No. 2--00--1195			

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

IRENE BEETLE, as Special Adm'r    ) Appeal from the Circuit Court

of the Estate of Robert Beetle,   ) of De Kalb County.

Deceased, 				    )

						    )

	Plaintiff-Appellant,	    )

						    )

v.						    ) No. 99--L--28			

						    )

WAL-MART ASSOCIATES, INC., WAL-   )

MART STORES EAST, INC., WAL-MART  ) 

STORES, INC., and E.W. HOWELL     )

COMPANY, INC.,				    ) Honorable

						    ) John W. Countryman, 

	Defendants-Appellees.	    ) Judge, Presiding.

.

	JUSTICE GROMETER delivered the opinion of the court:

	Plaintiff, Irene Beetle, as special administrator of the

estate of her deceased husband, Robert Beetle, appeals the order of

the circuit court of De Kalb County dismissing with prejudice her

second amended complaint against defendants, Wal-Mart Associates,

Inc., Wal-Mart Stores East, Inc., Wal-Mart Stores, Inc., and E.W.

Howell Company, Inc.  Plaintiff's complaint asserted a cause of

action under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1998)) based on defendants' alleged negligence in the

construction of a Wal-Mart store.  The sole issue presented in this

appeal is whether the four-year statute of limitations period in

section 13--214(a) of the Code of Civil Procedure (Code) (735 ILCS

5/13--214(a) (West 1998)) or the two-year limitations period in

section 2 of the Wrongful Death Act (Act) (740 ILCS 180/2 (West 1998)) applies to plaintiff's cause of action.  Because we find

that the Act's two-year statute of limitations applies, we affirm

the judgment of the circuit court.

BACKGROUND

	On April 27, 1999, plaintiff, acting as the special

administrator of her deceased husband's estate, filed a complaint

against defendants.  According to the allegations in plaintiff's

complaint, in September 1996, defendants were involved in the

construction of a Wal-Mart store in De Kalb, Illinois.  Defendant

E.W. Howell Company, Inc. (Howell), a contractor on the project,

hired Area Construction Trades, Inc. (Area Construction), to

provide the store with a roof.  Plaintiff's decedent was employed

as a roofer by Area Construction.  On September 24, 1996, while

working on the Wal-Mart project, plaintiff's decedent fell from the

structural steel framework of the building.  As a result of the

injuries sustained in the fall, plaintiff's decedent died later the

same day.

	Plaintiff's complaint asserted a cause of action under the Act

based on defendants' alleged negligence in the construction of the Wal-Mart store.  The Wal-Mart defendants and defendant Howell each

moved to dismiss plaintiff's complaint pursuant to section 2--

619(a)(5) of the Code (735 ILCS 5/2--619(a)(5) (West 1998)). 

Defendants urged the trial court to dismiss plaintiff's claim

because she did not commence the action within two years after her

husband's death as required by section 2 of the Act (740 ILCS 180/2

(West 1998)).  In response to defendants' motions, plaintiff

claimed that the four-year limitations period for construction- related actions found in section 13--214(a) of the Code (735 ILCS

5/13--214(a) (West 1998)) applied because it was more specific than

the Act's two-year limitations period.  On January 27, 2000, the

trial court granted defendants' motions to dismiss, but allowed

plaintiff leave to file an amended complaint.

	Plaintiff filed her amended complaint on February 15, 2000. 

The amended pleading alleged for the first time that it was not

until July 1, 1997, that plaintiff discovered "factually specific

information relative to the circumstances of decedent's fall" so as

to alert her "to the need for further inquiries to determine if the

cause of the decedent's injury was actionable at law."  The amended

complaint did not allege the specific facts made available on July

1, 1997.  In response, the Wal-Mart defendants and defendant Howell

each filed a section 2--619 motion to dismiss.  Defendants again

asserted that plaintiff did not timely file her complaint under

section 2 of the Act.  Defendants also claimed that plaintiff's

attempt to extend the limitations period by invoking the discovery

rule was improper.  Defendants reasoned that plaintiff's decedent's

injuries were the result of a sudden and traumatic event and, as

such, the cause of action accrued at the time the injuries

occurred.  On May 4, 2000, the trial court granted defendants'

motions and dismissed plaintiff's amended complaint.  The court

also found that the discovery rule was not applicable to the case. 

