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Danzig v. The University of Chicago Charter School Corp.

Court of Appeals of Illinois, First District, Third Division

August 14, 2019

SUSAN DANZIG, Plaintiff,
v.
THE UNIVERSITY OF CHICAGO CHARTER SCHOOL CORPORATION, PROFESSIONAL THEATER AND DANCE YOUTH ACADEMY, KIERAN PALMER-KLEIN, and MICHAEL JONES, Defendants Professional Theater and Dance Youth Academy, Defendant and Counterplaintiff-Appellant; The University of Chicago Charter School Corporation, Defendant and Counterdefendant-Appellee. KARLA DAVIS, Plaintiff,
v.
THE UNIVERSITY OF CHICAGO CHARTER SCHOOL CORPORATION, PROFESSIONAL THEATER AND DANCE YOUTH ACADEMY, KIERAN PALMER-KLEIN, and MICHAEL JONES, Defendants Professional Theater and Dance Youth Academy,

          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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