White v. Jurassi-Paocic , 2022 IL App (1st) 210562-U ( 2022 )

2022 IL App (1st) 210562-UNo. 1-21-0562
Order filed October 24, 2022
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
KAREN WHITE, SHARON GARDNER, and NATALIE ) Appeal from the
DAVIS, ) Circuit Court of
) Cook County.
Plaintiffs-Appellants,
)
v. ) No. 20 L 13658
)
MARINA JURASSI-PAOCIC and THE CITY OF ) Honorable
CHICAGO, ) Gerald V. Cleary,
) Judge, presiding.
Defendants-Appellees.
JUSTICE HYMAN delivered the judgment of the court.
Presiding Justice Lavin and Justice Coghlan concurred in the judgment.
ORDER
¶1 Held: Trial court neither erred in dismissing complaint against City and its employee filed
more than a year after cause of action accrued nor abused its discretion in denying
plaintiffs’ request to amend their complaint.
¶2 A car driven by Marina Jurassi-Paocic, a Chicago police officer, stuck the car in which
plaintiffs Karen White, Sharon Gardner, and Natalie Davis were riding, injuring them.
Fourteen months later, plaintiffs filed a complaint for damages against Jurassi-Paocic and her
employer, the City of Chicago. The City moved to dismiss the complaint under 2-619(a)(5) of
the Code of Civil Procedure (735 ILCS 5/2-619(a)(5) (West 2020), arguing the one-year statute
1-21-0562
of limitations in section 8-101(a) of the Local Government and Governmental Employees Tort
Immunity Act (“Tort Immunity Act” or “Act”) (745 ILCS 10/8-101(a) (West 2020)) applied
and barred the lawsuit. In response, plaintiffs argued the one-year statute of limitations was
misplaced because Jurassi-Paocic was not acting within the scope of her employment when the
accident occurred and asked for leave to file an amended complaint to proceed against Jurassi-
Paocic alone.
¶3 The trial court, applying section 8-101(a) of the Act, granted the motion to dismiss with
prejudice finding the complaint untimely. The court also denied plaintiffs’ request for leave to
amend because the proposed amended complaint could not cure the fact that plaintiffs
conceded Jurassi-Paocic was acting in the scope of her employment.
¶4 Plaintiffs contend the trial court erred in (i) finding section 8-101 of the Act barred their
claims; and (ii) denying their request to amend the complaint. We agree with the trial court’s
ruling on both issues.
¶5 Background
¶6 Plaintiffs allege that on October 26, 2019, White was driving with Gardner and Davis as
passengers when a Chicago police officer, Jurassi-Paocic, rear-ended them. Nearly 14 months
later, plaintiffs filed a complaint seeking damages for negligence and naming Jurassi-Paocic
and the City as defendants. Plaintiffs acknowledged that the City employed Jurassi-Paocic,
who was driving a City-owned car and acting on behalf of the City when the accident occurred.
¶7 The City moved to dismiss under section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5)
(West 2020)), arguing the one-year statute of limitations in section 8-101(a) of the Tort
Immunity Act barred plaintiffs’ claims. Plaintiffs responded that section 8-101(a) applies only
to employees acting within the scope of their employment and, under section 2-202 of the Tort
-2-
1-21-0562
Immunity Act, a police officer acts within the scope of employment and has immunity when
engaged in the execution or enforcement of the law. Plaintiffs asserted that based on available
information, Jurassi-Paocic was not so engaged at the time of the accident, and, thus, the trial
court should have used the two-year statute of limitation for negligence claims under section
13-202 of the Code (735 ILCS 5/13-202 (West 2020)). They also sought leave to amend their
complaint to proceed against Jurassi-Paocic individually.
¶8 The trial court dismissed the complaint with prejudice. The trial court rejected plaintiffs’
argument stating, “The plain and unambiguous language of 8-101 does not require the alleged
conduct to be covered under another provision under the Tort Immunity Act for the one-year
limitation period to apply.” In addition, “the plaintiffs allege they were injured from the
conduct of a City employee in the scope of her employment. As such, the complaint falls within
the scope of 8-101.”
