Hager v. II In One Contractors, Inc.

• Decision Date: 05 September 2003
• Docket Number: No. 1-01-4222.,1-01-4222.
• Citation: 342 Ill. App.3d 1082,797 N.E.2d 167,277 Ill.Dec. 820
• Parties: Steven HAGER and Emilie Hager, Plaintiffs-Appellants, v. II IN ONE CONTRACTORS, INC., an Illinois Corporation, The City of Chicago, a Municipal Corporation, and Public Building Commission of Chicago, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

797 N.E.2d 167

342 Ill. App.3d 1082

277 Ill.Dec. 820

Steven HAGER and Emilie Hager, Plaintiffs-Appellants, v. II IN ONE CONTRACTORS, INC., an Illinois Corporation, The City of Chicago, a Municipal Corporation, and Public Building Commission of Chicago, Defendants-Appellees.

No. 1-01-4222.

Appellate Court of Illinois, First District, Fifth Division.

September 5, 2003.

Kedzie & Svanascini, Chicago (Michael J. Kedzie, of counsel), for Appellants.

McKenna, Storer, Rowe, White & Farrug, Chicago (James P. DeNardo, Richard J. Rettberg, Kristin Kvorsky Tauras and Brian J. Kaplan, of counsel), for Appellee.

Justice REID delivered the opinion of the court:

At issue in this case is the question of which of two statutes of limitations applies to the underlying dispute: the one-year or the four-year statute. The trial court, after holding that the one-year statute of limitations applied, granted a motion to dismiss. For the reasons that follow, we reverse the trial court's decision and remand the matter for further proceedings.

BACKGROUND

Steven Hager, an employee of Walsh Construction (Walsh), was injured while working as a construction worker on a jobsite controlled by the City of Chicago (City) through the auspices of the Public Building Commission of the City of Chicago (Commission). The project involved the design and construction of the new Chicago police headquarters located at 3510 South Michigan Avenue. Hager and his wife filed suit against II in One Contractors (II in One), the City, and the Commission. II in One, a subcontractor on the project, was hired to provide, pour, place and finish the concrete for the project. Hager was injured when he slipped and fell on debris resulting from concrete overpour and pieces of loose concrete left on the ground. The complaint, filed one day short of two years following the date of the occurrence, alleged negligence and loss of consortium. Hager's complaint contains many allegations of negligence on the part of the defendants, which can be grouped as follows: (1) failure to make reasonable inspections, (2) improper operation, management, maintenance and control of the concrete work, (3) failure to provide a safe place to work, (4) failure to warn of the dangerous conditions when the defendants knew or should have known the dangers, and (5) failure to provide adequate safeguards and instructions, including safety training.

A default judgment was entered against the Commission for its failure to appear, answer or otherwise plead. That default judgment was subsequently vacated. The City and the Commission then filed a motion seeking dismissal pursuant to section 2-619 of the Code of Civil Procedure and section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/8-101 (West 2000)) (Tort Immunity Act). The City and Commission argued their status as local public entities required the application of a shorter statute of limitations. Hager argued that the controlling statute of limitations is four years, based upon section 13-214 of the Code of Civil Procedure (735 ILCS 5/13-214 (West 2000)) (hereinafter Construction Act). The trial court dismissed the complaint at issue pursuant to section 2-619 of the Code of Civil Procedure. 735 ILCS 5/2-619 (West 2000). In granting the motion, the trial court relied heavily upon the holding in Greb v. Forest Preserve District, 323 Ill.App.3d 461, 256 Ill. Dec. 639, 752 N.E.2d 519 (2001).

ARGUMENTS OF THE PARTIES

Hager argues that the trial court erred in granting the motion to dismiss because the four-year statute of limitations governs. He claims the trial court's ruling violates the plain language of the Construction Act and fails to treat both statutes consistently, giving each full effect. Hager suggests that the court's main goal should be to give effect to the intent of the legislature. He believes the inquiry should start with the plain language of the statute itself. Hager argues that, when two legislative schemes do not seem completely compatible, they should be interpreted so that meaning is given to both. Hager believes the statute of limitations identified in section 13-214 should control because the action arises out of the supervision and management of the construction of an improvement to real property. According to Hager, pursuant to the Tort Immunity Act, the government is only immune from specific things in the Act. Hager contends that the two statutes can be read together, holding that general claims against a municipality are governed by a one-year statute, unless the claim involves construction activities. Hager acknowledges the holdings in Tosado v. Miller, 188 Ill.2d 186, 242 Ill.Dec. 120, 720 N.E.2d 1075 (1999), and Ferguson v. McKenzie, 202 Ill.2d 304, 269 Ill.Dec. 188, 780 N.E.2d 660 (2001), that the statute of limitations in the Tort Immunity Act controls over the medical malpractice statute of repose (735 ILCS 5/13-212(a) (West 2000)) but argues that those cases are different from this one, in that those cases involve a general medical malpractice limitation. Hager argues that Greb failed to analyze the language of the statute first. Hager also urges this court not to follow the Tosado case because that case was a plurality without precedential value.

