Kreisman Law Offices Professional Corporation
The Illinois Appellate Court reversed an order that dismissed the complaint of Itadil Zayed that was filed against Clark Manor Convalescent Center by the independent administrator of the estate of Said Mohammad Zayed.
Said Zayed was a resident of Clark Manor and was disabled due to dementia. He fell out of his bed and fractured his hip in March 2014, allegedly as a result of the nursing home’s negligence. Zayed died in September 2015 and the lawsuit was filed in July 2017.
Responding to Clark Manor’s motion to dismiss the complaint as too late under the two-year statute of limitations on a negligence claim, Itadil Zayed relied on Illinois Code of Civil Procedure Section 13-211, which says someone who is legally disabled, as was Zayed, when he is injured, is allowed two years to sue, running from the date the disability is removed and Section 13-209(a)(1).
When an injured person dies before the statute of limitations expires, Section 13-209(a)(1) states “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 it be later.”
In this case, the trial court granted Clark Manor’s motion based on another case, Giles v. Parks, 218 IL App (1st) 163152.
Reversing the dismissal here, the First District concluded that Giles is a “harsh and unfair” decision that “misinterprets the intent of the legislature.”
In Giles, Morris Giles, an adult, was walking through a crosswalk when he was struck by a tow truck. The incident rendered Giles unconscious, and he remained so until he died the next day at the hospital.
Two years after Giles died and two years and one day after the incident, Giles’s brother, Roscoe, filed a one-count complaint on Giles’s behalf against the tow truck’s owner. Giles’s personal-injury claim and the personal-injury claims now at issue were subject to the same two-year statute of limitations.
The tow truck owner argued that the claim was time-barred when it was filed. Roscoe replied that his brother was under a legal disability from the time he was struck in the crosswalk until the time he died the next day, that the legal disability tolled the statute of limitations for that one day and that the complaint regarding Mr. Giles’s personal injuries was therefore timely.
In order to avoid the conclusion that the action was time barred, Roscoe relied on interpreting Section 13-211 and Section 13-209 together, as plaintiff now also relies. Section 13-211 states in relevant part:
“Minors and persons under legal disability. (a) if 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 two years after the person attains the age of 18 years, or the disability is removed.”
The pertinent portion of Section 13-209 states:
“Death of party. (a) If 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; (1) 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.”
Roscoe sought the benefit of both statutes, so that the limitation period was tolled by Section 13-211 from the time of the collision until Morris Giles’s death and that the cause of action survived by two years after that date due to Section 13-209. According to Roscoe, Section 13-209 gave him all the rights that Morris Giles had, and Section 13-211 saved the claim because, had he survived, he “could have brought a personal-injury action up to and including two years after his legal disability was removed by his death.”
In that case, the trial court rejected this interpretation of the statute. The appellate court confirmed the ruling, starting with the fact that, when a person is injured in a sudden, traumatic event, the person’s cause of action accrues immediately and the statute of limitations begins to run on the day the injury occurs.
The court considered Roscoe Giles’s argument that his brother’s unconscious state in Section 13-211 tolled the statute of limitations. However, the court reasoned that Section 13-211’s language was specific to a disabled person and could not be invoked by a disabled person’s representative.
In this case, Zayed’s counsel argued that Giles was wrongly decided, because the court did not properly consider the fact that the injured person with a disability was incapable of filing suit and thus, entitled to Section 13-211’s protection. Plaintiff argued that the court’s language showed that it viewed the claim as a derivative action for the personal representative’s own benefit, when in fact a survival action asserts a claim for the benefit of a decedent. The plaintiff maintained that the two statutes must be read together.
The court added that both Sections 13-209 and 13-211 were enacted to extend the statutes of limitations in different situations, not limit them. The court said that we could not believe that the legislature intended the result that the Giles court found.
The appeals panel wrote that “we believe the statute set forth in Section 13-211 applies to the personal representative of a person with a legal disability who dies before a suit is filed and that all other suits that are filed by a personal representative should be filed under Section 13-209.” The court concluded that reading Sections 13-209 and 13-211 together demonstrates that there is no conflict between them and that the deceased’s representative had two years from the date of death to bring this lawsuit. In this case, since the personal representative had the same rights to sue as the disabled person does, the personal representative of the deceased acquires the same statutory period to bring the action, which is two years from the date the disability was removed – or two years from the date of death, in the case of the disabled person who dies while still disabled.
In conclusion, the appellate court interpreting the two rules together, found that there was no conflict between them, and the deceased’s representative had two years from the date of death to file this action which she did. As a result, the appellate court reversed the circuit court and denied the defendant’s motion to dismiss.
Zayed v. Clark Manor Convalescent Center, 2019 IL App (1st) 181552 (Sept. 26, 2019).
Kreisman Law Offices has been handling nursing home negligence lawsuits, wrongful death cases, medical negligence cases, birth trauma injury lawsuits and traumatic brain injury cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Glenview, Northfield, Morton Grove, Skokie, Des Plaines, Rolling Meadows, Hoffman Estates, Arlington Heights, Palatine, Palos Hills, Schaumburg, Schiller Park, South Barrington, Barrington Hills, Wheeling, Deerfield, Highwood, Olympia Fields, Bensenville, Melrose Park, LaGrange Park, Chicago (Garfield Ridge, West Lawn, Gage Park, Archer Heights, Little Village, Auburn, Gresham, Washington Heights, Beverly, Roscoe Village, Morgan Park, Mount Greenwood, Calumet Heights), Chicago Ridge, Oak Lawn, Evergreen Park and Willow Springs, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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