Bertolis v. Community Unit School District No. 7

Annotate this Case
NO. 4-95-1018

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JENNIFER MILLER BERTOLIS and DEBORAH ) Appeal from the
BERGMAN, ) Circuit Court of
Plaintiffs-Appellees, ) Macoupin County
v. ) No. 94L31
COMMUNITY UNIT SCHOOL DISTRICT NO. 7, )
GILLESPIE, ILLINOIS and THE GILLESPIE, )
ILLINOIS BOARD OF EDUCATION, as the )
governing authority of Gillespie, )
Illinois Community Unit School District ) Honorable
No. 7, ) Thomas P. Carmody,
Defendants-Appellants. ) Judge Presiding.
________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:
This is a personal injury action filed against a local
public entity by a plaintiff whose cause of action accrued when
she was a minor. On appeal, we are asked to determine which of
two applicable but conflicting statutes of limitation, contained
in section 13-211 of the Code of Civil Procedure (Code) (735 ILCS
5/13-211 (West 1994)) and section 8-101 of the Local Governmental
and Governmental Employees Tort Immunity Act (Tort Immunity Act)
(745 ILCS 10/8-101 (West 1994)), governs the action. We conclude
the two-year limitation period in section 13-211 of the Code
controls and affirm.
Plaintiff Jennifer Bertolis alleges she was injured at
Gillespie High School, Gillespie, Illinois, on October 31, 1989.
At that time, plaintiff was 15 years of age and a student at
Gillespie High School. Plaintiff turned 18 on June 10, 1992. On
June 9, 1994, plaintiff filed her complaint in the circuit court
of Macoupin County, Illinois, against defendants Community Unit
School District No. 7, and the Gillespie, Illinois, Board of Edu-
cation.
On July 20, 1994, defendants filed a motion to dismiss,
citing as one ground for dismissal section 8-101 of the Tort
Immunity Act, which establishes a one-year limitation period for
actions commenced against local public entities or their employ-
ees. 745 ILCS 10/8-101 (West 1994).
On August 11, 1995, the circuit court entered an order
denying defendants' motion to dismiss and holding the statute of
limitations in the Tort Immunity Act was not applicable to plain-
tiff. The circuit court certified the above issue for appeal and
this court granted defendants' application for leave to appeal
pursuant to Supreme Court Rule 308. 155 Ill. 2d R. 308.
The issue presented is whether the statute of limita-
tions governing this action is the one-year limitation period set
forth in the Tort Immunity Act (745 ILCS 10/8-101 (West 1994)),
or the two-year limitation period found in section 13-211 of the
Code (735 ILCS 5/13-211 (West 1994)).
Section 13-211 of the Code provides as follows:
"If the person entitled to bring an ac-
tion, specified in Sections 13-201 through
13-210 of this Act, at the time the cause of
action accrued, is under the age of 18 years,
or is under a legal disability, then he or
she may bring the action within 2 years after
the person attains the age of 18 years, or
the disability is removed." 735 ILCS 5/13-
211 (West 1994).
Section 13-202 of the Code, which is incorporated by reference
into section 13-211, sets forth: "Actions for damages for an
injury to the person[] *** shall be commenced within 2 years next
after the cause of action accrued ***." 735 ILCS 5/13-202 (West
1994). Plaintiff's lawsuit is an action for damages resulting
from personal injury and she was under the age of 18 when her
cause of action accrued; thus, the two-year limitation period of
section 13-211 is applicable to this action.
However, because defendants in this case are local
public entities, the provisions of the Tort Immunity Act are also
invoked. Section 8-101 of the Tort Immunity Act provides:
"No civil action may be commenced in any
court against a local entity or any of its
employees for any injury unless it is com-
menced within one year from the date that the
injury was received or the cause of action
accrued." 745 ILCS 10/8-101 (West 1994).
Plaintiff cites a long line of cases wherein courts
held limitation periods, such as that found in the Tort Immunity
Act, were inapplicable to minors. See Fanio v. John W. Breslin
Co., 51 Ill. 2d 366, 282 N.E.2d 443 (1972); Haymes v. Catholic
Bishop, 33 Ill. 2d 425, 211 N.E.2d 690 (1965); McDonald v. City
of Spring Valley, 285 Ill. 52, 120 N.E. 476 (1918); Wills v.
