Court of Appeals of Illinois, First District, Third Division
Appeal
from the Circuit Court of Cook County, Illinois, County
Department, Law Division. Nos. 18 L 3248 and 18 L 3249 The
Honorable Kathy M. Flanagan, Judge Presiding.
Attorneys for Appellant: John Grossbart, Cicely Miltich, and
Eitan Kagedan, of Dentons U.S. LLP, of Chicago, for
appellant.
Attorneys for Appellee: Stephen P. Ellenbecker and Garrett L.
Boehm Jr., of Johnson & Bell, Ltd., of Chicago, for
appellee.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of
the court, with opinion. Justices Ellis and Cobbs concurred
in the judgment and opinion.
OPINION
FITZGERALD SMITH, PRESIDING JUSTICE
¶
1 This cause of action arises from two identical complaints
(for negligence and willful and wanton misconduct) filed by
the plaintiffs Susan Danzig and Karla Davis, against numerous
defendants, including the counterdefendant-appellee, the
University of Chicago Charter School Corporation (the charter
school) and the counterplaintiff-appellant, the Professional
Theater and Dance Youth Academy (the dance academy), seeking
damages for injuries sustained when a bench on which they
were seated to watch a school play broke. The charter school
moved to dismiss the plaintiffs' claims on the basis of
the one-year statute of limitations contained in the Local
Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act) (745 ILCS 10/8-101 (West 2016)). While
the charter school's motion to dismiss was pending, the
dance academy filed a counterclaim for contribution against
the charter school as its joint tortfeasor, pursuant to the
Joint Tortfeasor Contribution Act (740 ILCS 100/1 et
seq. (West 2016)). The charter school moved to dismiss
the dance academy's counterclaim contending that it was
time-barred pursuant to section 13-204(c) of the Code of
Civil Procedure (Code) (735 ILCS 5/13-204(c) (West 2016)) as
a result of the plaintiffs' delay in bringing their own
claims against the charter school. The circuit court granted
the charter school's motion to dismiss the
plaintiffs' complaints, in doing so dismissing all claims
against the charter school as untimely. The dance academy
sought clarification of whether this dismissal included the
dismissal of its counterclaim against the charter school. The
court clarified that it did. The dance academy now appeals,
contending that the trial court erred when it found that the
delay in the plaintiffs' filing of their original
complaints against the charter school barred it from seeking
contribution from the charter school only three months after
the charter school was served with the underlying complaints.
For the reasons that follow, we affirm the judgment of the
circuit court.
¶
2 BACKGROUND
¶
3 At the outset, we note that the record before us does not
contain any report of the proceedings below or any acceptable
substitute, such as a bystanders report or an agreed
statement of facts, as authorized under Illinois Supreme
Court Rule 323 (eff July 1, 2017). Consequently, the
following undisputed facts and procedural history are gleaned
solely from the common law record.
¶
4 The counterplaintiff, the dance academy, is a 501(c)
nonprofit corporation organized and licensed to do business
in the state of Illinois. Its executive director is Michael
Jones. The counterdefendant, the charter school, is a
corporation certified to do business in the state of Illinois
under the Illinois State Board of Education. The parties do
not dispute that the charter school is a local public entity
for purposes of the Tort Immunity Act (745 ILCS 10/1-206
(West 2016)). It is further undisputed that since about 2010,
pursuant to a succession of oral agreements, the charter
school engaged the dance academy to provide professional
theater and dance instruction to middle- and high-school
students at two of the charter school's campuses.
¶
5 On February 24, 2017, the plaintiffs attended a student
play at the charter school's Woodlawn campus. During this
performance, the plaintiffs sat on a bench after being
instructed to do so by a charter school employee, Kieran
Palmer-Klein. The bench collapsed, and the plaintiffs
sustained injuries.
¶
6 As a result of this incident, on March 30, 2018, the
plaintiffs filed identical one-count negligence lawsuits
against the charter school and the dance academy. On April
12, 2018, the plaintiffs filed amended complaints, adding
Palmer-Klein and Jones as defendants and additionally
alleging willful and wanton misconduct on the part of all the
defendants.
¶
7 On May 24, 2018, the charter school and Palmer-Klein filed
section 2-619 motions to dismiss the plaintiffs' amended
complaints (735 ILCS 5/2-619 (West 2016)), inter
alia, contending that the complaints were barred by the
statute of limitations set forth in the Tort Immunity Act
(745 ILCS 10/8-101(a) (West 2016)), which requires claims
against local public entities to be brought within one year
of the alleged injury. The plaintiffs filed their response on
June 28, 2018, and the charter school and Palmer-Klein
replied on July 12, 2018.
¶
8 On June 28, 2018, the dance academy and Jones filed their
own joint motion to dismiss the plaintiffs' amended
complaints pursuant to section 2-615 of the Code (735 ILCS
5/2-615 (West 2016)), alleging that the plaintiffs had failed
to state causes of action for both negligence and willful and
wanton misconduct. The dance academy solely sought the
dismissal of count II (willful and wanton misconduct), while
Jones sought the dismissal of both the negligence and willful
and wanton counts. The plaintiffs did not respond to this
motion to dismiss.
¶
9 On June 28, 2018, the dance academy also filed its answer
to the plaintiffs' amended complaints and counterclaims
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