{ "id": 1034020, "name": "GINA R. BASHAM, Plaintiff-Appellant, v. ERIC J. HUNT et al., Defendants-Appellees", "name_abbreviation": "Basham v. Hunt", "decision_date": "2002-07-17", "docket_number": "No. 1-00-3886", "first_page": "980", "last_page": "996", "citations": [ { "type": "official", "cite": "332 Ill. App. 3d 980" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "574 N.E.2d 1284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "1286" } ], "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 396", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5292711 ], "year": 1991, "pin_cites": [ { "page": "400" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0396-01" ] }, { "cite": "616 N.E.2d 1363", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "1371" }, { "page": "1371", "parenthetical": "court found that it was within the trial court's discretion to take the case from the jury and direct a verdict for the defendant" } ], "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2946499 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "153" }, { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/0142-01" ] }, { "cite": "566 N.E.2d 523", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2553736 ], "year": 1991, "pin_cites": [ { "page": "958" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0954-01" ] }, { "cite": "642 N.E.2d 1348", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "1358" } ], "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 157", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381891 ], "year": 1994, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0157-01" ] }, { "cite": "342 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "474" }, { "page": "474" } ], "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5304658 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "710" }, { "page": "710-11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0703-01" ] }, { "cite": "641 N.E.2d 402", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "406" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783184 ], "year": 1994, "pin_cites": [ { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0267-01" ] }, { "cite": "605 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "498" }, { "page": "498" }, { "page": "498" } ], "opinion_index": 0 }, { "cite": "152 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602939 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "446" }, { "page": "446" }, { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/152/0432-01" ] }, { "cite": "233 Ill. App. 353", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3092954 ], "year": 1924, "pin_cites": [ { "parenthetical": "where the plaintiff was a trespasser in the auto-truck, the defendant owed only a duty not to willfully injure the plaintiff" } ], "opinion_index": 0, "case_paths": [ "/ill-app/233/0353-01" ] }, { "cite": "312 S.W.2d 805", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10179530 ], "year": 1958, "pin_cites": [ { "page": "812" } ], "opinion_index": 0, "case_paths": [ "/sw2d/312/0805-01" ] }, { "cite": "593 N.E.2d 597", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1992, "pin_cites": [ { "page": "607" }, { "page": "607" }, { "page": "610" }, { "page": "607" } ], "opinion_index": 0 }, { "cite": "228 Ill. App. 3d 1024", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5222055 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "1037-38" }, { "page": "1038" }, { "page": "1042" }, { "page": "1038" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/1024-01" ] }, { "cite": "583 N.E.2d 538", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 404", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5595999 ], "year": 1991, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0404-01" ] }, { "cite": "622 N.E.2d 788", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "792" }, { "page": "792" }, { "page": "792" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777551 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "517" }, { "page": "518" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0511-01" ] }, { "cite": "619 N.E.2d 172", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "174" } ], "opinion_index": 0 }, { "cite": "249 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5410530 ], "year": 1993, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/249/0654-01" ] }, { "cite": "758 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "section 8 - 101's one-year statute of limitations applied to the minor's cause of action, but the one year did not begin to run until after the minor reached 18 years of age, pursuant to section 13 - 211 of the Code" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569987 ], "year": 2001, "pin_cites": [ { "parenthetical": "section 8 - 101's one-year statute of limitations applied to the minor's cause of action, but the one year did not begin to run until after the minor reached 18 years of age, pursuant to section 13 - 211 of the Code" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0241-01" ] }, { "cite": "202 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442060 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "312-14" }, { "page": "313-14" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0304-01" ] }, { "cite": "686 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "631" }, { "page": "631" } ], "opinion_index": 0 }, { "cite": "292 Ill. App. 3d 589", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725044 