                                                                      SECOND DIVISION
                                                                      SEPTEMBER 30, 2008


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MILASAV STEVANOVIC,                                           )       Appeal from the
                                                              )       Circuit Court of
                 Plaintiff-Appellant,                         )       Cook County.
                                                              )
        v.                                                    )
                                                              )
THE CITY OF CHICAGO, a Municipal Corporation,                 )       No. 05 L 9781
                                                              )
                 Defendant-Appellee,.                         )
                                                              )
(The Chicago Fire Department, a Municipal Corporation,        )       Honorable
                                                              )       Jeffrey Lawrence,
                 Defendant).                                  )       Judge Presiding.


        JUSTICE CUNNINGHAM delivered the opinion of the court:

        The plaintiff, Milasav Stevanovic, filed a lawsuit in the circuit court of Cook County against

the defendants, the City of Chicago (the City), and the Chicago fire department, for injuries he

sustained while riding as a passenger in an ambulance. After the statute of limitations had run, the

plaintiff filed an amended complaint containing an additional count. On the City’s motion, the trial

court dismissed the count, holding that it was time barred because it did not relate back to the

original complaint. On appeal, the plaintiff argues that the allegations contained in the dismissed

count relate back to the original complaint. For the following reasons, we reverse the ruling of the

circuit court.

                                         BACKGROUND

        On September 25, 2004, the plaintiff was a passenger in a Chicago fire department

ambulance while accompanying his mother to Advocate Trinity Hospital. En route to the hospital,
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the plaintiff was injured while riding in the ambulance. On September 7, 2005, the plaintiff filed a

lawsuit in the circuit court of Cook County against the defendants, the City and the Chicago fire

department. The Chicago fire department was later dismissed as a defendant from this case because

it is not a legal entity separate from the City. The complaint alleged that the ambulance driver drove

the vehicle in a negligent manner and violated several sections of the Illinois Vehicle Code (625

ILCS 5/11-601 et seq.(West 2004)). The plaintiff also alleged that the ambulance driver drove the

vehicle too fast and suddenly applied the brakes, causing the vehicle to lurch forward. The plaintiff

claimed that he sustained severe and permanent injuries during the ambulance ride. The statute of

limitations expired on the plaintiff’s claims on September 25, 2005.

       The court subsequently gave the plaintiff leave to file an amended complaint. On November

3, 2005, the plaintiff filed an amended complaint containing the previous allegations and also

a new count against the City. In the new count, the plaintiff alleged that the City failed to provide

or secure him in a safety belt during the ambulance ride. On the City’s motion, the trial court

dismissed the additional count without prejudice, pursuant to section 2-616 of the Code of Civil

Procedure (the Code) (735 ILCS 5/2-616 (West 2004)). The court ruled that the new count did not

relate back to the to the original pleadings and was therefore time barred. The plaintiff filed a second

amended complaint alleging that the City violated the City’s General Order No. 95-005 by operating

the ambulance before all passengers in the vehicle were secure. The City filed another motion to

dismiss pursuant to section 2-616 of the Code (735 ILCS 5/2-616 (West 2004)). The trial court

dismissed the new count which related to seatbelt use. The court found no just reason to delay an

appeal pursuant to Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)). The plaintiff appealed.

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                                            ANALYSIS

       On appeal, the plaintiff argues that the trial court erred by dismissing the newly added count

in the amended complaint, which was based on the City’s failure to provide seatbelts. The plaintiff

argues that this count was timely as it relates back to the pleadings of the original, timely filed

complaint. The City argues that the additional count did not relate back to the original complaint

because the original complaint provided no indication that the City needed to prepare a defense

regarding seat belts. Accordingly, the City relied upon section 2-616(b) of the Code in its motion

to dismiss which was granted by the trial court.

