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Greb v. Forest Preserve Dist. of Cook County

June 18, 2001

STEPHEN C. GREB, PLAINTIFF-APPELLANT,
v.
FOREST PRESERVE DISTRICT OF COOK COUNTY, WESTERN INDUSTRIES, INC., VULCAN MATERIALS COMPANY, COUNTY OF COOK AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County No. 95 L 12836 The Honorable David G. Lichenstein, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

Not Released For Publication

STEPHEN C. GREB, PLAINTIFF-APPELLANT,
v.
FOREST PRESERVE DISTRICT OF COOK COUNTY, WESTERN INDUSTRIES, INC., VULCAN MATERIALS COMPANY, COUNTY OF COOK AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS-APPELLEES.

Appeal from the Circuit Court of Cook County No. 95 L 12836 The Honorable David G. Lichenstein, Judge Presiding.

The opinion of the court was delivered by: Justice Cohen

Plaintiff, Stephen Greb, filed a negligence complaint against defendant, City of Chicago (the City), seeking damages for injuries he sustained while riding his motorcycle on River Road as the street was undergoing repair. The trial court dismissed plaintiff's claim against the City for failure to file suit within the period described in the applicable statute of limitations. We affirm.

 Background

On August 28, 1994, plaintiff was driving his motorcycle north on River Road when he encountered road repair work. As plaintiff followed the routing of traffic through the construction site, he drove over some loose stones, skidded, lost control of his vehicle and, colliding with one of the barricades, suffered personal injuries.

On August 28, 1995, plaintiff filed a negligence complaint against the Forest Preserve District of Cook County, the State of Illinois, the Illinois Department of Transportation and the County of Cook. Plaintiff alleged that those entities negligently maintained and marked a barricaded water main maintenance job site on River Road in the village of Schiller Park. On October 25, 1996, plaintiff filed an amended complaint naming Western Industries, Inc., and Vulcan Materials Company as additional defendants. The State of Illinois and the Illinois Department of Transportation were omitted as defendants in the first amended complaint. Plaintiff filed a second amended complaint on February 18, 1997, adding the City of Chicago as a defendant. The City filed a motion to dismiss pursuant to Section 2-619 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619 (West 2000)), alleging that plaintiff failed to comply with the one year statute of limitations in the Local Government and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/8-101(West 2000)).

Plaintiff argues that the circuit court should have applied the four year statute of limitations for causes of action relating to construction design management and supervision found in section 5/13-214 of the Code. 735 ILCS 5/13-214(West 2000). At issue is whether the controlling statute of limitations is the one year designated in section 8-101 of the Tort Immunity Act or the four years designated in section 5/13-214 of the Code. We review de novo the circuit court's order granting the City's motion to dismiss. Phelan v. Keiser, 312 Ill.App.3d 573, 574, 727 N.E.2d 390, 391 (2000).

Analysis

The purpose of a statue of limitations is "to discourage the presentment of stale claims and to encourage diligence in the bringing of actions." Tom Olesker's Exciting World Fashion, Inc. v. Dunn & Bradstreet, Inc., 61 Ill. 2d 129, 137, 334 N.E.2d 160, 164 (1975). When deciding which of two conflicting statutes of limitations is more specifically applicable to a plaintiff's case, courts in Illinois have traditionally considered the nature of the claims and the type of injuries sustained. Cleaver v. Marrese, 253 Ill. App. 3d 778, 782-83, 625 N.E.2d 1129, 1132-33 (1993). However, in Tosado v. Miller, 188 Ill. 2d 186, 720 N.E.2d 1075 (1999), a medical malpractice case, the Illinois Supreme Court held that when choosing between the statute of limitations contained in the Tort Immunity Act and that found in section 13-212 of the Code (735 ILCS 5/13-212 (West 2000)), the focus "should be on the nature of the defendants rather than on the type of cause of action." Tosado, 188 Ill. 2d at 195, 720 N.E.2d at 1080.

The Tosado court's departure from the general rule was predicated on the court's belief that the legislature intended the Tort Immunity Act to protect a special class of defendants, namely, local governmental entities and their employees.

"The legislature *** specifically stated that its purpose was 'to protect local public entities and public employees from liability arising from the operation of government.' 745 ILCS 10/1-101.1(a) (West 1994). In enacting the Tort Immunity Act the legislature focused on a particular category of potential defendants and granted local governmental entities and their employees greater protection ...


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