PRESIDING JUSTICE HALL delivered the opinion of the court.

The plaintiff, Gina Basham, filed suit against the defendants, the City ofChicago (the City) and its employee, Eric Hunt, seeking damages for injuriesshe suffered when she was run over by a garage truck, owned by the City andoperated by Mr. Hunt. The circuit court of Cook County granted summaryjudgment to the defendants on the basis that the complaint was barred by thestatute of limitations. The plaintiff filed a timely notice of appeal.

On appeal, the plaintiff raises the following issues: (1) whether theLocal Governmental and Governmental Employees Tort Immunity Act's (TortImmunity Act) (745 ILCS 10/8-101 (West 1996))

one-year statute of limitations was tolled by the plaintiff's legal disability;(2) whether the defendants waived the one-year statute of limitations; (3)whether the circuit court abused its discretion by allowing Eric Hunt to joinin the City's motion for summary judgment; and (4) whether the circuit courterred when it granted summary judgment to the defendants.

Because this is an appeal from the granting of summary judgment, thepertinent facts are taken from the pleadings and depositions contained in therecord.

On August 11, 1998, the plaintiff filed suit against the City and EricHunt seeking damages for personal injuries arising out of the events of July18, 1997.

On July 18, 1997, around 5 p.m., the plaintiff left her office to meetDavid Johnson, and the two of them walked to a wine bar. At around 7 p.m.,they were joined by Tim Dinan. At the wine bar, the plaintiff drank one glassof wine and two sips of another glass of wine. Afterwards, the plaintiff andthe two men went to the Cactus Club, where they were joined by David Rudsinski. The plaintiff drank one margarita. However, she could not recall whether shehad any more to drink at the Cactus Club. She could not recall leaving theCactus Club or any of the circumstances of the accident. After the accident,she had no recollection of events until August 15, 1997.

The plaintiff did not remember meeting Walter Johnson on the evening ofthe accident. However, according to Walter Johnson, he joined the plaintiffand her group at the Cactus Club. Walter stated that the plaintiff had twodrinks at the Cactus Club, basing it on the fact that the group had two roundsof drinks. The group left the Cactus Club around closing time and beganwalking north. When they reached the northwest corner of Wells Street and VanBuren Street, the light for southbound traffic was red. The plaintiff walkedinto the street and began waving her arms in front of a garbage truck.

Walter yelled to the plaintiff to get out of the intersection, but shewould not do so. Walter appealed to Mr. Rudsinski, the plaintiff's boyfriend,and to David Johnson to get the plaintiff out of the street. A man in thegarbage truck began yelling at the plaintiff, and she yelled back. The man gotout of the truck and talked to the plaintiff. The man got back in the truck atsome point. Frustrated that no one could get the plaintiff out of the street,Walter resolved to carry the plaintiff out of the street and went around theback of the truck. By the time he reached the back of the truck, the truck wasmoving. He observed the truck "bounce" and saw the plaintiff roll toward thecenter of the street.

Walter recalled that the plaintiff did climb on the front of the truck. He did not have visual contact with the plaintiff at the time the truck startedto move. He recalled speaking to a couple at the scene who stated that theyhad seen the driver of the garbage truck push the plaintiff off the side of thetruck.

David Rudsinski met the plaintiff and the others at the Cactus Club closeto 8 p.m. He recalled that the plaintiff had one or two margaritas. Afterleaving the Cactus Club, the group crossed Wells Street to another bar so thatthe plaintiff could use the restroom. The group then crossed Wells Street atVan Buren Street. Mr. Rudsinski was holding the plaintiff's hand as theycrossed Wells Street. He let go of her hand while he was looking around for acash station and then lost sight of her. He did notice a garbage truck, but hedid not observe where the plaintiff was prior to the traffic beginning to move. After the garbage truck began to move, he heard the plaintiff moaning andyelling, and he walked back and saw her on the ground.

Kay Classon was proceeding southbound on Wells Street and stopped in theeast lane of Wells Street at Van Buren Street for a red light. There was onecar ahead of her at the light, and next to that car was a garbage truck, in thewest lane of Wells Street. Ms. Classon observed the plaintiff standingdirectly in front of the truck with her arms outstretched to each side. Theplaintiff then came around to the driver's side of the truck and attempted toget up on the side of the truck. The plaintiff managed to pull herself up morethan once. According to the witness, the driver of the truck kept trying topush the plaintiff off the truck with his arm. The plaintiff did get up anddown off the truck a couple of times. The plaintiff was still on the runningboard of the truck when the light turned to green, and the truck began to move,at which point the plaintiff disappeared from view. Ms. Classon observed therear wheels of the truck go up and over something but did not see what it was.