Metz, 89 Ill. App. 2d 334, 231 N.E.2d 628 (1967). Defendants
correctly observe, however, that in those cases the courts did
not specifically state how long the minors had to file their
actions, but merely allowed for the tolling of the relevant limi-
tation periods during the plaintiffs' minorities.
Here, defendants argue the one-year limitation period
found in the Tort Immunity Act governs this action. While de-
fendants concede it would have been tolled during plaintiff's mi-
nority, they argue that since plaintiff did not file her action
until almost two years after turning 18, the claim is time
barred. Plaintiff argues the two-year limitation period and
tolling provision found in the Code applies to her action and
contends, therefore, that her action was timely filed.
Although the Tort Immunity Act clearly establishes a
one-year limitation period for actions filed against local public
entities, in addition to following the statute of limitations ap-
plicable to an action, we must also follow our state's tolling
laws. See Hardin v. Straub, 490 U.S. 536, 538-43, 104 L. Ed. 2d 582, 588-91, 109 S. Ct. 1998, 2000-03 (1989); Doe v. Board of
Education of Hononegah Community High School District #207, 833 F. Supp. 1366, 1375 (N.D. Ill. 1993) (federal courts required to
follow state statutes of limitation and tolling provisions).
It is the public policy of this state that courts
should guard carefully the rights of minors and a minor should
not be precluded from enforcing his rights unless clearly de-
barred from so doing by some statute or constitutional provision.
Walgreen Co. v. Industrial Comm'n, 323 Ill. 194, 197, 153 N.E. 831, 833 (1926). Accordingly, the courts have traditionally
given special consideration to the claims of minors. This policy
is reflected in the cases cited above and is codified in section
13-211 of the Code.
In its decision excepting minors from the limitation
period contained in the statute concerning suits against cities,
villages and towns, our supreme court noted in McDonald,
"[s]tatutes general in their terms are frequently construed to
contain exceptions, when considered in connection with well known
rules of law, without the courts being subjected to the criticism
of having entered the legislative field." McDonald, 285 Ill. at
53, 120 N.E. at 477; see also Walgreen, 323 Ill. at 196, 153 N.E.
at 832.
On the other hand, courts have been reluctant to imply
exceptions to statutes of limitation where the legislature has
statutorily created a right to sue not existing at common law.
See Shelton v. Woolsey, 20 Ill. App. 2d 401, 403-04, 156 N.E.2d 241, 242 (1959); but see Wilbon v. D.F. Bast Co., 73 Ill. 2d 58,
382 N.E.2d 784 (1978); Girman v. County of Cook, 103 Ill. App. 3d
897, 431 N.E.2d 1291 (1981). In cases where the limitation peri-
od set forth in the general limitations act has conflicted with
the limitation period contained in a statute creating the cause
of action, courts have determined the statutes are not in pari
materia and have applied the limitation period found in the stat-
ute creating the cause of action. See Shelton, 20 Ill. App. 2d
at 404, 156 N.E.2d at 242 (comparing the general (Ill. Rev. Stat.
1955, ch. 83, pars. 13, 15, 22) with that in the amended Dramshop
Act (Ill. Rev. Stat. 1955, ch. 43, par. 135)); see also Serafini
v. Chicago Transit Authority, 74 Ill. App. 3d 738, 393 N.E.2d 1120 (1979).
Defendants urge this court to follow the approach taken
in Serafini. There, the plaintiff was injured as a minor due to
the alleged negligence of the Chicago Transit Authority (CTA).
He filed his action approximately two years after the date of
injury and 17 months after attaining the age of majority. Sec-
tion 41 of the Metropolitan Transit Authority Act (Transit Au-
thority Act) (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 341) gov-
erned actions against the CTA and contained a one-year limitation
period. Section 21 of the limitations act then in effect permit-
ted minors to file actions two years after attaining the age of
majority (Ill. Rev. Stat. 1977, ch. 83, par. 22), yet section 12
of the limitations act provided "[t]he following actions [includ-
ing those brought by minors] can only be commenced within the
periods hereinafter prescribed, except when a different limita-
tion is prescribed by statute." (Emphasis added.) Ill. Rev.
