LYNN ELBERT v. THE STATE OF ILLINOIS (1999)

ORDER

This $20,785.78 property damage claim, assertedly sounding in tort, is before the court on the Respondent's/2-615 and (alternatively) /2-619 motion to dismiss based on the pleading requirements of our rules (74 Ill.Admin.Code 790.50) and the statutes of limitations in/22 of the Court of Claims Act (705 ILCS 505/22).

Respondent's motion speculates that this claim might be barred by whatever limitation period is applicable under the Court of Claims Act, and contends that the complaint is fatally defective because Claimant has not pleaded the dates involved with sufficient specificity (or with any specificity) such that neither respondent nor this court can ascertain that the claim is not barred. Claimant asserts that our rule requires that all appropriate allegations required to set forth the Claimant's cause of action must be affirmatively pleaded.

Claimant responds, essentially, that avoidance of the applicable limitations period is not an element of a cause of action and need not be pleaded. Alternatively, Claimant asks leave to amend if the court strikes the initial complaint.

Claimant is right and Respondent is fundamentally wrong: the bar of an applicable statute of limitation is an affirmative defense in Illinois and is to be pleaded in an answer or in a/2-619 motion to dismiss. See Illinois Code of Civil Procedure, Art. 2. Negation of limitations statutes is not an affirmative pleading requirement of a complaint. Because Illinois is a fact pleading state, and this court follows the Illinois Code of Civil Procedure, we do not approve of such cryptic pleading that a Respondent must guess at important threshold facts like -- as here -- the date of the key events in a tort case. Nevertheless, this is just not a fatal pleading defect and there are other, albeit more labor intensive, methods for getting the critical facts.

Accordingly, we must deny the motion to dismiss, and remand the case to the assigned commissioner for discovery and further proceedings, without prejudice to further motions.

It is hereby ORDERED:

1. Respondent's motion to dismiss is denied; and

2. This claim is remanded to the assigned commissioner for further proceedings.

EPSTEIN, J.