However, Ms. Classon then acknowledged that she did not know where thetruck driver last saw the plaintiff prior to starting to move the truck. Shealso could not specifically state where the plaintiff's hands or feet were whenthe truck started to move.

Linda Truckenmiller was in a car driven by her husband southbound on WellsStreet approaching the intersection of Wells Street and Van Buren Street, whenshe first observed the plaintiff with two men crossing east to west near theintersection. At the middle of the crosswalk, the plaintiff left the crosswalkand proceeded toward the traffic while the two men continued to the curb. Theplaintiff stood in the center between the two southbound lanes of Wells Streetand began waving her arms as though she were stopping traffic. As theTruckenmiller car came to a stop at the light, the plaintiff was standing toMrs. Truckenmiller's right side.

A garbage truck was approaching in the west lane of southbound WellsStreet and stopped approximately three to five feet in front of the plaintiff. As the truck came to a stop, the plaintiff stepped in front of it. One of theplaintiff's friends attempted to pull her back to the curb, but she brushed himoff. The plaintiff then proceeded around the truck to the driver's door andgrabbed the handrail, trying to pull herself onto the running board, but shewas unsuccessful. The plaintiff's second attempt was more successful, and shemanaged to get both feet on the running board of the truck, at which point thedriver of the truck pushed her down with his arm. The plaintiff got back onthe running board, and the driver again pushed her down.

Mrs. Truckenmiller then observed the plaintiff make a fourth attempt toget back on the running board of the truck as the light turned to green. Theplaintiff's right hand was on the grab bar of the truck, and her left leg wason the running board. The plaintiff then put her left hand on the grab barwhile her right leg was hopping along the street. The plaintiff had not beenable to get on the running board as the truck was moving, so she was hoppingalong as she passed Mrs. Truckenmiller. After making one last effort to geton the running board, the plaintiff slumped into almost a squatting position onthe running board with her right leg swung under the running board and thetruck. The plaintiff then fell to the street on her left side, and the leftrear wheels of the truck rolled over her legs between her knees and her pelvis.

In an effort to clarify her testimony, Mrs. Truckenmiller explained thatat the time the light turned to green, neither the plaintiff's hand nor herleft foot was on the truck. However, the truck did not move immediately. Bythe time the truck did begin to move, the plaintiff's right hand was on thegrab bar, but her left foot was not on the running board. After the truckbegan to move, the plaintiff placed her left foot on the running board. Theplaintiff did have an opportunity to let go of the truck before it entered theintersection.

Eric Hunt was driving the garbage truck with two helpers, Anthony Morgan(now deceased) and Sumatro Simpson. Mr. Hunt was proceeding southbound onWells Street in the west lane and was midway between Jackson Boulevard and VanBuren Street when he first observed the plaintiff. The plaintiff was about 15feet north of the crosswalk at Van Buren Street and Wells Street, standing inthe west lane of Wells Street. There was a man with the plaintiff who wastrying to pull her out of the street. The plaintiff had been "bothering" awoman in red car double parked in the east lane of southbound Wells Street. Ashe approached the intersection, Mr. Hunt slowed down because the plaintiff waswalking in his lane.

The plaintiff was about 10 to 15 feet in front of the truck when she beganwaving her hands above her head. After about 10 to 15 seconds, she came faceto face with the truck. Mr. Hunt had been continually blowing the truck's hornto get the plaintiff to move out of the truck's way. The plaintiff then walkedaround the side of the truck and twice attempted to climb up on the steps ofthe truck. When she finally got up on the truck, Mr. Hunt told her get off thetruck. Mr. Hunt described the plaintiff as "not saying anything, not one word. She mumbled. She was like a zombie." Mr. Hunt used a hand gesture as he wastelling the plaintiff to get down off the truck, but he did not touch theplaintiff. The plaintiff did not respond, so Mr. Hunt had to repeat therequest that she get down off the truck. Mr. Hunt did not recall if he usedthe hand gesture the second time. Mr. Hunt had to tell the plaintiff severaltimes to get off the truck, and finally she did so. After the plaintiff gotdown from the truck, she did not attempt to get back on the truck.

