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10/17/95 AMY J. SLAUGHTER v. ROCK ISLAND COUNTY

APPELLATE COURT OF ILLINOIS, THIRD DISTRICT


October 17, 1995

AMY J. SLAUGHTER, PLAINTIFF-APPELLANT,
v.
ROCK ISLAND COUNTY METROPOLITAN MASS TRANSIT DISTRICT, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. No. 94-L-43. Honorable Jeffery W. O'Connor, Judge Presiding.

Released for Publication November 22, 1995.

Present - Honorable Allan L. Stouder, Presiding Justice, Honorable William E. Holdridge, Justice, Honorable Kent Slater, Justice. Slater and Holdridge, JJ., concur.

The opinion of the court was delivered by: Stouder

PRESIDING JUSTICE STOUDER delivered the opinion of the court:

The plaintiff-appellant, Amy J. Slaughter (plaintiff), brought a negligence action against defendant-appellee, Rock Island County Metropolitan Mass Transit District (defendant), for injuries sustained when a bus operated by defendant collided with plaintiff's vehicle causing personal injury. The trial court granted defendant's motion to dismiss finding plaintiff's action was barred by the one-year statute of limitations found in section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act or Act) (745 ILCS 10/8-101 (West 1994)). Plaintiff appeals contending the general two-year statute of limitations for personal injury actions applies. (See 735 ILCS 5/13-202 (West 1994).) We disagree.

Plaintiff's accident occurred on March 19, 1993. More than a year later, on August 12, 1994, plaintiff filed her complaint. On November 1, 1994, the trial court granted defendant's motion to dismiss. The trial court's dismissal order stated defendant was subject to the Tort Immunity Act, defendant was subject to the one-year statute of limitations contained in the Tort Immunity Act, and plaintiff's action was barred because she did not file her complaint within the one-year period.

The trial court relied on Cooper v. Bi-State Development Agency (1987), 158 Ill. App. 3d 19, 510 N.E.2d 1288, 110 Ill. Dec. 257 when reaching its decision. In Cooper, the court found that a common carrier (other than the CTA) was not excepted from the Tort Immunity Act notice provision (subsequently repealed) by the terms of section 2-101 (b) of the Act (745 ILCS 10/2-101 (West 1994)). In the instant case, the trial court accepted the proposition, by analogy, that if a common carrier is to be included as to the notice requirement, then it should logically be included as to the statute of limitations requirement. We agree.

On appeal, plaintiff contends defendant is exempt from the Tort Immunity Act and the statute of limitations provision contained therein. In so arguing, plaintiff urges us to disregard Cooper and look to the plain meaning of the language in the statute. We decline to do so as we believe Cooper was decided correctly. However, even if we look to the language of the statute, our analysis and decision remains the same.

Section 2-101 (b) of the Act states in pertinent part: "nothing in this Act affects the liability if any, of a local public entity * * * based on * * * operation as a common carrier." (745 ILCS 10/2-101 (West 1994).) The Cooper court, when interpreting the term "liability," stated: "by providing that nothing in the Tort Immunity Act affects defendant's liability based upon operation as a common carrier, defendant is not 'exempt' from the Act. This provision preserves the standard of care to which defendant must adhere in order to avoid liability." Cooper (1987), 158 Ill. App. 3d at 25, 510 N.E.2d at 1292 (discussing the highest degree of care a common carrier owes to its passengers).

The wording in the latter portion of section 2-102 (b) lends support to this finding. Section 2-102 (b) further states: "this Act does not apply to any entity organized under or subject to the 'Metropolitan Transit Authority Act' * * *." (745 ILCS 10/2-102 (West 1994).) This portion of 2-102 (b) was enacted apparently to exempt the CTA from the provisions of the Tort Immunity Act. (See Fujimura v. Chicago Transit Authority (1977), 67 Ill. 2d 506, 514, 368 N.E.2d 105, 108, 10 Ill. Dec. 619.) If plaintiff is correct in asserting that defendant, an entity not organized under the Metropolitan Transit Authority Act, is also exempt from the Act, then there would be no reason for the legislature to enact the special provision specifically exempting the CTA from the Act. The legislature must have intended something different than exemption when it used the term "liability" in reference to common carriers (other than the CTA). We find, as did the court in Cooper, that the use of the term "liability" here simply preserves the standard of care imposed upon common carriers as to its passengers.

