{ "id": 2921174, "name": "ESTATE OF KEN HERINGTON et al., for the Use and Benefit of United States Fidelity and Guaranty Company, Plaintiffs-Appellants, v. THE COUNTY OF WOODFORD, Defendant-Appellee", "name_abbreviation": "Estate of Herington v. County of Woodford", "decision_date": "1993-09-09", "docket_number": "No. 4-93-0190", "first_page": "870", "last_page": "875", "citations": [ { "type": "official", "cite": "250 Ill. App. 3d 870" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "605 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "153 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4739062 ], "pin_cites": [ { "page": "3" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/153/0001-01" ] }, { "cite": "595 N.E.2d 561", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "563" } ], "opinion_index": 0 }, { "cite": "149 Ill. 2d 190", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599792 ], "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0190-01" ] }, { "cite": "264 N.E.2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "524" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 628", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2828657 ], "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0628-01" ] }, { "cite": "610 N.E.2d 709", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "pin_cites": [ { "page": "711" }, { "page": "712" }, { "page": "713" }, { "page": "713" }, { "page": "713" }, { "page": "714" } ], "opinion_index": 0 }, { "cite": "242 Ill. App. 3d 437", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5120782 ], "weight": 7, "pin_cites": [ { "page": "440" }, { "page": "441-42" }, { "page": "442" }, { "page": "442" }, { "page": "443" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0437-01" ] }, { "cite": "537 N.E.2d 1032", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1035" } ], "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499207 ], "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0753-01" ] }, { "cite": "485 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "page": "374" } ], "opinion_index": 0 }, { "cite": "108 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130445 ], "year": 1989, "pin_cites": [ { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0502-01" ] }, { "cite": "466 N.E.2d 224", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "226" } ], "opinion_index": 0 }, { "cite": "102 Ill. 2d 356", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156384 ], "pin_cites": [ { "page": "360-61" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0356-01" ] } ], "analysis": { "cardinality": 561, "char_count": 12513, "ocr_confidence": 0.781, "pagerank": { "raw": 1.1097717504451542e-07, "percentile": 0.5704124062831463 }, "sha256": "0ed78901594715fa7dde3121e47014dbd7957bcb2749248c2dcf6a18b92e1409", "simhash": "1:3ceb75c3211044f7", "word_count": 2055 }, "last_updated": "2023-07-14T16:41:36.340475+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ESTATE OF KEN HERINGTON et al., for the Use and Benefit of United States Fidelity and Guaranty Company, Plaintiffs-Appellants, v. THE COUNTY OF WOODFORD, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nPlaintiffs filed suit for the use and benefit of United States Fidelity and Guaranty Company (USF&G) to recover sums paid by it under the Illinois Workers\u2019 Compensation Act (Act) (Ill. Rev. Stat. 1991, ch. 48, par. 138.1 et seq.) for death benefits and funeral expenses. The circuit court granted defendant\u2019s motion to dismiss (III. Rev. Stat. 1991, ch. 110, par. 2 \u2014 619) finding plaintiffs\u2019 suit was time-barred by the one-year statute of limitations found in section 8 \u2014 101 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1991, ch. 85, par. 8 \u2014 101). We affirm.\nOn June 20, 1990, a road and bridge located in Woodford County collapsed and disintegrated. At the time of this collapse, plaintiffs Monte Winkler, Jerry Tomlinson, Scott Ireland, Mark Jay and Ken Herington were in a moving vehicle, crossing the bridge. All plaintiffs were employees of the Washburn Fire District and were acting within the course and scope of their employment at the time of the accident. All plaintiffs suffered serious injuries from this accident and Ken Herington died as a result of this accident.\nOn June 19, 1992, plaintiffs filed a complaint against the County of Woodford for the use and benefit of USF&G to recover sums paid pursuant to the Act. Plaintiffs\u2019 complaint alleged defendant:\n\u201c(a) Carelessly, improperly and negligently failed to inspect said road and bridge for dangerous conditions;\n(b) Carelessly, improperly and negligently failed to maintain said road and bridge;\n(c) Carelessly, improperly and negligently failed to repair said road and bridge;\n(d) Carelessly, improperly and negligently failed to act upon actual and constructive notice that said road and bridge was dangerous and unsafe.