Stat. 1977, ch. 83, par. 13. Based on this language, the court
determined the one-year limitation period in section 41 of the
Transit Authority Act controlled, but acknowledged the policy
considerations pertinent to actions by minors. The court held a
minor injured as a result of the negligence of the CTA had one
year from the date of injury or from the date of attaining major-
ity, whichever was later, to file his action. Thus, the court
applied the one-year limitation period in section 41 of the Tran-
sit Authority Act but provided for the tolling of that period
during the plaintiff's minority.
Serafini is distinguishable from the present case in
two respects. First, there the court acknowledged the statutory
nature of the CTA and of causes of action against that entity,
which necessarily limited its authority to "engraft an exception
in favor of minors" onto the statute. Serafini, 74 Ill. App. 3d
at 740-41, 393 N.E.2d at 1123. The Tort Immunity Act does not
statutorily create a cause of action and its limitation period is
not an element of plaintiff's cause of action. See Carlson v.
Village of Glen Ellyn, 21 Ill. App. 2d 335, 342, 158 N.E.2d 225,
228 (1959). Second, unlike the limitations act in effect when
Serafini was decided, the Code does not contain language indicat-
ing the two-year limitation period in section 13-211 can be sup-
planted if in conflict with the limitation period of another ap-
plicable statute.
The Tort Immunity Act was enacted to lessen the expo-
sure of local governmental entities to actions already existing
under the common law and, therefore, must be strictly construed
against public defendants. Reynolds v. City of Tuscola, 48 Ill. 2d 339, 342, 270 N.E.2d 415, 417 (1971); see also Luker v. Nel-
son, 341 F. Supp. 111, 118 (N.D. Ill. 1972).
Here, the circuit court found section 13-211 of the
Code controlling and ruled plaintiff's complaint was not time
barred by the one-year limitation period in the Tort Immunity
Act, citing Halper v. Vayo, 210 Ill. App. 3d 81, 568 N.E.2d 914
(1991), in support of its conclusion.
In Halper, a high school student filed an action for
damages resulting from personal injuries against his school's
wrestling coach 22 months after he was injured, but less than two
years after attaining the age of majority. The circuit court
dismissed the complaint on the basis it was barred by section
8-101 of the Tort Immunity Act. On appeal, the appellate court
reversed noting special limitation provisions had only previously
been held applicable to minors when they had been part of a stat-
utory cause of action. Halper, 210 Ill. App. 3d at 85-86, 568 N.E.2d at 917. The court determined the limitation provision in
section 8-101 is a general provision for suits against local
entities and their employees and is not part of a statutory cause
of action.
The Halper court suggested, as does plaintiff here,
that in enacting section 13-211 of the Code, the legislature
intended to give minors a two-year period after reaching the age
of majority for filing actions, even when a plaintiff whose simi-
lar cause of action accrued when he was an adult would face a
one-year limitation period. Halper, 210 Ill. App. 3d at 87, 568 N.E.2d at 918. To illustrate, the court noted section 13-201 of
the Code, which establishes a one-year limitation period for
defamation actions, is encompassed by section 13-211, which ex-
tends the period for filing defamation actions to two years for
minors. Halper, 210 Ill. App. 3d at 87, 568 N.E.2d at 918.
Although the policy reasons behind affording individu-
als injured as minors an additional year to commence their ac-
tions once the disability of minority no longer exists are not
apparent, we cannot ignore the clear exception the legislature
has created for minors. The legislature did not limit or qualify
the applicability of section 13-211 of the Code to other stat-
utes. We note other limitation provisions in the Code contain
explicit language limiting their application to other statutes.
See 735 ILCS 5/13-205, 206 (West 1994).
Also notable, when the legislature incorporated the
limitations act into the Code in 1982, the qualifying language in
section 12 of the limitations act was removed. See Ill. Rev.
Stat. 1977, ch. 83, par. 13; Ill. Rev. Stat. 1981, ch. 110, par.
13-211. Since then, courts have had to alter their analyses in
resolving conflicts between that statute and those creating dif-
ferent limitation periods.