Nevertheless, the court granted plaintiff leave to file a second

amended complaint.

	Plaintiff filed her second amended complaint on June 21, 2000. 

The second amended complaint stated that at no time prior to July 1, 1997, did plaintiff "have facts sufficient to know or have

reason to know that a third party may have negligently caused [her

husband's] death."  Plaintiff added that on or about July 1, 1997,

she spoke over the telephone to a previously unavailable witness

from the construction site who possessed factually specific

information relative to the circumstances of decedent's fall. 

Plaintiff, however, did not disclose the substance of her

conversation with the undisclosed witness.  Defendants filed a

joint section 2--619 motion to dismiss on the basis that

plaintiff's action was time-barred.  On September 11, 2000, the

trial court granted defendants' motion and dismissed plaintiff's

complaint with prejudice.  In so ruling, the court reiterated that

the discovery rule was not applicable.  This appeal followed.

STANDARD OF REVIEW

	The purpose of a motion to dismiss under section 2--619 is to

dispose of issues of law and easily proved issues of fact.  Tatara v. Peterson Diving Service, 283 Ill. App. 3d 1031, 1037 (1996).  We must accept all well-pleaded facts in the motion as well as

reasonable inferences that can be drawn from those facts.  Wolf v. Buesser, 279 Ill. App. 3d 217, 221 (1996).  Our review of a trial court order granting a motion to dismiss is de novo.  Greb v. Forest Preserve District of Cook County, 323 Ill. App. 3d 461, 463 (2001).

ANALYSIS

	Plaintiff argues that the trial court erred in applying the

two-year statute of limitations found in section 2 of the Act (740

ILCS 180/2 (West 1998)).  According to plaintiff, the four-year statute of limitations found in section 13--214(a) of the Code (735

ILCS 5/13--214(a) (West 1998)) applies to her cause of action. 

Plaintiff notes that her husband was killed in a construction-

related accident and that section 13--214 addresses the limitations

period for construction-related actions.  Thus, she reasons that

the "specific" statute of limitation found in section 13--214

should prevail over the "general" statute of limitations found in

section 2 of the Act.

	The issue raised in this case is one of statutory

construction.  The primary rule of statutory construction is to

ascertain and give effect to the intent of the legislature.  People v. Owens, 323 Ill. App. 3d 222, 228 (2001).  Plaintiff's argument rests on the premise that either section 13--214(a) of the Code or

section 2 of the Act could apply to her cause of action.  We do not

dispute that, when two limitations periods are applicable to a

particular action, the more specific statute generally applies. 

See Tosado v. Miller, 188 Ill. 2d 186, 191 (1999); Roark v. Macoupin Creek District, 316 Ill. App. 3d 835, 842 (2000).  However, where there is an alleged conflict between two statutes,

a court has a duty to interpret the statutes in a manner that

avoids an inconsistency and gives effect to both statutes, where

such an interpretation is reasonably possible.  McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 427 (1998).  We determine that plaintiff's argument is based on a misunderstanding

of the function of the Act and its interplay with the limitations

period found in section 13--214(a) of the Code.

	Essentially, plaintiff attempts to treat her wrongful death

complaint as if it were a claim under the Survival Act (755 ILCS

5/27--6 (West 1998)).  However, the purposes of the two statutes

are different.  The Survival Act allows a decedent's survivors to

recover damages for injuries suffered by the decedent prior to

death.  Wyness v. Armstrong World Industries, Inc., 131 Ill. 2d 403, 410 (1989).  However, plaintiff's complaint is one for

wrongful death.  A wrongful death action allows a recovery for

damages because of the loss of the deceased.  Wyness, 131 Ill. 2d at 410.  In other words, the purpose of the Act is to compensate

the surviving spouse and next of kin for the pecuniary losses

sustained due to the decedent's death.  Mio v. Alberto-Culver Co., 306 Ill. App. 3d 822, 825 (1999).

