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07/29/94 WOLFGANG SILLE v. MCCANN CONSTRUCTION

July 29, 1994

WOLFGANG SILLE, PLAINTIFF-APPELLANT,
v.
MCCANN CONSTRUCTION SPECIALTIES COMPANY, A CORPORATION, DEFENDANT-APPELLEE, AND TOYOTA MOTOR SALES, USA, INC., A CORPORATION, DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH A GILLIS, JUDGE PRESIDING.

Released for Publication September 13, 1994. As Corrected October 19, 1994.

Murray, McNULTY, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Plaintiff, Wolfgang Sille (Sille) appeals orders of the circuit court of Cook County dismissing his complaint against McCann Construction Specialties Company (McCann). For reasons we shall explain, we affirm in part and reverse in part.

Before addressing the issues raised, we present the facts pertinent to this appeal. Since Sille's complaint was dismissed without trial, all well-pleaded facts alleged in the complaint are taken as true, but allegations which are mere Conclusions, unsupported by facts, are not admitted. Cunningham v. Huffman (1992), 223 Ill. App. 3d 878, 585 N.E.2d 1140, 166 Ill. Dec. 118.

On October 5, 1988, Sille purchased a piece of construction equipment known as a skid steer loader from McCann. A year later, on October 7, 1989, Sille was injured while using the loader to remove debris when a large chunk of concrete fell from the bucket of the loader onto Sille's foot. After his injury Sille continued to use the loader even though he experienced the recurrent problem of objects falling from the bucket into the operator's compartment.

Sometime around January 1991 Sille spoke with one of McCann's employees regarding the loader, informing him of the problem he was experiencing. In February 1991 McCann provided Sille with a drawing, suggesting alterations that could be made to the loader to make it safer for the operator. Sille claims that it was at this point that he first realized that his 1989 injury could have been caused by a design defect in the loader.

Although Sille allegedly became aware of a design defect in the loader as of February 1991, he did not file suit at that time. In fact, Sille did not file suit until July 22, 1992, more than 2 1/2 years from the date of his injury and one year and five months from the date he allegedly discovered that a design defect existed. Sille claimed that his delay in filing his cause of action was due to the fact that he labored under a legal disability, namely alcoholism.

According to an affidavit filed by Sille, at the time of the injuryhe was suffering from the disease of alcoholism, which was in its "active stage." He further averred that his alcoholism caused him to be "unable to manage [his] personal affairs" until he sought treatment for his disease on or about March 17, 1992. Sille claims that, upon his release from treatment on or about April 17, 1992, he was able to resume managing his personal affairs and it was at this point that he contacted an attorney to seek advice on whether he had a cause of action. After contacting an attorney, Sille filed suit against Toyota Motor Sales, USA, Inc. (Toyota), the manufacturer of the skid loader, and McCann, the distributor, on July 22, 1992, alleging breach of warranty and strict liability in tort.

McCann and Toyota moved for dismissal of the claims against them, arguing that they were barred by the two-year statute of limitations. Judge Bonaguro dismissed the products liability count against Toyota in an order dated December 11, 1992, finding that Sille failed to file suit within the applicable two-year statute of limitations period. Sille appealed this ruling. (Appeal No. 1-93-0260).

Subsequently, Judge Gillis dismissed the products liability counts and the breach of warranty counts against McCann in orders dated March 4, 1993, and March 16, 1993, respectively. In doing so, the trial court rejected arguments advanced by Sille that a four-year statute of limitations applied to the breach of warranty counts and that his alcoholism served to toll the statute of limitations. Sille appealed these orders, as well, Nos. 1-93-1172 and 1-93-1173) and the three appeals were consolidated for our review.

The appeal involving Toyota (1-93-0260) has been voluntarily dismissed by the parties. The appeals remaining before this court are 1-93-1172 and 1-93-1173, involving defendant McCann. Sille asks this court to review the dismissal of his complaint, raising these four issues: (1) whether alcoholism is a legal disability which tolls the running of the statute of limitations, (2) whether the "discovery rule" may be applied in this case where Sille received a sudden and traumatic injury, (3) whether McCann should be estopped from raising the limitations defense due to its alleged knowledge of the defective condition of the loader, and (4) whether a 4-year statute of limitations applies to the counts in the complaint alleging breach of warranty.

Section 13-213(d) of the Code of Civil Procedure (Ill. Rev. Stat. (1991), ch. 110, par. 13-213(d); 735 ILCS 5/13-213(d) (West 1992)) states:

"Notwithstanding the provisions of subsection (b) and paragraph(2) of subsection (c), if the injury complained of occurs within any of the periods provided by subsection (b) and paragraph (2) of subsection (c), the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred. In any such case, if the person entitled to bring the action was, at the time the personal injury, death or property damage occurred, under the age of 18 years, or under a legal disability, then the period limitations does not begin to run until the person attains the age of 18 years, or the disability is removed."

Sille's first argument is that alcoholism should be considered a legal disability for the purposes of this statute. He cites the Illinois Alcoholism and Other Drug Dependency Act (Ill. Rev. Stat. 1991, ch. 111 1/2, par. 6351-1 et seq.), which defines an alcoholic as a person "who suffers from an illness characterized by preoccupation with alcohol which is typically associated with physical disability and impaired emotional, occupational or social adjustments. . ." Sille then equates this legislative use of the term "disability" in the definition of alcoholism with a legislative ...


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