The trial court held that the statute of limitations barred all claims. Based on City of Shelbyville v. Shelbyville Restorium, Inc. (1983), 96 Ill.2d 457, the appellate court reversed, reasoning that the school districts were asserting a public right and were therefore immune from the various limitations periods. We have narrowed the viable causes of action to three and will limit our scope of review to the school districts' immunity to the statutes of limitations for the strict liability, negligence, and negligent misrepresentation counts.
Guar. Tr. Co., 304 U.S. at 132; City of Shelbyville v. Shelbyville Restorium, Inc., 451 N.E.2d 874, 877 (Ill. 1983).
Governmental entities are immune from statutes of limitations when they act in their public capacity, but are not immune if they act in a private capacity. Champaign County Forest PreserveDist. v. King, 683 N.E.2d 980, 982 (Ill. App. 1997) ( citing City of Shelbyville v. Shelbyville Restorium, Inc., 451 N.E.2d 874, 877-78 (Ill. 1983); Board of Education v. A, C S, Inc., 546 N.E.2d 580, 600-02 (Ill. App. 1989)). In order to determine if a governmental activity is public or private, courts should consider who would benefit by the government's action and who would lose by its inaction.
mber One v. Muir, 808 P.2d 797, 801 (Wyo. 1991) (statutes of limitations do not run against local agencies if public rights are being protected); Anne Arundel County, 594 A.2d at 1141-42 (counties and municipalities can only avoid statutes of limitations if the exercise of a governmental right is at issue); School Dist. of Aliquippa v. Maryland Casualty Co., 587 A.2d 765, 771-72 (Pa.Super.Ct. 1991) (statutes of limitations run against municipalities unless the cause of action accrued in the governmental capacity); Oklahoma City Mun. Improvement Auth., 769 P.2d at 133; District of Columbia, 572 A.2d at 403-04 ("a circumscribed municipal immunity in the performance of public functions is today the rule in an overwhelming majority of states, and we recognize its authority here" (citations omitted)); Board of Educ. v. Dow Chem. Co., 482 A.2d 1226, 1228 (Conn. 1984) (municipalities receive limited immunity from statutes of limitations when performing government and not proprietary duties); City of Shelbyville v. Shelbyville Restorium, Inc., 451 N.E.2d 874, 876-77 (Ill. 1983) (statutes of limitations will not run against plaintiff governmental units seeking to protect public rights); Lewis Cox and Son, Inc. v. High Plains Underground Water Conservation Dist., 538 S.W.2d 659, 662 (Tex.Ct.App. 1976) (an exception to government agencies' immunity from limitations has been engrafted where agencies engage in proprietary functions), rejected by City of El Paso v. Del Norte Golf and Country Club, 614 S.W.2d 168 (Tex.Ct.App. 1990). See also Eugene McQuillin, Municipal Corporations § 49.06 (3d ed. 1987). The distinction in the local governments' actions is justified by local governments' dual nature.
IRM filed a reply, asserting that all counts of plaintiff's complaint are subject to the five-year statute of limitations because all counts sought money damages rather than equitable remedies. IRM further stated that plaintiff conceded the last time there were any negotiations between the parties was in 1989, with a three-year policy taking effect at that time. On June 12, 1996, the trial court denied IRM's motion to dismiss, finding that under City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill.2d 457, 451 N.E.2d 874 (1983), plaintiff acted in its public capacity by purchasing liability insurance and asserted a public right in claiming excessive billing for the insurance. Thus, plaintiff enjoyed immunity from limitation defenses.
Where the entity is acting in a private capacity, however, its claim may be subject to a limitations defense. Board of Education of City of Chicago v. A, Cs&sS, Inc., 131 Ill.2d 428, 137 Ill.Dec. 635, 546 N.E.2d 580 (1989) (Board of Education); City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill.2d 457, 71 Ill.Dec. 720, 451 N.E.2d 874 (1983) (Shelbyville). The doctrine is supported by the policy judgment that the public should not suffer as a result of the negligence of its officers and agents in failing promptly to assert causes of action which belong to the public.
Historically, the nullum tempus doctrine emerged from concepts of sovereign power and prerogative; following the abolition of sovereign immunity in the Illinois Constitution of 1970, the doctrine is supported by policy judgments that the public should not suffer as a result of the negligence of its officers and agents in failing to promptly assert causes of action which belong to the public. See Board of Education of City of Chicago v. A, C S, Inc., 131 Ill. 2d 428, 472, 546 N.E.2d 580, 600-01 (1989); City of Shelbyville v. Shelbyville Restorium, Inc., 96 Ill. 2d 457, 461, 451 N.E.2d 874, 876 (1983). The test is whether the right that plaintiff governmental unit seeks to assert "is in fact a right belonging to the general public, or whether it belongs only to the government or to some small and distinct subsection of the public at large."
The practice in this State has been to determine whether the right which the plaintiff government unit seeks to assert is in fact a right belonging to the general public, or whether it belongs only to the government or some small distinct subsection of the public at large. ( City of Shelbyville v. Shelbyville Restorium,Inc. (1983), 96 Ill.2d 457, 451 N.E.2d 841.) In accordance with this rationale, we must determine whether, in bringing this action for damages to a light pole and four sections of a guardrail, the Department of Transportation is seeking to enforce a right belonging to the general public, or whether it belongs only to the Department of Transportation or to some small subsection of the public, as the circuit court has held.
We noted in Colorado Springs v. Timberlane Associates that the "application [of the nullum tempus doctrine] to the several states is well settled." 824 P.2d 776, 778 (Colo. 1992). This should be read as an acknowledgment that in the great majority of the states nullum tempus has been applied to the states, see, e.g., City of Shelbyville v. Shelbyville Restorium Inc., 451 N.E.2d 874, 877 (Ill. 1983); Sullivan, 527 N.E.2d at 799; Oklahoma City Mun. Improvement Auth. v. HTB Inc., 769 P.2d 131, 133 (Okla. 1988); Commonwealth, Dep't of Transp. v. J.W. Bishop Co., 439 A.2d 101, 102-03 (Pa. 1981), and not as a reaffirmation of the applicability of nullum tempus to the State of Colorado. We took care in Timberlane to confine our holding to the issue then before us, i.e., the continuing vitality of the nullum tempus doctrine as applied to local governments.
This position was based on the common law governmental limitations immunity extended to public entities asserting rights belonging to the public at large. ( City of Shelbyville v. Shelbyville Restorium (1983), 96 Ill.2d 457, 459.) In response, the defendants argued that governmental immunity from the statute of limitations was inapplicable because the terms of the statute state that it applies to untimely suits brought by "any individual, any business or legal entity, or any body politic."