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Niehaus v. Rural Peoria County Council on Aging

June 23, 2000


Appeal from the Circuit Court of 10th Judicial Circuit Peoria County, Illinois No. 98 L 304 Honorable Robert A. Barnes, Jr. Presiding Judge

The opinion of the court was delivered by: Justice Koehler

The plaintiff-appellant, Bertha Lucille Niehaus, appeals the Peoria County circuit court's grant of the defendant, Rural Peoria County Council on Aging's (RPCCA), motion to dismiss her negligence action because it was filed beyond the limitation of actions period provided in the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/8-101 (West 1996)). The question this court must answer is: Did the circuit court err when it determined that the RPCCA, a not-for-profit organization organized for charitable purposes, is entitled to the protections of the Act and, therefore, because Niehaus did not file her claim within the Act's limitation period, her claim is barred? Because we conclude that the Act does not apply to the RPCCA, we reverse and remand.


On July 25, 1997, the plaintiff-appellant, Bertha Lucille Niehaus, an elderly woman, received injuries while being transported to the local YWCA in a van operated by the RPCCA and driven by Larry Brackett. Niehaus participated in the YWCA's Senior World program, which had contracted with the RPCCA for Niehaus' transportation to and from the YWCA. Pursuant to the contract, RPCCA provided transportation to and from Senior World adult day care for frail seniors who do not have other appropriate accessible transportation.

According to its mission statement, RPCCA is a not-for-profit organization incorporated in 1982 "to help senior citizens to live independently and with dignity in their own homes." Its articles of incorporation describe it as "exclusively charitable." More particularly, it purposes to assist the Central Illinois Agency on Aging, Inc. in determining the needs of rural Peoria County's senior citizens; create better community awareness of their needs and desires; provide a coordinating council to establish service priorities to better meet senior citizens' needs; encourage greater use of existing programs; create greater senior involvement in community activities and services; plan and find sponsors for senior recreational, social service, volunteer and training programs; advocate for seniors throughout rural Peoria County; and, apply for, receive, retain, and administer funds from any source for delivery of services to rural Peoria County senior citizens. RPCCA provides case management and supervision, emergency homemaker services, meals at local centers and home delivered meals, transportation, and respite care and operates senior centers. RPCCA's amended articles of incorporation prohibit engaging in propaganda or attempting to influence legislation and participating in any political campaign. Its constitution and bylaws purpose statement largely reflects the articles of incorporation. The constitution and bylaws also states that "membership shall not be restricted" and sets membership dues at two dollars per year; however, if payment is a financial hardship, RPCCA may waive dues.

According to RPCCA, the Illinois Department of Transportation pays approximately 50% of its transportation operating expenses and RPCCA receives approximately one-third to one-half of its funds from the state and federal governments. That figure rises to 65% of its cash funds when local government funding is included. In addition to membership dues, RPCCA receives in-kind contributions and raises funds through dinners, garage sales, raffles, and similar activities.

Niehaus filed a complaint on October 19, 1998 alleging negligence against the defendants. The circuit court granted RPCCA's motion to strike Neihaus' allegation that RPCCA is a common carrier and RPCCA subsequently filed an amended complaint. RPCCA also filed a motion to dismiss under 735 ILCS 5/2-619(a)(5) (West 1998) (section 2-619). After concluding that the Act applies to RPCCA, the circuit court granted RPCCA's motion and dismissed Niehaus' complaint with prejudice because she did not file the action within one year after the injury occurred or the cause of action accrued as the Act requires. Niehaus appeals.


Section 2-619 provides for the disposition of questions of law and easily proved facts at the outset of the case and, in ruling, the circuit court considers pleadings, depositions, and affidavits on file. Wells v. Travis, 284 Ill. App. 3d 282, 285, 672 N.E.2d 789, 792-93 (1996). The motion should be granted and the complaint dismissed if, after construing the document in the light most favorable to the nonmoving party, no set of facts can be proved entitling the plaintiff to recover. Wells, 284 Ill. App. 3d at 285, 672 N.E.2d 793. All well-pleaded facts alleged in the complaint are taken as true and the court is concerned only with a question of law on the pleadings. Wells, 284 Ill. App. 3d at 285, 672 N.E.2d at 793 citing Nikolic v. Seidenberg, 242 Ill. App. 3d 96, 98-99, 610 N.E.2d 177 (1993). This court's review, therefore, is de novo.

Niehaus argues that the circuit court erred when it concluded that the Act applies to RPCCA and, accordingly, dismissed her complaint. She contends that the Act's purpose is to protect local public entities from liability arising from the operation of government and that RPCCA is not a local public entity. It is not organized for the purpose of conducting public business; rather, it is a not-for-profit corporation organized for charitable purposes. Niehaus maintains that RPCCA receives a large share of its funding from private sources, has a membership requirement, and offers its services only to seniors and not to members of the public at large.

RPCCA maintains that it conducts public business and, therefore, is subject to the Act. RPCCA argues that it promotes traditional government-like functions; conducts activities that are also government activities; receives government funding; carries out activities under statutory authority; furthers both federal and state goals; and does not restrict its services to its members. RPCCA notes that it receives government funding pursuant to the Public Transportation Act (30 ILCS 740/1-1 et seq. (West 1993)). It further notes that it receives funds through the Older Americans Act of 1965 (42 U.S.C. § 3021 (1994)), the purpose of which is to encourage and assist state agencies in providing services to the elderly, and the Downstate Illinois Act on the Aging (20 ILCS 105/1 (West 1992)), which establishes state agencies to receive and disburse state and federal funds to groups developing local services for the elderly.

The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. McCuen v. Peoria Park District, 245 Ill. App. 3d 694, 697, 615 N.E.2d 764, 767 (1993). The Tort Immunity Act is in derogation of the common law and its terms are to be strictly construed. Independent Trust Corp. v. City of Chicago Dept. of Water, 295 Ill. App. 3d 811, 815, 693 N.E.2d 459, 462 (1998). Accordingly, in deciding whether a public entity is involved, we will strictly construe the Act. The Act provides, in pertinent part: "(a) The purpose of the Act is to protect local public entities and public employees from liability arising from the operation of government. ***." 745 ILCS 10/1-101.1 (West 1996).

The legislature has enumerated those local public entities that are included and those that are excluded under the Act as follows: " 'Local public entity' includes a county, township, municipality, municipal corporation, school district, school board, educational service region, regional board of school trustees, community college district, community college board, forest preserve district, park district, fire protection district, sanitary district, museum district, emergency telephone system board, and all other local governmental bodies. 'Local public entity' also includes library systems and any intergovernmental agency or similar entity formed pursuant to the Constitution of the State of Illinois or the intergovernmental Corporation Act as well as any not-for-profit corporation organized for the purpose ...

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