On Sept. 10, 2011, Stefan Zlatev was involved in a fight that started in an apartment building and spilled out to the street. During the fight, Zlatev was hit on the head with a brick. He suffered several broken bones to his face.
The big issue in this case was the fact that Zlatev could not identify who hit him. A police report prepared on Nov. 8, 2011 identified Mariyana Lechova as the witness who saw a man walking away from the fight and carrying a brick.
The man was described as “male, white, 22 years old, 5 feet 7 inches to 5 feet 8 inches, 170 pounds, short blond hair and wearing a red shirt.”
Zlatev filed his original complaint and lawsuit on Dec. 6, 2011 listing as defendants James Lee and Zachary Kondratenko. On July 22, 2012, an amended complaint added Nick Gianfortune as a party defendant. Then a second amended complaint was filed adding Tom Pravongviengkham as a defendant.
By the 4th amended complaint filed on Feb. 7, 2014, the plaintiff Zlatev alleged in the alternative that Gianfortune and Pravongviengkham or Grant Millette were the parties who struck Zlatev with the brick.
The defendant Millette moved to dismiss the complaint noting that it was filed against him in 2014, more than 2 years after the incident had happened in 2011 and beyond the two-year statute of limitations. Zlatev argued that the 4th amended complaint was not beyond the statute of limitations because it related back to the original complaint whose filing date was December 2011 and was within the statute of limitations.
The trial judge denied the motion to dismiss but certified two questions at Millette’s request:
Whether an amended complaint relates back to the original complaint if the original defendants remain as defendants and the charges are the same and whether Zlatev’s lack of knowledge of the identity of his attacker is “mistaken identity.”
The appeals panel, in examining the Illinois Code of Civil Procedure, determined that the relevant issue was whether the added defendant “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.”
The fact that there were other defendants who remained in the case was irrelevant. The Illinois Appellate Court concluded that an amended complaint may relate back even if the defendants from the original lawsuit remained as defendants in the amended one, so long as the defendant either knew or should have known that he escaped suit only because the plaintiff was mistaken about his identity.
The appeals panel firmly asserted that a lack of knowledge about an identity “certainly may constitute a mistake concerning the identity of the property party.”
Accordingly, the appellate court remanded the cause having answered both certified questions in the affirmative.
Stefan Zlatev v. Grant Millette, 2015 IL App (1st) 143173, Sept. 3, 2015.
Kreisman Law Offices has been handling catastrophic injury cases, medical negligence cases, birth trauma cases, birth injury cases, nursing home abuse cases and truck accident cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Burr Ridge, Bartlett, Flossmoor, Highwood, Inverness, Long Grove, Lansing, Chicago (Midway Airport, University of Chicago, Rogers Park, Austin, River North, Lincoln Park, East Side), Schaumburg, Schiller Park, Calumet City and Tinley Park, Ill.
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