Cannon v. Bryant

• Decision Date: 09 April 1990
• Docket Number: No. 1-88-3694,1-88-3694
• Citation: 196 Ill.App.3d 891,554 N.E.2d 489,143 Ill.Dec. 554
• Parties: , 143 Ill.Dec. 554 A.C. CANNON, Plaintiff-Appellant, v. Rosemary BRYANT and Anton Edgar, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 489

554 N.E.2d 489

196 Ill.App.3d 891, 143 Ill.Dec. 554

A.C. CANNON, Plaintiff-Appellant, v. Rosemary BRYANT and Anton Edgar, Defendants-Appellees.

No. 1-88-3694.

Appellate Court of Illinois First District, First Division.

April 9, 1990.

Spector & Lenz, P.C., Chicago (H. Thomas Lenz, of counsel), for plaintiff-appellant.

Law Offices of James J. DesVeaux, Chicago (J. Deborah Salvesen, of counsel), for defendants-appellees.

Justice CAMPBELL delivered the opinion of the court:

Plaintiff, A.C. Cannon, appeals from the entry of summary judgment in favor of defendants, Rose Marie Bryant and Antoine T. Edgar, in an action for damages for injuries sustained when plaintiff, defendants' tenant, allegedly fell on the stairway of an apartment building owned by defendants. The trial court held that, pursuant to section 2-616 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-616), plaintiff's amended complaint, which corrected the street name of the apartment building's address and was filed after the relevant statute of limitations period had expired, did not relate back to the original complaint and, thus, was time-barred. For the following reasons, the judgment of the trial court is affirmed.

The record indicates that on November 12, 1987, plaintiff filed his complaint against Rosemary Bryant and Anton Edgar, ¹ alleging that they owned an apartment building located at 7127 E. 70th Place, Chicago (the "Premises"). Plaintiff further alleged that on November 13, 1985, while he was lawfully on the Premises, defendants carelessly and negligently allowed an unsafe condition to exist on the porch of the Premises which caused plaintiff to suffer injuries. On March 13, 1988, defendants filed a motion for summary judgment, alleging, inter alia, that on November 13, 1985, defendants did not own the building located at 7127 E. 70th Place, Chicago.

On April 14, 1988, in response to defendants' motion for summary judgment, plaintiff filed a motion to amend the complaint so as to correct the names of the defendants and the address of the Premises which had been "inadvertently written" as 7127 E. 70th Place, Chicago, instead of 7127 S. Wabash, Chicago. At the hearing on both motions, the trial court denied defendants' motion for summary judgment and granted leave to plaintiff to file an amended complaint.

On April 29, 1988, plaintiff filed his amended complaint which corrected the spelling of defendants' names, changed the address of the Premises to 7127 S. Wabash, Chicago, and added more specific allegations as to defendants' negligent acts, i.e., they had carelessly maintained the porch of the Premises by allowing "an unnatural accumulation of oil and grease, resulting from improper garbage removal, to remain on the porch."

In their answer to the amended complaint, defendants admitted that they owned the building located at 7127 S. Wabash, but claimed, as an affirmative defense, that plaintiff had failed to keep a proper look-out of the surface for his own safety. Defendants then filed a motion for summary judgment, arguing that, based on Zeh v. Wheeler (1986), 111 Ill.2d 266, 95 Ill.Dec. 478, 489 N.E.2d 1342, the change of address of the Premises in the amended complaint set forth a new occurrence and, thus, plaintiff's amended complaint did not relate back to the original complaint and was time-barred. The trial court granted defendants' motion and plaintiff's appeal followed.

Initially, plaintiff contends that because defendants answered the amended complaint and filed an affirmative defense without including the statute of limitations defense, they waived their right to assert a statute of limitations defense in the summary judgment motion. Contrary to plaintiff's assertion, an affirmative defense may be raised in a motion for summary judgment even though it had not been raised previously in the pleadings. Competitive Food Systems, Inc. v. Laser (1988), 170 Ill.App.3d 606, 120 Ill.Dec. 442, 524 N.E.2d 207.

