Illinois Appellate Court Affirms Dismissal Based on Statute of Limitations for Counterclaim

Susan Danzig and Carla Davis, plaintiffs, attended a student play put on by the Professional Theater and Dance Youth Academy (dance academy) at the Woodlawn facility at The University of Chicago Charter School Corp. (charter school) on Feb. 24, 2017. While there, the plaintiffs were instructed to sit on a bench by an employee of the charter school. The bench collapsed, injuring both Danzig and Davis.

The plaintiffs filed an identical one-count negligence lawsuit against the dance academy and the charter school on March 20, 2018. The charter school moved to dismiss the complaint, claiming the case was barred by the statute of limitations, citing the Illinois Tort Immunity Act, section 101(a), which requires claims to be filed within one year of the alleged injury.

On June 28, 2018, the plaintiffs filed a response and the dance academy moved to dismiss and filed a counterclaim against the charter school for contribution. The charter school moved to dismiss, also citing the one-year statute of limitations.

Following an order striking the motion to dismiss and a noticing of that motion on Sept. 12, 2018, the trial court granted the charter school’s motion to dismiss with prejudice and the dance academy’s without prejudice. The plaintiffs then filed a second amended complaint against the dance academy.

The dance academy moved to clarify its pending contribution claim against the charter school, which had not been referred to when the plaintiffs’ claims against the charter school were dismissed.

The trial judge held that the dance academy’s counterclaims were “extinguished by operation of law” when the charter school was dismissed as a defendant with prejudice. The dance academy appealed.

On appeal, the dance academy argued that the dismissal was improper because the statute of limitations for the counterclaim was controlled by section 13-204(b) of the Illinois Code of Civil Procedure, which states that “[i]n instances where an underlying action has been filed by a claimant, no action for contribution for indemnity may be commenced more than two years after the party seeking contribution or indemnity has been served with process in the underlying action.”

The appeals panel acknowledged that this section exists but cited section 13-204(c), which stated that the two-year limitation period applied “only to the extent that the claimant in an underlying action could have timely sued the party from whom contribution or indemnity is sought at the time such claimant filed the underlying action.”

The appellate court cited precedent from the Illinois Supreme Court holding that where the plaintiff would be barred by the statute of limitations from suing the third-party defendant directly, the defendant cannot file a claim for indemnification or contribution against the third-party defendant.

The dance academy then asserted that the contribution claim should be subject to the same one-year statute of limitations from the Illinois Tort Immunity Act – starting when the plaintiffs served them with the lawsuit.

The appellate court disagreed, citing precedent that “section 13-204(c) of the Code explicitly trumps the Tort Immunity Act.”

The appellate court accordingly affirmed the dismissal of the counterclaim for these reasons.

Susan Danzig et al. v. The University of Chicago Charter School Corporation, et al., 2019 IL App (1^st) 182, 187 (June 12, 2020).

Kreisman Law Offices has been handling traumatic brain injury cases, catastrophic injury lawsuits, nursing home abuse cases and birth trauma injury 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 Glenview, Highwood, Morton Grove, River Forest, Cicero, Joliet, Oak Lawn, Evergreen Park, Calumet Park, Riverdale, South Holland, Calumet City, Oak Forest, Homer Glen, Tinley Park, Orland Hills, Naperville, Bolingbrook, Chicago (Garfield Ridge, Archer Heights, Douglas, Chinatown, Near West Side, West Loop, Hermosa, Belmont Cragin, Ravenswood, Forest Glen, Rogers Park, Uptown, Wicker Park, Greek Town, Bronzeville), Summit, Stickney, Bridgeview, Hillside and Hinsdale, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.