2015 IL App (2d) 150143 No. 2-15-0143 Op inion filed December 14, 2015

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

______________________________________________________________________________ JENNIFER LEE, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff -Appellant, ) ) v. ) No. 14-L-837 ) NAPERVILLE COMMUNITY UNIT ) SCHOOL DISTRICT 203 and THE ) NAPERVILLE ILLINOIS BOARD OF ) EDUCATION, ) ) Defendants -Appellants ) Honorable ) Kenneth L. Popejoy, (Naperville North High School, Defendant). ) Judge, Presiding.

____________________________________________________________________________ JUSTICE SPENCE delivered the judgment of the court, with opinion. Presiding Justice Schostok and Justice Jorgensen concurred in the judgment and opinion. OPINION ¶ 1 Plaintiff, Jennifer Lee, appeals from an order of the circuit court of Du Page County gr a nting the motion of defendants , Naperville Comm unity Unit School District 203 and the Naperville Illinois Board of Education , 1 pursuant to section 2-619 of the Code of Civil Procedure

1 Plaintiff’s complaint also named Naperville North High School as a defendant. It is undisputed, however, that Naperville North High School is not an entity with the capacity to be sued.2015 IL App (2d) 150143

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- (Code) (735 ILC S 5/2 -619 (West 2014)) , to dism iss he r personal- injury lawsuit. In their mot ion, defendant s successfully argued that the lawsuit was barred because it was not commenced within the one

- year limitations period set forth in section 8 -101 (a) of the Local Governmental and Governmental Employees Tort Immunit y Act (Act) ( 745 ILCS 10/8-101 (a) (West 2014)). Defendant s argue on appeal that , because she was under the age of 18 when her cause of action accrued, section 13

- 211 of the Code (735 ILCS 5/13

- 211 (West 2014)) afforded her two years to bring suit after re aching the age of 18. Plaintiff maintains that she timely commenced this action within the applicable two

- year period. We affirm. ¶ 2 Plaintiff filed her complaint on August 20, 2014. She alleged that on May 12, 2012, while enrolled as a student at Napervil le North High School, she was injured while playing
soccer in a physical

- education class. Plaintiff alleged that negligence and willful and wan ton misconduct on defendant s’ part proximately caused her injury. It is undisputed that plaintiff’s eighteent h birthday was on August 21, 2012. In their motion to dismiss, defendants contended that the Act’s one

- year limitations period began to run on that date. In response, plaintiff cited Bertolis v. Community Unit School District No. 7 , 283 Ill. App. 3d 874 (1996), in support of her position that the applicable limitations period was two years, commencing on her eighteenth birthday, and that her lawsuit , which was commenced one day before her twentiet h birthday, was timely. Citing our supreme court’s decision in Ferguson v. McKenzie , 202 Ill. 2d 304 (2001), and our subsequent decision in McKinnon v. Thompson , 325 Ill. App. 3d 241 (2001), the trial court ruled that plaintiff had only one year from her eighteenth birthday to file her lawsuit. ¶ 3 We begin our analysis by noting that section 2 -619 (a)(5) of the Code (735 ILCS 5/2

- 619(a)(5) (West 2014)) authorizes dismissal of an action on the basis that it “was not commenced wi thin the time limited by law.” The trial court’s ruling on a motion to dismiss2015 IL App (2d) 150143

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- pursuant to section 2

- 619(a)(5) is subject to de novo review. Johnson v. Augustinians , 396 Ill. App. 3d 437, 439 (2009). To determine whether plaintiff’s action was timely, we must consider the possible application of several statutes. Pursuant to section 13

- 202 of the Code (735 ILCS 5/13-202 (West 2014)), a personal

- injury lawsuit ordinarily must be commenced within two years after the cause of action accrues. However, sect ion 13 -211 (a) of the Code (735 ILCS 5/13

- 211(a) (West 2014)) provides, in pertinent part, “If the person entitled to bring an action, specified in Sections 13