	Also insightful to our analysis is an examination of the

history of the Act.  A cause of action for wrongful death did not

exist at common law.  Rallo v. Crossroads Clinic, Inc., 206 Ill. App. 3d 676, 680 (1990).  In adopting the Act, the General Assembly

created a separate and independent cause of action for damages

arising from a decedent's wrongful death.  Mio, 306 Ill. App. 3d at 825; see also Wyness, 131 Ill. 2d at 413 (noting that the Act created a new cause of action).  As a creature of legislative

enactment, the Act itself is the source for determining who may sue

and under what conditions, and the Act must be strictly construed. 

Forthenberry v. Franciscan Sisters Health Care Corp., 156 Ill. App. 3d 634, 636 (1987).

	Section 1 of the Act provides in relevant part:

		"Whenever the death of a person shall be caused by

wrongful act, neglect or default, and the act, neglect or

default is such as would, if death had not ensued, have

entitled the party injured to maintain an action and recover

damages in respect thereof, then and in every such case the

person who or company or corporation which would have been

liable if death had not ensued, shall be liable to an action

for damages, notwithstanding the death of the person injured,

and although the death shall have been caused under such

circumstances as amount in law to felony."  740 ILCS 180/1

(West 1998).

Illinois courts interpreting the Act have long found that a

wrongful death action will lie only where the deceased had a claim

that was not time-barred on or before his death.  Mooney v. City of Chicago, 239 Ill. 414, 423 (1909); O'Brien v. O'Donoghue, 292 Ill. App. 3d 699, 703 (1997); Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980, 985 (1993); Wolfe v. Westlake Community Hospital, 173 Ill. App. 3d 608, 612 (1988); Fountas v. Breed, 118 Ill. App. 3d 669, 674 (1983).  Once it is determined that the decedent's cause of

action was not time-barred, section 2 of the Act governs the time

within which a wrongful death action may be brought.  Section 2 of

the Act provides that "[e]very *** action shall be commenced within

2 years after the death of such person."  740 ILCS 180/2 (West

1998).  Since the precipitating injury in a wrongful death action

is the death (Wyness, 131 Ill. 2d at 414-15), section 2 of the Act provides a plaintiff with a two-year statute of limitations that

begins to run on the date of the decedent's death (Wolfe, 173 Ill. App. 3d at 612; Fountas, 118 Ill. App. 3d at 674 (noting that the controlling date in wrongful death actions is the date of death)). 

Our supreme court has determined that the requirement that a

plaintiff file his or her action within two years is a condition

precedent to the filing of a wrongful death action.  Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 361 (1995); Metropolitan Trust Co. v. Bowman Dairy Co., 369 Ill. 222, 225 (1938).

	In light of the foregoing discussion, we find that there is a reasonable interpretation of the statutes involved that avoids an

inconsistency and gives effect to both statutes.  Plaintiff's cause

of action is based on the Act.  As such, the only limitations

period applicable to her claim is the two-year statute of

limitations period found in section 2 of the Act.  Thus, plaintiff

had two years from the date of her husband's death to file a

wrongful death action provided that plaintiff's decedent had a

claim that was not time-barred at the time of his death.  For

purposes of determining whether plaintiff's decedent had a claim

that was time-barred at the time of his death, we use the

limitations period found in section 13--214(a), which applies to

construction-related actions.  In other words, section 13--214(a)

of the Code applied to plaintiff's decedent to the extent that he

could have filed an action against defendants during his lifetime.

In this case, plaintiff's decedent died on the same day that he

sustained his injuries.  Thus, it is evident that plaintiff's

decedent had a claim that was not time-barred on the date of his death.  Since plaintiff did not commence her wrongful death action

within two years after her husband's death, it was time-barred.

	We note that our view of the interplay between section 13--

214(a) of the Code and section 2 of the Act gives effect to the aim

of both statutory provisions.  It recognizes the legislature's

intent to protect persons involved in the design and construction

of buildings from potentially unlimited liability (see La Salle National Bank v. Edward M. Cohon & Associates, Ltd., 177 Ill. App. 3d 464, 469 (1988)) while also allowing a reasonable time for a

surviving spouse or next of kin to bring an action for the pecuniary losses sustained due to the decedent's death (Mio, 306 Ill. App. 3d at 825).

