CBA Record January-February 2020


Personal Injury and Nursing Home Actions: Reconciling Split Decisions on a Decedent’s Legal Disability By Bill Cook

T he First District Court of Appeals appears to be split after two recent decisions regarding the tolling of the statute of limitations for a claim in Illinois. In September 2019, the panel in Zayed v. Clark Manor Convalescent Center, Inc. held that an injured person’s legal disability tolled the applicable statute of limitations for both the injured person and their legal representative. 2019 IL App (1st) 181552. The panel in Zayed distinguished and criti- cized another recent decision, Giles v. Parks , in which a different First District panel held that a legal disability only tolled the limitations period for the injured person, not his legal representative. 2018 IL App (1st) 163152. Practitioners subject to these rulings are left to ask: which is it? As always, it depends on the facts. Both Giles and Zayed concerned injured persons who, while under legal disabilities, died before they could file their own actions. The most significant difference is when and how their legal disabilities occurred. Understanding that difference may help lead to the answer. Relevant Statutes Illinois imposes a two-year statute of limitations on personal injury actions from when the cause of action accrues. 735 ILCS 5/13-202. If a person is a minor or is under a legal disability when the cause of action accrues, section 13-211 tolls the limitations period until the person reaches the age of majority or the disability is removed. 735 ILCS 5/13-211. After the disability is removed, the person may file an action within two years. If the person dies before the legal disability is removed, section 13-209 allows a legal representative to

commence an action on the person’s behalf within the remaining limitations period, or one year from their death, whichever is later. 735 ILCS 5/13-209. The Giles Case In Giles v. Parks , 2018 IL App (1st) 163152), a tow truck hit a man as he crossed the street. The “sudden, traumatic event” caused the man to lose conscious- ness and fall into a coma, rendering him both physically and legally disabled. He remained in the coma until he died the next day. Two years after the man died, his brother filed an action as his legal representative. Following certain setbacks, including a dismissal for want of prosecution and the plaintiff’s original attorney suffering a stroke, the defendant tow truck driver moved to dismiss. The tow truck driver argued the action was untimely because the man’s legal disability did not toll the limitations period as it applied to the man’s brother. As a result, the man’s cause of action, as applied to his brother, accrued when the tow truck hit him—not when the man died one day later. Thus, the tow truck driver argued, the limitations period ran two years from the date of the tow truck accident. The circuit court agreed and dismissed the action. On appeal, the Giles panel construed sections 13-211 and 13-209 strictly and literally. In doing so, the panel interpreted section 13-211 as “specific to” and only applying to the person under a legal dis- ability (i.e., the man actually struck by the tow truck), not the person’s legal repre- sentative. Based on this interpretation, the panel concluded that in cases “where there

is a sudden traumatic injurious event, the cause of action accrues, and the statute of limitations begins to run on the date the injury occurs.” In other words, the Giles panel recog- nized that the sudden, traumatic impact with the tow truck caused the man’s legal disability by putting him into a coma. Had the man emerged from his coma, he would have had two years from that date to commence his action. Yet he did not emerge from the coma. And despite living for one more day, the coma did not toll the limitations period as it applied to the injured man’s brother. To the man’s brother, the limitations period began to run on the date when the tow truck accident occurred. On that basis, the Giles panel affirmed the circuit court’s dismissal. The Zayed Case In Zayed v. Clark Manor Convalescent Center, Inc. , 2019 IL App (1st) 181552, a nursing home admitted a legally disabled resident. The resident remained under his legal disability during the entire admission; while unattended in his room, he fell from his bed. The fall caused injuries, which allegedly caused or contributed to his death a year and a half later. More than three years after the fall, and almost two years after his death, the resident’s legal representative filed a wrongful death and survival action. Applying Giles , the circuit court dismissed the action as untimely and permitted an interlocutory appeal. On appeal, the Zayed panel reviewed section 13-211’s tolling provision and sec- tion 13-209’s savings provision. Without finding these provisions to be ambiguous, the Zayed panel also reviewed factually


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