Mr. Hunt waited 5 to 10 seconds to make sure the plaintiff was off andclear of the truck before proceeding southbound. Just as the truck was aboutto enter the intersection, he heard a "thump." He did not know that he hadstruck the plaintiff, but he knew he had hit something. Mr. Hunt looked in themirror of the truck and saw people coming from the east side of Wells Street. He moved the truck to clear the intersection.

On the night of the plaintiff's accident, Sumatro Simpson was working onthe garbage truck with Eric Hunt and Anthony Morgan. Mr. Simpson was seatedbetween Mr. Morgan and Mr. Hunt. He did not recall where the accident tookplace, but he recalled that the truck was probably southbound on Wells Street. He first observed the plaintiff in the crosswalk after the truck had just cometo a stop. The truck stopped because the plaintiff was flagging down thetruck. By the time the truck had come to a complete stop, the plaintiff hadwalked around the front of the truck. The truck "creeped" forward up to theintersection and then stopped again. The plaintiff then tried to climb on tothe side of the truck, at which point Mr. Hunt asked her to get down. Mr.Simpson heard Mr. Hunt tell the plaintiff to get down, but he did not see himpush her down because he was not watching Mr. Hunt that closely. He observedthe plaintiff's head "pop up" in the driver's window possibly two or threetimes. As the truck started forward, Mr. Simpson observed Mr. Hunt watchingthe plaintiff on the side of the truck, although he himself could not see her. Mr. Simpson did not know where the plaintiff was when the truck started tomove. He did not feel the truck hit the plaintiff. As a precaution, he lookedout the side window and through the side mirror saw that the plaintiff was onthe ground. Mr. Simpson informed Mr. Hunt of what he had seen, and Mr. Huntimmediately stopped the truck.

According to Dr. Marc Tellez, the plaintiff's treating physician, theplaintiff had a blood-alcohol content of .236 at the hospital. Dr. Tellezopined that such a level would impair the plaintiff's motor skills andcognition. In his report, Dr. Daniel J. Brown concluded that at the time ofthe accident, the plaintiff's blood-alcohol content was .226, and in hisopinion, "she was highly intoxicated, and that the mental and motor skills sheneeded to conduct her activities with both safety and due care were greatlydiminished by the presence of alcohol."

On March 30, the circuit court entered an order setting the case for trialon August 28, 2000.

On April 28, 2000, the City filed a motion for summary judgment. The Cityargued that it did not breach its duty of care to the plaintiff and that therewas no issue of genuine material fact as to the plaintiff's responsibility forher injuries. In addition, for the first time, the City raised the issue ofthe plaintiff's failure to file her complaint within the one-year statute oflimitations applicable to actions against municipalities. See 745 ILCS 10/8-101 (West 1996).

The plaintiff filed a response to the motion for summary judgmentcontending that the defendants breached their duty of ordinary care to theplaintiff and that the issue of the plaintiff's contributory negligence was forthe jury to decide in light of the conflicting testimony. The plaintifffurther contended that her physical and mental incapacity tolled section 8-101's one-year statute of limitations. The plaintiff also maintained that byparticipating in discovery over the previous two years, the City had waived theissue of the statute of limitations.

The City filed a response which was captioned "DEFENDANTS' REPLY INSUPPORT OF THEIR SUMMARY JUDGMENT MOTION" and indicated that the reply includedMr. Hunt as well as the City.

On August 17, 2000, the circuit court informed the parties that it wasissuing a written decision but orally announced that it was granting the motionfor summary judgment based upon the statute of limitations. The plaintiff'sattorney pointed out that the motion for summary judgment was brought on behalfof the City only and that only in the City's reply were the City and Mr. Huntreferred to collectively.

On August 18, 2000, the City filed a motion to clarify or, in thealternative, to allow Mr. Hunt to join in the motion for summary judgment.⁽¹⁾ Onthat same date, the circuit court ordered that the motion to clarify be takenunder advisement and that the motion would be addressed in the court's writtenruling.

