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09/12/96 GLENN TATARA v. PETERSON DIVING SERVICE

September 12, 1996

GLENN TATARA, PLAINTIFF-APPELLANT,
v.
PETERSON DIVING SERVICE, A DIVISION OF PETERSON HYDRO ENGINEERING, INC., A CORPORATION, CENTRAL RENT-A-CRANE, A CORPORATION, AND CENTRAL CONTRACTORS SERVICE, INC., A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 89-L-14104. Honorable Patrick E. McGann, Odas Nicholson, Arthur A. Sullivan, Jr., Judges Presiding.

Released for Publication October 22, 1996.

The Honorable Justice Theis delivered the opinion of the court: Cahill and O'brien, JJ., concur.

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

The plaintiff, Glenn Tatara, filed an action for negligence and violation of the Structural Work Act for injuries sustained as the result of a crane accident at a construction site on July 25, 1984. He now appeals from three separate trial court orders. The first order granted the motion of defendant Central Contractors Service, Inc., to dismiss on statute of limitations grounds. Two orders dated May 16, 1994, and March 3, 1994, granted summary judgment in favor of defendants Central Rent-A-Crane and Peterson Diving Service, respectively. The plaintiff first contends that the trial court erred in dismissing his action against Central Contractors Service. He maintains that under section 2-616(d) of the Illinois Code of Civil Procedure his October 2, 1989, complaint, which formally named Central Contractors Service for the first time during the litigation, related back to the date of his original timely complaint. See 735 ILCS 5/2-616(d) (West 1992). The plaintiff further contends that summary judgment in favor of Central Rent-A-Crane and Peterson Diving Service is premature because a genuine issue of material fact exists with respect to his claims against both. We determine that the trial court properly dismissed the complaint against Central Contractors Service as untimely because the plaintiff is unable to show that his failure to add Central Contractors Service was inadvertent. See 735 ILCS 5/2-616(d)(2) (West 1992). We also uphold the trial court's orders granting summary judgment in favor of the remaining defendants because no triable issue of fact remains.

Many facts in this case are uncontested on appeal. On July 25, 1984, the plaintiff, an employee of the City of Chicago's Bureau of Electricity, was working on a construction site in Chicago, which was part of the "Deep Tunnel" project. As part of the project, a pump had to be lowered into a drop shaft containing sewage water. Under the direction of Robert Wendler, a City of Chicago project manager, the workers on the site attempted to place the pump into the shaft using a crane.

As crane operator Harold Montgomery lowered the pump, it became lodged in the shaft. Wendler decided that he and the plaintiff should investigate the problem by descending into the shaft in a cage connected to an auxiliary cable on the crane. As the cage was being lowered into the shaft, the cable detached from the crane, and the cage fell into the sewage water. The plaintiff's head struck the interior of the cage when it fell. Both he and Wendler eventually extricated themselves from the cage, swam to a ladder and climbed out of the shaft. An ambulance then took the plaintiff to a hospital where he was treated for his injuries.

In order to facilitate a discussion of the issues before us, we must conduct a detailed examination of the procedural background of this case, focusing carefully on the dates of the various documents contained in the record as they relate to the plaintiff's actions during the course of this litigation. On June 11, 1985, the plaintiff filed a complaint for negligence, naming Peterson Diving Service, Central Rental Crane and the Metropolitan Sanitary District as defendants. All of the parties agree that Central Rental Crane was not a proper party defendant, and that the plaintiff eventually became aware of this error. However, the timing and manner in which the plaintiff responded to his error is the subject of much debate on appeal. On August 20, 1987, defense counsel sent a letter to plaintiff's counsel explaining that he had erroneously understood Central Rental Crane to be a viable corporation. He further stated that the entity's proper name was "Central Rent-A-Crane."

In another letter dated September 2, 1987, counsel for the defendant again informed the plaintiff that "Central Rental Crane" did not exist. The letter stated that Central Contractors Service, not Central Rent-A-Crane, leased the crane involved in the July 1984 accident.

Defense counsel attached a copy of the plaintiff's request to admit to the September 1987 letter. Handwritten responses appear next to each request to admit, but the document is not signed or sworn to by an attorney for the defendant. The hand-written responses indicate that Central Rent-A-Crane and Central Contractors Service are not the same business, but share common owners, directors and officers. The responses also indicate that the defendant did not know whether Central Contractors Service leased the crane to Peterson. The plaintiff originally had sent the request to admit to "Central Rental Crane."

Next, the record contains the following documents related to amending the plaintiff's complaint: (1) a notice of filing dated October 20, 1987, which states that a "First Amended Complaint" will be filed on October 27, 1987; (2) an undated document entitled "First Amened [sic] Complaint at Law" naming Peterson Diving Service, Central Rent-A-Crane and the Metropolitan Sanitary District as defendants; and (3) another version of the first amended complaint, naming Peterson Diving Service, Metropolitan Sanitary District and Central Contractors Service as defendants.

Although the plaintiff did not file either version of the first amended complaint during October of 1987, on October 30, 1987, Central Contractors Service filed a motion to dismiss the so-called "Amended Complaint" joining it as a defendant. In the motion the defendant argued for dismissal on the grounds that the plaintiff failed to name Central Contractors Service as a defendant prior to the expiration of the two-year statute of limitations period set forth in section 13-202. 735 ILCS 5/13-202 (West 1992).

On December 11, 1987, the parties appeared at a hearing. The plaintiff advised the court that he was seeking leave to file an amended complaint that did not name Central Contractors Service as a defendant. Counsel for the defendant, Central Contractors Service, then withdrew its motion to dismiss. In response to the parties' representations the court stated:

"I will give you leave to file the complaint. Just so the record is clear, in the order giving you leave to file the amended complaint, put a clear statement that these parties [Central Contractors Service and Metropolitan Sanitary District] are no longer parties defendant to this cause so we don't have a problem by the filing of the complaint they ...


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