Davis v. Toshiba Machine Co.

Annotate this Case
FIRST DIVISION
June 15, 1998

No. 1-97-2971

SANDRA DAVIS,

Plaintiff-Appellant,

v.

TOSHIBA MACHINE COMPANY, AMERICA,

Defendant-Appellee. )
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)
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) Appeal from the
Circuit Court of
Cook County

Honorable
Michael Hogan,
Judge Presiding.

JUSTICE O'BRIEN delivered the opinion of the court:
Plaintiff, Sandra Davis, filed a products liability action
against defendant, Toshiba Machine Company, seeking damages
allegedly caused by a defective printing press designed,
manufactured and sold by defendant. Defendant filed a motion to
dismiss pursuant to section 2-619 of the Code of Civil Procedure
(735 ILCS 5/2-619 (West 1996)), on the grounds that the statute of
repose governing products liability actions (735 ILCS 5/13-213
(West 1996)) barred plaintiff's cause of action. The trial court
granted the motion to dismiss. We reverse and remand.
Plaintiff filed her complaint on February 24, 1997, alleging
that in August 1985, defendant entered into a contract with R.R.
Donnelley & Sons to design, manufacture, and sell to Donnelley a
printing press. Defendant delivered the printing press to
Donnelley in July 1986.
Plaintiff complained that while working for Donnelley on March
11, 1996, she suffered severe and permanent injuries when her right
hand was caught between two or more rollers of the printing press.
Plaintiff alleged that defendant was strictly liable for her
injury, because the printing press was defective and unreasonably
dangerous in that it did not include shields, guards, or other
protective devices between the rollers of the press and the ink
levelers.
Defendant filed a section 2-619 motion to dismiss, arguing
that the applicable statute of repose barred plaintiff's cause of
action. The statute of repose provides in relevant part:
"(b) Subject to the provisions of subsections
(c) and (d) no product liability action *** shall
be commenced except within the applicable
limitations period and, in any event, within 12
years from the date of first sale, lease or
delivery of possession by a seller or 10 years from
the date of first sale, lease or delivery of
possession to its initial user, consumer, or other
non-seller, whichever period expires earlier, of
any product unit that is claimed to have injured or
damaged the plaintiff, *** .
* * *
(d) Notwithstanding the provisions of
subsection (b) * * * if the injury complained of
occurs within any of the periods provided by
subsection (b) * * * the plaintiff may bring an
action within 2 years after the date on which the
claimant knew, or through the use of reasonable
diligence should have known, of the existence of
the personal injury, death or property damage, but
in no event shall such action be brought more than
8 years after the date on which such personal
injury, death or property damage occurred." 735
ILCS 5/13-213 (West 1996).
Defendant argued that section 13-213(b) barred plaintiff's
cause of action because more than 10 years had passed between
delivery of the printing press to its initial user, Donnelley, in
July 1986, and the filing of plaintiff's complaint on February 24,
1997. Plaintiff responded that since her injury occurred on March
11, 1996, which was within the 10-year statutory period of repose,
section 13-213(d) gave her an additional two years, until March 11,
1998, to file her complaint. Therefore, plaintiff contended, her
February 24, 1997, complaint was timely filed.
The trial court granted defendant's motion to dismiss.
Plaintiff appeals. We review de novo the trial court's dismissal
order. Weidman v. Wilkie, 277 Ill. App. 3d 448, 456 (1995).
The resolution of this issue requires us to construe sections
13-213(b) and (d). The primary rule of statutory construction is
to give effect to the intent of the legislature. Peoples Gas Light
& Coke Co. v. Illinois Commerce Comm'n, 286 Ill. App. 3d 21, 23
(1996). In determining legislative intent, a court first should
consider the statutory language. Peoples Gas, 286 Ill. App. 3d at
23. Where such language is clear, it will be given effect without
resort to other aids for construction. Peoples Gas, 286 Ill. App.
3d at 23.
Section 13-213(b) states in applicable part that a strict
products liability action must be brought within 10 years from the
date of first sale, lease, or delivery of possession of the product
to its initial user. The product in question here is an allegedly
defective printing press, and it was delivered to its initial user,