We note that when defining the term "liability" in section 2-102 (b), some courts have concluded that the notice requirement is substantive in nature which affects liability whereas the statute of limitation requirement is procedural in nature which does not affect liability. (See Hapeniewski v. City of Chicago Heights (1986), 147 Ill. App. 3d 528, 497 N.E.2d 97, 100 Ill. Dec. 217; see also Schear v. City of Highland Park (1968), 104 Ill. App. 2d 285, 244 N.E.2d 72 and Hecko v. City of Chicago (1975) 25 Ill. App. 3d 572, 323 N.E.2d 595.) If we accept this contention as true, then Cooper, a notice provision case, would either be distinguishable or in error. The Cooper court distinguished that line of cases as not involving claims against public entities operating as common carriers. See Cooper (1987), 158 Ill. App. 3d at 25, 510 N.E.2d at 1292.

We, however, see no practical reason for distinguishing the effect of a notice provision from the effect of a statute of limitations provision. Both require a plaintiff to take some sort of action within a specified time period and both affect plaintiff's cause of action if not followed. Neither affects the common carrier's liability as to the highest degree of care it owes its passengers. We accept the proposition by analogy, as did the trial court, that if a common carrier is to be included as to the notice requirement, then it should also be included as to the statute of limitations requirement. However, even if we were to agree with the substantive/procedural distinction, we would reach the same result because the instant case, a statute of limitations provision case, would be procedural in nature and thus would not affect liability.

This does not, however, end our discussion. Plaintiff finally contends the United States Supreme Court case of Hapaniewski v City of Chicago Heights (1987), 484 U.S. 806, 98 L. Ed. 2d 17, 108 S. Ct. 53, in effect, overrules Cooper. In Hapaniewski, the plaintiff filed an action for wrongful demolition of a building. Plaintiff's five count complaint alleged, inter alia, a violation of section 1983 of the Civil Rights Act (42 U.S.C.A. Sec. 1983 (1981)). The trial court granted the city's motion to dismiss finding all counts were barred by the two-year statute of limitations period found in section 8-101 of the Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8-101 (now the one-year period found in 745 ILCS 10/8-101 (West 1994).) The appellate court affirmed. See Hapeniewski v. City of Chicago Heights (1985), 147 Ill. App. 3d 528, 497 N.E.2d 97, 100 Ill. Dec. 217.

Plaintiff's petition for leave to appeal was denied by the Illinois Supreme Court, after which he sought and was granted a writ of certiorari by the United States Supreme Court. In a summary opinion, the Court vacated the First District's decision and remanded for further consideration in light of Goodman v. Lukens Steel Co. (1987), 482 U.S. 656, 96 L. Ed. 2d 572, 107 S. Ct. 2617. Goodman dealt with the issue of what state statute of limitations provision applies to a federal civil rights action, not to a common law state action.

On remand, the First District, based on the Goodman analysis, held that the five-year statute of limitations provision, not the two-year provision in the Tort Immunity Act, applied only to the count asserting a civil rights violation. Hapaniewski (1988), 169 Ill. App. 3d 945, 524 N.E.2d 614, 120 Ill. Dec. 584. It is apparent from the Hapaniewski decisions that the United States Supreme Court was only addressing the count alleging a federal civil rights violation. Therefore, Cooper remains "good law" in cases alleging state actions such as the common law negligence claim in the present case.

A reading of section 8-101 of the Tort Immunity Act (745 ILCS10/8-101 (West 1994)) in its current form lends credence to our reading of the Hapaniewski decisions. After Hapaniewski, the legislature amended section 8-101 to include the following definition of the term "civil action" as it pertains to the one-year statute of limitations provision: "the term 'civil action' includes any action, whether based upon the common law or statutes or Constitution of this State." (745 ILCS 10/8-101 (West 1994).) The plain meaning of this amendment to the Act is that federal actions against public entities no longer fall within the provisions of the Tort Immunity Act. Consequently, Hapaniewski affects neither Cooper nor our decision today.

For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed.

Affirmed.

SLATER and HOLDRIDGE, JJ., concur.

19951017

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