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "595" }, { "page": "595-96" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0589-01" ] }, { "cite": "607 N.E.2d 1204", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1209" } ], "opinion_index": 0 }, { "cite": "154 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4820940 ], "year": 1992, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/154/0090-01" ] }, { "cite": "720 N.E.2d 1075", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "1081" } ], "opinion_index": 0 }, { "cite": "188 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536019 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0186-01" ] } ], "analysis": { "cardinality": 1325, "char_count": 37299, "ocr_confidence": 0.794, "pagerank": { "raw": 1.6735875803036622e-07, "percentile": 0.6963465823683157 }, "sha256": "3e9dfc057445d1e376e9c711c00df1b2b94278ebbcf93e60d5335ee2e784c765", "simhash": "1:d2e77ee18b056cd8", "word_count": 6542 }, "last_updated": "2023-07-14T19:45:54.915644+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOLFSON and SOUTH, JJ., concur." ], "parties": [ "GINA R. BASHAM, Plaintiff-Appellant, v. ERIC J. HUNT et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE HALL\ndelivered the opinion of the court.\nThe plaintiff, Gina Basham, filed suit against the defendants, the City of Chicago (the City) and its employee, Eric Hunt, seeking damages for injuries she suffered when she was run over by a garbage truck, owned by the City and operated by Mr. Hunt. The circuit court of Cook County granted summary judgment to the defendants on the basis that the complaint was barred by the statute of limitations. The plaintiff filed a timely notice of appeal.\nOn appeal, the plaintiff raises the following issues: (1) whether the Local Governmental and Governmental Employees Tort Immunity Act\u2019s (Tort Immunity Act) (745 ILCS 10/8 \u2014 101 (West 1996)) one-year statute of limitations was tolled by the plaintiff\u2019s legal disability; (2) whether the defendants waived the one-year statute of limitations; (3) whether the circuit court abused its discretion by allowing Eric Hunt to join in the City\u2019s motion for summary judgment; and (4) whether the circuit court erred when it granted summary judgment to the defendants.\nBecause this is an appeal from the granting of summary judgment, the pertinent facts are taken from the pleadings and depositions contained in the record.\nOn August 11, 1998, the plaintiff filed suit against the City and Eric Hunt seeking damages for personal injuries arising out of the events of July 18, 1997.\nOn July 18, 1997, around 5 p.m., the plaintiff left her office to meet David Johnson, and the two of them walked to a wine bar. At around 7 p.m., they were joined by Tim Dinan. At the wine bar, the plaintiff drank one glass of wine and two sips of another glass of wine. Afterwards, the plaintiff and the two men went to the Cactus Club, where they were joined by David Rudsinski. The plaintiff drank one margarita. However, she could not recall whether she had any more to drink at the Cactus Club. She could not recall leaving the Cactus Club or any of the circumstances of the accident. After the accident, she had no recollection of events until August 15, 1997.\nThe plaintiff did not remember meeting Walter Johnson on the evening of the accident. However, according to Walter Johnson, he joined the plaintiff and her group at the Cactus Club. Walter stated that the plaintiff had two drinks at the Cactus Club, basing it on the fact that the group had two rounds of drinks. The group left the Cactus Club around closing time and began walking north. When they reached the northwest corner of Wells Street and Van Bur\u00e9n Street, the light for southbound traffic was red. The plaintiff walked into the street and began waving her arms in front of a garbage truck.\nWalter yelled to the plaintiff to get out of the intersection, but she would not do so. Walter appealed to Mr. Rudsinski, the plaintiff\u2019s boyfriend, and to David Johnson to get the plaintiff out of the street. A man in the garbage truck began yelling at the plaintiff, and she yelled back. The man got out of the truck and talked to the plaintiff. The man got back in the truck at some point. Frustrated that no one could get the plaintiff out of the street, Walter resolved to carry the plaintiff out of the street and went around the back of the truck. By the time he reached the back of the truck, the truck was moving. He observed the truck \u201cbounce\u201d and saw the plaintiff roll toward the center of the street.\nWalter recalled that the plaintiff did climb on the front of the truck. He did not have visual contact with the plaintiff at the time the truck started to move. He recalled speaking to a couple at the scene who stated that they had seen the driver of the garbage truck push the plaintiff off the side of the truck.\nDavid Rudsinski met the plaintiff and the others at the Cactus Club close to 8 p.m. He recalled that the plaintiff had one or two margaritas. After leaving the Cactus Club, the group crossed Wells Street to another bar so that the plaintiff could use the restroom. The group then crossed Wells Street at Van Bur\u00e9n Street. Mr. Rudsinski was holding the plaintiffs hand as they crossed Wells Street. He let go of her hand while he was looking around for a cash station and then lost sight of her. He did notice a garbage truck, but he did not observe where the plaintiff was prior to the traffic beginning to move. After the garbage truck began to move, he heard the plaintiff moaning and yelling, and he walked back and saw her on the ground.