Court of Appeals of Illinois, First District, Fourth Division
ITADIL ZAYED, as Independent Administrator of the Estate of Said Mohammad Zayed, Deceased, Plaintiff-Appellant,
CLARK MANOR CONVALESCENT CENTER, INC., an Illinois Corporation, d/b/a Clark Manor Convalescent Center; J.S. AFFILIATES, LTD., an Illinois Corporation; and JLR FINANCIAL SERVICES CORP., an Illinois Corporation f/k/a JLR Management Corp., Defendants-Appellees.
from the Circuit Court of Cook County 2017-L-007306 Honorable
John P. Callahan, Judge Presiding
PRESIDING JUSTICE GORDON delivered the judgment of the court,
with opinion. Justices Lampkin [*] and Burke concurred in the judgment
Attorneys for Appellant: Leslie J. Rosen, of Leslie J. Rosen
Attorney at Law, P.C., and Steven M. Levin, Daisy Ayllon, and
Jaime Koziol Delaney, of Levin & Perconti, Ltd., both of
Chicago, for appellant.
Attorneys for Appellee: P. Patrick Cella, of Law Offices of
Edward J. Kozel, of Chicago, for appellees.
1 Plaintiff, Itadil Zayed, as the independent administrator
of the estate of Said Mohammad Zayed, filed a wrongful death
and survival action alleging that, while Said was residing in
Clark Manor Convalescent Center (Clark Manor), he fell and
suffered a hip fracture that caused or contributed to causing
his death 18 months later. Said had been disabled by dementia
and could not have filed his own suit. The nursing home moved
to dismiss Said's personal claims as Justice Lampkin was
assigned as a panel member on this case on September 10,
2019. She was not present for oral argument; however, she did
review the recording of the oral arguments. untimely pursuant
to an appellate decision involving similar facts, Giles
v. Parks, 2018 IL App. (1st) 163152.
2 Illinois law provides that personal injury suits are to be
filed within two years of when the cause of action accrues.
735 ILCS 5/13-202 (West 2014). In Giles, the court
ruled that section 13-211 of the Code of Civil Procedure
(Code) (735 ILCS 5/13-211 (West 2012)), which suspends the
running of the statute of limitations while a person is
legally disabled, was not controlling and that section
13-209(a)(1) (735 ILCS 5/13-209(a)(1) (West 2012)), which
extends the limitations period when a tortiously injured
person dies before filing suit, governed. Giles,
2018 IL App. (1st) 163152, ¶¶ 12-17. Pursuant to
Giles, the trial court found that Said's
personal claims accrued when he was traumatically injured in
2014 and, because he died in 2015 during the two-year
limitations period for personal injury claims, section
13-209(a)(1) extended the limitations period to 2016 for only
one year beyond his death, meaning that the claims plaintiff
filed on Said's behalf in 2017 were untimely.
3 On appeal, plaintiff contends that Giles
misinterprets the legislature's intent in the two
statutes and results in injustice. She argues that sections
13-211(a) and 13-209(a)(1) are to be applied together, so
that a disabling condition during a person's lifetime
indefinitely suspends the time limitation for filing a tort
claim and then, only upon the person's death, does the
two-year limitation period begin to run for that person's
legal representative to bring an action. See 735 ILCS
13-209(a)(1), 13-211(a) (West 2014).
