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Zayed v. Clark Manor Convalescent Center, Inc.

Court of Appeals of Illinois, First District, Fourth Division

September 26, 2019

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.

          Appeal 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 and opinion.

          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).

         ¶ 4 BACKGROUND

         ¶ 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 sixty-sixth birthday.

         ¶ 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.

         ¶ 8 ANALYSIS

         ¶ 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, ΒΆ 7. Here, Said's circumstances are slightly ...

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