{ "id": 2857412, "name": "Vanda Kolar et al., Plaintiffs-Appellants, v. The City of Chicago, Defendant-Appellee", "name_abbreviation": "Kolar v. City of Chicago", "decision_date": "1973-06-13", "docket_number": "No. 56271", "first_page": "887", "last_page": "891", "citations": [ { "type": "official", "cite": "12 Ill. App. 3d 887" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "110 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "349 Ill.App. 197", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5101400 ], "opinion_index": 0, "case_paths": [ "/ill-app/349/0197-01" ] }, { "cite": "274 Ill. 282", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2408292 ], "weight": 2, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/ill/274/0282-01" ] }, { "cite": "108 A.L.R. 525", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "217 F.2d 168", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 526644 ], "opinion_index": 0, "case_paths": [ "/f2d/217/0168-01" ] }, { "cite": "220 N.E.2d 767", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill.App.2d 332", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2579806 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0332-01" ] }, { "cite": "237 Ill.App. 456", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5508134 ], "opinion_index": 0, "case_paths": [ "/ill-app/237/0456-01" ] }, { "cite": "20 Ill.App. 543", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4908511 ], "opinion_index": 0, "case_paths": [ "/ill-app/20/0543-01" ] }, { "cite": "11 Ill.App. 209", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5777188 ], "opinion_index": 0, "case_paths": [ "/ill-app/11/0209-01" ] }, { "cite": "237 N.E.2d 562", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "94 Ill.App.2d 361", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2478880 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/94/0361-01" ] }, { "cite": "170 N.E.2d 881", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill.2d 406", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2736981 ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0406-01" ] }, { "cite": "106 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "412 Ill. 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2665536 ], "opinion_index": 0, "case_paths": [ "/ill/412/0179-01" ] }, { "cite": "136 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "11 Ill.App.2d 109", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5162042 ], "weight": 2, "pin_cites": [ { "page": "110-111" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/11/0109-01" ] }, { "cite": "220 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill.2d 362", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378843 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0362-01" ] }, { "cite": "82 N.E. 374", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "229 Ill. 546", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5629137 ], "opinion_index": 0, "case_paths": [ "/ill/229/0546-01" ] } ], "analysis": { "cardinality": 559, "char_count": 10155, "ocr_confidence": 0.734, "pagerank": { "raw": 1.5056399106451177e-07, "percentile": 0.6664809415529631 }, "sha256": "31371b09a680830226ea7a45e846fb293022d14d77309ff5d61abc668cb7d3b3", "simhash": "1:333b82943120c75d", "word_count": 1698 }, "last_updated": "2023-07-14T15:56:16.526311+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Vanda Kolar et al., Plaintiffs-Appellants, v. The City of Chicago, Defendant-Appellee." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE BURMAN\ndelivered the opinion of the court:\nOn November 19, 1966, Vanda Kolar and Peter Kolar, plaintiffs-appellants, filed suit against the defendant-appellee, City of Chicago, to recover damages resulting from injuries sustained by Vanda Kolar on January 9, 1962, when she slipped and fell on a public cross-walk owned by the city.\nIn Count I, plaintiff Vanda Kolar sued to recover damages for personal injuries sustained by her. In Count II, plaintiff, Peter Kolar, her husband, sought to recover damages for loss of consortium and medical expenses as a result of the injuries sustained by his wife.\nThe City filed a motion for summary judgment on April 22, 1971, on the grounds that the plaintiffs failed to give notice of the injury to the City as required by statute and also failed to meet certain statute of limitations requirements. On May 20, 1971, after a hearing, the trial court entered an order dismissing both counts of the complaint, and the plaintiffs appeal.\nWe first consider the appeal of plaintiff, Vanda Kolar. Section 14 of the Limitations Act (Ill. Rev. Stat. 1961, ch. 83, par. 15) provides:\n\u201cActions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversion, shall be commenced within two years next after the cause of action accrued.