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Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority

August 9, 2002

MALCOLM SCHUSSE, PLAINTIFF-APPELLANT,
v.
PACE SUBURBAN BUS DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. Nos. 98 L 2847, 97 L 15276 HONORABLE SOPHIA HALL, JUDGE PRESIDING.

The opinion of the court was delivered by: Presiding Justice Campbell

UNPUBLISHED

Plaintiff Malcolm Schusse appeals an order of the circuit court of Cook County dismissing his claim against defendant Pace Suburban Bus Division of the Regional Transportation Authority (Pace, RTA) for spoilation of evidence.

The record on appeal discloses the following facts. On December 30, 1989, plaintiff, an employee of defendant, was driving a Pace bus when the driver's seat collapsed, allegedly causing a spinal cord injury to plaintiff. That same day, plaintiff made a statement regarding his injury in a worker's compensation form and submitted the statement to Pace. On May 8, 1990, plaintiff applied for an adjustment of his claim before the Illinois Industrial Commission.

Defendant replaced the suspension system for the driver's seat in the bus at issue in October 1990.

On October 23, 1991, plaintiff filed suit against the manufacturers of the bus and the driver's seat, alleging negligence, strict products liability and breach of warranty. Pace was not named as a defendant in the initial complaint. In August and October 1992, the initial defendants filed third-party complaints against Pace alleging negligence. In April 1995, one of the third-party complaints was amended to add a count alleging negligent spoilation of evidence.

On October 25, 1995, plaintiff amended his complaint to add Pace as a defendant, alleging negligent spoilation of evidence. Plaintiff voluntarily dismissed his complaint on February 21, 1997, and refiled the matter on November 26, 1997.

Pace moved to dismiss on the ground that the original and refiled actions against Pace were untimely under the applicable statute of limitations. Pace acknowledges that the record does not show whether this motion was denied or simply not ruled upon by the trial court.

On August 26, 2000, defendant filed a motion to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)), alleging that the suit was barred by exclusivity provisions found in section 5 of the Workers' Compensation Act (820 ILCS 305/5(a) (West 2000)). On October 13, 2000, following a hearing on the matter, the trial court granted the motion to dismiss. On October 26, 2000, the trial court entered an order finding that there was no just reason to delay enforcement or appeal of the dismissal order. Plaintiff filed a notice of appeal to this court on November 8, 2000.

I.

The issue on review is whether the trial court erred in dismissing plaintiff's claim against defendant Pace. A motion to dismiss based on section 2-619 motion admits the legal sufficiency of the complaint and raises defects, defenses or other affirmative matter which appear on the face of the complaint or are established by external submissions which act to defeat the plaintiff's claim. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733, 736 (1999).

Section 2-619 enables the court to dismiss a complaint after considering issues of law or easily proved issues of fact. Yu v. Kobayashi, 281 Ill. App. 3d 489, 492, 667 N.E.2d 106, 108 (1996). For example, section 2-619(a)(5) permits dismissal where "the action was not commenced within the time limited by law." (735 ILCS 5/2-619(a)(5) (West 2000)) Section 2-619(a)(9) provides for dismissal where "the claim asserted against [a] defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2000). The exclusivity provisions of section 5 of the Workers' Compensation Act (Act) have been considered as a basis for dismissal under section 2-619(a)(9). See, e.g., Senesac v. Employer's Vocational Resources, Inc., 324 Ill. App. 3d 380, 385, 754 N.E.2d 363, 368 (2001).

The standard of review of a dismissal pursuant to section 2-619 is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). This court can affirm a section 2-619 dismissal on any grounds supported by the record, regardless of the trial court's reasons. Ko ...


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