On August 22, 2000, the circuit court issued its written opinion grantingthe motion for summary judgment based upon the plaintiff's failure to file hercomplaint within one year of the accident. The circuit court found thatsection 8-101 of the Tort Immunity Act controlled over the tolling provisionsof section 13-211 of the Code of Civil Procedure (the Code) (735 ILCS 5/13-211(West 1996)), relying on the supreme court's decision in Tosado v. Miller, 188Ill. 2d 186, 720 N.E.2d 1075 (1999).

On October 12, 2000, the circuit court denied the plaintiff's motion forreconsideration. However, the plaintiff's attorney noted that the circuitcourt had not addressed the issues of the defendants' waiver of the statute oflimitations, which was raised in the plaintiff's response to the motion forsummary judgment, or the joinder of Mr. Hunt in the motion for summaryjudgment. The plaintiff argued that the joinder of Mr. Hunt violated thelocal rule requiring motions for summary judgment to be filed 45 days prior totrial. Cook Co. Cir. Ct. R. 2.1(f) (as amended, eff. April 23, 1992; August21, 2000).

The circuit court acknowledged that it had not addressed the waiver issue,stating that it never reached it. The court did determine that the failure tojoin Mr. Hunt in the motion for summary judgment was due to inadvertence on thepart of the City and allowed him to join in the motion for summary judgment.

The plaintiff filed a timely notice of appeal on November 13, 2000.

The court reviews the granting of a motion for summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607N.E.2d 1204, 1209 (1992).

The plaintiff contends that the circuit court erred when it ruled that theTort Immunity Act's one-year statute of limitations (745 ILCS 10/8-101 (West1996)) was not tolled by section 13-211 of the Code (735 ILCS 5/13-211 (West1996)).

Section 13-211 provides as follows:

"If the person entitled to bring an action, specified in Sections13-201 through 13-210 of this Act, at the time the cause of actionaccrued, is under the age of 18 years, or is under a legal disability,then he or she may bring the action within 2 years after the personattains the age of 18 years, or the disability is removed." 735 ILCS5/13-211 (West 1996).⁽²⁾

A person suffers from a "'legal disability' where he or she is 'entirelywithout understanding or capacity to make or communicate decisions regardinghis person and totally unable to manage his [or her] estate or financialaffairs.' [Citation.]" Hochbaum v. Casiano, 292 Ill. App. 3d 589, 595, 686N.E.2d 626, 631 (1997). In a personal injury case, a person is not legallydisabled if he or she can comprehend the nature of the injury and itsimplications. Hochbaum, 292 Ill. App. 3d at 595-96, 686 N.E.2d at 631.

The deposition testimony of Dr. Tellez established that the plaintiff waslegally disabled from the date of her injury until August 16 or 17, 1997. Histestimony on that point may be summarized by his response when he wasquestioned as follows:

"Q. So is it fair to say based on that note - - and I think youearlier described that [the plaintiff] was weaned off of sedationsometime around 8/14, 8/15 - - that she really wasn't in possession ofher mental faculties from the time of her admission to the hospital up toand including April? I think you said April 17 or 16 - - excuse me,August 16 or 17 of '97?

A. That's correct."

However, even if the plaintiff was legally disabled, the question remainswhich period of limitations controls.

In Tosado v. Miller, a plurality of our supreme court held that the one-year limitations period of section 8-101 governed medical malpractice casesbrought against local governmental entities and their employees rather than thetwo-year limitations period of section 13-212(a) of the Code. Tosado, 188 Ill.2d at 196, 720 N.E.2d at 1081.

Subsequent to its decision in Tosado, the supreme court considered thecase of Ferguson v. McKenzie, No. 89144 (January 29, 2001). In that case, thecourt was asked to decide whether section 8-101 controlled over section 13-212(b) of the Code (735 ILCS 5/13-212(b) (West 1996)).

In contrast to section 13-212(a), which was at issue in Tosado and whichdeals with an adult's action for medical malpractice, section 13-212(b), atissue in Ferguson, deals with the situation in which a minor is the injuredparty, and provides that medical malpractice action must be brought withineight years of the act alleged to be the cause of the injury, but in no eventmay the cause of action be brought after the minor's twenty-second birthday. 735 ILCS 5/13-212(b) (West 1996).

In Ferguson, the plaintiff brought a wrongful death action against CookCounty and its physician employees on behalf of herself and her children, oneof whom, Karen, was 17 years and 5 months old at the time of the alleged act ofmalpractice. The defendants were granted summary judgment on the basis thatthe complaint was not filed within one year of the occurrence as required bysection 8-101. The appellate court affirmed, and the plaintiff appealed to thesupreme court.

