Mickiewicz v. Generations at Regency, LLC

2020 IL App (1st) 181771

160 N.E.3d 130

442 Ill.Dec. 557

Radoslaw MICKIEWICZ, as Independent Administrator of the Estate of Barbara Mickiewicz, Deceased, Plaintiff-Appellant,

v.GENERATIONS AT REGENCY, LLC, an Illinois Limited Liability Corporation, d/b/a Generations at Regency, Glenbridge Nursing and Rehabilitation Centre, LTD., an Illinois Corporation d/b/a Glenbridge Nursing and Rehabilitation Center,

Defendants (Glenbridge Nursing and Rehabilitation Centre, Ltd., Defendant-Appellee).

No. 1-18-1771

Appellate Court of Illinois, First District, Third Division.

January 22, 2020

Steven M. Levin and Daisy Ayllon, of Levin & Perconti, Ltd., and Leslie J. Rosen, of Leslie J. Rosen Attorney at Law, P.C., both of Chicago, for appellant.

John G. Langhenry III, Andrew R. Stuart, and Thomas G. Bowers, of Langhenry, Gillen, Lundquist & Johnson, LLC, of Chicago, for appellee.

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

¶ 1 This appeal arises from an order dismissing claims against defendant, Glenbridge Nursing and Rehabilitation Centre, Ltd. (Glenbridge), in a personal injury action brought by Radoslaw Mickiewicz, as the representative and independent administrator of the estate of Barbara Mickiewicz, the decedent. The trial court dismissed plaintiff's claims against Glenbridge, finding that they were untimely pursuant to section 13-209 of the Code of Civil Procedure (Code) ( 735 ILCS 5/13-209 (West 2018) ) and Giles v. Parks , 2018 IL App (1st) 163152, 420 Ill.Dec. 586, 97 N.E.3d 160. On appeal, plaintiff argues that Barbara's survival claims against Glenbridge should be reinstated because another panel of this court in Giles misconstrued the applicable statutory provisions and wrongly concluded that the claims were time-barred by the statute of limitations. For the reasons stated, we reverse and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 From April 17, 2013 to February 17, 2016, Barbara was a resident of Glenbridge. Throughout that time, Barbara suffered from dementia and was considered legally disabled, though she was never formally adjudicated as such. During her residency, Barbara suffered several falls, the last of which occurred on January 27, 2016, and resulted in a visit to the emergency room. Additionally, Barbara had suffered severe burns as a result of a nurse spilling hot coffee on November 26, 2015. Barbara died on April 18, 2016.

¶ 4 On February 16, 2018, plaintiff filed a five-count complaint against Glenbridge and another nursing home where Barbara resided before her death. The only relevant counts to this appeal are counts IV and V. Count IV asserted a statutory claim under the Nursing Home Care Act ( 210 ILCS 45/1-101 et seq. (West 2018)), and count V asserted a common law medical negligence claim. Both counts relate to the personal injuries Barbara sustained from the coffee spill incident on November 26, 2015, and the fall on January 27, 2016.

¶ 5 On May 1, 2018, Glenbridge filed a motion to dismiss pursuant to section 2-619(a)(5) of the Code ( 735 ILCS 5/2-619(a)(5) (West 2018)), alleging that both incidents occurred more than two years before plaintiff filed his complaint and were outside of the statute of limitations. On July 15, 2018, following arguments, the trial court granted Glenbridge's motion based on Giles , 2018 IL App (1st) 163152, 420 Ill.Dec. 586, 97 N.E.3d 160. This appeal followed.

¶ 6 II. ANALYSIS

¶ 7 Plaintiff argues that Giles incorrectly construed and applied the statutory provisions involved here and requests that this court decline to follow that decision. Plaintiff claims that Giles's interpretation deprives legally disabled individuals who do not regain competency prior to death of bringing survival claims through their estate administrator. Glenbridge, on the other hand, contends that plaintiff has failed to establish any reasonable justification for this court to depart from Giles .

¶ 8 After the parties filed their briefs, a different panel of this court issued its decision in Zayed v. Clark Manor Convalescent Center, Inc. , 2019 IL App (1st) 181552, ––– Ill.Dec. ––––, ––– N.E.3d ––––, another case with substantially similar facts to those here and in Giles . The Zayed panel reversed the trial court's dismissal, finding that Giles's interpretation of the pertinent statutory provisions was incorrect and that the deceased's representative properly filed the action within two years of the date of death. We agree with the Zayed panel and with plaintiff, and we decline to follow the statutory interpretation pronounced in Giles for the following reasons. See O'Casek v. Children's Home & Aid Society of Illinois , 229 Ill. 2d 421, 440, 323 Ill.Dec. 2, 892 N.E.2d 994 (2008) ("[T]he opinion of one district, division, or panel of the appellate court is not binding on other districts, divisions, or panels.").