- 201 through 13

- 210 of [the] Code , at the time the cause of action accrued, is under the age of 18 years *** then he or she may bring the action within 2 years after the person attains the age of 18 years ***.” Section 8

- 101(a) of the Act (745 ILCS 10/8 -101(a) (West 2014)) provides, in pertinent part, that “ [n] o civil action *** may be commenced in an y court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” ¶ 4 In Bertolis , a divided panel of the Fourth District held that section 13-21 1 of the Code (rather than section 8

- 101(a) of the Act) applied to a lawsuit against a local school district for injuries s uffered by the plaintiff b efore her eighteenth birthday. All parties in Bertolis agreed that the applicable limitati ons period did not begin until the plaintiff reached the age of 18. Bertolis , 283 Ill. App. 3d at 876. However , the defendants argued tha t, at that point, the Act’s
one- year limitation s period applied. The Bertolis court noted that “[o] ne 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. ” (Emphasis in original.) Id. at 879. Applying that approach, the Bertolis court reasoned as follows: “[W]e conclude section 13- 211 of the Code is more specifically related to the present action. Section 13-211 addresses not only a specific class of plaintiffs, but also the nature2015 IL App (2d) 150143

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- of the injury (by incorporating section 13

- 202); in contrast, section 8

- 101 of the *** Act applie s only to a given group of defendants and could encompass any type of civil action brought by any plaintiff. *** Section 8

- 101 of the *** Act does not address the claims of those without capacity to sue, such as minors, whereas the Code very specifically a ddresses the tolling of limitation periods for minors. Because the limiting provisions of the *** Act are to be strictly construed against public defendants and the public policy of this state has long favored preser ving the meritorious claims of minors, we hold the limitation period of section 13-211 of the Code governs this action.” (Emphasis in original.) Id. at 880-81. ¶ 5 The Bertolis court stressed that the General Assembly “ did not limit or qualify the applicability of section 13

- 211 of the Code to other statutes .” Id. at 879. On the other hand, the Bertolis court conceded that “ the policy reasons behind affording individuals injured as minors an additional year to commence their actions once the disability of minority no longer exists are not appa rent.” Id. ¶ 6 Subsequent to Bertolis , in Tosado v. Miller , 188 Ill. 2d 186 (1999), our supreme court considered whether section 8 -101 ’s one

- year limitations period applied to a medi cal

- malpractice action against physicians employed by a county hospital and against the county itself. The plaintiffs argued that the applicable limitations period was two years under section 13

- 212(a) of the Code (735 ILCS 5/13

- 212(a) (West 1996)), governing “ action [s] for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient
care .” Five members of the court wrote separate opinions. Justice Miller announced the2015 IL App (2d) 150143

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- judgme nt of the court in an opinion joined only by Justice Bilandic. Justice Miller concluded that section 8 -101 applied, reasoning as follows: “In enacting section 8

- 101 of the *** Act, we believe, the legislature intended to protect a specific class of defend ants, local governmental entities and their employees. Thus, in medical malpractice actions against local governmental entities or their employees the focus should be on the defendants rather than the cause of action or the type of injuries sustained by th e plaintiffs. By focusing on the category of defendants at issue in this case, it is clear that section 8

- 101 of the *** Act is more specific than section 13

- 212 of the Code ***. Section 8

- 101 specifically applies to defendants which are local entities and the employees of those entities which are a more specific category of defendant within the broader group of any physician, dentist, registered nurse or hospital d escribed in section 13- 212(a). Because section 8

- 101 of the *** Act is the more specific sta tute when considering causes of action against local governmental entities and their employees, we believe the one

- year limitation provision of section 8

- 101 of the *** Act applies to actions against those defendants.” Tosado , 188 Ill. 2d at 195. ¶ 7 Justice Heiple specially concurre d. According to Justice Heiple , “[Justice Miller’s ] analysis is an oversimplification because section 8

- 101 is both more specific and more general than the statute of limitations in section 13

- 212(a).” (Emphases in origin al.) Id
. at 199 (Heiple, J., specially concurring). Justice Heiple explained that section 8