¶9 The trial court also denied leave to file the amended complaint because it failed to allege
facts to cure the defect. Specifically, when the accident occurred, “Jurassi-Paocic was not in
the course and scope of her employment for the City as a Chicago police officer.”
¶ 10 Analysis
¶ 11 Standard of Review
¶ 12 A motion for involuntary dismissal under section 2-619 of the Code admits the legal
sufficiency of the complaint and all well-pled facts but asserts affirmative matter that defeats
the cause of action, Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). Under 2-
619(a)(5), a complaint will be dismissed when not filed within the time required by law. Griffin
v. Willoughby, 369 Ill. App. 3d 405, 410 (2006). We review the trial court’s ruling on a motion
to dismiss de novo. Lutkauskas v. Ricker, 2015 IL 117090, ¶ 29. And we review the decision
-3-
1-21-0562
to dismiss with prejudice for an abuse of discretion. Bruss v. Przybylo, 385 Ill. App. 3d 399,
405 (2008). A complaint should be dismissed with prejudice whenever it is apparent the
plaintiff can prove no set of facts that entitle recovery. Id. “Where a claim can be stated, the
trial court abuses its discretion if it dismisses the complaint with prejudice and refuses the
plaintiff further opportunities to plead. [Citation.]” Id.¶ 13 Statute of Limitations
¶ 14 Section 8-101 of the Tort Immunity Act provides “[n]o civil action * * * may be
commenced * * * 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.” 745 ILCS 10/8-101(a) (West 2020). The purpose of the limitation period “is to
encourage early investigation into a claim * * * when the matter is still fresh, witnesses are
available, and conditions have not materially changed.” Ferguson v. McKenzie, 202 Ill. 2d 304,
313 (2001).
¶ 15 Section 2-202 of the Act, addressing sovereign immunity, provides, “A public employee is
not liable for his act or omission in the execution or enforcement of any law unless such act or
omission constitutes willful and wanton conduct.” 745 ILCS 10/2-202 (West 2020).
¶ 16 Plaintiffs contend the trial court erred in dismissing their complaint with prejudice because
section 8-101’s one-year statute of limitations does not apply to a public employee acting
outside the scope of employment, and a police officer acts within the scope of employment
only if executing or enforcing a law. See Carter v. DuPage County Sheriff, 304 Ill App. 3d
1263, 1268 (1999). Plaintiffs primarily rely on Currie v. Lao, 148 Ill. 2d 151, 159 (1992).
¶ 17 In Currie, the plaintiff was injured when his car was struck by a vehicle driven by a state
trooper, Lao, who was responding to a call in a nearby town. At trial, Lao relied on the doctrine
-4-
1-21-0562
of sovereign immunity as a defense. Id. at 155. The trial court entered judgment against Lao
and the appellate court affirmed, finding that neither sovereign immunity nor public officials’
immunity barred plaintiff’s action. Id. at 157. The Illinois Supreme Court reversed. The court
noted that claims based on a state employee’s negligent operation of a car are generally outside
the doctrine of sovereign immunity because negligence that arises from their ordinary
operation depends on the breach of duties every driver owes to every other driver. Id. at 160.
The court concluded Lao “was not performing a uniquely governmental function” at the time
of the collision because it was not within his “normal and official” role as a state trooper to
respond to police calls in a nearby jurisdiction. Id. at 162. Thus, the sovereign immunity
doctrine did not protect him because he had allegedly breached a duty that “arose as a result of
his status as the driver of an automobile on a public roadway.” Id. at 161-62.
¶ 18 Plaintiffs contend that, as in Currie, if Jurassi-Paocic was not performing a uniquely
government function or acting within her normal role as a police officer, that is, executing or
enforcing a law when the accident occurred, they can pursue claims against her individually.
But, in invoking a sovereign immunity defense focusing on Jurassi-Paocic’s duties and conduct
presents a separate and distinct issue from the issue before the trial court: Whether their claims
are time barred. See Racich v. Anderson, 241 Ill. App. 3d 336 (1993) (rejecting plaintiff’s
argument that public policy reasons for sovereign immunity as expressed in Currie apply to
limit scope of section 8-101).