	Nevertheless, in support of her position, plaintiff cites

several cases in which courts have applied the construction statute

of repose (735 ILCS 5/13--214(b) (West 1998)) to wrongful death

actions.  See, e.g., Herriott v. Allied Signal, Inc., 998 F.2d 487, 491 (7th Cir. 1993) (holding wrongful death action barred by 10-

year construction statute of repose); Risch v. Paul J. Krez Co., 287 Ill. App. 3d 194, 198-99 (1997) (same); O'Brien v. City of Chicago, 285 Ill. App. 3d 864, 870 (1996)) (holding wrongful death action barred by 10-year

construction statute of repose); Risch v. Paul J. Krez Co., 287 Ill. App. 3d 194, 198-99 (1997) (same); (same).  Plaintiff reasons that subsections (a) and (b) of section 13--214 should be

construed together and that these cases support her argument that

wrongful death actions fall within the purview of section 13--

214(a).  We find the cases cited by plaintiff of little

precedential value.  In none of the cases cited by plaintiff was

the reviewing court asked to decide whether the construction

statute of repose governed over the Act's two-year statute of limitations.  In fact, none of these cases cite to or mention the

Act's two-year limitations period.

	We are also unpersuaded by plaintiff's reliance on cases

comparing the limitations period in section 13--214(a) of the Code

with the limitations period found in other statutory provisions of

the Code.  None of those cases addressed the role of the Act's

limitations period.  See, e.g., Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 196 (1992) (holding that the limitations period in section 13--214(a) takes precedence over the

limitations period for personal injuries found in section 13--202

of the Code);  Tatara, 283 Ill. App. 3d at 1038 (same); Zimmer v. Village of Willowbrook, 242 Ill. App. 3d 437, 443, 446-47 (1993) (finding that (1) in suit against municipality, limitations period

for construction-related actions found in section 13--214(a) of the

Code applies over limitations period found in section 8--101 of the

Local Governmental and Governmental Employees Tort Immunity Act

(Ill. Rev. Stat. 1991, ch. 85, par. 8--101) because former statute

was enacted after latter provision; and (2) section 13--214(a), as

a specific statutory provision, takes precedence over the

limitations period for certain actions found in section 13--205 of

the Code);  American National Bank & Trust Co. of Chicago v. Booth/Hansen Associates, Ltd., 186 Ill. App. 3d 865, 867-69 (1989) (holding that the then two-year statute of limitations for

construction-related actions found in section 13--214(a) of the

Code applies over the five-year statute of limitations period for

certain actions found in section 13--205 of the Code); Commonwealth Edison Co. v. Walsh Construction Co., 177 Ill. App. 3d 373, 379 (1988) (same); La Salle National Bank, 177 Ill. App. 3d at 473 (holding that limitations period in section 13--214(a) of the Code

applies over limitations period for contribution actions found in

section 13--204 of the Code because former provision is more

specific). But see Antunes v. Sookhakitch, 181 Ill. App. 3d 621, 628 (1989), aff'd on other grounds, 146 Ill. 2d 477 (1992) (holding that statute of limitations for contribution actions found in

section 13--204 of the Code applies over limitations period for

malpractice actions found in section 13--212 of the Code; where the

plaintiff's complaint was based solely on Contribution Act (Ill.

Rev. Stat. 1985, ch. 70, par. 301 et seq.), section 13--204 is more specific than section 13--212).

	Plaintiff also finds support for her position in cases

involving the interplay between the limitations period relating to

medical malpractice actions (735 ILCS 5/13--212(a) (West 1998)) and

the limitations period in section 2 of the Act.  For instance, in Durham v. Michael Reese Hospital, 254 Ill. App. 3d 492, 495 (1993), the plaintiff filed a wrongful death action predicated on medical

malpractice within two years of her husband's death.  The trial

court dismissed the action as untimely.  The reviewing court

affirmed, holding that the four-year medical malpractice statute of

repose barred the plaintiff's action because it was filed more than

four years after the date of the alleged negligent treatment.  See

also Limer v. Lyman, 220 Ill. App. 3d 1036, 1043 (1991) (concluding that medical malpractice statute of repose found in section 13--

212(a) of the Code operated to bar the plaintiff's wrongful death

action); Wolfe v. Westlake Community Hospital, 173 Ill. App. 3d 608, 612 (1988) (finding that the plaintiff had two years from the

date of her husband's death to file her wrongful death claim

provided that two-year limitations period did not exceed four-year

medical malpractice statute of repose).

