Lambert v. Village of Summit

JUSTICE RIZZI, dissenting:

I respectfully dissent from the conclusion of the majority that the statute of limitations for bringing a personal injury action is controlling in an action brought pursuant to the Wrongful Death Act. In my opinion, the period of limitation for bringing an action under the Wrongful Death Act is controlled solely by the period of limitation contained in the Act itself, which specifically states that every such action shall be commenced within two years after the death of the decedent. (Ill. Rev. Stat. 1979, ch. 70, par. 2.) Therefore, in the present case, since the suit was filed under the Wrongful Death Act and was commenced within two years after the death of the decedent, I would affirm the trial judge’s order denying defendant’s motion for summary judgment based on the statute of limitations for bringing a personal injury action.

I believe the majority in this case is interpreting the Wrongful Death Act as if it is a survival action type of death statute, which it is not. Under a survival action type of death statute, which merely continues the decedent’s own cause of action beyond his death and enhances it with damages for the death, it is readily apparent that any defense, including the statute of limitations, which might have been set up against the decedent if he had lived is still available to the defendant. (Prosser, Torts §127, at 910 (4th ed. 1971).) However, a Wrongful Death Act is markedly different. A Wrongful Death Act does not continue the decedent’s own cause of action. Rather, it creates a separate and independent cause of action unknown to the common law, which by its nature does not come into existence until the death occurs and which is for the exclusive benefit of the surviving spouse and next of kin of the decedent. (Ill. Rev. Stat. 1979, ch. 70, par. 2.) It follows that if a suit brought under the Wrongful Death Act is commenced within two years after the death of the decedent, it should not be dismissed merely because it was not filed within two years from the date of the accident.

Section 1 of the Wrongful Death Act states:

Whenever the death of a person shall be caused by wrongful act * * * and the act * * * is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages 0. * * then 0 ° ° in ° ° ° such case the person who 6 ” e would have been liable if death had not ensued, shall be liable to an action for damages. (Emphasis added.) Ill. Rev. Stat. 1979, ch. 70, par. 1.

I believe the language in section 1 of the Act which states that “[wjhenever the death of a person shall be caused by wrongful act 000 and the act * * * is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages” relates solely to the character of the defendant’s act causing the death. In other words, in order to recover under the Act, there must have been a legally recognized tortious act committed by the defendant that caused the decedent’s death.

I believe the remaining language in section 1 of the Act, which provides that “the person who * * * would have been liable if death had not ensued, shall be liable to an action for damages,” relates to the fact that at common law, and in Illinois prior to enactment of the Act, any action for the recovery of damages for a tortious act abated if death ensued, and the person who would have been liable if death had not ensued would not have been liable to anyone in an action for damages. The language in section 1 of the Act simply changes that common law principle so that the person who would not have been liable if death had ensued now is “liable to an action for damages” without regard to the question of the time of suit or death. This interpretation and reasoning is consistent with the fact that the time limitation for filing a suit, i.e., two years after the death, is clearly expressed in another part of the Act. Ill. Rev. Stat. 1979, ch. 70, par. 2.

The majority’s interpretation of the Act fails to distinguish and apply the underlying differences between a Wrongful Death Act and a survival action type of death statute. As a result, the majority concludes that the language of the Wrongful Death Act requires that at the time the suit is filed, the decedent must have been entitled to have maintained an action had death not ensued. However, the majority’s conclusion and interpretation of the Act was unequivocally rejected by the supreme court in Herget National Bank v. Berardi (1976), 64 Ill. 2d 467 , 356 N.E.2d 529 . The Herget court stated and held:

“The defendant contends that since the Married Woman’s Act prohibits one spouse from suing the other for a tort committed during coverture, the present action is barred, because the language of the Wrongful Death Act requires that in order to bring the statutory action the party would have had to have been entitled to have maintained an action had death not ensued. The parties agree that Mrs. Tetri could not have maintained an action against her husband or his estate had she survived the crash.

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* * • [I]n Welch v. Davis, 410 Ill. 130 , * e * [t]he husband * # * shot and killed his wife and immediately thereafter * * * killed himself. Although the court recognized that a husband retained an immunity from liability ( 410 Ill. 130, 134 ), it judged it would not bar the action. The court observed, as in the case here, that neither the husband nor wife was a party to the suit but instead, the wife’s administrator was asserting the independent rights of the wife’s surviving child against the husband’s executor. 410 Ill. 130,133-34 .

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We consider * * * that the dismissal by the circuit court was erroneous.” (Emphasis added.) 64 Ill. 2d 467, 470-72 , 356 N.E.2d 529, 531-32 .