\u201d\nTo avoid the effect of this statute, plaintiff contends that at the time of her injury, there existed a statutory prohibition contained in sections 1 \u2014 4 \u2014 2 and 1 \u2014 4 \u2014 3 of chapter 24 of the Illinois Revised Statutes (Ill. Rev. Stat. 1961, ch. 24, pars. 1 \u2014 4 \u2014 2 and 1 \u2014 4 \u2014 3), which prevented her from filing her lawsuit until shortly before the date on which she filed, and that therefore the statute of limitations should not have been applied.\nSections 1 \u2014 4 \u2014 2 and 1 \u2014 4 \u2014 3 of chapter 24 of the Illinois Revised Statutes of 1961 provide that upon failure to serve notice of an injury to the City within six months after the occurrence, the suit shall be dismissed and the action barred. This statute was held constitutional in 1907 in the case of Erford v. City of Peoria, 229 Ill. 546, 82 N.E. 374. Under this case, the six months\u2019 notice requirement was a condition precedent to the cause of action.\nOn September 23, 1966, our Supreme Court in Lorton v. Brown County School District, 35 Ill.2d 362, 220 N.E.2d 161, reversed Erford and held the six months\u2019 notice requirement invalid.\nPlaintiff argues that she could not commence her action within the the two-year limitation period because she had failed to serve the City with notice of her injury within six months. She maintains that the notice requirement, which was subsequently invalidated in Lorton, in effect tolled the statute of limitations until September 23, 1966, the date of the Lorton decision. Plaintiff further contends that she was therefore within the statutory period when she filed her complaint on November 19, 1966, within two months after Lorton. Plaintiff relies on section 23 of chapter 83 of the Illinois Revised Statutes (Ill. Rev. Stat. 1961, ch. 83, par. 24) which provides:\n\u201cWhen the commencement of an action is stayed by injunction, order of a judge or court, or statutory prohibition, the time of the continuance of the injunction ,or prohibition is not part of the time limited for the commencement of the action.\u201d (Emphasis added.)\nThe record shows that no notice of the injury was ever served upon the City and the suit was actually filed more than four years and ten months after the occurrence. Plaintiff makes no claim that infancy, insanity or any other cause prevented her from filing the notice. We are not persuaded that plaintiff can rely on her- own lack of diligence to toll the two-year statute of limitations.\nA theory similar to plaintiffs\u2019 was rejected in Peterson v. Montegna & Co., 11 Ill.App.2d 109, 136 N.E.2d 586. There, a complaint was filed in March, 1954, for injuries suffered in April, 1947, as a result of a collision of two automobiles. Defendant\u2019s motion to dismiss on the ground that the statute of limitations barred the action for not being brought within two years was sustained and plaintiff appealed. Plaintiff maintained on appeal that he had no right to commence suit until 1952 when in Grasse v. Dealers Transport Co., 412 Ill. 179, 106 N.E.2d 124, the supreme court held the first paragraph of section 29 of the Workmen\u2019s Compensation Act (Ill. Rev. Stat. 1947, ch. 48, par. 166) unconstitutional. At the time of the occurrence both parties were under tire Workmen\u2019s Compensation Act. The Appellate Court in Peterson held, as we do here, that the statutory prohibition did not toll the two-year statute of limitations.\nIn Peterson, the Court stated that \u201c[a]n unconstitutional statute is null and void as of the date of its enactment. It is not a law. It confers no rights, imposes no duties and affords no protection. It is, in legal contemplation, as inoperative as though it had never been passed.\u201d (11 Ill.App. 2d at 110-111, 136 N.E.2d at 587.) In the instant case, plaintiff could have sued within two years as did the plaintiff in Lorton\u25a0 and asserted that sections 1 \u2014 4 \u2014 2 and 1 \u2014 4 \u2014 3 of the Municipal Code were unconstitutional. Because she did not, she cannot now contend that the statute was tolled. We think the suggestion that unlike the case at bar, the statute in Peterson had not previously been held constitutional is a distinction without a difference.\nWe next consider whether the husband\u2019s action for consequential damages was also barred by the two-year statute of limitations. Plaintiff, Peter Kolar, argues that his action, although based upon injury to his wife, is actually one for damage to property, and is therefore governed by the five-year limitation period of section 15 of the Limitations Act (Ill. Rev. Stat. 1961, ch. 83, par. 16), rather than section 14 relating to personal injuries.