\nKay Classon was proceeding southbound on Wells Street and stopped in the east lane of Wells Street at Van Bur\u00e9n Street for a red light. There was one car ahead of her at the light, and next to that car was a garbage truck, in the west lane of Wells Street. Ms. Classon observed the plaintiff standing directly in front of the truck with her arms outstretched to each side. The plaintiff then came around to the driver\u2019s side of the truck and attempted to get up on the side of the truck. The plaintiff managed to pull herself up more than once. According to the witness, the driver of the truck kept trying to push the plaintiff off the truck with his arm. The plaintiff did get up and down off the truck a couple of times. The plaintiff was still on the running board of the truck when the light turned to green, and the truck began to move, at which point the plaintiff disappeared from view. Ms. Classon observed the rear wheels of the truck go up and over something but did not see what it was.\nHowever, Ms. Classon then acknowledged that she did not know where the truck driver last saw the plaintiff prior to starting to move the truck. She also could not specifically state where the plaintiffs hands or feet were when the truck started to move.\nLinda Truckenmiller was in a car driven by her husband southbound on Wells Street approaching the intersection of Wells Street and Van Bur\u00e9n Street, when she first observed the plaintiff with two men crossing east to west near the intersection. At the middle of the crosswalk, the plaintiff left the crosswalk and proceeded toward the traffic while the two men continued to the curb. The plaintiff stood in the center between the two southbound lanes of Wells Str\u00e9et and began waving her arms as though she were stopping traffic. As the Truckenmiller car came to a stop at the light, the plaintiff was standing to Mrs. Truckenmiller\u2019s right side.\nA garbage truck was approaching in the west lane of southbound Wells Street and stopped approximately three to five feet in front of the plaintiff. As the truck came to a stop, the plaintiff stepped in front of it. One of the plaintiffs friends attempted to pull her back to the curb, but she brushed him off. The plaintiff then proceeded around the truck to the driver\u2019s door and grabbed the handrail, trying to pull herself onto the running board, but she was unsuccessful. The plaintiffs second attempt was more successful, and she managed to get both feet on the running board of the truck, at which point the driver of the truck pushed her down with his arm. The plaintiff got back on the running board, and the driver again pushed her down.\nMrs. Truckenmiller then observed the plaintiff make a fourth attempt to get back on the running board of the truck as the light turned to green. The plaintiffs right hand was on the grab bar of the truck, and her left leg was on the running board. The plaintiff then put her left hand on the grab bar while her right leg was hopping along the street. The plaintiff had not been able to get on the running board as the truck was moving, so she was hopping along as she passed Mrs. Truckenmiller. After making one last effort to get on the running board, the plaintiff slumped into almost a squatting position on the running board with her right leg swung under the running board and the truck. The plaintiff then fell to the street on her left side, and the left rear wheels of the truck rolled over her legs between her knees and her pelvis.\nIn an effort to clarify her testimony, Mrs. Truckenmiller explained that at the time the light turned to green, neither the plaintiffs hand nor her left foot was on the truck. However, the truck did not move immediately. By the time the truck did begin to move, the plaintiffs right hand was on the grab bar, but her left foot was not on the running board. After the truck began to move, the plaintiff placed her left foot on the running board. The plaintiff did have an opportunity to let go of the truck before it entered the intersection.\nEric Hunt was driving the garbage truck with two helpers, Anthony Morgan (now deceased) and Sumatro Simpson. Mr. Hunt was proceeding southbound on Wells Street in the west lane and was midway between Jackson Boulevard and Van Bur\u00e9n Street when he first observed the plaintiff. The plaintiff was about 15 feet north of the crosswalk at Van Bur\u00e9n Street and Wells Street, standing in the west lane of Wells Street. There was a man with the plaintiff who was trying to pull her out of the street. The plaintiff had been \u201cbothering\u201d a woman in red car double parked in the east lane of southbound Wells Street. As he approached the intersection, Mr. Hunt slowed down because the plaintiff was walking in his lane.\nThe plaintiff was about 10 to 15 feet in front of the truck when she began waving her hands above her head. After about 10 to 15 seconds, she came face to face with the truck. Mr. Hunt had been continually blowing the truck\u2019s horn to get the plaintiff to move out of the truck\u2019s way. The plaintiff then walked around the side of the truck and twice attempted to climb up on the steps of the truck. When she finally got up on the truck, Mr. Hunt told her to get off the truck. Mr. Hunt described the plaintiff as \u201cnot saying anything, not one word. She mumbled. She was like a zombie.