	However, we do not agree that this line of cases supports

plaintiff's contention that the limitations period in section 13--

214(a) prevails over the limitations period in section 2 of the

Act.  Notably, plaintiff's reliance on these cases is misplaced

because the language of section 13--212(a) is fundamentally

different from the language the legislature used in enacting

section 13--214(a) of the Code.

	Section 13--214(a) provides, in pertinent part:

		"Actions based upon tort, contract or otherwise 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 shall be commenced within 4 years from the time the

person bringing an action, or his or her privity, knew or

should reasonably have known of such act or omission."  735

ILCS 5/13--214(a) (West 1998).

Section 13--212(a) states:

		"[N]o action for damages for injury or death against any physician *** or hospital *** whether based upon tort, or

breach of contract, or otherwise, *** shall be brought more

than 2 years after the date on which the claimant knew, or

through the use of reasonable diligence should have known, or

received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of

such date occurs first, but in no event shall such action be

brought more than 4 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."  (Emphasis added.)  735 ILCS 5/13--212(a) (West 1998).

The language used in section 13--212(a) of the Code and section 13-

-214(a) of the Code contains some similarities.  For instance, both

apply to actions based in tort, contract, or "otherwise." 

Plaintiff urges that her suit is one for "tort, contract or otherwise" and that we should therefore apply the limitations

period in section 13--214(a) of the Code.  However, plaintiff's

position would require us to disregard the fundamental rule of

statutory construction that no word or phrase should be rendered

superfluous or meaningless.  See Kraft, Inc. v. Edgar, 138 Ill. 2d 178, 189 (1990).  Plaintiff ignores the fact that, unlike section

13--212(a), section 13--214(a) does not expressly refer to damages

resulting in death.  Thus, we reiterate that the limitations period

in section 13--214(a) does not apply to actions brought pursuant to

the Act.

	Alternatively, plaintiff claims that she filed her complaint

within two years of the time she discovered that defendants'

negligent conduct could or might have caused decedent's death.

Thus, plaintiff argues that, even if the Act's two-year statute of

limitation applies, the discovery rule acts to preserve her cause

of action.  We disagree.

	The application of the discovery rule postpones the

commencement of the relevant statute of limitations until an

injured party knows or reasonably should know that he has been

injured and that his injury was wrongfully caused.  Golla v. General Motors Corp., 167 Ill. 2d 353, 361 (1995).  The term "wrongfully caused" refers to the point in time in which "the

injured person becomes possessed of sufficient information

concerning his injury and its cause to put a reasonable person on

inquiry to determine whether actionable conduct is involved."  Knox College v. Celotex Corp., 88 Ill. 2d 407, 416 (1981).

	Historically, the limitations period for bringing a wrongful

death action has been regarded as a condition precedent, not

modified or affected by the general statute of limitations.  Fure v. Sherman Hospital, 64 Ill. App. 3d 259, 264 (1978).  However, as plaintiff correctly notes, the discovery rule has been applied to

wrongful death actions under certain circumstances.  See, e.g., Coleman v. Hinsdale Emergency Medical Corp., 108 Ill. App. 3d 525, 529 (1982) (holding that discovery rule applied to wrongful death

action predicated on medical malpractice); Fure, 64 Ill. App. 3d 259 (same).  Nevertheless, our supreme court has stated that, where an individual's injuries are caused by a sudden traumatic event,

the cause of action accrues and the statute of limitations begins

to run when the injury occurred.  Golla, 167 Ill. 2d at 362.  A traumatic injury is one in which the damage is caused by external

violence or in which the injury is immediate and caused by an

external force.  Clark v. Galen Hospital Illinois, Inc., 322 Ill. App. 3d 64, 69 (2001).  In contrast, where the injury is an aggravation of a physical problem that may naturally develop,

absent negligent causes, neither its existence nor potential

wrongful cause may immediately be known.  Janetis v. Christensen, 200 Ill. App. 3d 581, 586-87 (1990).  In the latter situation, it

is considered unfair to bar a negligently injured individual's

cause of action before he has a chance to discover that it exists. 

Clark, 322 Ill. App. 3d at 70.