\u201d\nOn December 2, 1992, defendant filed a motion to dismiss pursuant to section 2 \u2014 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 \u2014 619), alleging plaintiffs\u2019 complaint was barred by the one-year statute of limitations found in section 8 \u2014 101 of the Tort Immunity Act. Plaintiffs\u2019 response to the motion to dismiss alleged the complaint was not barred because the four-year statute of limitations found in section 13 \u2014 214(a) of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 13 \u2014 214(a)) applied. Plaintiffs further alleged section 13 \u2014 214(a) of the Code was a specific statute which prevailed over the general one-year statute of limitations found in section 8\u2014 101 of the Tort Immunity Act.\nOn January 29, 1993, the circuit court granted defendant\u2019s motion to dismiss by docket entry \u201cfor failure to comply with Immunity Statute of Limitations.\u201d Plaintiffs timely filed a notice of appeal.\nPlaintiffs contend the resolution of this appeal essentially comes down to which statute of limitations applies to the complaint. If the one-year provision found in section 8 \u2014 101 of the Tort Immunity Act applies, plaintiffs\u2019 complaint is barred. On the other hand, if the four-year statute of limitations of section 13 \u2014 214(a) of the Code applies, plaintiffs\u2019 complaint is not time-barred.\nSection 8 \u2014 101 of the Tort Immunity Act provides:\n\u201cNo 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. For purposes of this Article, the term \u2018civil action\u2019 includes any action, whether based upon the common law or statutes or Constitution of this State.\u201d Ill. Rev. Stat. 1991, ch. 85, par. 8 \u2014 101.\nSection 13 \u2014 214(a) of the Code states:\n\u201cConstruction \u2014 Design management and supervision. As used in this Section \u2018person\u2019 means any individual, any business or legal entity, or any body politic.\n(a) 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.\u201d Ill. Rev. Stat. 1991, ch. 110, par. 13 \u2014 214(a).\nA complaint should not be dismissed, pursuant to section -2 \u2014 619 of the Code, unless it clearly appears no set of facts can be proved which would entitle the plaintiff to recover. (Ogle v. Fuiten (1984), 102 Ill. 2d 356, 360-61, 466 N.E.2d 224, 226.) In assessing a section 2 \u2014 619 motion to dismiss, the trial court must take all facts properly pleaded as true. (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505, 485 N.E.2d 372, 374.) On review, the appellate court is concerned only with questions of law presented by the pleadings. Ronning Engineering Co. v. Adams Pride Alfalfa Corp. (1989), 181 Ill. App. 3d 753, 758, 537 N.E.2d 1032, 1035.\nPlaintiffs assert that the case of Zimmer v. Village of Willowbrook (1993), 242 Ill. App. 3d 437, 610 N.E.2d 709, is dispositive of the issue presented here. In Zimmer, plaintiffs sued the Village of Willowbrook for flooding damage allegedly resulting from Willowbrook\u2019s installation and enlargement of certain culverts near plaintiffs\u2019 property. The trial court granted Willowbrook\u2019s motion to dismiss pursuant to section 2 \u2014 619 of the Code, finding that plaintiffs\u2019 cause of action was time-barred by section 8 \u2014 101 of the Tort Immunity Act. An issue presented by the appeal was \u201cwhether the limitations period set forth under section 8 \u2014 101 of the Tort Immunity Act or section 13 \u2014 214(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 13 \u2014 214(a)) applies in the action against Willowbrook.\u201d Zimmer, 242 Ill. App. 3d at 440, 610 N.E.2d at 711.\nIn Zimmer, plaintiffs filed their first complaint against Willowbrook on August 8, 1989, and their second-amended complaint on January 11, 1991. The Zimmers alleged their property was flooded in the spring of 1987, spring of 1990, and the beginning of 1991 through the middle of June 1991. The Olechs, other plaintiffs in the case, claimed their property was flooded in the springs of 1987, 1990 and 1991. Willowbrook contended plaintiffs\u2019 cause of action arose in 1981 when the culverts were replaced. The trial court agreed, deciding the one-year statute of limitations of section 8 \u2014 101 of the Tort Immunity Act applied. Plaintiffs therefore had until the spring of 1982 to bring their cause of action. Plaintiffs contended section 13 \u2014 214(a) of the Code was the applicable statute of limitations. Zimmer, 242 Ill. App. 3d at 441-42, 610 N.E.2d at 712.\nThe court first noted that well-established Illinois law holds that where there are two statutory provisions, one general and one specific, the particular provision prevails and this is especially true where the specific provision was enacted more recently. However, neither section 8 \u2014 101 of the Tort Immunity Act nor section 13 \u2014 214(a) of the Code could be considered a \u201cgeneral\u201d statute. Section 8 \u2014 101 of the Tort Immunity Act has been called a \u201cspecial\u201d statute which supersedes any pertinent general limitations period (Stanley v. Denning (1970), 130 Ill. App. 2d 628, 631, 264 N.E.2d 521, 524), and section 13 \u2014 214(a) of the Code has been characterized as a \u201cspecific\u201d statute of limitations (Hernon v. E.W. Corrigan Construction Co. (1992), 149 Ill. 2d 190, 196, 595 N.E.2d 561, 563). Zimmer, 242 Ill. App. 3d at 442, 610 N.E.2d at 713.