary judgment on the basis that the limitations period for bringing the action had run. The trial court granted the motion in part, ruling that the plaintiff was barred from recovering any personal damages in her wrongful death action but that she could maintain such an action in her capacity as special administrator on behalf of her children. The plaintiff has appealed, contending that the action was filed within the limitations period applicable to wrongful death claims.

The issue before this court is whether the limitations period under the Wrongful Death Act begins to run on the date the plaintiff knows or should reasonably have known of the wrongfully caused injury despite the fact that death has not yet occurred.

The facts of this cause are undisputed. The decedent worked as an insulator from 1947 until 1978. On May 11, 1978, he was diagnosed as having a malignant lung tumor. In her deposition testimony, the plaintiff stated that she and the decedent were aware in June of 1978 that the decedent's lung cancer was asbestos-related. The decedent died on August 10, 1978, less than three months after the diagnosis of lung cancer. The plaintiff filed the wrongful death action on August 8, 1980, within two years of the decedent's death. The complaint, which was subsequently amended, alleged that the decedent died from lung cancer contracted during his employment as an insulator, that the defendants failed to warn him of the dangers associated with asbestos-containing products, and that the plaintiff and her children had suffered damages as a result of his death.

Section 1 of the Wrongful Death Act provides:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or company or corporation which would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 70, par. 1.)

Section 2 provides that every such action shall be commenced within two years after the death of the person. Ill. Rev. Stat. 1985, ch. 70, par. 2.

Section 1 of the Wrongful Death Act has been interpreted to require that the decedent, at the time of his death, be able to bring a cause of action. (Mooney v. City of Chicago (1909), 239 Ill. 414, 88 N.E. 194; Biddy v. Blue Bird Air Service (1940), 374 Ill. 506, 30 N.E.2d 14; Fountas v. Breed (1983), 118 Ill. App. 3d 669, 455 N.E.2d 200.) In Mooney v. City of Chicago, the Illinois Supreme Court held that where the decedent had released his personal injury cause of action, a wrongful death action could not be maintained. The court stated:

"One condition upon which the statutory liability depends is that the deceased had a right of recovery for the injuries at the time of his death, and there is no right in the administrator to maintain an action unless the deceased had the right to sue at the time of his death." (Emphasis added.) (Mooney v. City of Chicago (1909), 239 Ill. 414, 423, 88 N.E. 194, 196.)

Following this reasoning, this court in Lambert v. Village of Summit (1982), 104 Ill. App. 3d 1034, 433 N.E.2d 1016, held that where the two-year limitations period for bringing a personal injury action had expired prior to the decedent's death, he had no right to sue at the time of death and a wrongful ...


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