\u201d Mr. Hunt used a hand gesture as he was telling the plaintiff to get down off the truck, but he did not touch the plaintiff. The plaintiff did not respond, so Mr. Hunt had to repeat the request that she get down off the truck. Mr. Hunt did not recall if he used the hand gesture the second time. Mr. Hunt had to tell the plaintiff several times to get off the truck, and finally she did so. After the plaintiff got down from the truck, she did not attempt to get back on the truck.\nMr. Hunt waited 5 to 10 seconds to make sure the plaintiff was off and clear of the truck before proceeding southbound. Just as the truck was about to enter the intersection, he heard a \u201cthump.\u201d He did not know that he had struck the plaintiff, but he knew he had hit something. Mr. Hunt looked in the mirror of the truck and saw people coming from the east side of Wells Street. He moved the truck to clear the intersection.\nOn the night of the plaintiff\u2019s accident, Sumatro Simpson was working on the garbage truck with Eric Hunt and Anthony Morgan. Mr. Simpson was seated between Mr. Morgan and Mr. Hunt. He did not recall where the accident took place, but he recalled that the truck was probably southbound on Wells Street. He first observed the plaintiff in the crosswalk after the truck had just come to a stop. The truck stopped because the plaintiff was flagging down the truck. By the time the truck had come to a complete stop, the plaintiff had walked around the front of the truck. The truck \u201ccreeped\u201d forward up to the intersection and then stopped again. The plaintiff then tried to climb onto the side of the truck, at which point Mr. Hunt asked her to get down. Mr. Simpson heard Mr. Hunt tell the plaintiff to get down, but he did not see him push her down because he was not watching Mr. Hunt that closely. He observed the plaintiffs head \u201cpop up\u201d in the driver\u2019s window possibly two or three times. As the truck started forward, Mr. Simpson observed Mr. Hunt watching the plaintiff on the side of the truck, although he himself could not see her. Mr. Simpson did not know where the plaintiff was when the truck started to move. He did not feel the truck hit the plaintiff. As a precaution, he looked out the side window and through the side mirror saw that the plaintiff was on the ground. Mr. Simpson informed Mr. Hunt of what he had seen, and Mr. Hunt immediately stopped the truck.\nAccording to Dr. Marc Tellez, the plaintiffs treating physician, the plaintiff had a blood-alcohol content of .236 at the hospital. Dr. Tellez opined that such a level would impair the plaintiffs motor skills and cognition. In his report, Dr. Daniel J. Brown concluded that at the time of the accident, the plaintiffs blood-alcohol content was .226, and in his opinion, \u201cshe was highly intoxicated, and that the mental and motor skills she needed to conduct her activities with both safety and due care were greatly diminished by the presence of alcohol.\u201d\nOn March 30, the circuit court entered an order setting the case for trial on August 28, 2000.\nOn April 28, 2000, the City filed a motion for summary judgment. The City argued that it did not breach its duty of care to the plaintiff and that there was no issue of genuine material fact as to the plaintiffs responsibility for her injuries. In addition, for the first time, the City raised the issue of the plaintiffs failure to file her complaint within the one-year statute of limitations applicable to actions against municipalities. See 745 ILCS 10/8 \u2014 101 (West 1996).\nThe plaintiff filed a response to the motion for summary judgment contending that the defendants breached their duty of ordinary care to the plaintiff and that the issue of the plaintiffs contributory negligence was for the jury to decide in light of the conflicting testimony. The plaintiff further contended that her physical and mental incapacity tolled section 8 \u2014 101\u2019s one-year statute of limitations. The plaintiff also maintained that by participating in discovery over the previous two years, the City had waived the issue of the statute of limitations.\nThe City filed a response which was captioned \u201cDEFENDANTS\u2019 REPLY IN SUPPORT OF THEIR SUMMARY JUDGMENT MOTION\u201d and indicated that the reply included Mr. Hunt as well as the City.\nOn August 17, 2000, the circuit court informed the parties that it was issuing a written decision but orally announced that it was granting the motion for summary judgment based upon the statute of limitations. The plaintiffs attorney pointed out that the motion for summary judgment was brought on behalf of the City only and that only in the City\u2019s reply were the City and Mr. Hunt referred to collectively.\nOn August 18, 2000, the City filed a motion to clarify or, in the alternative, to allow Mr. Hunt to join in the motion for summary judgment. On that same date, the circuit court ordered that the motion to clarify be taken under advisement and that the motion would be addressed in the court\u2019s written ruling.\nOn August 22, 2000, the circuit court issued its written opinion granting the motion for summary judgment based upon the plaintiffs failure to file her complaint within one year of the accident. The circuit court found that section 8- \u2014 101 of the Tort Immunity Act controlled over the tolling provisions of section 13 \u2014 211 of the Code of Civil Procedure (the Code) (735 ILCS 5/13 \u2014 211 (West 1996)), relying on the supreme court\u2019s decision in Tosado v. Miller, 188 Ill. 2d 186, 720 N.E.2d 1075 (1999).