Doherty v. Cummins-Allison Corp.

• Decision Date: 20 December 1993
• Docket Number: CUMMINS-ALLISON,No. 1-92-0092,1-92-0092
• Citation: 256 Ill.App.3d 624,195 Ill.Dec. 267,628 N.E.2d 731
• Parties: , 195 Ill.Dec. 267 Norman G. DOHERTY and Kelly G. Doherty, Plaintiffs-Appellants, v.CORPORATION, a foreign corporation, and Rauenhorst Corporation, a foreign corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 731

628 N.E.2d 731

256 Ill.App.3d 624, 195 Ill.Dec. 267

Norman G. DOHERTY and Kelly G. Doherty, Plaintiffs-Appellants, v. CUMMINS-ALLISON CORPORATION, a foreign corporation, and Rauenhorst Corporation, a foreign corporation Defendants-Appellees.

No. 1-92-0092.

Appellate Court of Illinois First District, First Division.

Dec. 20, 1993.

James A. Corrigan, Ltd., Chicago, for plaintiffs-appellants.

Cassiday, Schade & Gloor, and Landau, Omahana & Kopka, Ltd., Chicago (Timothy J. Ashe, Susan E. Conner, Morgan A. Milne, of counsel), for defendants-appellees.

BUCKLEY, Justice, delivered the opinion of the court:

Plaintiffs, Norman G. Doherty and his wife, Kelly G. Doherty, brought an action against defendants, Cummins-Allison Corporation ("Cummins") and Rauenhorst Corporation ("Rauenhorst"), seeking damages for injuries sustained when Norman allegedly fell while on the premises of the Cummins' plant. The trial judge granted defendants' motions to dismiss pursuant to sections 2-616(b) and 2-619(a)(5) of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, pars. 2-616(b), 2-619(a)(5) (now 735 ILCS 5/2-616(b), 5/2-619(a)(5) (West 1992))) on the grounds that plaintiffs' action was time barred because their second-amended complaint did not relate back to the filing of the original complaint and the applicable statute of limitations period had expired. Plaintiffs filed a timely notice of appeal to this court. On appeal, plaintiffs argue that the trial judge erred in finding that their second-amended complaint did not relate back to the timely filing of the original complaint.

On January 6, 1988, plaintiffs filed their original four-count complaint against defendants. Plaintiffs alleged that, on January 8, 1986, Norman fell and sustained serious and permanent injuries while on the Cummins' plant premises located at 891 Feehanville Drive in Mount Prospect, Illinois. Counts I and II were directed at Cummins and alleged that Cummins was negligent in its ownership, operation, maintenance and control of a certain loading dock on the plant premises. Plaintiffs further alleged that Norman's fall and injuries were the direct and proximate result of one or more of the following negligent acts or omissions committed by Cummins:

(a) Permitted breaks and depressions to exist in the area of said loading docks;

(b) Permitted said loading dock to have an excessive degree of slope;

(c) Negligently and carelessly failed to maintain the dock premises and permitted the dock premises to become in a state of disrepair;

(d) Was otherwise careless and negligent in the ownership and maintenance of said loading dock premises.

Counts III and IV were directed at Rauenhorst and alleged that Rauenhorst was negligent in its construction of the dock premises. Plaintiffs alleged that Norman's fall and injuries were the direct and proximate result of one or more of the following negligent acts or omissions committed by Rauenhorst:

(a) Built and constructed said dock premises with an excessive degree of slope;

(b) Built and constructed said dock premises with improper and unsuitable materials which were prone to break;

(c) Was otherwise careless and negligent in the building and constructing of the dock premises;

On January 23, 1991, plaintiffs filed a first-amended complaint. On April 1, 1991, Cummins filed a motion to dismiss plaintiffs' first-amended complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-619 (now 735 ILCS 5/2-619 (West 1992))) on the ground that the amended complaint alleged negligence in the maintenance of the parking lot and the parking lot lights and, therefore, set forth a cause of action growing out of a different occurrence and conduct than the original complaint which alleged negligence in the maintenance of the loading dock. On May 23, 1991, prior to ruling on Cummins' motion, the judge allowed plaintiffs to file a second-amended complaint instanter.