One approach courts use when more than one statute of
limitations is relevant to a given action is to determine which
statute is more specifically applicable. In a case cited by
plaintiffs, Cleaver v. Marrese, 253 Ill. App. 3d 778, 625 N.E.2d 1129 (1993), the plaintiff commenced a medical malpractice action
against a township hospital and two applicable but conflicting
statutes of limitation existed: section 8-101 of the Tort Immuni-
ty Act and section 13-212 of the Code (735 ILCS 5/13-212 (West
1992)) (containing the limitation period for medical malpractice
actions). The Cleaver court referred to the established prin-
ciple that where there are two statutory provisions, one of which
is general and designed to apply to cases generally, and the
other is particular and relates to only one subject, the particu-
lar provision must prevail. Cleaver, 253 Ill. App. 3d at 780,
625 N.E.2d at 1131, citing Hernon v. E.W. Corrigan Construction
Co., 149 Ill. 2d 190, 195, 595 N.E.2d 561, 563 (1992).
Applying this rule, the Cleaver court analyzed the
language of the statutes, prior cases involving either statute,
and the nature of the underlying action, and concluded the limi-
tation period of the Tort Immunity Act was general, dealing with
many potential types of cases, whereas section 13-212 of the Code
applied to actions against physicians and hospitals arising out
of patient care, and was the more specific statute. Accordingly,
the court held section 13-212 of the Code governed the action.
This approach is in accord with that generally taken by
Illinois courts; in deciding which limitation period applies to a
given action, courts look to the nature of the damage or type of
injury sustained. Schreiber v. Eastern Airlines, Inc., 38 Ill.
App. 3d 556, 558, 348 N.E.2d 218, 219 (1976); see also Mitchell
v. White Motor Co., 58 Ill. 2d 159, 162, 317 N.E.2d 505, 507
(1974); Sullivan v. Cheshier, 846 F. Supp. 654, 659 (N.D. Ill.
1994).
The Cleaver court cited Zimmer v. Village of Wil-
lowbrook, 242 Ill. App. 3d 437, 610 N.E.2d 709 (1993), where the
limitation period in section 8-101 of the Tort Immunity Act was
in conflict with section 13-214(a) of the Code, addressing ac-
tions filed against any "body politic" in tort or contract for an
act or omission in the construction of an improvement to real
property. Ill. Rev. Stat. 1991, ch. 110, par. 13-214(a). Al-
though in Zimmer the court found neither statute could be consid-
ered "general," it determined section 13-214 of the Code was more
specifically applicable to the action and constituted a limited
exception to section 8-101 of the Tort Immunity Act. Zimmer, 242
Ill. App. 3d at 442, 610 N.E.2d at 713. The court found it sig-
nificant that section 13-214 of the Code was enacted after sec-
tion 8-101 of the Tort Immunity Act, and concluded that in sec-
tion 13-214, the legislature intended to create an exception to
the previously enacted statute. Zimmer, 242 Ill. App. 3d at 443,
610 N.E.2d at 713; see also Bowes v. City of Chicago, 3 Ill. 2d 175, 205, 120 N.E.2d 15, 31 (1954).
Here, defendants argue section 13-211 of the Code is a
general statute, whereas section 8-101 of the Tort Immunity Act
is a specific statute and should prevail. Although we agree with
the Zimmer court's statement that section 8-101 is not a general
statute, we conclude section 13-211 of the Code is more specifi-
cally related to the present action. Section 13-211 addresses
not only a specific class of plaintiffs, but also the nature of
the injury (by incorporating section 13-202); in contrast, sec-
tion 8-101 of the Tort Immunity Act applies only to a given group
of defendants and could encompass any type of civil action
brought by any plaintiff.
Additionally, section 8-101 of the Tort Immunity Act
was enacted in 1965 (Ill. Rev. Stat. 1965, ch. 85, par. 8-101),
whereas the limitation provisions of the Code were adopted in
1982, absent the qualifying language previously contained in the
limitations act. Pub. Act 82-280, art. XIII, 13-211, eff. July
1, 1982 (1981 Ill. Laws 1381, 1588); see Ill. Rev. Stat. 1981,
ch. 83, par. 13; Ill. Rev. Stat. 1983, ch. 110, par. 13-211. The
timing of the enactments indicates the legislature intended sec-
tion 13-211 to create a limited exception to the limitation pro-
visions in existing legislation with respect to minors. See
Bowes, 3 Ill. 2d at 205, 120 N.E.2d at 31; Zimmer, 242 Ill. App.
3d at 442-43, 610 N.E.2d at 713.