\nOn October 12, 2000, the circuit court denied the plaintiffs motion for reconsideration. However, the plaintiffs attorney noted that the circuit court had not addressed the issues of the defendants\u2019 waiver of the statute of limitations, which was raised in the plaintiff\u2019s response to the motion for summary judgment, or the joinder of Mr. Hunt in the motion for summary judgment. The plaintiff argued that the joinder of Mr. Hunt violated the local rule requiring motions for summary judgment to be filed 45 days prior to trial. Cook Co. Cir. Ct. R 2.1(f) (as amended, eff. April 23, 1992; August 21, 2000).\nThe circuit court acknowledged that it had not addressed the waiver issue, stating that it never reached it. The court did determine that the failure to join Mr. Hunt in the motion for summary judgment was due to inadvertence on the part of the City and allowed him to join in the motion for summary judgment.\nThe plaintiff filed a timely notice of appeal on November 13, 2000.\nANALYSIS\nStandard of Review\nThe court reviews the granting of a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209 (1992).\nDiscussion\nI. Statute of Limitations\nThe plaintiff contends that the circuit court erred when it ruled that the Tort Immunity Act\u2019s one-year statute of limitations (745 ILCS 10/8 \u2014 101 (West 1996)) was not tolled by section 13 \u2014 211 of the Code (735 ILCS 5/13 \u2014 211 (West 1996)).\nSection 13 \u2014 211 provides as follows:\n\u201cIf the person entitled to bring an action, specified in Sections 13 \u2014 201 through 13 \u2014 210 of this Act, at the time the cause of action accrued, is under the age of 18 years, or is under a legal disability, then he or she may bring the action within 2 years after the person attains the age of 18 years, or the disability is removed.\u201d 735 ILCS 5/13 \u2014 211 (West 1996).\nA person suffers from a \u201c \u2018legal disability\u2019 where he or she is \u2018entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his [or her] estate or financial affairs.\u2019 [Citation.]\u201d Hochbaum v. Casiano, 292 Ill. App. 3d 589, 595, 686 N.E.2d 626, 631 (1997). In a personal injury case, a person is not legally disabled if he or she can comprehend the nature of the injury and its implications. Hochbaum, 292 Ill. App. 3d at 595-96, 686 N.E.2d at 631.\nThe deposition testimony of Dr. Tellez established that the plaintiff was legally disabled from the date of her injury until August 16 or 17, 1997. His testimony on that point may be summarized by his response when he was questioned as follows:\n\u201cQ. So is it fair to say based on that note \u2014 and I think you earlier described that [the plaintiff] was weaned off of sedation sometime around 8/14, 8/15 \u2014 that she really wasn\u2019t in possession of her mental faculties from the time of her admission to the hospital up to and including April? I think you said April 17 or 16 \u2014 excuse me, August 16 or 17 of \u201997?\nA. That\u2019s correct.\u201d\nHowever, even if the plaintiff was legally disabled, the question remains which period of limitations controls.\nIn Tosado v. Miller, a plurality of our supreme court held that the one-year limitations period of section 8 \u2014 101 governed medical malpractice cases brought against local governmental entities and their employees rather than the two-year limitations period of section 13 \u2014 212(a) of the Code. Tosado, 188 Ill. 2d at 196, 720 N.E.2d at 1081.\nSubsequent to its decision in Tosado, the supreme court considered the case of Ferguson v. McKenzie, 202 Ill. 2d 304 (2001). In that case, the court was asked to decide whether section 8 \u2014 101 controlled over section 13 \u2014 212(b) of the Code (735 ILCS 5/13 \u2014 212(b) (West 1996)).\nIn contrast to section 13 \u2014 212(a), which was at issue in Tosado and which deals with an adult\u2019s action for medical malpractice, section 13 \u2014 212(b), at issue in Ferguson, deals with the situation in which a minor is the injured party, and provides that medical malpractice action must be brought within eight years of the act alleged to be the cause of the injury, but in no event may the cause of action be brought after the minor\u2019s twenty-second birthday. 735 ILCS 5/13 \u2014 212(b) (West 1996).\nIn Ferguson, the plaintiff brought a wrongful death action against Cook County and its physician employees on behalf of herself and her children, one of whom, Karen, was 17 years and 5 months old at the time of the alleged act of malpractice. The defendants were granted summary judgment on the basis that the complaint was not filed within one year of the occurrence as required by section 8 \u2014 101. The appellate court affirmed, and the plaintiff appealed to the supreme court.\nWhile conceding that her claim and those of her adult children were time-barred under the holding in Tosado, the plaintiff argued that she had until Karen\u2019s twenty-second birthday to file a wrongful death action against the defendants.\nThe supreme court disagreed. Relying on its decision in Tosado, the court determined that while section 13 \u2014 212(b) applied to Karen since she was a minor when the cause of action accrued, once she became 18 years of age, section 8 \u2014 101 also applied to her and began to run. Therefore, Karen\u2019s claim which was filed when she was 19 years and 5 months of age was untimely. Ferguson, 202 Ill. 2d at 312-14.\nIn reaching that result, the court relied on its reasoning in Tosado. The court noted that legislative intent of section 13 \u2014 212(b) was to reduce the period of potential liability and restrict a minor\u2019s ability to sue, while the intent of section 8 \u2014 101 was to encourage early investigation and prompt settlements of meritorious claims against government entities and allow them to plan their budgets in light of potential liabilities. The court concluded that its holding gave effect to the underlying policy of each provision and protected the possible claims of the minors against local governments by preserving the repose period for minors. Ferguson, 202 Ill. 2d at 313-14.