Counts I and II of plaintiffs' second-amended complaint alleged that Cummins was negligent in its ownership, operation, maintenance and control of a certain loading dock and parking lot area located at 891 Feehanville Drive. The second-amended complaint further alleged that Norman's fall and injuries were the direct and proximate result of one or more of the following acts or omissions committed by Cummins:

(a) Permitted breaks and depressions to exist in the area of said loading dock/parking lot area;

(b) Permitted depressions to exist which caused unnatural accumulations of ice in the loading dock/parking lot area;

(c) Negligently and carelessly failed to maintain the lights in the loading dock/parking lot area and permitted certain lights to become burned out and as a result thereof, the lighting in the loading dock/parking lot area was inadequate for Plaintiff to see and discover the presence of the hazardous unnatural accumulations of ice and depressions;

(d) Was otherwise careless and negligent in the ownership and maintenance of the said loading dock/parking lot area.

Counts III and IV of plaintiffs' second-amended complaint alleged that Rauenhorst was negligent in the design and construction of the loading dock and the parking lot area of the Cummins' plant and it attributed one or more of the following negligent acts or omissions to Rauenhorst:

(a) Designed and constructed the loading dock/parking lot area with an insufficient amount of base material and an insufficient [sic ] of Bituminous material so that as a result thereof, the loading dock/parking lot area developed depressions which in turn caused unnatural accumulations of ice;

(b) Designed and constructed the loading dock/parking lot area with improper and unsuitable materials which were prone to break;

(c) Was otherwise careless and negligent in the design and construction of the loading dock/parking lot area.

On May 30, 1993, Cummins filed a 2-619 motion to dismiss plaintiffs' second-amended complaint. Cummins again argued that plaintiffs' second-amended complaint did not relate back to their original complaint and, therefore, was time barred under section 2-619(a)(5) of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-619(a)(5) (now 735 ILCS 5/2-619(a)(5) (West 1992))) because the allegations in the second-amended complaint which referred to the parking lot and the parking lot lights concerned different conduct by different persons than did the allegations in the original complaint which concerned the maintenance of the loading dock. Subsequently, Rauenhorst adopted Cummins' motion to dismiss as its own.

On December 5, 1991, the trial judge held a hearing on defendants' motions to dismiss. At the conclusion of the hearing, the trial judge granted defendants' motions to dismiss plaintiffs' second-amended complaint with prejudice. The judge reasoned that the various complaints did not describe the same location. On January 3, 1992, plaintiffs filed a timely notice of appeal.

It is uncontested that plaintiffs' original complaint was filed within the two-year statute of limitations applicable to personal injury actions. (Ill.Rev.Stat.1991, ch. 110, par. 13-202 (now 735 ILCS 5/13-202 (West 1992)).) Additionally, both parties agree that plaintiffs' second-amended complaint is barred by the limitations period if it does not relate back to the timely filing of the original complaint. Plaintiffs contend that the trial judge erred when she ruled that their second-amended complaint did not relate back to the timely filing of their original complaint and, therefore, was barred by the applicable statute of limitations period. Plaintiffs assert that their second-amended complaint grew out of the same transaction or occurrence which was set up in the original pleading and did not prejudice defendants' opportunity to investigate and prepare a defense to the claim. They argue that the reference in their second-amended complaint to "the loading dock/parking lot area" is simply another description of the area described in the original complaint as "the loading dock premises." They point out that at all times they alleged the address of the location of the incident to be 891 Feehanville Road in Mount Prospect, Illinois. Plaintiffs maintain, therefore, that defendants' motions to dismiss are "in reality a hyper-technical battle over semantics."

Defendants, on the other hand, contend that the parking lot and the loading dock are two different locations and do not become the same location simply by describing them as "the loading dock/parking lot area." Defendants maintain that their investigation focused on the maintenance, repair and design of the loading dock since the parking lot was not mentioned in the original complaint. They assert that they will be unduly prejudiced if the second-amended complaint is allowed because they had no notice they should investigate or preserve evidence regarding the parking lot or parking lot area. Additionally, defendants assert that the allegations of the second-amended complaint seek to hold them liable for conduct wholly different from that alleged in the original complaint.

Section 2-616(b) of the Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-616(b) (now 735 ILCS 5/2-616(b) (West 1992))) provides that a cause of action set up in an amended pleading which was filed after the expiration of the applicable statute of limitations period will be held to relate back to the date of the filing of the original pleading if (a) the original pleading was timely filed, and (b) the original and amended pleadings show that the cause of action asserted in the amended pleading "grew out of the same transaction or occurrence set up in the original pleading." (Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill.2d 44, 46, 155 Ill.Dec. 814, 816, 570 N.E.2d 327, 329.) Section 2-616(b) is to be liberally construed so that controversies can be determined according to the substantive rights of the...