Illinois Official Reports

Appellate Court

Mickiewicz v. Generations at Regency, LLC, 2020 IL App (1st) 181771

Appellate Court 

Caption

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).

District & No. First District, Third Division 

No. 1-18-1771

Filed January 22, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 18-L1-1726; the 

Hon. Daniel T. Gillespie, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

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.
- 2 -

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

Presiding Justice Ellis and Justice Howse concurred in the judgment 

and opinion.

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. 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. 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. 
- 3 -

¶ 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, 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 (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. 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 (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 16, 

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 (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 (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.
- 4 -

¶ 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. 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. On March 4, 2014, he fell and suffered various injuries 

that contributed to his death on September 25, 2015. Id. The plaintiff filed suit on July 20, 

2017, more than three years after the fall but less than two years after Said’s death. Id. ¶ 6. The 

nursing home filed a motion to dismiss based on the statute of limitations, and the trial court 

granted the motion. Id. ¶ 7. The panel rejected Giles and found that the tolling provision under 

section 13-211 could be asserted by the deceased’s personal representative in a suit filed under 

section 13-209. Id. ¶¶ 19-21, 26-30. The court ultimately reversed the trial court’s ruling after 

determining that the statutory provisions were not in conflict with one another and the 

deceased’s representative had two years from the date of death to file the lawsuit. Id. ¶ 30. We 

come to the same conclusion below.

¶ 15 Like Giles and Zayed, this case involves statutory construction, and the fundamental aim 

of statutory construction is “to ascertain and give effect to the intent of the legislature.” Bruso 

v. Alexian Brothers Hospital, 178 Ill. 2d 445, 451 (1997). The intent of the legislature is best 

discerned from the language of the provision itself. Id. The language must be evaluated as a 

whole with due consideration to each connecting part or section. Id. at 451-52. “Where the

legislature’s intent can be ascertained from the plain language of the statute, that intent must 

prevail and will be given effect without resort to other aids for construction.” Id. at 452. Finally, 

we cannot depart from the “plain language by reading into a statute exceptions, limitations, or 

conditions which conflict with the clearly expressed legislative intent.” County of Knox ex rel. 

Masterson v. The Highlands, L.L.C., 188 Ill. 2d 546, 556 (1999).

¶ 16 We agree with the panel in Giles that section 13-211 does not contain language providing 

for an action brought by a legal representative such as the administrator of a decedent’s estate. 

However, we diverge from the panel in Giles and find that the apparently limiting language is 

irrelevant here because the controlling provision is section 13-209. Section 13-209 specifically 

allows for an individual’s cause of action to be brought by a legal representative, namely the 

estate administrator. Thus, we begin by examining section 13-209.
- 5 -

¶ 17 Section 13-209(a) starts with stating “a person entitled to bring an action.” 735 ILCS 5/13-

209(a) (West 2018). Here, that person is Barbara, who was legally disabled prior to the 

incidents and continued to be legally disabled until her death. The action which she was entitled 

to bring is a personal injury action for the incidents that occurred on November 26, 2015, and 

January 27, 2016.

¶ 18 Next, the provision states: “dies before the expiration of the time limited for the 

commencement thereof, and the cause of action survives.” Id. As stated above, the incidents 

constitute personal injuries that were caused by sudden and traumatic events, subjecting them 

to the two-year statute of limitations contained in section 13-202. However, because Barbara 

was legally disabled at the time the injuries occurred and until her death, in accordance with 

section 13-211(a), the statute of limitations was tolled until her disability was removed. 

Therefore, when Barbara died on April 18, 2016, her time to file the action had not expired 

because the statute of limitations had not yet begun to run on her claims and the claims survived 

her death. 

¶ 19 The next part of the provision 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 is the later.” Id. § 13-209(a)(1). As stated, Barbara’s cause of action had 

accrued to her and the time to bring such action had not expired due to her ongoing disability. 

There is no dispute here that Barbara’s death ended her disability. See Zayed, 2019 IL App 

(1st) 181552, ¶ 14; Giles, 2018 IL App (1st) 163152, ¶ 14. Thus, the attendant tolling due to 

her disability would terminate upon her death and the statute of limitations would begin to run. 

Under the plain language of section 13-209(a)(1), Barbara’s representative would then be 

afforded two years from her death, the same time allotted to Barbara had she survived and her 

disability been removed, to commence an action.

¶ 20 Although section 13-211 must be referenced to determine the “expiration of the time 

limited for the commencement thereof” in section 13-209, section 13-211 does not determine 

whether the administrator raised the complaint in a timely manner because it is only a tolling 

provision. Thus, an examination of the language in section 13-211, such as the court in Giles

undertook, is unnecessary to resolve the arguments raised in Glenbridge’s motion to dismiss. 