Donnelley, in July 1986. Thus, section 13-213(b), standing alone,
would require plaintiff to bring her action by July 1996.
However, section 13-213(d) begins by stating, "Notwithstanding
the provisions of subsection (b)." 735 ILCS 5/13-213(d) (West
1996). "Notwithstanding" means "in spite of" (see Webster's Third
New International Dictionary 1545 (1993)) and provides an exception
to the general rule set out in section 13-213(b). This exception
allows plaintiff to bring her suit within two years from the date
she knew or should have known of her injury, as long as the injury
occurred within the repose period. Plaintiff's injury occurred on
March 11, 1996, which was within the 10-year repose period. Thus,
plaintiff had until March 11, 1998, to file her products liability
action. Accordingly, plaintiff's complaint, filed on February 24,
1997, was timely.
Defendant contends that Elliott v. Sears, Roebuck & Co., 173
Ill. App. 3d 383 (1988), and American Family Insurance Co. v.
Village Pontiac-GMC, Inc., 182 Ill. App. 3d 385 (1989), compel a
different result. In Elliott, plaintiff cut his hand on a saw on
May 3, 1983, and later brought a products liability action against
the seller of the saw. Elliott, 173 Ill. App. 3d at 385. The
trial court granted summary judgment for defendant, finding that
plaintiff had not filed suit within the repose period of section
13-213(b). Elliott, 173 Ill. App. 3d at 392. The issue on appeal
was whether section 13-213(d) extended plaintiff's time for filing.
The Appellate Court, Fourth District, held that section 13-213(d)
"applies only to those situations in which the injury is not
immediately discoverable by the injured party." Elliott, 173 Ill.
App. 3d at 394-95. Since plaintiff knew he was injured when he cut
his hand on May 3, 1983, section 13-213(d) had "no application."
Elliott, 173 Ill. App. 3d at 395. Accordingly, the Appellate
Court, Fourth District, held that pursuant to section 13-213(b),
the trial court properly granted summary judgment for defendant.
Elliott, 173 Ill. App. 3d at 395.
In American Family Insurance, the Appellate Court, Second
District, cited Elliott and, without any further analysis, held
that section 13-213(d) only applies where the injury is not
immediately discoverable. American Family Insurance, 182 Ill. App.
3d at 389.
In the present case, defendant asks us to apply Elliott and
American Family Insurance and hold that since plaintiff's injury
was immediately discoverable, section 13-213(d) has no application
and that section 13-213(b) bars plaintiff's cause of action.
We respectfully disagree with Elliott and American Family
Insurance. Section 13-213(d) states "if the injury complained of
occurs within any of the periods provided by subsection (b) *** the
plaintiff may bring an action within 2 years after the date on
which the claimant knew, or through the use of reasonable diligence
should have known, of the existence of the personal injury." 735
ILCS 5/13-213(d) (West 1996). Section 13-213(d) does not state
that it is inapplicable when the "injury complained of" is
immediately discoverable. Rather, the clear language of section
13-213(d) indicates that plaintiff may bring suit within two years
from the date he knew or should have known of any injury occurring
within the repose period. In the present case, plaintiff's injury
occurred on March 11, 1996, which was within the 10-year statute of
repose and thus covered by section 13-213(d). Accordingly,
plaintiff had two years, until March 11, 1998, to file her action.
Plaintiff's action, filed on February 24, 1997, was therefore
timely, and the trial court erred in dismissing her claim.
Golla v. General Motors Corp., 167 Ill. 2d 353 (1995), also
cited by defendant, is inapposite. In Golla, plaintiff was
operating a Buick Skylark on September 3, 1985, when she was
involved in a collision with another vehicle. Golla, 167 Ill. 2d
at 355. The collision caused plaintiff's seat to slide violently
forward, thereby subjecting her left shoulder to trauma from the
three-point passenger restraint she was wearing. Golla, 167 Ill. 2d at 355. As a result, plaintiff allegedly developed reflex
sympathetic dystrophy (RSD). Golla, 167 Ill. 2d at 355.
Plaintiff filed a products liability action on August 7, 1989,
against defendant General Motors Corporation, alleging that the
Buick was not reasonably safe when it left defendant's control
because a defect in the driver's seat caused it to slide forward on
impact. Golla, 167 Ill. 2d at 355-56.
Defendant filed a motion for summary judgment, arguing that
plaintiff's action was barred under the two-year limitations period