- 101 of the Act was “ more specific in the sense that it applies to a narrow class of defendants, local entities and their employees,” but was also “more general th an section 13

- 212(a) because it applies to any civil action, not just to medical malpractice actions. ” (Emphasis in original.) Id. Justice Heiple2015 IL App (2d) 150143

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- added that the plaintiffs had made a plausible case that “the focus should be on the type of the cause of a ction, not on the nature of the defendants.” Id. According to Justice Heiple, “[f] rom plaintiff s’ point of view, [Justice Miller’s] exclusive focus on the nature of the defendants in both statutes is completely arbitrary. ” Id. Ju stice Heiple agreed, ho wever , with Justice Miller’s conclusion that section 8-101 supplied the applicable limitations period: “[Justice Miller’s] analysis is ultimately unpersuasive because, to the extent that section 8 -101 is more general than section 13

- 212(a), this is one of those instances where

‘ the legislature intended to ma ke the general act controlling.’ [Citation.] *** [T] he purpose of the one

- year stat ute of limitations in section 8

- 101 is to encourage early investigation and settlement of meritorious claims so governmental entities can plan their budgets in light of potential liabilities. [Citation.] By its very nature then, section 8 -101 was designed to apply broadly to any possib le claim against a local governm ental entity and its employees. This type of comprehensive protection necessarily controls over other statutes of limitations. Nothing suggests the legislature intended to abandon this scheme with respect to medical malpra ctice actions. ” Id. at 199-200. In a separate special concurrence, Chief Justice Freeman “ join [ed] in Justice Heiple’s special concurrence to the extent that ‘ this i s one of those instances where “ the legislature intended to
ma ke the general act controlling” ’ and that section 8

- 101 of the *** Act was designed to apply broadly to any possible claim against a local governmental entity and its employees. [Citation.]” Id. at 198 (Freeman, C.J., specially concurring). ¶ 8 Justices McMorrow and Harrison wrote separate dissents and Justice Rathje joined Justice McMorrow’s dissent. Both dissents concluded , in essence, that section 13 -212 (a) was more specifically applicable to the underlying lawsuits
. Id. at 201 (Harrison, J., dissenting); id.2015 IL App (2d) 150143

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- at 201 -11 (M cMorrow, J., dissenting, joined by Rathje, J.). Justice McMorrow also found it significant that the General Assembly “ did not include explicit instructions within the statutory language of the *** Act to determine precedence in the event of conflicting pr ovisions. ” Id. at 210. ¶ 9 Ferguson arose from a medical

- malpractice lawsuit that, like the lawsuit in Tosado , was brought against physicians employed by a county hospital and against the county itself. The action was brought by the administrator of the estate of a woman who died following cataract surgery. Whereas the plaintiffs in Tosado were adults, one of the claims in Ferguson was brought on behalf of the decedent’s daughter, who was 17 years and 5 m onths of age when the decedent died, but was 19 years and 5 months of age w hen the claim was brought on her behalf
. The plaintiff contended that the timeliness of the decedent’s daughter’s claim was governed not by section 8- 101 of the Act, but by section 13

- 212(b) of the Code (735 ILCS 5/13

- 212(b) (West 2014)), which provides, in pertinent part:

“ [N] o action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person’ s 22nd birthday.” ¶ 10 A majority of the Ferguson court con cluded that section 8

- 101 of the Act barred the decedent’s daughter’s claim. The court explained that section 13

- 212(b) was a statute of repose2015 IL App (2d) 150143

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- rather than a statute of limitations
. Ferguson , 202 Ill. 2d at 311. Whereas a statute of limitations bars a l awsuit that is not brought within a certain period following accrual of a cause of action, a statute of repose extinguishes the defendant’s liability after a fixed period of time , whether the cause of action has accrued or not. Id. The court concluded that section 13

- 212(b) applied to the decedent’s daughter “insofar as she was a minor when her cause of action accrued.” Id. at 312. However, the court held that “ the one

