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In Illinois, statutes provide protection to a disabled person with respect to the time within which a cause of action for personal injury will accrue. Under traditional legal thought, the cause of action begins to accrue and the statute of limitations begins to run immediately on the date of injury. In cases where the injury is not obvious enough to be discovered the moment it occurs, the date of accrual begins on the date the injured person “knows or should have known” a cause of action exists. Under the discovery rule, the plaintiff has the burden of establishing facts to support the delay in recognizing the existence of a claim.

The assessment of what triggers the commencement of the statute of limitations is further complicated where the injured party is a disabled person. Recognizing this issue, the Illinois Legislature enacted Section 13-211 of the Code of Civil Procedure, which specifically provides that “if a person entitled to bring the action is under legal disability, then he or she may bring the action within two years after the disability is removed.” 735 ILCS 5/13-209(a)(1). Yet, the Illinois Code of Civil procedure is silent with regards to how the tolling is impacted by the death of the claimant.

In recent years, Illinois courts addressed the issue in different ways. On September 26, 2019, the Illinois Appellate Court, First District issued the opinion in Zayed v. Clark Manor Convalescent Center, Inc. holding that a decedent’s personal representative is subject to the same benefit of a statutory toll that the decedent had been entitled to while alive and disabled. Zayed v. Clark Manor Convalescent Center, Inc., 2019 IL App (1st) 1811552.

Prior to Zayed, the First District of Illinois viewed the personal representative and the decedent as two separate and distinct individuals. In ruling that Section 13-211 did not apply to extend the statute, the First District Court in Giles v. Parks (2018) distinguished the two. In Giles, the plaintiff’s brother was disabled as the result of an automobile accident. Prior to his death one day later, the plaintiff’s brother was never able to recover fully enough to regain competency and thus died not knowing that he had a cause of action to sue. Two years and one day after the collision, the plaintiff’s brother filed suit on behalf of his brother. The defendant moved for dismissal asserting that the cause of action was not timely filed as it was outside of the two-year statute of limitations. In response, the plaintiff argued that the cause of action was timely filed because Section 13-211 allowed for the commencement of the two-year period on the date the disability was removed from the injured party. The plaintiff claimed that the disability was removed on the date of his brother’s death. Giles v. Parks, 2018 IL App (1^st) 163152.

In its decision, the Court attempted to reconcile the two applicable statutes. The first statute, Section 13-211, was evaluated in conjunction with Section 13-209(a)(1) which states “if the person entitled to bring an action dies before the expiration of the time that the action must be filed and the cause of action survives the death, an action may be commenced by his or her representative before the expiration of that time or within one year from his or her death, whichever date is later.” 735 ILCS 5/13-209. The Giles Court concluded that the disabled person and their representative are legally two separate people, and Section 13-211 can only be applied to the very specific cases where the disabled person is now bringing the lawsuit, not their representative. As such, the court found that Section 13-209(a)(1) was the only applicable statute, and as a result, the plaintiff had one year from his brother’s death to bring his lawsuit. Although some Courts have disagreed, this continued to remain the prevailing precedent on the issue until the Zayed opinion.

In Zayed, the plaintiff, who suffered from dementia, sustained a hip fracture as a result of a fall that caused or contributed to his death 18 months later. The plaintiff never filed suit, but his personal representative filed a claim for wrongful death 3 years and 4 months after the fall and 1 year and 10 months after his death. Citing the Giles case as precedent, the defendant argued that plaintiff’s filing was time barred by statute and that the lawsuit should be dismissed. The Zayed Court disagreed, specifically stating that the Giles court had been misguided, resulting in the creation of “harsh and unfair case law.” The Zayed Court noted that the intent of the legislature in adopting Section 13-211 was to assist disabled parties by increasing their statute of limitations, not limiting them. The Court asserted that to not apply this same logic to their representatives following their death was a legal misstep resulting in a constructive shortening of the statute of limitations in every case involving a disabled person’s death. The Zayed Court reversed Giles, and found that the plaintiff’s action was timely filed. Zayed v. Clark Manor Convalescent Center, Inc., 2019 IL App (1st) 1811552.

The disparate opinions will inevitably lead to a sure path to the Supreme Court to resolve the conflict and give counsel clarity on the law.

Complicating the issue further is the fact that in many cases, these plaintiffs have not been formally adjudicated as incompetent or disabled, and their representative only achieves legal status on their behalf after their death. Case precedent from Riha v. Christ Hospital (1989) established that formal adjudication of incompetency is not required to prove someone legally disabled. Estate of Riha v. Christ Hospital, 187 Ill.App.3d 752, 755. A party can merely present evidence to the fact, and their legal disabled status then becomes a question for the trier of fact. Id. at 756. Within that scenario, Zayed opens the door for the possibility of an individual to be deemed to be both disabled and competent at the same time, barring the lack of formal documentation. Hypothetically, an individual could execute documents such as a power of healthcare without the lack of formal adjudication by a court. This power of attorney would be recognized as legitimate. That same individual may be viewed as being under a disability, which creates great confusion as to which statute of limitations would be applicable.

Until resolved by the Supreme Court, Illinois Courts will find these matters difficult to resolve. Defense counsel would be well served by extensive and detailed evaluations of competency of parties and raising the issue by motion practice when appropriate.