found in section 13-202 of the Code of Civil Procedure (735 ILCS
5/13-202 (West 1992)). Golla, 167 Ill. 2d at 356. In response,
plaintiff argued that her action was not time-barred because the
discovery rule found in section 13-213(d) of the Code applied.
Golla, 167 Ill. 2d at 356. Plaintiff claimed the statute of
limitations did not start to run until March 1988, when doctors
first diagnosed her with RSD. Golla, 167 Ill. 2d at 356. The
trial court granted summary judgment for defendant. Golla, 167 Ill. 2d at 358.
Our supreme court affirmed. The court first noted a cause of
action for personal injuries generally accrues when plaintiff
suffers the injury. Golla, 167 Ill. 2d at 360. However, the court
also noted that since mechanical application of the statute of
limitations can in certain circumstances bar a plaintiff from
bringing suit even before she was aware she was injured, the
judiciary created the "discovery rule." Golla, 167 Ill. 2d at 360.
The discovery rule postpones the commencement of the relevant
statute of limitations until plaintiff knows or reasonably should
know she has been injured and that her injury was wrongfully
caused. Golla, 167 Ill. 2d at 360-61. The legislature has
incorporated the discovery rule in section 13-213(d), the statute
applicable to product liability actions. Golla, 167 Ill. 2d at
361.
The court further held that where the plaintiff's injuries are
caused by a sudden traumatic event, her cause of action accrues
when the injury occurred. Golla, 167 Ill. 2d at 361. The
rationale behind the "sudden traumatic event" rule is that "the
nature and circumstances surrounding the traumatic event are such
that the injured party is thereby put on notice that actionable
conduct might be involved." Golla, 167 Ill. 2d at 363. Since
plaintiff's car accident was such a sudden, traumatic event, the
court held that her cause of action accrued at the time of the
accident. Golla, 167 Ill. 2d at 363.
Unlike Golla, the present case involves application of the
statute of repose, as opposed to the statute of limitations. While
Golla held that section 13-213(d) does not toll the statute of
limitations when the plaintiff's injury is sudden and traumatic,
the court did not address section 13-213(d)'s effect on the statute
of repose.
More closely on point is Garza v. Navistar International
Transportation Corp., 172 Ill. 2d 373 (1996). Garza was injured
when a Dresser Payloader pinned him against a wall. Garza, 172 Ill. 2d at 376. Garza brought a products liability action against
Navistar, the manufacturer of the Dresser Payloader, alleging that
Navistar was strictly liable because the payloader was unreasonably
dangerous when it left Navistar's possession and control. Garza,
172 Ill. 2d at 376. The trial court granted Navistar's motion to
dismiss, finding that Garza's claim was barred by the 10-year
repose statute (735 ILCS 5/13-213(b) (West 1996)). Garza, 172 Ill. 2d at 376. On Navistar's appeal to our supreme court, Garza argued
that his injury occurred within the repose period, and therefore
section 13-213(d) gave him an additional two years from the date he
suffered his injury to file suit. Garza, 172 Ill. 2d at 383-84.
During its analysis of the issue,[fn1] the court cited with
approval Taylor v. Raymond Corp., 719 F. Supp. 738 (N.D. Ill.
1989), aff'd, 909 F.2d 225 (7th Cir. 1990). Taylor held that the
two-year extension provided in section 13-213(d) applies even to
plaintiffs who suffer an immediately discoverable, sudden and
traumatic injury, as long as the injury occurs within the repose
period. The analysis employed in Taylor is consistent with our
holding here, that the clear language of section 13-213(d) gives
plaintiff two years to file suit from the date she knows or
reasonably should know of any injury that occurs within the repose
period. Since plaintiff's injury occurred within the repose
period, and she filed her cause of action within two years of the
date of her injury, the trial court erred in dismissing her cause
of action as outside the statute of repose.
For the foregoing reasons, we reverse the trial court's order
dismissing plaintiff's cause of action and remand for further
proceedings.
Reversed and remanded.
BUCKLEY, P.J., and O MARA FROSSARD, J., concur.
[fn1]The supreme court ultimately rejected Garza's argument,
finding that Garza had not been injured during the applicable
repose period, and therefore he "[could] not take advantage of
subsection (d)'s two-year extension." Garza, 172 Ill. 2d at 385.


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