	In this case, plaintiff's decedent's injury occurred on

September 24, 1996, when he fell from the structural steel

framework of the Wal-Mart store.  Thus, the type of injury that led

to the death of plaintiff's decedent was not the aggravation of a

physical problem that may naturally develop absent negligent

causes.  Nor was plaintiff's decedent's injury latent.  Rather, the

injury was immediate and caused by an external force.  As such,

plaintiff's decedent's injury qualifies as the type of "sudden

traumatic event" contemplated by Golla.  Accordingly, the limitations period in this case began to run on September 24, 1996.

	Plaintiff claims that Golla is distinguishable on the basis that the plaintiff in that case was the injured party.  Plaintiff

argues that, as the wife of the injured party, it is reasonable to

expect that it would take her a longer time to discover if a cause

of action existed.  We find plaintiff's argument unpersuasive. 

Plaintiff's decedent died after falling from a building.  Given the

circumstances of plaintiff's death, we find that as of September

24, 1996, plaintiff possessed sufficient information to put her on

notice to determine whether actionable conduct was involved.  See Knox, 88 Ill. 2d at 416. 

	We acknowledge that, in Praznik v. Sport Aero, Inc., 42 Ill. App. 3d 330 (1976), the reviewing court applied the discovery rule

to a wrongful death case arising from a "sudden traumatic"

accident.  However, Praznik is factually distinguishable.  In that case, the plaintiff's decedent died in an airplane crash.  Although

the crash apparently occurred on March 29, 1969, the date of the

decedent's disappearance, it was not until November 1971 that the

actual wreckage of the aircraft was discovered.  The plaintiff

filed her original complaint on March 29, 1971, naming Sport Aero

as the defendant.  An amended complaint, filed on May 5, 1972,

added defendant Fey.  In response, Fey pleaded an affirmative

defense.  He claimed that plaintiff's action was barred by the two-

year limitations period for wrongful death claims.  The trial court

struck Fey's affirmative defense and entered an order certifying

the issue for interlocutory review.  The appellate court allowed

leave to appeal.

	On appeal, Fey argued that the Act's two-year statute of

limitations period applied to bar the plaintiff's wrongful death

action.  The plaintiff contended that her cause of action did not

accrue until November 1971, when the wreckage of the aircraft was

discovered.  Plaintiff reasoned that it was not until that time

that she knew with any certainty of the decedent's death and the

circumstances surrounding the death.  The reviewing court conceded

that, as a general matter, because the Act is a creature of

statute, the discovery rule may not be invoked to save a cause of

action that is time-barred.  Praznik, 42 Ill. App. 3d at 335.  Nevertheless, the court found it prudent to create an exception to the general rule where the time and circumstances of an

individual's death are unknown.  Praznik, 42 Ill. App. 3d at 335.  The court determined that until the aircraft wreckage was

discovered there was a possibility, however remote, that the

decedent was still alive.  Praznik, 42 Ill. App. 3d at 336.  The holding in  Praznik is limited to those cases in which the time of an individual's death is unknown.  In the instant case, it is

undisputed that plaintiff was aware of her husband's death on the

date it occurred.

CONCLUSION

	In short, we conclude that, because plaintiff failed to file

her wrongful death action within two years after her husband's

death, her claim is time-barred.  Moreover, we determine that the

discovery rule does not preserve plaintiff's cause of action. 

Accordingly, we affirm the judgment of the circuit court of De Kalb

County.

	Affirmed.

	HUTCHINSON, P.J., concurs.

	JUSTICE BOWMAN, dissenting:

	I respectfully dissent.

	Section 13--214(a) of the Code of Civil Procedure (Code) (735

ILCS 5/13--214(a) (West 1998)) provides that "actions based upon

tort, contract or otherwise 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 shall be commenced within 4 years from

the time the person bringing an action, or his or her privity, knew or should reasonably have known of such act or omission." 

(Emphasis added.)  Plaintiff's action was commenced within the

four-year limitations period.

	Plaintiff argues that her wrongful death suit is one for

"tort, contract or otherwise" and that, therefore, the four-year

period of limitations in section 13--214(a) of the Code should

apply.  I agree.