       Section 2-616(b) of the Code states in pertinent part:

                      “(b) The cause of action, cross claim or defense set up in any

               amended pleading shall not be barred by lapse of time under any

               statute or contract prescribing or limiting the time within which an

               action may be brought or right asserted, if the time prescribed or

               limited had not expired when the original pleading was filed, and if

               it shall appear from the original and amended pleadings that the cause

               of action asserted, or the defense or cross claim interposed in the

               amended pleading grew out of the same transaction or occurrence set

               up in the original pleading, even though the original pleading was

               defective in that it failed to allege the performance of some act or the

               existence of some fact or some other matter which is a necessary

               condition precedent to the right of recovery or defense asserted, if the

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               condition precedent has in fact been performed, and for the purpose

               of preserving the cause of action, cross claim or defense set up in the

               amended pleading, and for that purpose only, an amendment to any

               pleading shall be held to relate back to the date of the filing of the

               original pleading so amended.” 735 ILCS 5/2-616(b) (West 2004).

       The resolution of the issue in the case before us lies in an analysis of the relation-back

doctrine. The relation-back doctrine preserves meritorious claims against dismissal for technical

reasons. Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 355, 882 N.E.2d 583, 589-90 (2008).

An amendment which states a distinct claim that is based on different facts does not relate back to

the original complaint. Porter, 227 Ill. 2d at 358-59, 882 N.E.2d at 592. However, “relation back

is appropriate where a party seeks to add a new legal theory to a set of previously alleged facts.”

Porter, 227 Ill. 2d at 358, 882 N.E.2d at 592.

       In Porter v. Decatur Memorial Hospital, 227 Ill. 2d 343, 882 N.E.2d 583 (2008), the Illinois

Supreme Court recently outlined and clarified the test of when a claim relates back to the original

complaint. In Porter, the plaintiff filed a lawsuit against the defendant, Decatur Memorial Hospital,

and his treating physicians, for alleged negligence that he suffered while being treated for a spinal

cord injury. Porter, 227 Ill. 2d at 346, 882 N.E.2d at 585. The sequence of the plaintiff’s complaint

was as follows, the plaintiff first filed the original complaint against his treating physician. He then

added the hospital in the first amended complaint. Porter, 227 Ill. 2d at 346, 882 N.E.2d at 585.

Following the addition of the hospital, the plaintiff sought leave of court to file a second amended

complaint, which included a third count in which the plaintiff added yet another physician, his

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treating radiologist as a defendant. Porter, 227 Ill. 2d at 347, 882 N.E.2d at 585. The hospital

objected to the motion to add the radiologist and argued that the new negligence count was barred

by the two-year statute of limitations. The plaintiff argued that the newly added count arose out of

the same treatment as alleged in the original and first amended complaints and met the requirements

of section 2-616(b) of the Code of Civil Procedure (735 ILCS 5/2-616(b) (West 2004)).

        When analyzing the relation back doctrine, the Porter court examined many cases but

focused on two pertinent case. The court ultimately adopted the sufficiently-close-relationship test

as set forth in In re Olympia Brewing Co. Securities Litigation, 612 F. Supp. 1370, 1373 (N.D. Ill.

1985). Porter, 227 Ill. 2d at 360, 882 N.E.2d at 593. One case that was closely examined by the

Porter court in its analysis was Zeh v. Wheeler, 111 Ill. 2d 266, 489 N.E.2d 1342 (1986). In Zeh,

the plaintiff brought an action against the defendant for failure to maintain a common stairway. The

plaintiff later attempted to amend the complaint to allege a different address of the accident. The

Zeh court examined the statutory history of the relation-back doctrine and found that the statute

provided for “a relation back if the cause of action grew out of the same transaction or occurrence

and was substantially the same as that set up in the original pleading.” (Emphasis omitted.) Zeh,

111 Ill. 2d at 272, 489 N.E.2d at 1342. The Zeh court also found that the focus of the statute was

later changed to shift “[t]he focus from the identity of the cause of action *** to the identity [in] the

occurrence [and] transaction.” Zeh, 111 Ill. 2d at 279, 489 N.E.2d at 1342. The Zeh court denied

the plaintiff’s motion to amend her complaint because the original complaint failed to give the

defendant adequate notice of the incident newly relied upon in the amendment. Zeh, 111 Ill. 2d at

282-83, 489 N.E.2d at 1350.

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       The Porter court noted that the Zeh court looked to federal law for guidance on this issue.

