applicability of the discovery rule in Illinois

1995(Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-15 , 430 N.E.2d 976 .) Although the court in Dolce recognized the applicability of the discovery rule, it limited its use to those occasions "when the discovery occurs after the statute of limitations has run or when discovery occurs at a time so near the running that the action, for all practical reasons, has been barred before a party has learned of the accrual.”- Dolce, 60 Ill.

1995(Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-15 , 430 N.E.2d 976 .) Although the court in Dolce recognized the applicability of the discovery rule, it limited its use to those occasions "when the discovery occurs after the statute of limitations has run or when discovery occurs at a time so near the running that the action, for all practical reasons, has been barred before a party has learned of the accrual.”- Dolce, 60 Ill.

2001Moreover, the Meyers court stated: "`The period of repose gives effect to a policy different from that advanced by a period of limitations; the purpose of a statute of repose is to impose a cap on the applicability of the discovery rule so that the outer limit terminates the possibility of liability after a definite period of time, regardless of a potential plaintiff's lack of knowledge of his cause of action. [Citations.] * * * The fact that a repose provision may, in a particular instance, bar an action before it is discovered is an accidental rather than necessary consequence.'" (Emphasis i

2001Moreover, the Meyers court stated: "`The period of repose gives effect to a policy different from that advanced by a period of limitations; the purpose of a statute of repose is to impose a cap on the applicability of the discovery rule so that the outer limit terminates the possibility of liability after a definite period of time, regardless of a potential plaintiff's lack of knowledge of his cause of action. [Citations.] * * * The fact that a repose provision may, in a particular instance, bar an action before it is discovered is an accidental rather than necessary consequence.'" (Emphasis i

1995Tucek v. Grant (1984), 129 Ill.App.3d 236, 240 , 84 Ill.Dec. 603 , 472 N.E.2d 563 ; Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill.App.3d 455 , 304 N.E.2d 677 . *59 Tucek and Kohler are predicated upon application of the "discovery rule." That rule, which is used to mitigate the harsh effects of a literal application of a statute of limitations, postpones the running of the limitations period until the injured party knows or reasonably should know of his injury and that the injury was wrongfully caused. ( Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 414-15 , 58 Ill.Dec. 725 , 430 N.

1995(Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 414-15 , 430 N.E.2d 976 .) Although the court in Dolce recognized the applicability of the discovery rule, it limited its use to those occasions "when the discovery occurs after the statute of limitations has run or when discovery occurs at a time so near the running that the action, for all practical reasons, has been barred before a party has learned of the accrual.”- Dolce, 60 Ill.

1993In Street , the court rejected the applicability of the discovery rule to this type of case because its application would undermine the purpose of the statute of limitations contained in section 11 of the Act, which is to promote stable family relationships free from unnecessary intrusion by cutting off the prolonged ability of natural parents to set aside an adoption decree. ( Street, 141 Ill.App.3d at 874 , 96 Ill.Dec. at 217 , 491 N.E.2d at 31 .) As noted in Street , the legislature shortened the time period from five years to one year, and to apply the discovery rule would be inconsistent

1993In Street , the court rejected the applicability of the discovery rule to this type of case because its application would undermine the purpose of the statute of limitations contained in section 11 of the Act, which is to promote stable family relationships free from unnecessary intrusion by cutting off the prolonged ability of natural parents to set aside an adoption decree. ( Street, 141 Ill.App.3d at 874 , 96 Ill.Dec. at 217 , 491 N.E.2d at 31 .) As noted in Street , the legislature shortened the time period from five years to one year, and to apply the discovery rule would be inconsistent

2006Cammon v. West Suburban Hospital Medical Center, 301 Ill.

2001This court has held: "The common law discovery rule, however, will not be applied where there is a contrary indication of legislative intent [citation], such as a statute of repose, which places an absolute outer time limit on when an action can be brought." Eickmeyer v. Blietz Organization, Inc., 284 Ill.App.3d 134, 140 , 219 Ill.Dec. 628 , 671 N.E.2d 795 (1996), quoting Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 77-78 , 209 Ill.Dec. 684 , 651 N.E.2d 1132 (1995).

2001This court has held: "The common law discovery rule, however, will not be applied where there is a contrary indication of legislative intent [citation], such as a statute of repose, which places an absolute outer time limit on when an action can be brought." Eickmeyer v. Blietz Organization, Inc., 284 Ill.App.3d 134, 140 , 219 Ill.Dec. 628 , 671 N.E.2d 795 (1996), quoting Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 77-78 , 209 Ill.Dec. 684 , 651 N.E.2d 1132 (1995).

2001This court has held: "The common law discovery rule, however, will not be applied where there is a contrary indication of legislative intent [citation], such as a statute of repose, which places an absolute outer time limit on when an action can be brought." Eickmeyer v. Blietz Organization, Inc., 284 Ill.App.3d 134, 140 , 219 Ill.Dec. 628 , 671 N.E.2d 795 (1996), quoting Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 77-78 , 209 Ill.Dec. 684 , 651 N.E.2d 1132 (1995).

2001This court has held: "The common law discovery rule, however, will not be applied where there is a contrary indication of legislative intent [citation], such as a statute of repose, which places an absolute outer time limit on when an action can be brought." Eickmeyer v. Blietz Organization, Inc., 284 Ill.App.3d 134, 140 , 219 Ill.Dec. 628 , 671 N.E.2d 795 (1996), quoting Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 77-78 , 209 Ill.Dec. 684 , 651 N.E.2d 1132 (1995).

1997Anderson, 79 Ill.2d at 316-21 , 37 Ill.Dec. 558 , 402 N.E.2d 560 .

1997Anderson, 79 Ill. 2d at 316-21 .