- year limitations period of section 8

- 101 of the *** Act also ap plied to [the decedent’s daughter] and began to run when she reached 18 years of age. ” Id. The court reasoned as follows: “Although Tosado did not involve the claim of a minor, that decision persuades us that section 8 -101 of the *** Act controls here. Applying the reasoning of Justice Heiple, the legislature intended that section 8

- 101 of the Act apply ‘ broadly to any possible claim against a local governme ntal entity and its employees.’ [Citations.] Also, applying the reasoning of Justice Miller, the Act is more specific than the Code in that the former applies specifically to defendants who are local governmental entities or employees thereof. [Citation .] Our view of the interplay between section 13

- 212(b) of the Code and section 8

- 101 of the Act gives effect to the underlying policy of each provision. The legislative intent of section 13

- 212(b) of the Code is to reduce the period of potential liability and restrict a minor’s ability to sue. [Citation.] The purpose of the limitation period contained in section 8

- 101 of the Act is to encourage early investigation into a claim against a local governmental entity when the matter is still fresh, witnesses are available, and conditions have not materially changed. Such an investigation permits prompt se ttlement of meritorious claims and allows2015 IL App (2d) 150143

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- governmental entities to plan their budgets in light of potential liabilities. Because a local governmental entity must anticipate that the number of claims made against it will far exceed those brought against a private individual, the provision of an abridged limitations period is reasonable. [Citation.] Our holding protects the possible claims of minors against local governmental entities by preservin g the repose period for minors. As we stated in Antunes [ v. Sookhakitch , 146 Ill. 2d 477,] 493 [(1992)]:

‘ Without doubt, Illinois has a long

- established policy of protecting the right of minors to bring suit. As stated in McDonald v. City of Spring Valley (1918), 285 Ill. 52, 56, and reiterated in Severs v. Country Mutual Insurance Co. (1982), 89 Ill. 2d 515, 520, “A child with a meritorious cause of action but incapable of initiating any proceeding for its enforcement will not be left to the whim or mercy of some self -constituted next friend to enforce its rights.” ’ Nonetheless, a party must comply with bo th section 13 -2 12(b) of the Code and section 8

- 101 of the *** Act. In this case, [the decedent’s daughter] , by operation of section 13

- 212(b) of the Code, was afforded an additional seven months, until she reached 18 years of age, before the one

- year limitations period of section 8

- 101 of the *** Act began to run. Since plaintiff failed to add [the decedent’s daughter] to the action within that time, her claim is time

- barred. This r esult honors the underlying policies of both section 13

- 212(b) of the Cod e and section 8 -101 of the Act.” (Emphasis in original.) Id. at 312-14. ¶ 11 Plaintiff stresses that Ferguson “addressed the general statute of limitations fo r medical negligence claims *** and its interplay with the *** Act.” Plaintiff adds that “ [t]he provisions of2015 IL App (2d) 150143

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- Section 13

- 211 were no t discussed because they were not implicated .” Thus, according to plaintiff, “ Ferguson is inapposite because it was address ing an entirely d ifferent section of the [Code].” Plaintiff acknowledges that in McKinnon , which involved a high

- school student’s assault claim against a school district and one of its employees, this court stated that the rationale of Ferguson required compliance with both sect ion 13 -211 and section 8

- 101. McKinnon , 325 Ill. App. 3d at 244. T he student was a minor when the alleged assault occurred and we stated that “[his] cause of action would not be time

- barred as long as it was filed prior to his ni neteenth birthday. ” (Emphasis added.) Id. Acco rding to plaintiff, however, this statement is dicta ; because the action was commenced before the student’s eighteent h birthday, this court did not squarely face the question of what limitations period would have applied if the suit had been filed after he reached the age of 18
. Plaintiff maintains that McKinnon ’s “ entirely unnecessary discussion about an issue not before the *** court should not be read as departing from the clear ruling of Bertolis .” Plai ntiff further notes that, as a member of the appellate court, Justice Garman was the author of the majority opinion in Bertolis , and that, as a member of o ur supreme court, she joined the majority opinion in Ferguson . Plaintiff argues that “[h]ad Justice Garman known that Ferguson was sub silentio reversing her decision in Bertolis , it wou ld seem that she would have something to say about that; perhaps even casting her vote the other way.” These arguments are unava iling. After Ferguson , our supreme court considered the scope of section 8