\nUnder the analysis in both Ferguson and Tosado, section 8 \u2014 101 controls over section 13 \u2014 211, and therefore, the plaintiff would not have had the full two years provided for in section 13 \u2014 211. However, the plaintiffs complaint was timely filed because the complaint was filed on August 11, 1998, within one year after she was no longer legally disabled, which occurred between August 16 and 17, 1997, according to Dr. Tellez. Therefore the plaintiffs complaint was filed in compliance with section 8 \u2014 101 of the Tort Immunity Act. Compare McKinnon v. Thompson, 325 Ill. App. 3d 241, 758 N.E.2d 316 (2001) (section 8 \u2014 101\u2019s one-year statute of limitations applied to the minor\u2019s cause of action, but the one year did not begin to run until after the minor reached 18 years of age, pursuant to section 13 \u2014 211 of the Code). In light of the decision in Ferguson, the defendants have abandoned their argument that the plaintiff\u2019s complaint was barred by section 8 \u2014 101 of the Tort Immunity Act.\nWe conclude that the plaintiff\u2019s complaint was not time-barred. Therefore, we need not address the issue of whether the defendants waived the statute of limitations defense.\nII. Joinder of Eric Hunt to the Motion for Summary Judgment\nThe text of this discussion is nonpublishable.\nIII. Summary Judgment\nSummary judgment is proper if and only if the pleadings, depositions, admissions, affidavits and other relevant matters on file show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Smith v. Tri-R Vending, 249 Ill. App. 3d 654, 657, 619 N.E.2d 172, 174 (1993). The purpose of summary judgment is not to try a question of fact but to determine if one exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517, 622 N.E.2d 788, 792 (1993). In determining whether a genuine issue of material fact exists, courts construe the pleadings, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792. A triable issue precluding summary judgment exists where the material facts are disputed or where reasonable persons might draw different conclusions from the undisputed facts. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792.\nIn an action based upon negligence, the plaintiff must set out sufficient facts establishing a duty owed by the defendant to the plaintiff, a breach of that duty and that the injury was proximately caused by the breach. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411, 583 N.E.2d 538, 541 (1991). The existence of a duty must be determined by the court as a matter of law, but the questions of whether there was a breach and whether that breach was a proximate cause of the injury are questions of fact for the jury. Rodriguez v. Norfolk & Western Ry. Co., 228 Ill. App. 3d 1024, 1037-38, 593 N.E.2d 597, 607 (1992).\nThe defendants contend that summary judgment for them was proper in this case because there is no genuine issue of fact as to whether the defendants breached their duty of care to the plaintiff.\nA. The Plaintiff\u2019s Status\nGenerally, a person present on, or riding in, a vehicle without the knowledge or consent of the owner and driver is in legal contemplation a trespasser. General principles as to the status and liability of trespassers on personal property, as distinguished from invitees or licensees, apply in the case of trespassers on or in a motor vehicle. 60A C.J.S. Motor Vehicles \u00a7 401 (1969). We agree with the defendants, that the same fundamentals and consideration that determine liability for possessors of land apply as well to personal property that may be entered upon. See McVicar v. W.R. Arthur & Co., 312 S.W.2d 805, 812 (Mo. 1958).\nThe operator or owner of a motor vehicle is under no duty to exercise care for the safety of an occupant in the status of a trespasser except to refrain from willful or wanton misconduct, except as to such occupant whose presence is known and who is in a position of peril; in which instance a duty arises to act as a reasonably prudent person would act under the same circumstances to protect the occupant\u2019s safety. 5 E Kelly, Blashfield Automobile L. & Frac. \u00a7 200.10 (2000).\nUnder Illinois common law, a judge\u2019s determination of the nature of the duty a landowner or occupier of land owes to an entrant on his land is governed by his status as a trespasser, licensee or invitee. Rodriguez, 228 Ill. App. 3d at 1038, 593 N.E.2d at 607. The question of a plaintiffs status should be decided as a matter of law if there are no factual questions present. Rodriguez, 228 Ill. App. 3d at 1042, 593 N.E.2d at 610.\nThe plaintiff relies on sections of the Illinois Vehicle Code (Vehicle Code) which state that drivers of authorized emergency vehicles are not relieved of their duty to drive with due regard for the safety of all persons using the highway. See 625 ILCS 5/11 \u2014 205(e), 11 \u2014 907 (West 1996). However, the City\u2019s garbage truck is not an authorized emergency vehicle under the Vehicle Code. See 625 ILCS 5/1 \u2014 105 (West 1996).\nSection 11 \u2014 1003.1 of the Vehicle Code requires vehicle drivers to exercise due care to avoid colliding with any pedestrian and provides that they \u201cshall exercise proper precaution upon observing any *** intoxicated person.