\nThe court then stated:\n\u201cTherefore, in order to determine which limitations period controls, we must decide which of these two statutory provisions is more specifically applicable to this case. Section 8 \u2014 101 provides a limitations period for civil actions commenced against a local entity. (Ill. Rev. Stat. 1991, ch. 85, par. 8 \u2014 101.) Section 13 \u2014 214(a) is a more recent statute of limitations than section 8 \u2014 101, and it expressly applies to any \u2018body politic\u2019 which is sued in an action based on tort for an act or omission in the construction of an improvement to real property. Ill. Rev. Stat. 1991, ch. 110, par. 13 \u2014 214(a).\u201d (Zimmer, 242 Ill. App. 3d at 442, 610 N.E.2d at 713.)\nThe court concluded:\n\u201cOur supreme court has held that the language of section 13 \u2014 214(a) clearly and unambiguously includes bodies politic within the ambit of the statute. (County of Du Page, 109 Ill. 2d at 151.) We determine that the legislature intended for section 13 \u2014 214(a), which was enacted after section 8 \u2014 101, to constitute a limited exception to section 8 \u2014 101. Thus, actions against a body politic for an act or omission in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property must be brought within the limitations period set forth under section 13 \u2014 214(a). Ill. Rev. Stat. 1991, ch. 110, par. 13 \u2014 214(a).\u201d Zimmer, 242 Ill. App. 3d at 443, 610 N.E.2d at 713.\nIn Zimmer, the court went on the address the issue of whether Willowbrook\u2019s installation of the culverts constituted an \u201cimprovement\u201d to real property. The court concluded the record on appeal provided an insufficient basis to determine, as a matter of law, whether the culverts constituted an improvement to real property so as to bring the case within section 13 \u2014 214(a) of the Code. The cause was remanded to make that determination. If plaintiffs established the culverts were an improvement to real property, section 13 \u2014 214(a) of the Code would apply; if not, section 8 \u2014 101 of the Tort Immunity Act would apply. Zimmer, 242 Ill. App. 3d at 444, 610 N.E.2d at 714.\nWe need not decide which statute of limitations prevails here because we conclude plaintiffs\u2019 complaint does not fall under the purview of section 13 \u2014 214(a) of the Code. Plaintiffs alleged in their complaint that the location of the occurrence in question, specifically the road and bridge, involved the design, management, and supervision of construction of an improvement to real property. However, plaintiffs failed to allege any facts which would bring their complaint within the purview of section 13 \u2014 214(a) of the Code. In Zimmer, the plaintiffs alleged the Village of Willowbrook installed and enlarged certain culverts which caused flooding on their property. Conflicting affidavits as to whether the newly installed culverts were larger in diameter thereby causing the flooding and the lack of evidence as to whether the culverts constituted an improvement to real property made it necessary to remand the case.\nHere plaintiffs only alleged that they were driving across the bridge when it collapsed. They did not allege, for example, that there was construction work being performed on the bridge which weakened its structure. Moreover, they failed to file any affidavits to establish that there was construction of an improvement to real property. The mere fact that the bridge itself is an improvement to real property is insufficient to bring plaintiffs\u2019 complaint under section 13\u2014 214(a) of the Code.\nWhether an item constitutes an improvement to real property is a question of law. The resolution of this question, though, is grounded in fact. (St. Louis v. Rockwell Graphic Systems, Inc. (1992), 153 Ill. 2d 1, 3, 605 N.E.2d 555, 556.) Because plaintiffs failed to allege sufficient facts to establish there was an act or omission in the design, planning, supervision, observation or management of construction or construction of an improvement to real property, section 13 \u2014 214(a) of the Code is not applicable.\nAccordingly, the statute of limitations found in section 8 \u2014 101 of the Tort Immunity Act governs the time restraints relating to plaintiffs\u2019 complaint. Plaintiffs had one year from the date the injury was received or the cause of action accrued to file their complaint. Plaintiffs\u2019 complaint was filed two years after the accident and thus was time-barred. Therefore, the circuit court properly granted defendant\u2019s motion to dismiss.\nAffirmed.\nSTEIGMANN, P.J., and KNECHT, J., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Joseph J. Bembenek (argued), of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellants.", "William A. Allison, of Allison & Kelly, of Bloomington, for appellee." ], "corrections": "", "head_matter": "ESTATE OF KEN HERINGTON et al., for the Use and Benefit of United States Fidelity and Guaranty Company, Plaintiffs-Appellants, v. THE COUNTY OF WOODFORD, Defendant-Appellee.\nFourth District\nNo. 4 \u2014 93\u20140190\nArgued August 18, 1993.\nOpinion filed September 9, 1993.\nRehearing denied October 19, 1993.\nJoseph J. Bembenek (argued), of Quinn, Johnston, Henderson & Pretorius, of Peoria, for appellants.\nWilliam A. Allison, of Allison & Kelly, of Bloomington, for appellee." }, "file_name": "0870-01", "first_page_order": 888, "last_page_order": 893 }