Our supreme court has held that statutory provisions regarding the survival of actions allow 

“the representative [to] step[ ] into the shoes of the decedent and take[ ] the rights of the 

decedent.” Moon v. Rhode, 2016 IL 119572, ¶ 39. Additionally, the court has noted that section 

13-209 does not create a statutory cause of action; “[i]t merely allows a representative of the 

decedent to maintain those statutory or common law actions which had already accrued to the 

decedent before he died.” Advincula v. United Blood Services, 176 Ill. 2d 1, 42 (1996). Stated 

another way, “[s]ince the disabled person’s estate has the same rights to sue as the disabled 

person does, the personal representative *** 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.” Zayed, 2019 IL App (1st) 181552, ¶ 28. This personal injury action had already 

accrued to Barbara, but her disability tolled the statute of limitations, and accordingly, her 

claims were not time-barred at the time of her death, and plaintiff is permitted to step into her 

shoes and pursue these claims in Barbara’s stead as her estate administrator. See Rhode, 2016 

IL 119572, ¶¶ 35-40 (finding that the two-year statute of limitations for survival actions began 

when the decedent’s representative learned of the defendant’s wrongdoing because the 

representative “steps into the shoes of the decedent”).
- 6 -

¶ 21 Although we find the language of the statutory provisions to be unambiguous, we also find 

that this interpretation serves the legislative intent behind section 13-211. “[T]he court may 

look beyond the language employed and consider the purpose behind the law and the evils the 

law was designed to remedy,” and “we presume that the legislature did not intend absurd, 

inconvenient, or unjust consequences.” Home Star Bank & Financial Services v. Emergency 

Care & Health Organization, Ltd., 2014 IL 115526, ¶ 24. This court previously identified the 

legislative purpose behind the tolling provision as follows:

“The public policy which underlies the tolling provision *** has been clearly stated 

by this and other courts on numerous occasions. This section *** was designed to 

ensure that ‘statutes of limitation [were] generally tolled during a plaintiff’s infancy, 

mental incompetency, or imprisonment.’ *** [Citation.] The tolling provision was 

intended to protect the rights of those who were not ‘legally competent to bring actions 

directly’ since the courts recognized that the enforcement of their rights should not be 

‘left to the whim or mercy of some self-constituted next friend.’ [Citation.]” (Emphasis 

omitted.) Passmore v. Walther Memorial Hospital, 152 Ill. App. 3d 554, 558 (1987). 

¶ 22 In furtherance of that legislative intent, this court has repeatedly protected the rights of 

those under a disability when a cause of action arose. See, e.g., Haas v. Westlake Community 

Hospital, 82 Ill. App. 3d 347, 349 (1980); Mazikoske v. Firestone Tire & Rubber Co., 149 Ill. 

App. 3d 166, 178 (1986); Valdovinos v. Tomita, 394 Ill. App. 3d 14, 18 (2009). Moreover, in 

Bruso, 178 Ill. 2d at 454, our supreme court explained, in regard to the tolling provisions, that 

“incompetents are favored persons in the eyes of the law and courts have a special duty to 

protect their rights.” The panel in Zayed believed that this same interpretation furthered the 

legislature’s clear intention to extend the statute of limitations where disabled persons were 

involved, as opposed to shortening them as in Giles. Zayed, 2019 IL App (1st) 181552, ¶ 21.

The panel also points out that the legislature is attempting to correct the miscarriage of justice 

in Giles by proposing to add the words “or his or her legal representative” to section 13-211. 

Id.; see 101st Ill. Gen. Assem., House Bill 3356, 2019 Sess. Accordingly, we do not find that 

the legislature would have intended for the protections of section 13-211 to disappear as though 

the tolling provision never applied upon the death of the disabled individual; such a conclusion 

would render the tolling provision meaningless and would be incongruous with its recognized 

purpose. See Passmore, 152 Ill. App. 3d at 558 (rejecting the argument that an individual’s 

“self-constituted next friend” must seek formal adjudication of the individual’s disability 

because that would destroy the protection afforded to the incompetent person through the 

tolling provision).

¶ 23 Therefore, as set forth above, the statute of limitations did not expire on plaintiff’s claims 

against Glenbridge until two years after Barbara’s death, on April 18, 2018, and this action 

was instituted before such expiration date, on February 16, 2018. Accordingly, the trial court’s 

dismissal of plaintiff’s claims against Glenbridge is reversed, and we remand this case for 

further proceedings.

¶ 24 III. CONCLUSION

¶ 25 For the reasons stated, we reverse the judgment of the circuit court of Cook County.

¶ 26 Reversed and remanded.