¶ 19 Plaintiffs also rely on Schear v. City of Highland Park, 104 Ill. App. 2d 285 (1968), a case
inapplicable because, at the time, section 8-101’s one-year statute of limitations applied only
to local public entities. Not until 1986 did the legislature amend the Act to include “a local
entity or any of its employees.” Plaintiffs cite no post-1986 cases and, we found none, holding
-5-
1-21-0562
that a complaint against a local entity or its employees can be filed more than one-year after
the cause of action accrued.
¶ 20 Plaintiffs filed two months after the expiration of section 8-101(a)’s one-year statute of
limitations, so the trial court properly granted the motion to dismiss under section 2-619(a)(5).
¶ 21 Denial of Request to Amend
¶ 22 Alternatively, plaintiffs contend they should have been allowed to amend their complaint
to proceed against Jurassi-Paocic alone.
¶ 23 Generally, courts liberally grant leave to amend and dismiss when it appears that the
plaintiff cannot recover under any set of facts. Sheffler v. Commonwealth Edison Co., 399 Ill.
App. 3d 51, 74 (2010). But a plaintiff does not have an absolute and unlimited right to amend.
Hayes Mechanical, Inc. v. First Industries, L.P., 351 Ill. App. 3d 1, 6 (2004). The decision to
deny leave to amend rests in the trial court’s sound discretion, and unless the trial court abused
that discretion, we will affirm. Sheffler, 399 Ill. App. 3d at 74.
¶ 24 In determining abuse of discretion, we consider the four Loyola Academy factors: “ ‘(1)
whether the proposed amendment would cure the defective pleading; (2) whether other parties
would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the
proposed amendment is timely; and (4) whether previous opportunities to amend the pleading
could be identified.’ ” Hayes Mechanical, Inc., L.P., 351 Ill. App. 3d at 7 (quoting Loyola
Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273 (1992)). The proposed
amendment must meet all four factors. Sheffler, 399 Ill. App. 3d at 74. Where the proposed
amendment does not state a cognizable claim, that is, fails to satisfy the first factor, we need
not consider the remaining factors. Hayes Mechanical, Inc., L.P., 351 Ill. App. 3d at 7.
-6-
1-21-0562
¶ 25 Plaintiffs contend the amended complaint would cure the defective pleading because it
would be “directed against Defendant Jurassi-Paocic as a driver using a public roadway, not
as an agent, employee, servant or representative of the Defendant City.” As a result, by alleging
that Jurassi-Paocic negligently operated the car, the two-year statute of limitations for
negligence complaints would apply.
¶ 26 In response, defendants contend that the initial complaint acknowledged Jurrasi-Paocic
was a Chicago police officer acting within the scope of her employment for the City, which
constitutes a judicial admission binding on the party making it. Knauerhaze v. Nelson, 361 Ill.
App. 3d 538, 557 (2005). Judicial admissions “ ‘are formal concessions in the pleadings in the
case or stipulations by a party or its counsel that have the effect of withdrawing a fact from
issue and dispensing wholly with the need for proof of the fact.’ ” Id. at 557-58 (quoting 2 John
W. Strong, McCormick on Evidence § 254, at 142 (4th ed. 1992)); see also Lawlor v. North
American Corp. of Illinois, 409 Ill. App. 3d 149, 163 (2011).
¶ 27 At oral argument, plaintiffs’ attorney argued that the allegation does not constitute a
judicial admission for purposes of an amended complaint. See Knauerhaze 361 Ill. App. 3d
538, 558 (once pleading amended, admission made in unverified original pleading can only be
used as evidentiary admission and not as judicial admission). But, since plaintiffs’ briefs fail
to even mention this argument, it has been waived, and we do not consider it on appeal. Illinois
Supreme Court Rule 341(h)(7) (eff. Oct 1, 2020) (“[p]oints not argued are waived and shall
not be raised in the reply brief, in oral argument, or in a petition for rehearing.”)
¶ 28 The trial court acted within its discretion in denying leave to file the amended complaint.
¶ 29 Affirmed.
-7-