5 According to plaintiffs complaint, on June 8, 2012, when
Said was 62 years old, he became a resident of the subject
nursing home located in Chicago. Prior to his admission and
for the remainder of his life, Said was under a legal
disability, in that he was incapable of managing his person
or property and could not comprehend his legal rights or the
nature of the acts that would give rise to his cause of
action. Although not alleged in the complaint, counsel told
the trial court during arguments that Said's admitting
diagnosis to Clark Manor included dementia, Parkinson's
disease, and Alzheimer's disease and that it was
undisputed that he was under a legal disability. It was
further alleged that Said was at a high risk for falls and
that, while he was unattended, he fell out of bed on March 4,
2014. Plaintiff alleged that Said spent six days in the
hospital and was then transferred to a different nursing
home. Said's fall caused a right intertrochanteric (hip)
fracture that either caused or contributed to causing his
death on September 25, 2015, a few months before his
6 Plaintiff filed suit on July 20, 2017, which was 3 years
and 4 months after Said's fracture and 1 year and 10
months after his death. Seven of the claims were on
Said's behalf, seeking compensation for his expenses,
pain and suffering, disability, and disfigurement due to
violations of his rights under the Nursing Home Care Act and
under common-law negligence. See 210 ILCS 45/1-101 et
seq. (West 2014) (statute intended to protect the rights
of nursing home residents vulnerable to exploitation,
neglect, or abuse); see also 755 ILCS 5/27-6 (West 2014)
(statute that allows for recovery of damages the injured
person could have recovered, had that person survived). The
six other claims were to compensate Said's family for
their loss of companionship, loss of society, grief, sorrow,
and mental suffering, and from all indications those claims
are still pending in the trial court.
7 Clark Manor filed a section 2-619 motion to dismiss
Said's seven personal claims as untimely pursuant to
Giles. 735 ILCS 5/2-619 (West 2016); Giles,
2018 IL App. (1st) 163152. The trial court considered the
parties' briefs and arguments, granted the dismissal,
and, pursuant to Illinois Supreme Court Rule 304(a) (eff.
Mar. 8, 2016), authorized this interlocutory appeal.
9 On review from the dismissal order, we take all well-pled
facts in the complaint as true, along with all reasonable
inferences that can be gleaned from those facts.
Henderson Square Condominium Ass'n v. LAB Townhomes,
LLC, 2015 IL 118139, ¶ 34. We address a section
2-619 dismissal de novo. Henderson Square, 2015 IL
118139, ¶ 34. The de novo standard governs our
review for the additional reason that we are addressing the
proper interpretation of sections 13-209(a)(1) and 13-211 (a)
and statutory construction poses a question of law. Relf
v. Shatayeva, 2013 IL 114925, ¶ 21; 735 ILCS
5/13-209(a)(1), 13-211(a) (West 2014). Under the de
novo standard, "we perform the same analysis a
trial court would perform and give no deference to the
judge's conclusions or specific rationale."
Bituminous Casualty Corp. v. Iles, 2013 IL App.
(5th) 120485, ¶ 19.
10 In Giles, the case previously decided by another
division of this court, Morris, an adult, was walking through
a crosswalk when he was struck by a tow truck.
Giles, 2018 IL App. (1st) 163152, ¶ 3. The
accident rendered Morris unconscious, and he remained so
until he died the next day at the hospital. Giles,
2018 IL App. (1st) 163152, ¶ 3. Two years after Morris
died and two years and one day after the accident,
Morris's brother, Roscoe, filed a one-count action on
Morris's behalf against the tow truck's owner.
Giles, 2018 IL App. (1st) 163152, ¶ 4.
Morris's personal injury claim and the personal injury
claims now at issue were subject to the same two-year statute
of limitations. See 735 ILCS 5/13-202 (West 2012).
11 The Giles action was, however, dismissed for want
of prosecution. Giles, 2018 IL App. (1st) 163152,
¶ 5. In a petition for relief from the judgment order,
Roscoe presented evidence that the attorney he originally
retained had a minor stroke and was no longer practicing law.
Giles, 2018 IL App. (1st) 163152, ¶ 6. In
response, the tow truck owner argued that, regardless, the
claim was time barred when it was filed. Giles, 2018
IL App. (1st) 163152, ¶ 6. Roscoe replied that his
brother Morris was under a legal disability from the time he
was struck in the crosswalk until the time he died the next
day, that the legal disability tolled the statute of
limitations for that one day, and that the complaint
regarding Morris's personal injuries was therefore
timely. Giles, 2018 IL App. (1st) 163152, ¶ 7.
Here, Said's circumstances are slightly ...