\u201d 625 ILCS 5/11 \u2014 1003.1 (West 1996). However, the defendants maintain that the plaintiff\u2019s status was not that of a pedestrian but, rather, that of an unknown trespasser on the City\u2019s garbage truck. The defendants rely on Gauss v. Walter, 233 Ill. App. 353 (1924) (where the plaintiff was a trespasser in the auto-truck, the defendant owed only a duty not to willfully injure the plaintiff). While Gauss is not precedential authority, nonetheless, in the absence of any contrary authority, it provides an indication that early on in Illinois there was a recognition that the duty owed to trespassers on land would be applied to trespassers to automobiles.\nA trespasser is one who enters upon the premises of another with neither permission nor invitation and intrudes for some purpose of his own or at his convenience or merely as an idler. Rodriguez, 228 Ill. App. 3d at 1038, 593 N.E.2d at 607. Generally, the rule in Illinois is that a landowner owes a trespasser only the duty to refrain from willfully or wantonly injuring him. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 446, 605 N.E.2d 493, 498 (1992). However, our supreme court noted that there are exceptions to the above rule and has long recognized that a landowner must use ordinary care to avoid injury to a trespasser who has been discovered in a place of danger on the premises. Lee, 152 Ill. 2d at 446, 605 N.E.2d at 498.\nThe record in this case raises a factual question as to the plaintiffs status. While there is no dispute that she had climbed on the City truck more than once, the evidence is conflicting as to whether she was still on the truck when it began to move. According to Linda Truckenmiller, at the time the truck began to move, the plaintiffs right hand was on the grab bar; after the truck began to move, the plaintiff placed her left foot on the running board of the truck. However, according to Eric Hunt, the plaintiff had gotten off the truck and had never attempted to climb back on again prior to the truck moving. Mr. Hunt also stated that he made sure that the plaintiff was off and clear of the truck before the truck moved. While Ms. Classon originally testified that the plaintiff was on the running board when the truck began to move, she later admitted that she could not state where the plaintiffs hands and feet were when the truck started to move. The other witnesses were not able to view the plaintiff at the time the truck began to move.\nEven assuming that the plaintiff was a trespasser on the City\u2019s truck, the defendants owed her a duty of ordinary care if the plaintiff was a \u201cknown trespasser.\u201d Lee, 152 Ill. 2d at 446, 605 N.E.2d at 498. There is no dispute that Mr. Hunt was aware of the plaintiffs presence on the truck, since he had to tell her several times to get off the truck. While he testified that the plaintiff was off the truck when the truck began to move, Mrs. Truckenmiller testified that the plaintiff was hanging onto the truck when it began to move and, as it was moving, managed to get her left leg on the running board of the truck.\nThe defendants argue that the plaintiff could not be a \u201cknown trespasser\u201d since Mr. Hunt believed that the plaintiff was off the truck when it began to move. However, once Mr. Hunt was initially aware of the plaintiffs presence, she did not cease to be \u201cknown\u201d because he did not see her on the truck again, especially in light of her attempt more than once to board the truck. Moreover, the defendants\u2019 position that the plaintiff was a trespasser is at odds with Mr. Hunt\u2019s testimony that he made sure that the plaintiff was not on the truck when he put the truck in motion.\nThe record in this case raises a genuine issue as to the plaintiff\u2019s status, and thus, that issue must be submitted to the trier of fact.\nB. Breach of Duty\nThe record in this case also raises a factual question as to whether Mr. Hunt\u2019s conduct in moving the truck breached the duty of care the defendants owed to the plaintiff. Even if, as the defendants argue, their duty to the plaintiff, as an unknown trespasser, was limited to not willfully or wantonly injuring her, Mr. Hunt\u2019s conduct in moving the truck could be held to be willful and wanton if he was aware she was still on the truck or still attempting to board the truck when he began to move the truck. Conduct characterized as willful and wanton may be proven where the acts have been less than intentional \u2014 \u201ci.e., where there has been \u2018a failure, after knowledge of impending danger, to exercise ordinaiy care to prevent\u2019 the danger, or a \u2018failure to discover the danger through *** carelessness when it could have been discovered by the exercise of ordinary care.\u2019 [Citation.]\u201d Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 274, 641 N.E.2d 402, 406 (1994).\nThe defendants argue that Mr. Hunt went to great lengths to ensure the plaintiff\u2019s safety. They point out that he told her to stay off the truck, made sure that the plaintiff was not touching the truck, and pulled away slowly. Nonetheless, Mr. Hunt\u2019s testimony was contradicted by that of Mrs. Truckenmiller, who testified that the plaintiff was holding onto the truck when it began to move.\nThe evidence in this case presents a genuine issue of fact as to whether the defendants breached their duty of care, even if the plaintiff\u2019s status was that of an unknown trespasser on the City\u2019s garbage truck.