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Davis v. Toshiba Machine Co.

June 15, 1998

SANDRA DAVIS, PLAINTIFF-APPELLANT,
v.
TOSHIBA MACHINE COMPANY, AMERICA, DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Justice O'brien delivered the opinion of the court:

Appeal from the Circuit Court of Cook County

Honorable Michael Hogan, judge Presiding.

Plaintiff, Sandra Davis, filed a products liability action against defendant, Toshiba Machine Company, seeking damages allegedly caused by a defective printing press designed, manufactured and sold by defendant. Defendant filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1996)), on the grounds that the statute of repose governing products liability actions (735 ILCS 5/13-213 (West 1996)) barred plaintiff's cause of action. The trial court granted the motion to dismiss. We reverse and remand.

Plaintiff filed her complaint on February 24, 1997, alleging that in August 1985, defendant entered into a contract with R.R. Donnelley & Sons to design, manufacture, and sell to Donnelley a printing press. Defendant delivered the printing press to Donnelley in July 1986.

Plaintiff complained that while working for Donnelley on March 11, 1996, she suffered severe and permanent injuries when her right hand was caught between two or more rollers of the printing press. Plaintiff alleged that defendant was strictly liable for her injury, because the printing press was defective and unreasonably dangerous in that it did not include shields, guards, or other protective devices between the rollers of the press and the ink levelers.

Defendant filed a section 2-619 motion to dismiss, arguing that the applicable statute of repose barred plaintiff's cause of action. The statute of repose provides in relevant part:

"(b) Subject to the provisions of subsections (c) and (d) no product liability action *** shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, *** . * * *

(d) Notwithstanding the provisions of subsection (b) * * * if the injury complained of occurs within any of the periods provided by subsection (b) * * * the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of 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." 735 ILCS 5/13-213 (West 1996).

Defendant argued that section 13-213(b) barred plaintiff's cause of action because more than 10 years had passed between delivery of the printing press to its initial user, Donnelley, in July 1986, and the filing of plaintiff's complaint on February 24, 1997. Plaintiff responded that since her injury occurred on March 11, 1996, which was within the 10-year statutory period of repose, section 13-213(d) gave her an additional two years, until March 11, 1998, to file her complaint. Therefore, plaintiff contended, her February 24, 1997, complaint was timely filed.

The trial court granted defendant's motion to dismiss. Plaintiff appeals. We review de novo the trial court's dismissal order. Weidman v. Wilkie, 277 Ill. App. 3d 448, 456 (1995).

The resolution of this issue requires us to construe sections 13-213(b) and (d). The primary rule of statutory construction is to give effect to the intent of the legislature. Peoples Gas Light & Coke Co. v. Illinois Commerce Comm'n, 286 Ill. App. 3d 21, 23 (1996). In determining legislative intent, a court first should consider the statutory language. Peoples Gas, 286 Ill. App. 3d at 23. Where such language is clear, it will be given effect without resort to other aids for construction. Peoples Gas, 286 Ill. App. 3d at 23.

Section 13-213(b) states in applicable part that a strict products liability action must be brought within 10 years from the date of first sale, lease, or delivery of possession of the product to its initial user. The product in question here is an allegedly defective printing press, and it was delivered to its initial user, Donnelley, in July 1986. Thus, section 13-213(b), standing alone, would require plaintiff to bring her action by July 1996.

However, section 13-213(d) begins by stating, "Notwithstanding the provisions of subsection (b)." 735 ILCS 5/13-213(d) (West 1996). "Notwithstanding" means "in spite of" (see Webster's Third New International Dictionary 1545 (1993)) and provides an exception to the general rule set out in section 13-213(b). This exception allows plaintiff to bring her suit within two years from the date she knew or should have known of her injury, as long as the injury occurred within the repose period. Plaintiff's injury occurred on March 11, 1996, which was within the 10-year repose period. Thus, plaintiff had until March 11, 1998, to file her products liability action. Accordingly, plaintiff's complaint, filed on February 24, 1997, was timely.

Defendant contends that Elliott v. Sears, Roebuck & Co., 173 Ill. App. 3d 383 (1988), and American Family Insurance Co. v. Village Pontiac-GMC, Inc., 182 Ill. App. 3d 385 (1989), compel a different result. In Elliott, plaintiff cut his hand on a saw on May 3, 1983, and later brought a products liability action against the seller of the saw. Elliott, 173 Ill. App. 3d at 385. The trial court granted summary judgment for defendant, finding that plaintiff had not filed suit within the repose period of section 13-213(b). Elliott, 173 Ill. App. 3d at 392. The issue on appeal was whether section 13-213(d) extended plaintiff's time for filing. The Appellate Court, Fourth District, held that section 13-213(d) "applies only to those situations in which the injury is not immediately discoverable by the injured party." Elliott, 173 Ill. App. 3d at 394-95. Since plaintiff knew he was injured when he cut his hand on May 3, 1983, section 13-213(d) had ...


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