Johnson-Jordan v. Citgo Petroleum Corp., 2-21-0209

CourtUnited States Appellate Court of Illinois
Citation2022 IL App (2d) 210209,193 N.E.3d 665,456 Ill.Dec. 425
Docket Number2-21-0209
Parties Jacqueline JOHNSON-JORDAN, Plaintiff-Appellant, v. CITGO PETROLEUM CORPORATION, 1015 Food Mart Inc., and Unknown Property Owner and/or Management Company, Defendants-Appellees.
Decision Date21 January 2022

2022 IL App (2d) 210209
193 N.E.3d 665
456 Ill.Dec.

Jacqueline JOHNSON-JORDAN, Plaintiff-Appellant,
CITGO PETROLEUM CORPORATION, 1015 Food Mart Inc., and Unknown Property Owner and/or Management Company, Defendants-Appellees.

No. 2-21-0209

Appellate Court of Illinois, Second District.

Rule 23 Order Filed December 2, 2021
Motion to Published Granted January 21, 2022
Opinion filed January 21, 2022

Nick E. Porter, of Law Offices of Fedor Kozlov, P.C., of Schaumburg, for appellant.

Richard J. Leamy Jr., Kristen A. Schank, and Henry W. Goldman, of Weidner & McAuliffe, Ltd., of Chicago, for appellees.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

456 Ill.Dec. 427

¶ 1 At issue in this case is whether an amended complaint, which alleged that while shopping at the business of defendants, CITGO Petroleum Corporation (CITGO) and 1015 Food Mart Inc. (Food Mart), plaintiff, Jacqueline Johnson-Jordan, slipped and fell on an unnatural accumulation of water on the store's floor, related back to her original complaint, which alleged that she slipped and fell on ice as she exited the store. The trial court, determining that the amended complaint did not relate back and, thus, was filed after the expiration of the limitations period, dismissed plaintiff's amended complaint, with prejudice. Plaintiff appeals. We affirm.


¶ 3 On January 17, 2020, in a two-count complaint, plaintiff sued defendants, alleging negligence. She asserted that defendants operated Food Mart, a CITGO store at 1015 10th Street in North Chicago. Plaintiff alleged that, on or about January 15, 2018, at about 10 p.m., she was a business invitee at the store. Further, while exiting the store, she "slipped and fell on unremoved by [sic ] [defendants] ice." Plaintiff alleged that she sustained multiple injuries and that defendants breached their duty to maintain their premises in a reasonably safe condition.

¶ 4 Food Mart moved to dismiss the complaint ( 735 ILCS 5/2-615, 2-619(a)(5) (West 2020)), arguing that the two-year limitations period had expired (id. § 13-202) and that the complaint failed to state a claim because it failed to allege an unnatural accumulation of ice. In response, plaintiff argued that her complaint was file-stamped after the expiration of the limitations period because it was initially rejected due to an electronic filing error. As to the second argument, she denied that she was required to plead an unnatural accumulation of ice. The trial court denied the motion as to the limitations argument (finding good cause shown) and dismissed the complaint without prejudice based on plaintiff's failure to allege that she had slipped on an unnatural accumulation of ice. The court granted plaintiff leave to file an amended complaint.

¶ 5 On September 24, 2020, plaintiff filed her amended complaint. The complaint contained, in four counts, separate negligence and Premises Liability Act ( 740 ILCS 130/1 et seq. (West 2020)) counts against each defendant. In this complaint, plaintiff alleged that, on or about January 15, 2018, at about 10 p.m., she was a lawful entrant at the Food Mart and "was on the premises for the purpose of shopping." She

193 N.E.3d 668
456 Ill.Dec. 428

entered the store and "proceeded to shop for merchandise." As she "proceeded to shop, she slipped and fell on the unnatural accumulation of a quantity of water on the floor." Plaintiff alleged that, prior to her fall, she did not see any signs warning of a wet floor or indicating hazardous conditions, nor did she observe the water prior to her fall. The hazardous conditions on the premises, she further alleged, created an unreasonable risk of harm. She asserted that defendants breached the duty they owed their customers to remove any hazards and prevent the unnatural accumulation of water, causing her injury.

¶ 6 Food Mart moved to dismiss the amended complaint ( 735 ILCS 5/2-619(a)(5) (West 2020)), arguing that it was filed after the expiration of the limitations period and did not relate back to plaintiff's original complaint. Food Mart asserted that the allegations in both complaints were premised on two entirely different transactions or occurrences. In her original complaint, plaintiff had alleged that she slipped and fell on ice while exiting the store and that defendants had not removed the ice. In her amended complaint, she alleged that she slipped on water inside the store while shopping. The substantive and evidentiary issues, Food Mart asserted, were also different.

