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Local Government Q&A
Test your knowledge of municipal practices and
procedures with the questions and answers below. Click
here to submit a question to Ancel Glink.
Municipal Q&A - January 2004
Does the one-year tort statute of limitations always apply against governmental bodies?
ANSWER:
Illinois governmental bodies are blessed with a Tort Immunity Act which contains a one-year statute of limitations for most claims. Claims which can be filed in the Federal Court generally are subject to a two-year statute of limitations, and minors are generally given a period of time after they reach majority age to file their claims. Another item which can toll the statute of limitations is where the claimant is in active negotiations to reach a settlement and either the governmental body or the third-party administrator somehow indicates by action or inaction that the statute will be waived.
The purpose of this memo is to add an additional example where a plaintiff may be able to pursue a tort claim against the municipality even after the one-year statute of limitations is over. The reason for bringing this to your attention is that sometimes a denial of a reasonable settlement even after the one-year period may force the plaintiff into a course of action which will be more costly to the government than if a settlement was reached. Under Illinois law, a government can be forced to defend a tort case when it is brought into the lawsuit by a third-party defendant who wishes to file a contribution action against the municipality.
In some cases, a governmental body is not the only potential defendant in a lawsuit. Let us say, for example, that a governmental body hires a contractor to trim or cut down trees. The community, either in writing or orally, directs the contractor to go to 237 Adams Street and remove the Oak tree. Unfortunately, in this municipality, there is both an East and a West Adams Street. The governmental body wanted the oak tree in the parkway at East Adams to be cut down. The contractor went to West Adams and cut down an oak tree in someone's front yard. If the owner of the property does not move quickly enough to bring a lawsuit against the governmental body, his or her opportunity to sue the government directly will be lost after a one-year period. However, the property owner has two years in which to sue the contractor who actually cut down the tree. The contractor, after being named in a lawsuit, then turns around and seeks to bring the municipality into the suit as a third-party defendant. The contractor argues that the governmental body did not give the contractor adequate direction as to what tree was to be cut down, and if the contractor is forced to pay, the municipality should be forced to pay as well. It would be left up to a jury to determine what the percentage of fault would be between the governmental body and the contractor.
The governmental body argues that it cannot be sued because the one-year statute of limitations has expired. Unfortunately, the law in Illinois permits the initial defendant in the lawsuit to bring in a governmental body as a third-party defendant so long as that action is taken within one year from the date the cause of action accrued against the new defendant (see Highland vs. Bracken, 148 Ill.Dec. 104, 560 N.E.2d 406 (1990). In this example, if the governmental body, or its insurance company or pool, refused to participate in negotiations, for a settlement after the one-year statute of limitations had expired, it would be subject to an effective lawsuit where it would be brought into the case even after the expiration of the one-year period. In addition, there is a rather obscure Illinois statute, which provides that where a tree is improperly cut down, the owner may sue for three times the value of the tree (740 ILCS 185/0.01).
In summary, while governmental bodies typically are able to utilize the provisions of the statute of limitations to free themselves from a number of claims, the persons working to settle claims against governmental bodies should be aware that in an appropriate case there may be a "back door way" in which the governmental body may find itself as a defendant even after the one-year period has passed.
Issues like the one discussed in this memo become known over a period of time to attorneys who are experienced in defending governmental bodies. Attorneys from Ancel, Glink have defended thousands of tort cases in the Federal and State courts against governmental bodies of all kinds. The firm defends governmental bodies and public officials through assignment by self-insurance pools, insurance companies and self-funded governments. We sometimes are asked to consult with the regular attorneys for governmental bodies in the defense of tort cases. If you have any questions about governmental pools, the defense of tort cases, the Tort Immunity Act, or loss prevention methods, please call Rob Bush, Tom DiCianni or Darcy Proctor at
(312) 782-7606.
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