The City responds that, under Illinois precedent and public policy, the Hagers' cause of action against the City and Commission, both public entities, is barred by the one-year statute of limitations. The City directs this court to Greb, a case involving a plaintiff injured when his motorcycle encountered road repair work. As the Greb plaintiff followed the rerouting of construction traffic, he drove over loose stones, skidded and lost control. Greb collided with a barricade, suffering personal injury. Greb filed a second amended complaint 2½ years after the accident that named the City of Chicago as a party defendant. The City moved to be dismissed from Greb's complaint, which the trial court granted, based on the one-year statute of limitations in the Tort Immunity Act. Greb, 323 Ill.App.3d at 462-63, 256 Ill.Dec. 639, 752 N.E.2d 519. On appeal, Greb argued before this court that the four-year limitation applied instead. This court rejected that argument. Greb, 323 Ill.App.3d at 465-66, 256 Ill.Dec. 639, 752 N.E.2d 519. Additionally, the City argues that Greb is consistent with other Illinois decisions, particularly the plurality decision in Tosado.

ANALYSIS

The standard of review of a motion to dismiss under section 2-619 is de novo. Spirit of Excellence, Ltd. v. Intercargo Insurance Co., 334 Ill.App.3d 136, 145, 267 Ill.Dec. 857, 777 N.E.2d 660 (2002), citing Neppl v. Murphy, 316 Ill.App.3d 581, 584, 249 Ill.Dec. 736, 736 N.E.2d 1174 (2000). A second though equally important reason to apply the de novo standard of review is that this case ultimately turns on a question of statutory interpretation. Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago, 338 Ill.App.3d 781, 784, 273 Ill.Dec. 442, 789 N.E.2d 342 (2003), citing Michigan Avenue National Bank v. County of Cook, 191 Ill.2d 493, 503, 247 Ill.Dec. 473, 732 N.E.2d 528 (2000). A section 2-619 motion may be granted when the claim asserted is barred by some affirmative matter defeating the claim. Malevitis v. Friedman, 323 Ill. App.3d 1129, 1131, 257 Ill.Dec. 209, 753 N.E.2d 404 (2001). "Facts apparent from the face of the pleadings, including the exhibits attached thereto, may be considered." Haddick v. Valor Insurance, 198 Ill.2d at 409, 414, 261 Ill.Dec. 329, 763 N.E.2d 299 (2001), citing Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill.2d 472, 491-92, 239 Ill.Dec. 12, 713 N.E.2d 543 (1999). "[A court] will grant the motion to dismiss only if the plaintiff can prove no set of facts that would support a cause of action." Pavlik v. Kornhaber, 326 Ill.App.3d 731, 738, 260 Ill.Dec. 331, 761 N.E.2d 175 (2001) citing Chicago Teachers Union, Local 1 v. Board of Education of the City of Chicago, 189 Ill.2d 200, 206, 244 Ill.Dec. 26, 724 N.E.2d 914 (2000). A section 2-619 motion admits the legal sufficiency of the complaint and raises defects, defenses or other affirmative matter that appear on the face of the complaint or are established by external submissions that act to defeat plaintiff's claim. Spirit of Excellence,334 Ill.App.3d at 145,267 Ill.Dec. 857,777 N.E.2d 660, citing Neppl, 316 Ill.App.3d at 584,249 Ill.Dec. 736,736 N.E.2d 1174. If a cause of action is dismissed pursuant to section 2-619, the question on appeal is whether a genuine issue of material fact exists and whether defendant is entitled to a judgment as a matter of law. Spirit of Excellence,334 Ill.App.3d at 145,267 Ill.Dec. 857,777 N.E.2d 660, citing McGee v. State Farm Fire & Casualty Co., 315 Ill.App.3d 673, 680, 248 Ill.Dec. 436, 734 N.E.2d 144 (2000). The question on appeal from an order granting dismissal under section 2-619 is "`whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.'" Doyle, 186 Ill.2d at 109-10, 237 Ill.Dec. 100, 708 N.E.2d 1140, quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116-17, 189 Ill. Dec. 31, 619 N.E.2d 732 (1993).

Section 8-101 of the Tort Immunity Act provides, in pertinent part as follows:

"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term `civil action' includes any action, whether based upon the common law or statutes or Constitution of this State." (Emphasis added.) 745 ILCS 10/8-101 (West 2000).

Section 13-214 of the Code of Civil Procedure reads, in pertinent part, as follows:

"§ 13-214. Construction—Design management and supervision. As used in this Section `person'

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