While conceding that her claim and those of her adult children were time-barred under the holding in Tosado, the plaintiff argued that she had untilKaren's twenty-second birthday to file a wrongful death action against thedefendants.

The supreme court disagreed. Relying on its decision in Tosado, the courtdetermined that while section 13-212(b) applied to Karen since she was a minorwhen the cause of action accrued, once she became 18 years of age, section 8-101 also applied to her and began to run. Therefore, Karen's claim which wasfiled when she was 19 years and 5 months of age was untimely. Ferguson, slipop. at 5.

In reaching that result, the court relied on its reasoning in Tosado. Thecourt noted that legislative intent of section 13-212(b) was to reduce theperiod of potential liability and restrict a minor's ability to sue, while theintent of section 8-101 was to encourage early investigation and promptsettlements of meritorious claims against government entities and allow them toplan their budgets in light of potential liabilities. The court concluded thatits holding gave effect to the underlying policy of each provision andprotected the possible claims of the minors against local governments bypreserving the repose period for minors. Ferguson, slip op. at 5.

Under the analysis in both Ferguson and Tosado, section 8-101 controlsover section 13-211, and therefore, the plaintiff would not have had the fulltwo years provided for in section 13-211. However, the plaintiff's complaintwas timely filed because the complaint was filed on August 11, 1998, within oneyear after she was no longer legally disabled which occurred between August 16and 17, 1997, according to Dr. Tellez. Therefore the plaintiff's complaint wasfiled in compliance with section 8-101 of the Tort Immunity Act. CompareMcKinnon v. Thompson, 325 Ill. App. 3d 241, 758 N.E.2d 316 (2001) (section 8-101's one-year statute of limitations applied to the minor's cause of action,but the one year did not begin to run until after the minor reached 18 years ofage, pursuant to section 13-211 of the Code). In light of the decision inFerguson, the defendants have abandoned their argument that the plaintiff'scomplaint was barred by section 8-101 of the Tort Immunity Act.

We conclude that the plaintiff's complaint was not time-barred. Therefore, we need not address the issue of whether the defendants waived thestatute of limitations defense.

The text of this discussion is nonpublishable.

[Nonpublishable material under Supreme Court Rule 23 omitted here.]

Summary judgment is proper if and only if the pleadings, depositions,admissions, affidavits and other relevant matters on file show that there is nogenuine issue of material fact and that the movant is entitled to judgment as amatter of law. Smith v. Tri-R Vending, 249 Ill. App. 3d 654, 657, 619 N.E.2d172, 174 (1993). The purpose of summary judgment is not to try a question offact but to determine if one exists. Gilbert v. Sycamore Municipal Hospital,156 Ill. 2d 511, 517, 622 N.E.2d 788, 792 (1993). In determining whether agenuine issue of material fact exists, courts construe the pleadings,admissions and affidavits strictly against the movant and liberally in favor ofthe opponent. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792. A triable issueprecluding summary judgment exists where the material facts are disputed orwhere reasonable persons might draw different conclusions from the undisputedfacts. Gilbert, 156 Ill. 2d at 518, 622 N.E.2d at 792.

In an action based upon negligence, the plaintiff must set out sufficientfacts establishing a duty owed by the defendant to the plaintiff, a breach ofthat duty and that the injury was proximately caused by the breach. Vesey v.Chicago Housing Authority, 145 Ill. 2d 404, 411, 583 N.E.2d 538, 541 (1991). The existence of a duty must be determined by the court as a matter of law, butthe questions of whether there was a breach and whether that breach was aproximate cause of the injury are questions of fact for the jury. Rodriguez v.Norfolk & Western Ry. Co., 228 Ill. App. 3d 1024, 1037-38, 593 N.E.2d 597, 607(1992).

The defendants contend that summary judgment for them was proper in thiscase because there is no genuine issue of fact as to whether the defendantsbreached their duty of care to the plaintiff.

Generally, a person present on, or riding in, a vehicle without theknowledge or consent of the owner and driver is in legal contemplation atrespasser. General principles as to the status and liability of trespasserson personal property, as distinguished from invitees or licensees, apply in thecase of trespassers on or in a motor vehicle. 60A C.J.S. Motor Vehicles