The Zeh court examined Rule 15(c) of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 15(c))

and noted that the court must examine whether the amended complaint provides the defendant with

adequate notice of the claim against him and whether the defendant would be unfairly prejudiced if

the “amendment were allowed to relate back to the date of the original complaint.” Zeh, 111 Ill. 2d

at 280, 489 N.E.2d at 1348. In its analysis the Porter court noted that although Illinois is a fact-

pleading jurisdiction and the federal courts are notice pleading jurisdictions, the difference was

unimportant for purposes of the court’s analysis. Porter, 227 Ill. 2d at 360 n.1, 882 N.E.2d at 593

n.1.

       Another pertinent case examined by the Porter court in its analysis was Tiller v. Atlantic

Coast Line R.R. Co., 323 U.S. 574, 580, 89 L. Ed. 465, 471-72, 65 S. Ct. 421, 424 (1945). In Tiller,

the plaintiff’s husband, who was employed by the defendant railroad, was struck and killed by a train

while working in his employer’s railroad yard. In that case, the plaintiff’s original complaint alleged

that the defendant failed to properly light the head railroad car and failed to warn the decedent of the

oncoming train and sudden shifting of the train cars. The plaintiff’s amended complaint added a

claim alleging that the defendant violated a federal statute that required trains to have a rear light.

The Tiller court held that “[b]oth [the original and amended claims] related to the same general

conduct, transaction and occurrence which involved the death of the deceased.” Tiller, 323 U.S. at

581, 89 L. Ed. at 471-72, 65 S. Ct. at 424.

       After examining these cases, the Porter court adopted the federal court’s sufficiently-close-

relationship test as articulated in Olympia Brewing, 612 F. Supp. at 1373. In that federal

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racketeering and securities fraud case, the court was considering the defendants' motion to dismiss

the complaint as untimely. The defendants contended that the plaintiffs’ amended complaint added

a claim under the Racketeer Influenced and Corrupt Organizations Act (RICO)(18 U.S.C. §§1961

through 1968) (2000)) that did not relate back to the original complaint, which contained the

allegations that formed the predicate acts of RICO. Porter summarized the Olympia Brewing

sufficiently-close-relationship test as follows: “[A] new claim will be considered to have arisen out

of the same transaction or occurrence and will relate back if the new allegations as compared with

the timely filed allegations show that the events alleged were close in time and subject matter and

led to the same injury.” Porter, 227 Ill. 2d at 360, 882 N.E.2d at 593, citing Olympia Brewing, 612

F. Supp. at 1373. The Porter court held that “an amendment is considered distinct from the original

pleading and will not relate back where (1) the original and amended set of facts are separated by

a significant lapse of time, or (2) the two sets of facts are different in character,*** or (3) the two sets

of facts lead to arguably different injuries.” Porter, 227 Ill. 2d at 359, 882 N.E.2d at 592, citing

Olympia Brewing, 612 F. Supp. at 1372.

        Based upon the clarification provided by our supreme court in Porter and its analysis of the

two cases discussed, the question in this case is whether the new count in the amended complaint

is based on facts that relate back to the original complaint. Using the guidance provided by Porter,

as well as the language of section 2-616, we look to the facts relied upon by the plaintiff in adding

the new count to the amended complaint.

        The ambulance ride, the manner of driving and the alleged violation of certain sections of

the Vehicle Code all are alleged in the original complaint. The failure to provide seat belts in this

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context is certainly sufficiently close to the original facts and transaction that gave rise to the lawsuit.

There would have been no new facts that the plaintiff needed to plead to sustain this count, if he had

included it in the original, timely filed complaint. Thus, in this case, the plaintiff’s claim against the

City for failure to provide seat belts in the ambulance clearly relates back to the original complaint.

The allegations regarding the added count arose out of the same occurrence as the allegations of the

original complaint. The injury complained of by the plaintiff also arose from the same set of facts

as the original complaint. We also note that the facts of this case have great similarity to the facts

of Tiller, which our supreme court found instructive in clarifying the relation-back doctrine as it

relates to civil cases filed in Illinois state courts. Accordingly, we hold that the trial court

erroneously dismissed that count of the plaintiff’s amended complaint that relates to the failure of

the City to provide seat belts.

        For the foregoing reasons, we reverse the ruling of the circuit court of Cook County and

remand the case to the circuit court for proceedings consistent with this opinion.

        Reversed and remanded.

        HOFFMAN and SOUTH, JJ., concur.




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