¶ 9 A motion to dismiss filed pursuant to section 2-619 of the Code is based on certain defects or defenses, including "[t]hat the action was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2018). A trial court should grant a motion to dismiss pursuant to section 2-619 where "a plaintiff's claim can be defeated as a matter of law or on the basis of easily proven issues of fact." Gadson v. Among Friends Adult Day Care, Inc. , 2015 IL App (1st) 141967, ¶ 14, 395 Ill.Dec. 701, 39 N.E.3d 168. The standard of review for a trial court's ruling on a motion to dismiss is de novo . Id. ¶ 15.

¶ 10 Plaintiff's claims arise from two incidents alleged to have caused injury to Barbara, the first was a coffee spill and the second was a fall. Under section 13-202 of the Code, "[a]ctions 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 2018). Illinois courts have "repeatedly held that where the plaintiff's injury is caused by a ‘sudden traumatic event,’ * * * the cause of action accrues, and the statute of limitations begins to run, on the date the injury occurs." Golla v. General Motors Corp. , 167 Ill. 2d 353, 362, 212 Ill.Dec. 549, 657 N.E.2d 894 (1995). Here, there is no dispute that Barbara's injuries were caused by sudden traumatic events on November 26, 2015, and January 27, 2016, respectively, and thus, the statute of limitations would run on November 26, 2017, and January 27, 2018. Plaintiff instituted this action for those claims after those dates, on February 18, 2018.

¶ 11 However, plaintiff alleges that section 13-211 of the Code operates to toll the applicable statute of limitations. Section 13-211 provides that "[i]f the person entitled to bring an action, specified in Sections 13-201 through 13-210 of this Code, 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(a) (West 2018). We note that Barbara "need not be adjudicated disabled to have a legal disability." Parks v. Kownacki , 193 Ill. 2d 164, 178, 249 Ill.Dec. 897, 737 N.E.2d 287 (2000). It is only necessary for the record to "contain sufficient allegations of fact" to prove legal disability. In re Doe , 301 Ill. App. 3d 123, 127, 234 Ill.Dec. 552, 703 N.E.2d 413 (1998). The parties do not dispute that Barbara was legally disabled at the time of injury and the disability was not removed prior to her death on April 18, 2016.

¶ 12 In addition to section 13-211, plaintiff relies on section 13-209 to raise these claims on Barbara's behalf. Section 13-209(a) applies where "a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives." 735 ILCS 5/13-209(a) (West 2018). Under such circumstances, "an action may be commenced by his or her representative before the expiration of that time, or within one year from his or her death whichever date is the later." Id. § 13-209(a)(1). Plaintiff argues that these statutes act in conjunction to extend the time for filing until April 18, 2018.

¶ 13 Glenbridge hinges its argument wholly upon this court's analysis of these same statutory provisions in Giles . In Giles , the deceased was in a vehicle accident that rendered him incapacitated, or legally disabled, until his death a day after the accident, and the plaintiff, as an administrator, filed a personal injury action two years from the date of death, as opposed to two years from the date of the accident. 2018 IL App (1st) 163152, ¶¶ 3-4, 420 Ill.Dec. 586, 97 N.E.3d 160. A panel of this court ultimately determined that the statute of limitations was not tolled and began to run on the date of the accident and, thus, held that the claim was properly dismissed as time-barred. Id. ¶ 20. The court stated that the tolling exception for disabled individuals in section 13-211 is "necessary to protect that person's interests and preserve his day in court until he is able to bring suit on his own behalf ." (Emphases in original.) Id. ¶ 16. Thus, the panel held that the tolling exception was limited to only the disabled individual and not applicable to their representative who sought to bring the same claim following the disabled individual's death. Id. ¶¶ 15-18. Notably, the panel considered applying sections 13-211 and 13-209 in conjunction with one another as an impermissible "tacking" of exceptions. We reject Giles 's and Glenbridge's interpretation of these provisions.

¶ 14 As stated above, the Zayed panel also disagreed with Giles for similar reasons. The facts in Zayed are nearly identical to those involved herein. There, the deceased, Said, became a resident of a nursing home at age 62, and he was under a legal disability due to dementia, Parkinson's Disease, and Alzheimer's disease throughout his time there and until his death. Zayed , 2019 IL App (1st) 181552, ¶ 5, ––– Ill.Dec. ––––, ––– N.E.3d ––––. On March 4, 2014, he fell...