\nThere is no dispute that in Illinois both husband and wife may recover for loss of consortium in a separate and distinct cause of action. (Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881.) We do not agree, however, that the two-year statute of limitation concerning \u201can injury to the person\u201d is not applicable to such an action. Although the husband\u2019s action for loss of consortium against the City as a result of his wife\u2019s injuries is a separate and distinct cause of action, it is dependent upon the liability of the City for his wife\u2019s injuries being established. (Tjaden v. Moses, 94 Ill.App.2d 361, 365, 237 N.E.2d 562, 565.) The factual elements prerequisite to recovery by the wife are identical to those which must be proven by the husband. We must prove in order to sustain an action for loss of consortium, all of the elements of his. wife\u2019s case, such as negligence on the part of the tortfeasor and his wife\u2019s freedom from contributory negligence.\nWe are of the opinion that if the wife\u2019s untimely claim for injuries is barred by the two-year statute, the husband is likewise without right to recover damages flowing therefrom.\nThe husband\u2019s position that his consequential damages on account of his wife\u2019s injury constitute a \u201cproperty\u201d right subject to the five-year statute of limitations finds support in a series of Illinois Appellate Court cases. In Waller v. City of Chicago, 11 Ill.App. 209, the five-year statute of limitations was applied in a parent\u2019s suit for loss of a child\u2019s services. (See also Bassett v. Bassett, 20 Ill.App. 543; Roth v. Lunden, 237 Ill.App. 456; and Doerr v. Villate, 74 Ill.App.2d 332, 220 N.E.2d 767.) In addition, see Seymour v. Union News Co., (7th Cir.), 217 F.2d 168.\nThe majority of other jurisdictions which have considered the question, however, have held that statutes limiting actions for \u201cinjury to the person\u201d are broad enough to govern actions for consequential damages. See cases cited in 51 Am.Jur.2d, Limitation of Actions \u00a7 104 and 108 A.L.R. 525. We consider them to be well reasoned and they ought to be followed in Illinois. Moreover, there is language to the same effect in some Illinois cases. In Handtoffski v. Chicago Traction Co., 274 Ill. 282, the plaintiff, after the two-year statutory period for personal injuries had run, sued a streetcar company for breach of its implied promise to carry him safely. In holding that his action was defeated by the statute of limitations applicable to personal injury cases, our supreme court stated that the statutory period for personal injury cases must govern actions for damages \u201cbecause of or on account of\u2019 an injury, regardless of the form of the action. (274 Ill. at 286; see also Seymour v. Union News Co., 349 Ill.App. 197, 110 N.E.2d 475.) Since the husband\u2019s action is precipitated by and is wholly dependent upon the wife\u2019s personal injury action, the same policy considerations which require her case to be brought within two years equally require that his action be brought within the same period.\nFor the reasons stated, we believe the trial judge was correct in dismissing both counts of the complaint. The judgment of the Circuit Court will therefore be affirmed.\nAffirmed.\nADESKO and DIERINGER, JJ., concur.\nThe rationale of Lorton was that the six month requirement violated the constitional prohibition against special legislation since it applied to suits against some public entities but not others. As the court pointed out in that case, his situation was remedied in 1965 by the passage of the Local Governmental and Governmental Employees Tort Immunity Act, ch. 85, Ill. Rev. Stat. 1965, pars. 8 \u2014 101, 8 \u2014 102, and 8 \u2014 103, which contained a six month notice requirement applicable to \u201cany civil action * * * against a local public entity.\u201d (Par. 8 \u2014 102).", "type": "majority", "author": "Mr. PRESIDING JUSTICE BURMAN" } ], "attorneys": [ "Albert Koretsky, of Chicago, for appellants.", "Richard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, and Michael F. Cahill, Senior Law Student, of counsel,) for appellee." ], "corrections": "", "head_matter": "Vanda Kolar et al., Plaintiffs-Appellants, v. The City of Chicago, Defendant-Appellee.\n(No. 56271;\nFirst District (4th Division)\nJune 13, 1973.\nAlbert Koretsky, of Chicago, for appellants.\nRichard L. Curry, Corporation Counsel, of Chicago, (William R. Quinlan and Richard F. Friedman, Assistant Corporation Counsel, and Michael F. Cahill, Senior Law Student, of counsel,) for appellee." }, "file_name": "0887-01", "first_page_order": 907, "last_page_order": 911 }