Plaintiff next contends that his amended complaint, filed subsequent to the expiration of the relevant statute of limitations, relates back to the original complaint which was timely filed and, consequently, was not time-barred. Section 2-616(b) of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-616(b)), which governs amendments to pleadings and whether they relate back to the filing of the original pleadings, provides, in pertinent part:

"(b) The cause of action * * * set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted * * * in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege * * * the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action * * * set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended."

In Illinois, pleadings are liberally construed and they are not intended to present, define and narrow the issues or limit the proof needed at trial. (Swaw v. Ortell (1984), 137 Ill.App.3d 60, 92 Ill.Dec. 49, 484 N.E.2d 780.) The purpose of section 2-616(b) is to prevent a person from losing a cause of action due to technicalities. (United Parcel Service v. Church's Fried Chicken, Inc. (1988), 174 Ill.App.3d 378, 123 Ill.Dec. 822, 528 N.E.2d 367.) In order for an amended pleading to relate back, the original pleading need not have technically stated a cause of action, nor need the cause of action set out in the amended pleading be substantially the same as that stated in the original pleading. (Krieger v. Village of Carpentersville (1972), 8 Ill.App.3d 243, 289 N.E.2d 481.) Rather, the cause of action asserted in the amended pleading must have grown out of the same transaction or occurrence set up in the orginal pleading. (Zeh v. Wheeler (1986), 111 Ill.2d 266, 95 Ill.Dec. 478, 489 N.E.2d 1342.) An amended pleading grows out of the original pleading if the latter provided defendant with all of the necessary information to prepare his defense to the subsequently asserted claim. (Weidner v. Carle Foundation Hospital (1987), 159 Ill.App.3d 710, 111 Ill.Dec. 435, 512 N.E.2d 824.) If defendant shows that the amendment hindered his ability to present his case on the merits, the court will find that he has been prejudiced and the amendment will not relate back. However, if the original complaint directed defendant's attention to the facts on which the amended claim is predicated, the court will find that he has not been prejudiced by the amendment. United Parcel Service v. Church's Fried Chicken, Inc. (1988), 174 Ill.App.3d 378, 123 Ill.Dec. 822, 528 N.E.2d 367.

In a situation such as the one at bar where the amended pleading corrects an erroneous address of the location where a negligent act allegedly occurred, the pivotal question in determining whether the amended pleading relates back to the original is whether the original and amended pleadings expressed two descriptions of the same location (Carlin v. City of Chicago (1914), 262 Ill. 564, 104 N.E. 905) or whether each pleading described two different locations. (Gilmore v. City of Chicago (1906), 224 Ill. 490, 79 N.E. 596; Zeh v. Wheeler (1986), 111 Ill.2d 266, 95 Ill.Dec. 478, 489 N.E.2d 1342.) If the pleadings express two descriptions of the same location, the amended pleading relates back to the original. (Carlin.) If they describe two different locations, the amended complaint sets forth a new occurrence and does not relate back. Gilmore; Zeh.

In CARLIN V. CITY OF CHICAGO (1914), 262 ILL. 564 , 104 N.E. 905,² the original complaint alleged that the defendants had negligently failed to guard or to protect a large piece of boiler which had been placed on Fourteenth Street, near a plant or factory known as Thomas F. Pickham Boiler Works. After the limitations period had run, plaintiff amended her complaint by substituting the word "Place" for the word "Street" in the address. In response, the City filed a plea predicated on the statute of limitations and maintained that the cause of action asserted in the amended complaint was different from that alleged in the original complaint. The Carlin court found that "Fourteenth Street" and "Fourteenth Place" did not refer to different localities; they were merely two descriptions of the same locality. Therefore, the amendment did not state a new cause of action. The court further reasoned that the allegation in the original complaint that the incident had occurred at or near the plant of Thomas F. Pickham Boiler Works had put defendant on notice as to the actual location of the occurrence.

By contrast, in Gilmore v. City of Chicago (1906), 224 Ill. 490, 79 N.E. 596, the supreme court found that changing the street name from "Princeton" in the original complaint to "Stewart" in the amended complaint changed the location of the occurrence, which, in turn, changed the act of negligence. Thus, the amended complaint did not relate back to the original. In Gilmore, plaintiff allegedly sustained personal injury when she stepped into a hole in a public sidewalk in the City of Chicago. The original complaint alleged that the incident took place near the intersection of Thirty-eighth Street and Princeton Avenue. After the limitations period had...