On February 2, 1988, while lunching at Marshall Field’s in Skokie, Illinois, Lynn Al-ioto bit into a piece of glass “about the size of the bottom of a soda bottle,” which had been buried in her pasta salad.
In September 1992, the case was reassigned to Judge Randa, and the parties continued with discovery until a trial date was finally set for April 1995. Based on Alioto’s deposition testimony pertaining to pain and other aspects of her experience on the day of the accident, Marshall Field’s reasserted its statute of limitations argument in the trial brief that it submitted on April 7, 1995. On April 10, the district court dismissed the case, holding that it was indeed time-barred under the Illinois statute.
There is some ambiguity, however, as to the precise nature of the district court’s ruling. The court framed its decision as one on Marshall Field’s “renewed motion to dismiss,” although the record contains no renewed motion, and neither party suggests on appeal that any such motion was made, either orally or in wilting. In addition, the district court’s characterization of its ruling as based on Rule 12(b)(6) is belied by the court’s heavy reliance on the deposition statements of Alioto. (See April 10, 1995 Memorandum Opinion and Order.) As Alioto notes, when dismissing a complaint for failure to state a claim under Rule 12(b)(6), the district court may not look to materials beyond the pleading itself. Fed.R.Civ.P. 12(b); Fleischfresser v. Directors of School Dist. 200,
Still, reversal is not required in every instance of procedural shortfall. Instead, a litigant like Alioto who seeks to upset a judgment because it resulted from the improper conversion of a 12(b)(6) motion into one for summary judgment must show that notice and an opportunity to respond would have mattered. She must, that is, establish that she would have been able to create a material factual dispute, which would have precluded the grant of summary judgment. Id. at 685.
In Golla v. General Motors Corp., 167 I11.2d 353,
[W]hen an accident occurs which causes the plaintiff to suffer an immediate physical injury ... and later more serious injuries appear ... which arose from the same accident, when does the plaintiffs cause of action “accrue” for statute of limitations purposes?
Id.
There is no requirement that a plaintiff must discover the full extent of her injuries before the statute of limitations begins to run. Because the plaintiff knew or should have known at the time of the accident both that she was injured and that the injury may have been wrongfully caused, the limitations period commenced at that time.
Id.
In light of Golla, Alioto could not have raised a material issue of fact regarding the onset of her injury even with notice and an opportunity to respond before the district court’s entry of judgment. Alioto’s deposition was full of references to pain that arose immediately after she bit the glass. She testified several times, for example, that she felt “some pain on the left side” immediately after biting into the glass. (See, e.g., Alioto Dep. at 13, 30.) She also testified that she felt discomfort around her ear that “never ended. It just kept getting worse.” (Id. at 17.) Alioto argues that with an opportunity to respond she could have rebutted this evidence with testimony from her physician. But under Golla, there is no material question that could have been illuminated by the testimony of a physician. Alioto’s subjective experience of pain, along with the occurrence of a sudden traumatic event that she knew had given rise to the pain, was sufficient under Illinois law to start the running of her limitations period. There is simply nothing that her physician could have said that would have altered the conclusion that the statute of limitations began to run immediately after the accident occurred. Even if, as she asserts, Alioto was completely and justifiably unaware of any additional injuries until three months after she bit the glass, she could not have escaped dismissal under Golla.
Under Golla, Alioto’s admissions of pain were enough to open her two year window for filing suit. Just as in Golla, Alioto was aware at the time of her accident both that she had been injured (she felt pain) and that her injury may have been wrongfully caused by the negligence of Marshall Field’s. This is all that is required under Illinois law to begin the running of her limitations period.
Notes
. Because this case was dismissed under Rule 12(b)(6), we accept as true the facts set out in Alioto's February 5, 1990 complaint. Alioto originally filed suit in a Wisconsin state court, but defendants removed the case to the Eastern District of Wisconsin based on diversity of citizenship.
. 735 ILCS 5/13-202 provides:
Actions for damages for an injury to the person ... shall be commenced within 2 years next after the cause of action accrued....
The parties do not dispute that Wisconsin law looks to the statute of limitations of the forum in which the cause of action accrued, making the Illinois statute applicable here. See Wis.Stat. § 893.07(1) ("If an action is brought in this state on a foreign cause of action and the foreign period of limitations which applies has expired, no action may be maintained in this state.”).
. Alternatively, a dismissal that follows from the consideration of extrinsic materials may also be affirmed if Rule 12(b)(6) dismissal would have been appropriate without reference to those materials. R.J.R. Services, Inc. v. Aetna Casualty and Surety Co.,
. Among the injuries that Alioto allegedly discovered three months after her accident were "several broken teeth.” (Complaint ¶ 5.) We have difficulty conceiving of a circumstance in which several broken teeth could have gone undetected for three months. It seems that reasonable diligence following an accident of this type would have uncovered several broken teeth, or even several cracked teeth. In light of Alioto's deposition testimony and the absence of any factual dispute on the issue of her immediate pain, we need not decide whether the allegation of several broken teeth would have made dismissal appropriate based on the complaint alone, an alternative ground on which we could have affirmed the district court’s decision.