To support its position, the majority relies upon Mooney v. City of Chicago (1909), 239 Ill. 414 , 88 N.E. 194 , and Biddy v. Blue Bird Air Service (1940), 374 Ill. 506 , 30 N.E.2d 14 . However, both of those cases predate Herget, and the statements in Mooney and Biddy that are relied upon by the majority here are inconsistent with the opinion in Herget. I believe we should be following Herget. Moreover, the precise issue involved in this case was discussed in Donnelly v. Chicago City Ry. Co. (1911), 163 Ill. App. 7 . The Donnelly court stated:

“The second section [of the Wrongful Death Act] after reciting that the amount recovered shall be for the exclusive benefit of the widow and next of kin of the deceased, had, at the time the suit before us was brought, a provision that ‘every such action shall be commenced within two years after the death of such person.’ In the motion for rehearing the appellant urges upon us that inasmuch as it appears on the face of the declaration that more than two years elapsed from the time of the alleged injury to the bringing of this action, and that between the time of the alleged injury and Wren’s death more than two years elapsed, his right of recovery for damages for such injury had been defeated by the operation of the limitation statute, and hence the right of his personal representative to recover was also defeated. In other words, their contention is that if a person is injured through the negligence of another and death does not ensue for two years after the date of the accident, there can be no recovery by the personal representative of the deceased. We do not so construe the statute. The language is, ‘Whenever the death of a person shall be caused by the wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then,’ etc.

In our opinion, this language refers to the right of the injured person as it existed immediately after the accident and not to the situation as it would exist more than two years after the accident, when the right of the injured party had expired by the limitation. The action for the death is different from the action by the injured man himself, in this, that two things must exist; the injury must have been sustained because of the neglect or default of the defendant,' and the person injured must have died. It is not until death occurs that the right of action in the widow and next of kin through the administrator exists.

We hold, therefore, that the only limitation on the right of the personal representative of the injured person to sue is that contained in the act which gives the right to the personal representative to sue, namely two years * * * from the date of the death of the person injured. In other words, as stated in Prouty v. City of Chicago, 250 Ill. 223 , the right of action is statutory and not a survival of decedent’s right of action for personal injury.” (Emphasis added.) 163 Ill. App. 7, 14-16 .

In its opinion, the majority refuses to accept what is stated in Donnelly because “policies promoted by statutes of limitations would be undermined if we were to follow Donnelly,” and these “policy considerations apply with equal validity whether the plaintiff is an injured party or his personal representative.” To me, this case does not involve policy considerations for two statutes of limitations. This is not a personal injury action. It is solely a wrongful death action, and there is a single statute of limitations in the case, which is two years from the date of death. Ill. Rev. Stat. 1979, ch. 70, par. 2.

Moreover, the policy considerations stated by the majority are simply not applicable here. As an example, the majority states, “The primary purpose of limitation periods » * * is » * * ‘to discourage delay in the bringing of claims.’ ” However, a wrongful death action, by its nature, cannot be brought until the death occurs. Clearly, plaintiff in this case did not delay in the bringing of this suit. Also, the majority states that “statutes of limitations attempt ‘to insure that a defendant will have a reasonable opportunity to investigate a claim and prepare a defense within a time period in which facts are still accessible and witnesses are still available.’ ” On balance, I do not see why this policy consideration should bar plaintiff’s action in the present case. 1 Plaintiff has the burden of proof. Although plaintiff filed her suit within two years after the date of death as required by the statute, if there is no reasonable opportunity to investigate the claim or prepare a case within a time period in which facts are still accessible and witnesses are still available, plaintiff will not be able to prove her case. On the other hand, if she can prove her case, it would be unfair to hold that her action should nevertheless be barred.

Finally, the position taken by the majorty in this case is contrary to the position taken by most courts which have considered the question. In Prosser, Torts §127, at 912-13 (4th ed. 1971), it is stated:

“As to the defense of the statute of limitations, * * * the considerable majority of the courts have held that the statute runs against the death action only from the date of death, even though at that time the decedent’s own action would have been barred while he was living. Only a few courts hold that it runs from the time of the original injury, and consequently that the death action may be lost before it ever has accrued.”

I agree with the considerable majority of courts which have held that the statute of limitations for filing a wrongful death action runs only from the date of death. Thus, I believe that the only time limitation for filing an action under the Wrongful Death Act should be as provided in section 2 of the Act, i.e., within two years after the death.

Accordingly, I dissent from the majority. I would affirm the trial judge’s order denying defendant’s motion for summary judgment based on the statute of limitations for bringing a personal injury action.

On this same point, I note that in other types of cases, tort liability has not been barred because the alleged wrongful conduct occurred long before the resultant injury when duty and causation can be established. (See Renslow v. Mennonite Hospital (1977), 67 Ill. 2d 348, 350 , 367 N.E.2d 1250, 1251 .) The Renslow court stated:

“The problem of defending stale claims is also asserted by defendants. They remind us that it is possible that a woman, herself a child when injured by the tortfeasor, could late in life bear an injured child, and that this child, under the present statute of limitations, could wait until majority to bring suit. We think the likelihood of these circumstances occurring is not sufficient reason to bar all suits for reasonably foreseeable injury from preconception torts. Furthermore, the potential for a stale claim is inherent in the extended statute of limitations for a minor’s personal injury action and in our adoption of the discovery rule in certain areas.” 67 Ill. 2d 348, 358 . 367 N.E.2d 1250 . 1255.