\nC. The Plaintiffs Contributory Negligence\nThe defendants also contend the plaintiff cannot prevail because her own contributory fault was more than 50% of the proximate cause of her injuries. See 735 ILCS 5/2 \u2014 1116 (West 1996).\nThe defendants maintain that the plaintiff\u2019s conduct was more than 50% of the proximate cause of her injuries. They point to her behavior in standing in the middle of the intersection, her refusal of all efforts to remove her from the middle of the street and her continued efforts to get on the City garbage truck despite Mr. Hunt\u2019s warnings and efforts to keep her off. The defendants also maintain that while the plaintiff was intoxicated at the time she was injured, she was not relieved from the duty of exercising the same care as a person who is sober. Dezort v. Village of Hinsdale, 35 Ill. App. 3d 703, 710, 342 N.E.2d 468, 474 (1976).\nA plaintiff is contributorily negligent when he acts without that degree of care which a reasonably prudent person would have used for his own safety under like circumstances and which action is the proximate cause of his injuries. Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157, 170, 642 N.E.2d 1348, 1358 (1994). Ordinarily, the question of contributory negligence is a question of fact for the jury, but it becomes a question of law when all reasonable minds would agree that the evidence and the reasonable inferences therefrom, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. West v. Kirkham, 207 Ill. App. 3d 954, 958, 566 N.E.2d 523, 525 (1991).\nThe defendants rely on Reuter v. Korb, 248 Ill. App. 3d 142, 616 N.E.2d 1363 (1993). In that case, the reviewing court upheld a trial court\u2019s entry of a directed verdict in the defendant\u2019s favor where it was readily apparent from the evidence that the plaintiff was more than 50% at fault.\nThe evidence in Reuter established that the plaintiff, who was highly intoxicated, suddenly appeared in front of the defendant\u2019s car in a pitch-dark area of the roadway. The plaintiff was not in an area where the defendant should have known or expected a pedestrian, and the plaintiff was not at a distance that allowed the defendant to honk, slow down or swerve. There was also evidence that the defendant was looking straight out his windshield in the direction that his headlights, which were operating properly, were shining when the plaintiff unexpectedly appeared. Reuter, 248 Ill. App. 3d at 153, 616 N.E.2d at 1371.\nThe present case presents a different situation. We note that intoxication is not negligence per se but simply a circumstance to be weighed by the jury in its determination of the issue of due care. Dezort, 35 Ill. App. 3d at 710-11, 342 N.E.2d at 474. In the present case, the plaintiff did not come out of nowhere to be run over by the truck operated by Mr. Hunt. Unlike the defendant in Reuter, Mr. Hunt was aware of the plaintiffs presence prior to the accident. While he testified that he made sure that the plaintiff was not on the truck when it began to move, his testimony was contradicted by that of Mrs. Truckenmiller.\nMoreover, in Reuter, the appeal was from a directed verdict, and the appellate court reviewed the issue under an abuse of discretion standard. Reuter, 248 Ill. App. 3d at 153, 616 N.E.2d at 1371 (court found that it was within the trial court\u2019s discretion to take the case from the jury and direct a verdict for the defendant). In the present case, our review is de novo.\nThe record in this case presents a genuine issue of fact as to whether the plaintiff\u2019s own conduct was more than 50% of the proximate cause of her injuries. Therefore, summary judgment in this case was improper on this basis as well.\nWe conclude that there are genuine issues of material fact which preclude the grant of summary judgment in this case.\nThe judgment of the circuit court granting summary judgment to the defendants is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nWOLFSON and SOUTH, JJ., concur.\nThe motion to clarify is not contained in the record on appeal. According to the City, the plaintiff indicated that a motion to supplement the record would be filed to include that motion. However, no such motion was filed.\nIn its written opinion, the circuit court stated that the plaintiff was not bringing her action pursuant to any of the specified sections in section 13\u2014 211. However, section 13 \u2014 211 refers to \u201can action, specified\u201d in those specific sections. Section 13 \u2014 202 provides for actions for damages for personal injury. 735 ILCS 5/13 \u2014 202 (West 1996).\nAppellate court cases decided prior to 1935 are not binding authority and have no precedential value. See Universal Underwriters Insurance Co. ex rel. Manley Ford, Inc. v. Long, 215 Ill. App. 3d 396, 400, 574 N.E.2d 1284, 1286 (1991).", "type": "majority", "author": "PRESIDING JUSTICE HALL" } ], "attorneys": [ "David J. Fitzpatrick, of David J. Fitzpatrick & Associates, of Chicago, for appellant.", "Mara S. Georges, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Marc J. Boxerman, Assistant Corporation Counsel, of counsel), for appellees." ], "corrections": "", "head_matter": "GINA R. BASHAM, Plaintiff-Appellant, v. ERIC J. HUNT et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 1 \u2014 00 \u2014 3886\nOpinion filed July 17, 2002.\nDavid J. Fitzpatrick, of David J. Fitzpatrick & Associates, of Chicago, for appellant.\nMara S. Georges, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Marc J. Boxerman, Assistant Corporation Counsel, of counsel), for appellees." }, "file_name": "0980-01", "first_page_order": 998, "last_page_order": 1014 }