¶ 7 CITGO filed its own motion to dismiss (id. § 2-619(a)(5), (9)), arguing that it never owned or managed the store at issue, the complaint was not timely filed, and plaintiff had failed to exercise reasonable diligence in serving to it the summons and complaint.

¶ 8 On February 2, 2021, CITGO substituted Food Mart's counsel to represent CITGO and take over its defense.

¶ 9 On March 29, 2021, the trial court dismissed (id. § 2-619(a)(5) ) plaintiff's amended complaint against both defendants, with prejudice, finding that it did not relate back to her original complaint (id. § 2-616(b)). A bystander's report of the proceedings states that the trial court found that the amended allegations changed the duties defendants owed to plaintiff and were factually distinct from the original allegations. The court also noted that the difference in allegations would change the investigation that defendants were put on notice to conduct, specifically, investigating ice near the store entryway versus water accumulation inside the store. Plaintiff appeals.


¶ 11 Plaintiff argues that the trial court erred in dismissing her amended complaint, with prejudice, and requests that we reverse and remand for further proceedings. She maintains that her amended complaint relates back to her original complaint, where the location, time, and injuries are nearly identical such that the amended complaint "grew out of the same *** occurrence set up in the original pleading." Id. For the following reasons, we reject plaintiff's argument.

¶ 12 Section 2-619(a)(5) of the Code of Civil Procedure (Code) provides that a defendant may file a motion to dismiss when an action has not been commenced within the time limited by law. Id. § 2-619(a)(5). Section 2-619 is designed to afford litigants a means to dispose of issues of law and easily proven issues of fact at the onset of litigation. Turner v. 1212 S. Michigan Partnership , 355 Ill. App. 3d 885, 891, 291 Ill.Dec. 476, 823 N.E.2d 1062 (2005). A motion to dismiss under section 2-619 admits the legal sufficiency of all well-pleaded facts but allows for the dismissal of claims barred by an affirmative matter defeating those claims or avoiding their legal effect.

193 N.E.3d 669
456 Ill.Dec. 429

Janda v. United States Cellular Corp. , 2011 IL App (1st) 103552, ¶ 83, 356 Ill.Dec. 329, 961 N.E.2d 425.

¶ 13 When ruling on a section 2-619 motion to dismiss, a trial court must interpret all pleadings, affidavits, and other supporting documents in the light most favorable to the nonmoving party. Caywood v. Gossett , 382 Ill. App. 3d 124, 128, 320 Ill.Dec. 542, 887 N.E.2d 686 (2008). The defendant has the initial burden of proving the affirmative defense relied upon in its motion to dismiss. Kirby v. Jarrett , 190 Ill. App. 3d 8, 12, 137 Ill.Dec. 204, 545 N.E.2d 965 (1989) (explaining that a defendant raising a statute of limitations defense in a motion to dismiss bears the initial burden of demonstrating that the action in question was not commenced within the applicable limitations period). Once the defendant, however, has met this burden, it becomes incumbent upon the plaintiff to set forth facts sufficient to avoid the statutory limitation. Cundiff v. Unsicker , 118 Ill. App. 3d 268, 272, 73 Ill.Dec. 840, 454 N.E.2d 1089 (1983). An appeal from a section 2-619 dismissal requires the same analysis as an appeal following a grant of summary judgment; in both instances, "the reviewing court must ascertain 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." Ultsch v. Illinois Municipal Retirement Fund , 226 Ill. 2d 169, 178, 314 Ill.Dec. 91, 874 N.E.2d 1 (2007). We review de novo dismissals under section 2-619. O'Toole v. Chicago Zoological Society , 2015 IL 118254, ¶ 16, 396 Ill.Dec. 120, 39 N.E.3d 946 ; see also Bryson v. News America Publications, Inc. , 174 Ill. 2d 77, 86, 220 Ill.Dec. 195, 672 N.E.2d 1207 (1996) (de novo review applied to dismissal based on limitations period and failure of new claim to relate back under section 2-616(b)).

¶ 14 Section 13-202 of the Code provides that the limitations period for personal injury lawsuits is two years. 735 ILCS 5/13-202 (West 2020). Plaintiff's original complaint was filed within the limitations period. However, it is undisputed that, unless her amended complaint relates back to the filing of her original complaint, her amended complaint was not filed within the limitations period.

¶ 15 Section 2-616(b) of the Code addresses amendments to pleadings and contains the...

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