The ruling has been upheld in the case of a woman whose estate was awarded $2.5 million after she died falling from a porch almost 14 years ago.
The 1st District Illinois Appellate Court rejected the argument from the defendant Charlotte Klink that the lawsuit filed against the estate of Klink’s former estranged and now-deceased husband was untimely filed.
The original defendant, Ronald Flores, died on Nov. 29, 2010. However, the trial judge was not properly notified of Flores’s death until Sept. 6, 2013.
Plaintiff Thelma Mae Walstad, who took over the lawsuit for her daughter, Rebecca Hess, after Hess died in 2009, did not name Flores’s estate as a party defendant until Sept. 13, 2013.
The defendant argued that Walstad took too long to name the estate as a party defendant in her Third Amended Complaint, citing a two-year time limit from the time of Flores’s death set out in the Illinois Probate Act.
The appellate court held that the Third Amended Complaint was timely filed because Charlotte Klink knew a claim would have been brought against her husband’s estate if not for a mistake. She also had notice of the claim.
“The records show that plaintiff actively pursued Hess’s claim from the first filing through the filing of the Third Amended Complaint, and the allegations made clear she sought recovery for damages stemming from Hess’s fall at the West Summerdale Avenue property due to Flores’s misconduct.” The appeals panel added, “Klink does not dispute that she at all times knew of plaintiff’s claim against Flores.”
“To bar the Third Amended Complaint simply because plaintiff failed to substitute, within two years of Flores’s death, a representative of the estate as a defendant, goes against the purpose of Section 2-616 to preserve causes of action against loss by reason of technical pleading rules and allow resolution of the litigation on the merits.”
Section 2-616(d) of the Illinois Code of Civil Procedure allows parties to add defendants in an action even if the lawsuit against them would normally be time-barred, but only if certain conditions are met: the original complaint was timely filed and the allegations in the amended complaint relate back to the allegations in the original complaint.
In this case, it was undisputed that Hess’s original lawsuit was filed on time and that the allegations against the Flores estate arose from Hess’s fall.
But Section 2-616(d) also requires a new defendant to know or should have known about the case so they are not caught off guard and prejudiced and that the only reason why they were not named in the lawsuit was due to a technical mistake.
The mistake in this case occurred in June 2011 when Walstad filed her Second Amended Complaint against Flores but had not realized that he had passed away. Klink, as a co-defendant and the executor of Flores’s estate, knew that the filing was a mistake.
The case went to trial in 2016 after it was stayed for years due to an interlocutory appeal that ultimately led to the City of Chicago being dismissed as a defendant and because of Klink’s own bankruptcy. The jury issued its verdict in December 2016.
In this case, Hess fell when she slipped on the back porch, falling through yellow tape Flores put up that was supposed to act as a handrail. Hess was paralyzed from the waist down.
Unfortunately, the Hess estate will collect nothing from the Flores estate as there was no insurance on the building and the Flores estate has no assets. Klink herself filed for bankruptcy protection in January 2015.
Thelma Mae Walstad v. Charlotte Klink, et al., 2018 IL App (1st) 170070.
Kreisman Law Offices has been handling product liability lawsuits, premises liability cases, truck crash cases and bicycle accident lawsuits for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Rosemont, Bolingbrook, Romeoville, Joliet, Waukegan, Aurora, Wheeling, Buffalo Grove, Arlington Heights, Orland Park, Chicago (West Loop, Greek Town, Fulton River District, New Eastside, Printer’s Row, River North, Near North Side, Old Town, Mid-North District, Sheffield and DePaul, Park West, Bricktown, Lakeview, Lakeview East, Belmont Gardens, Hermosa, Humboldt Park, West Humboldt Park, West Garfield Park, Homan Square, Douglas Park, Marshall Square), Cicero, North Riverside and Forest Park, Ill.
Robert D. Kreisman has been an active member of both the Illinois and Missouri bars since 1976.
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