Walker v. Ware
988 N.E.2d 209
Ill. App. Ct.2013Background
- Walker was injured on June 23, 2008 on stairs at a Chicago property allegedly owned by Taplin.
- Taplin died on April 9, 2009; plaintiff filed suit against Taplin on June 4, 2009 and attempted service.
- sheriff returns on June 11 and August 20, 2009 indicated Taplin was deceased; information purportedly provided by daughter and grandson.
- Plaintiff sought alias service and, after repeated unsuccessful attempts, later sought special service and Court appointment of a special process server; affidavit indicated Taplin’s death information came from a family member and neighbor.
- On March 1, 2011 plaintiff amended to substitute Ware as Taplin’s estate representative; Ware was served March 3, 2011.
- Ware moved to dismiss under 2-619(a)(9); plaintiff argued 13-209(c) tolling because Taplin’s death was unknown at filing and later learned of the death online, prompting amendment within two weeks.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does a sheriff’s return stating deceased trigger knowledge under 13-209(c)? | Walker did not have knowledge of Taplin’s death at filing and should be tolled under 13-209(c). | Returns showing deceased may imply knowledge of death, barring tolling; 13-209(c) should not apply. | No; a return stating deceased does not constitute knowledge of death for 13-209(c). |
Key Cases Cited
- Relf v. Shatayeva, 2012 IL App (1st) 112071 (Ill. App. 1st Dist. 2012) (13-209(c) applicability when death unknown at filing)
- Minikon v. Escobedo, 324 Ill. App. 3d 1073 (Ill. App. 1st Dist. 2001) (death tolling considerations under 13-209)
- Augustus v. Estate of Somers, 278 Ill. App. 3d 90 (Ill. App. 1st Dist. 1996) (limitations tolling for unknown death)
- Keller v. Walker, 319 Ill. App. 3d 67 (Ill. App. 1st Dist. 2001) (interpretation of 13-209 in unknown-death context)
- Vaughn v. Speaker, 126 Ill. 2d 150 (Ill. 1988) (death learned from returned summons; limited by historical context)
- Dec v. Manning, 248 Ill. App. 3d 341 (Ill. App. 1st Dist. 1993) (presumption of validity of returns of service; evidence limits)
- Nibco, Inc. v. Johnson, 98 Ill. 2d 166 (Ill. 1983) (returns of service and evidence weight)
- First Federal Savings & Loan Ass’n of Chicago v. Brown, 74 Ill. App. 3d 901 (Ill. App. 1979) (statements on service and evidentiary impact)
- Apollo Real Estate Investment Fund, IV, L.P. v. Gelber, 398 Ill. App. 3d 773 (Ill. App. 1st Dist. 2009) (Rule 308(a) certified questions; de novo standard)