1995The supreme court in Jackson Jordan, Inc. v. Leydig, Voit & Mayer (1994), 158 Ill.2d 240 , 198 Ill.Dec. 786 , 633 N.E.2d 627 , without discussing either the Dolce or Tucek line of reasoning, applied the Knox discovery rule to the legal malpractice case at issue there. ( Jackson Jordan, 158 Ill.2d at 249 , 198 Ill.Dec. 786 , 633 N.E.2d 627 .) The court held that the time at which a party has or should have the requisite knowledge under the discovery rule is ordinarily a question of fact.

1995The supreme court in Jackson Jordan, Inc. v. Leydig, Voit & Mayer (1994), 158 Ill.2d 240 , 198 Ill.Dec. 786 , 633 N.E.2d 627 , without discussing either the Dolce or Tucek line of reasoning, applied the Knox discovery rule to the legal malpractice case at issue there. ( Jackson Jordan, 158 Ill.2d at 249 , 198 Ill.Dec. 786 , 633 N.E.2d 627 .) The court held that the time at which a party has or should have the requisite knowledge under the discovery rule is ordinarily a question of fact.

1995Tucek v. Grant (1984), 129 Ill.App.3d 236, 240 , 84 Ill.Dec. 603 , 472 N.E.2d 563 ; Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill.App.3d 455 , 304 N.E.2d 677 . *59 Tucek and Kohler are predicated upon application of the "discovery rule." That rule, which is used to mitigate the harsh effects of a literal application of a statute of limitations, postpones the running of the limitations period until the injured party knows or reasonably should know of his injury and that the injury was wrongfully caused. ( Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 414-15 , 58 Ill.Dec. 725 , 430 N.

1995Tucek v. Grant (1984), 129 Ill.App.3d 236, 240 , 84 Ill.Dec. 603 , 472 N.E.2d 563 ; Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill.App.3d 455 , 304 N.E.2d 677 . *59 Tucek and Kohler are predicated upon application of the "discovery rule." That rule, which is used to mitigate the harsh effects of a literal application of a statute of limitations, postpones the running of the limitations period until the injured party knows or reasonably should know of his injury and that the injury was wrongfully caused. ( Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 414-15 , 58 Ill.Dec. 725 , 430 N.

1995Tucek v. Grant (1984), 129 Ill.App.3d 236, 240 , 84 Ill.Dec. 603 , 472 N.E.2d 563 ; Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill.App.3d 455 , 304 N.E.2d 677 . *59 Tucek and Kohler are predicated upon application of the "discovery rule." That rule, which is used to mitigate the harsh effects of a literal application of a statute of limitations, postpones the running of the limitations period until the injured party knows or reasonably should know of his injury and that the injury was wrongfully caused. ( Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 414-15 , 58 Ill.Dec. 725 , 430 N.

1995Tucek v. Grant (1984), 129 Ill.App.3d 236, 240 , 84 Ill.Dec. 603 , 472 N.E.2d 563 ; Kohler v. Woollen, Brown & Hawkins (1973), 15 Ill.App.3d 455 , 304 N.E.2d 677 . *59 Tucek and Kohler are predicated upon application of the "discovery rule." That rule, which is used to mitigate the harsh effects of a literal application of a statute of limitations, postpones the running of the limitations period until the injured party knows or reasonably should know of his injury and that the injury was wrongfully caused. ( Knox College v. Celotex Corp. (1981), 88 Ill.2d 407, 414-15 , 58 Ill.Dec. 725 , 430 N.

1992(Hammer v. Hammer (1987), 142 Wis. 2d 257 , 418 N.W.2d 23 , review denied (1988), 144 Wis. 2d 953 , 428 N.W.2d 552 .) By including discovery of the cause of injury as well as the fact of injury as bearing on the applicability of the discovery rule, the Wisconsin court indicated that it would apply the rule in both types of incest cases.

1992(Hammer v. Hammer (1987), 142 Wis. 2d 257 , 418 N.W.2d 23 , review denied (1988), 144 Wis. 2d 953 , 428 N.W.2d 552 .) By including discovery of the cause of injury as well as the fact of injury as bearing on the applicability of the discovery rule, the Wisconsin court indicated that it would apply the rule in both types of incest cases.

1986(Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 415 , 430 N.E.2d 976 ; Nelligan v. Tom Chaney Motors, Inc. (1985), 133 Ill.

1976(See Rozny v. Marnul (1969), 43 Ill. 2d 54, 70-73 , 250 N.E.2d 656 ; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 132-36 , 334 N.E.2d 160 ; Esko.) The discovery rule is now the accepted rule in Illinois and the only question remaining is its application in specific situations.

1976(See Rozny v. Marnul (1969), 43 Ill. 2d 54, 70-73 , 250 N.E.2d 656 ; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 132-36 , 334 N.E.2d 160 ; Esko.) The discovery rule is now the accepted rule in Illinois and the only question remaining is its application in specific situations.

1976(See Rozny v. Marnul (1969), 43 Ill. 2d 54, 70-73 , 250 N.E.2d 656 ; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 132-36 , 334 N.E.2d 160 ; Esko.) The discovery rule is now the accepted rule in Illinois and the only question remaining is its application in specific situations.

1976(See Rozny v. Marnul (1969), 43 Ill. 2d 54, 70-73 , 250 N.E.2d 656 ; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129, 132-36 , 334 N.E.2d 160 ; Esko.) The discovery rule is now the accepted rule in Illinois and the only question remaining is its application in specific situations.

1970As the Supreme Court of Oregon put it in Frohs v. Greene: 452 P.2d 564 , 565: “On a theoretical basis it is impossible to justify the applicability of the discovery rule to one kind of malpractice and not to another.