Section 8-101 of the Tort Immunity Act does not address
the claims of those without capacity to sue, such as minors,
whereas the Code very specifically addresses the tolling of limi-
tation periods for minors. Because the limiting provisions of
the Tort Immunity Act are to be strictly construed against public
defendants and the public policy of this state has long favored
preserving the meritorious claims of minors, we hold the limita-
tion period of section 13-211 of the Code governs this action.
The trial court correctly denied defendants' motion to dismiss.
We affirm.
Affirmed.
McCULLOUGH, J., concurs.
STEIGMANN, J., dissents.
JUSTICE STEIGMANN, dissenting:
Although the majority has well stated the issue in this
case and provided a learned discussion of the applicable case
law, I nonetheless disagree with the decision reached and re-
spectfully dissent. In my judgment, the sole purpose of section
13-211 of the Code--which permits a minor to sue within two years
after reaching the age of 18 years--is to ensure that a minor's
legal interest is protected until he or she has reached the age
of majority, at which point the new adult can look after his or
her own interests, as every other adult is expected to do. In
other words, by enacting section 13-211 of the Code, the legisla-
ture intended to place minors in the same position they would
have been in if their legal disability--being underage--did not
exist.
Under the majority's interpretation, however, section
13-211 of the Code places minors in a better position than adults
under the statute of limitations, rather than merely removing
their legal disability. To be specific, had plaintiff here been
18 years and one week old when the accident occurred at Gillespie
High School, no one disputes that section 8-101 of the Tort Immu-
nity Act would have required her to bring her lawsuit within one
year from the date of her injury. Under the majority's inter-
pretation, however, if plaintiff had been one week short of her
18th birthday when the accident occurred at the high school,
section 13-211 of the Code totally trumps section 8-101 of the
Tort Immunity Act, giving plaintiff two years from the date she
turns 18 years of age in which to bring her cause of action.
The legislature could not have intended this result.
It is simply inconsistent with the underlying purpose of section
13-211 of the Code, which is to place minors in the same position
they would be in if the legal disability did not exist with re-
gard to their ability to file suit.
As expressed in the first full sentence in the last
paragraph on page 8 of the slip opinion, the majority candidly
concedes that the policy reasons which justify placing a minor in
a better position under the statute of limitations "are not ap-
parent." Slip op. at 8. Nevertheless, the majority apparently
believes that other tools of statutory interpretation require the
conclusion it has reached. I disagree. The fundamental rule of
statutory interpretation, to which all other rules are subordi-
nate, is to give effect to what the legislature intended the
statute to achieve. Because I am convinced that the legislature
never intended to achieve the result the majority reaches--that
of placing a minor in a better position under the statute of
limitations than her adult counterpart--I am unwilling to join.
As a last matter, the majority's statement that "courts
have traditionally given special consideration to the claims of
minors" (slip op. at 4), seems to be an offshoot of the so-called
"Muscarello doctrine," which stands for the proposition that a
court has a duty to see that the rights of an infant are ade-
quately protected, and is bound to notice substantial irregulari-
ties even though objections are not properly presented. Mus-
carello v. Peterson, 20 Ill. 2d 548, 170 N.E.2d 564 (1960).
In Cogan v. KAL Leasing, Inc., 190 Ill. App. 3d 145,
152, 546 N.E.2d 20, 24 (1989), this court held that the "Mu-
scarello doctrine has continuing validity only in circumstances
suggesting either fraud, violation of a fiduciary interest, or
ineffective assistance of counsel." We also added the following:
"We conclude that the Muscarello doc-
trine should be explicitly limited because
its unlimited utilization is inconsistent
with the rules of evidence and procedure
normally applicable to a civil trial. One of
the most fundamental rules of procedure is
the obligation of the courts to provide neu-
tral judges and juries. Accordingly, we
should be very hesitant about permitting,
much less requiring, a judge to abandon the
judge's role of neutrality, no matter how
worthy the goal.
Society has changed considerably since
the early 19th century, and procedures are
now available to ensure that the rights and
interests of minors and incompetents are well
protected. The best way for a court to ful-
fill its duty to protect these rights and
interests is to appoint guardians for the
minor or incompetent." Cogan, 190 Ill. App.
3d at 153, 546 N.E.2d at 25.
This court's analysis in Cogan of the Muscarello doc-
trine should apply equally to the 1926 Walgreen case that the
majority cites (slip op. at 4), suggesting that somehow minors--
simply because they are minors--are entitled to better treatment
than other civil litigants.