                             2015 IL App (2d) 150143
                                   No. 2-15-0143
                          Opinion 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

granting the motion of defendants, Naperville Community 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


(Code) (735 ILCS 5/2-619 (West 2014)), to dismiss her personal-injury lawsuit. In their motion,

defendants 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 Immunity Act (Act) (745 ILCS 10/8-101(a) (West 2014)).

Defendants 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 reaching 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 Naperville North High School, she was injured while playing

soccer in a physical-education class. Plaintiff alleged that negligence and willful and wanton

misconduct on defendants’ part proximately caused her injury. It is undisputed that plaintiff’s

eighteenth 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 twentieth 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 within the time limited by law.” The trial court’s ruling on a motion to dismiss



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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, section 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 any

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 13-211 of the Code

(rather than section 8-101(a) of the Act) applied to a lawsuit against a local school district for

injuries suffered by the plaintiff before her eighteenth birthday. All parties in Bertolis agreed

that the applicable limitations period did not begin until the plaintiff reached the age of 18.

Bertolis, 283 Ill. App. 3d at 876. However, the defendants argued that, at that point, the Act’s

one-year limitations 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 nature



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         of the injury (by incorporating section 13-202); in contrast, section 8-101 of the *** Act

         applies 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 addresses 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 preserving 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 apparent.” 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 medical-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 the



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2015 IL App (2d) 150143


judgment 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 defendants, 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 the 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 described in section

       13-212(a). Because section 8-101 of the *** Act is the more specific statute 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 concurred.       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 original.) 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 than section 13-212(a) because it applies to any civil

action, not just to medical malpractice actions.” (Emphasis in original.) Id. Justice Heiple



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2015 IL App (2d) 150143


added that the plaintiffs had made a plausible case that “the focus should be on the type of the

cause of action, not on the nature of the defendants.” Id. According to Justice Heiple, “[f]rom

plaintiffs’ point of view, [Justice Miller’s] exclusive focus on the nature of the defendants in both

statutes is completely arbitrary.” Id. Justice Heiple agreed, however, 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 make the general act controlling.’ [Citation.] *** [T]he

       purpose of the one-year statute 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 possible claim against a local governmental 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 malpractice 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 is one of those instances where “the legislature intended to

make 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.



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2015 IL App (2d) 150143


at 201-11 (McMorrow, 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 provisions.” 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 months of age when the

decedent died, but was 19 years and 5 months of age when 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 concluded 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 repose



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2015 IL App (2d) 150143


rather than a statute of limitations. Ferguson, 202 Ill. 2d at 311. Whereas a statute of limitations

bars a lawsuit 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 applied 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 governmental 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 settlement of meritorious claims and allows



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2015 IL App (2d) 150143


       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 preserving 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 both section 13-212(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 result honors the underlying policies of both section 13-212(b) of the

       Code 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 for medical

negligence claims *** and its interplay with the *** Act.” Plaintiff adds that “[t]he provisions of



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2015 IL App (2d) 150143


Section 13-211 were not discussed because they were not implicated.” Thus, according to

plaintiff, “Ferguson is inapposite because it was addressing an entirely different 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 section 13-211 and section 8-101. McKinnon, 325

Ill. App. 3d at 244. The 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 nineteenth

birthday.” (Emphasis added.) Id. According to plaintiff, however, this statement is dicta;

because the action was commenced before the student’s eighteenth 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.” Plaintiff 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 our 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 would seem that she

would have something to say about that; perhaps even casting her vote the other way.” These

arguments are unavailing. 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 continued

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 for



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2015 IL App (2d) 150143


“[a]ctions 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.” (Emphasis added.) 735 ILCS 5/13-214(a)

(West 1998). For purposes 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 limitations 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 Ferguson, ‘the legislature intended that section 8-101 of the Act apply

       “broadly to any possible claim against a local governmental entity and its employees.” ’

       (Emphases added.) Ferguson, 202 Ill. 2d at 312, quoting Tosado, 188 Ill. 2d at 199

       (Heiple, J., specially 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 statutes 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 for construction-related claims.          The court’s



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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.) applies with equal

force where an action that would otherwise be governed solely by section 13-211 is commenced

against a local public entity or an employee of a local public entity. In such cases, although

section 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   Affirmed.




       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.



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