- 101 again in Paszkowski v. Metropolitan Water Reclamation District of Greater Chicago , 213 Ill. 2d 1 (2004). As explained below, the reasoning in Paszkowski clearly forecloses con tinued reliance on Bertolis. ¶ 12 The plaintiff in Paszkowski argued that, notwithstanding section 8

- 101, his lawsuit was timely under section 13

- 214(a) of the Code, which provides a four

- year limitations period for2015 IL App (2d) 150143

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- “[a] ctions based upon tort, contract or other wise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property.” (Emphasis added.) 735 ILCS 5/13 -214(a) (West 1998 ). For p urposes of section 13

- 214, the term “person” includes “any body politic.” 735 ILCS 5/13- 214 (West 1998) . The Paszkowski court concluded that the defendant clearly fit the definition of a body politic. Paszkowski , 213 Ill. 2d at 8. The plaintiff argued that section 13-214 (a), which was applicable only to construction

- related claims, was more specific than section 8

- 101, which applied to any claim against a local entity. The defendant argued that section 13-214(a) was more general, because it applied to a broader class of defendants. ¶ 13 Relying on Ferguson , a majority of the Paszkowski court concluded that the lawsuit was barred by the Act’s one

- year limitations period. Notably, the majority no longer focused on the relative specificity of the two limitatio ns provisions at issue. Id. at 12 (“Regardless of whether section 13 -214(a) is more specific than section 8 -101 *** it is the legislature’ s intent that is of foremost importance.” ). Instead, the Paszkowski majority reasoned as follows:

“ According to Ferg uson , ‘ the legislature intended that section 8

- 101 of the Act apply

“ broadly to any possible claim against a local governm ental entit y and its employees.” ’ (Emphases added.) Ferguson , 202 Ill. 2d at 312, quoting Tosado , 188 Ill. 2d at 199 (Hei ple, J., s pecially concurring). Given the breadth of this intent, we conclude, in keeping with Ferguson , that the comprehensive protection afforded by section 8 -101 necessarily controls over other st atutes of limitation or repose. ” Id . at 13. ¶ 14 Contrary to plaintiff’s argument in her reply brief that Paszkowski is inapposite because it involved a different statute of limitations, the court’s reasoning is in no way limited to cases implicating the four

- year limitations period fo r construction

- rela ted claims. T he court’s2015 IL App (2d) 150143

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- sweeping statement that “ the comprehensive protection afforded by section 8

- 101 necessarily controls over other statutes of limitation or repose ” (emphasis added) ( id. ) appl ies with equal force where an action that would otherwise be governed solely by section 1 3- 211 is commenced against a local public entity or an employee of a local public entity. In such cases, although sect ion 13

- 211 tolls the limitations period until the plaintiff attains the age of 18, section 8 -101 requires the action to be commenced within one year thereafter. 2 Plaintiff’s lawsuit, which was not filed until one day before her twentieth birthday, was untimely. ¶ 15 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed. ¶ 16 Affirme d.

2 Because, as the Paszkowski court observed, legislative intent “is of foremost importance” ( Paszkowski , 213 Ill. 2d at 12), the General Assembly may carve out exceptions by the use of language evincing an intention that some other limitations period should control a particular case or class of cases. For instance, a statute of limitations that, by its terms, applies “[n] otwithstanding any other provision of law” determines the limitations period for an action that would otherwise be subject to section 8 -101. (Internal quotation marks omitted.) Doe v. Hinsdale Township High School District 86 , 388 Ill. App. 3d 995, 1002 (2009). Section 13 -211 contains no such language.