	In Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990), our supreme court interpreted the phrase "or otherwise"

contained in section 13--212(a) of the Code (Ill. Rev. Stat. 1987,

ch. 110, par. 13--212(a)), which is the medical malpractice statute

of repose.  The court stated:

"The inclusion of the term 'or otherwise' following more

restrictive language in the statute seems to us to indicate

that the legislature intended the term to be all-inclusive. 

We believe that the term demonstrates the General Assembly's

desire at the time it originally enacted the statute to limit

a physician's exposure to liability for damages for injury or

death arising out of patient care under all theories of

liability, whether then existing or not."  Hayes, 136 Ill. 2d at 458-59. 

	In Carlson v. Moline Board of Education, School District No. 40, 231 Ill. App. 3d 493 (1992), the court adopted the supreme court's reasoning in Hayes and concluded that the two-year statute of limitations (subsequently extended to four years) in section 13-

-214(a) of the Code barred the third-party contribution action. 

Relying on Hayes, the court held that, when describing the type of actions to which the limitations provision of section 13--214(a)

applies, the term "otherwise" had the same meaning in the statute

of limitations provision as it did in the medical statute of repose

provision interpreted in Hayes.  Carlson, 231 Ill. App. 3d at 496.  In other words, the term was all-inclusive.  The court concluded

that the limitations provision of section 13--214(a) applied to

contribution actions based on "an act or omission in the design,

planning, supervision, observation or management of construction,

or construction of an improvement to real property."  Carlson, 231 Ill. App. 3d at 497; see also La Salle National Bank v. Edward M. Cohon & Associates, Ltd., 177 Ill. App. 3d 464, 472 (1988), (the "otherwise" language of the limitations provision set forth in

section 13--214(a) is broad and includes an action for

contribution).  I also believe that the term "otherwise" in section

13--214(a) is intended to be all-inclusive.  In my view, the

"otherwise" language of the provision applies to any action,

including a wrongful death action, based on an act or omission in

the design, planning, supervision, observation or management of

construction, or construction of an improvement to real property.

	Although my research has revealed no Illinois cases exactly on

point, it would appear that actions under the Wrongful Death Act

(740 ILCS 180/0.01 et seq. (West 1998)) would also be encompassed by the term "tort" set forth in section 13--214(a) of the Code.  A

"tort" is "a wrongful act for which a civil action will lie except

one involving a breach of contract: a civil wrong independent of a

contract."  Webster's Third New International Dictionary 2413

(1986); see also Black's Law Dictionary 1496 (7th ed. 1999).  To maintain a claim under the Wrongful Death Act (Act), a plaintiff

must demonstrate that defendant owed a duty to decedent; that

defendant breached that duty; that the breach of duty proximately

caused decedent's death; and that pecuniary damages arose therefrom

to persons designated under the Act.  Leavitt v. Farwell Tower, Ltd. Partnership, 252 Ill. App. 3d 260, 264 (1993).  A wrongful death action requires proof of the same elements--duty, breach of the duty, proximate cause and damages--as a common-law negligence

action, a classic action  in tort.

	Plaintiff also contends that section 3--214(a) of the Code

takes precedence over section 2 of the Wrongful Death Act (740 ILCS

180/2 (West 1998)) because  section 13--214(a) is more specific

than section 2 of the Act.  I agree.  The Wrongful Death Act

applies generally to actions arising from the death of a decedent,

regardless of the type of activity from which the cause of action

arose.  On the other hand, section 13--214(a) of the Code "has been called a 'special statute of limitations' [citation] and a 'specific' statute of limitations [citation] and specifically applies to actions arising out of certain conduct, i.e., that related to construction activities."  La Salle National Bank, 177 Ill. App. 3d at 473.  When two limitations periods are applicable

to a particular action, the more specific statute generally

applies.  Tosado v. Miller, 188 Ill. 2d 186, 191 (1999).    

	Because section 13--214(a) of the Code is more specific than

section 2 of the Wrongful Death Act and because I believe a

wrongful death action is one for "tort, contract or otherwise," I

would find that the four-year limitations period set forth in section 13--214(a) applies to plaintiff's cause of action.  As

plaintiff brought her action within the applicable four-year

period, I would reverse the circuit court's order dismissing her

complaint as time-barred.