Curtis v. Chicago Transit Authority

• Decision Date: 23 June 2003
• Docket Number: No. 1-02-0815.,1-02-0815.
• Citation: 793 N.E.2d 83,275 Ill.Dec. 603,341 Ill. App.3d 573
• Parties: Daven CURTIS, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, and Jeanne Butler, Individually, and as Agent, Servant and/or Employee of Chicago Transit Authority, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

793 N.E.2d 83

341 Ill. App.3d 573

275 Ill.Dec. 603

Daven CURTIS, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, and Jeanne Butler, Individually, and as Agent, Servant and/or Employee of Chicago Transit Authority, Defendants-Appellees.

No. 1-02-0815.

Appellate Court of Illinois, First District, First Division.

June 23, 2003.

Michael W. Rathsack, Chicago (Don M. Sowers and Michael W. Rathsack, of counsel), for Appellant.

Robert S. Rivkin, General Counsel of the Chicago Transit Authority, Chicago (Thomas J. Bamonte, Ellen Partridge, Cecelia M. Comito, of counsel), for Appellee.

Presiding Justice GORDON delivered the opinion of the court:

Plaintiff, Daven Curtis, filed a four-count complaint against defendants, Chicago Transit Authority (CTA) and Jeanne Butler, a CTA employee, on March 22, 2000, seeking damages for a traffic collision involving her car and a CTA bus driven by defendant Butler. The CTA ultimately moved to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2000)), arguing that plaintiff's notice under section 41 of the Metropolitan Transit Authority Act (the Transit Act) (70 ILCS 3605/41 (West 2000)) was defective because it provided the wrong date of the accident. The trial court granted the CTA's motion to dismiss and plaintiff appeals. We affirm for the following reasons.

BACKGROUND

Plaintiff's alleged injury occurred shortly after midnight on February 13, 2000, when a CTA bus, driven by Bulter, collided with her car at the intersection of Jeffrey and 79th Streets in Chicago. On February 14, 2000, plaintiff telephoned the CTA and reported she had been in an accident with a CTA bus at 12:12 a.m. on February 13, 2000. On March 16, 2000, plaintiff filed notice of her negligence claim pursuant to section 41 of the Transit Act, alleging that she sustained injuries when a CTA bus ran a red light at the intersection of 79th and Jeffrey Streets and hit her car. The notice stated in error that the accident occurred on February 12, 2000, at approximately 1:30 a.m. Plaintiff's notice further reported that plaintiff was initially treated by emergency technicians and transported by ambulance to Cook County Hospital, where she was diagnosed with a fractured left clavicle and broken ribs. She stated that she had also been treated by Dr. Joseph Jackson, Dr. Stamelos and doctors at Northwest Community Hospital.

On March 22, 2000, plaintiff filed a four-count complaint against the CTA, also alleging, in error, that she was injured due to an accident with a CTA bus on February 12, 2000. On May 1, 2000, the CTA filed an answer to plaintiff's complaint denying the allegation that plaintiff was lawfully driving her automobile on February 12, 2000, when she was negligently struck by a CTA bus. The CTA also filed an affirmative defense, alleging that plaintiff was contributorily negligent in causing the accident. The affirmative defense properly identified the date of the accident as February 13, 2000. On May 19, 2000, plaintiff filed a denial of all of the CTA's affirmative defense allegations.

Both parties filed answers to written interrogatories and the CTA responded to plaintiff's request for production on August 15, 2000. Attached to the response were: (1) an incident report completed by bus driver Christopher Clemons, identifying the date of the accident as February 12, 2000; (2) a telephone complaint report filed by another claimant, Christopher Roberts, who reported the accident date as February 13, 2000; and (3) multiple pictures of the scene of the accident. Thereafter, plaintiff was deposed on January 22, 2001, at which time she stated the accident occurred just after midnight on February 13, 2000. A Chicago police department report also indicated that the accident occurred on February 13.

On February 20, 2001, the CTA filed a motion to dismiss plaintiff's complaint, alleging that plaintiff failed to comply with the requirements of section 41 of the Transit Act. The CTA argued that plaintiff's section 41 notice was deficient because it contained the wrong date and time of the accident, as evidenced by her deposition testimony. Plaintiff responded that revised section 41 (effective July 1, 1998, pursuant to Public Act 90-451 § 1) was to be construed liberally in favor of the plaintiff and that she had substantially complied with section 41. The circuit court denied the motion to dismiss, finding that plaintiff had cured the defect in her section 41 notice by filing her complaint within the required six-month notice period. On June 18, 2001, the CTA filed a motion to reconsider the denial, which was granted. In granting the CTA's motion to dismiss, the trial court stated:

"Based upon especially the most recent decisions, most notably the Cione decision, there is strict compliance and that means what it says. If you don't strictly comply, you are out. There is no strict compliance here, it's 24 hours difference. There's no question that the CTA knows, but that's not the guidelines. They do know, but that's not the guidelines. I'm going to grant the motion to reconsider and grant the motion to dismiss."

Plaintiff now appeals the dismissal and, for the following reasons, we affirm the trial court's judgment.

ANALYSIS

A section 2-619 motion to dismiss admits the legal sufficiency of a plaintiff's complaint while raising a defect, defense or other affirmative matter that appears on the face of the complaint or is established by external submissions, and defeats the plaintiff's claim. 735 ILCS 5/2-619 (West 2000); Joseph v. Chicago Transit Authority, 306 Ill.App.3d 927, 930, 240 Ill.Dec. 46, 715 N.E.2d 733 (1999). An appeal from a section 2-619 motion raises a question of law, which is subject to de novo review. Joseph, 306 Ill.App.3d at 930, 240 Ill.Dec. 46, 715 N.E.2d 733.

The instant cause of action was dismissed due to plaintiff's failure to comply with section 41 of the Transit Act. Section 41 provides that, within six months of an alleged injury, a plaintiff must file written notice of a cause of action against the CTA in the office of the secretary of the Board and in the office of the General Counsel. 70 ILCS 3605/41 (West 2000). The notice must provide: (1) the name of the person to whom the cause of action has accrued; (2) the name and residence of the person injured; (3) the date and approximate hour of the accident; (4) the place or location where the accident occurred; and (5) the name and address of the attending physician, if any. 70 ILCS 3605/41 (West 2000). Where the notice required by section 41 is not filed as provided, a civil action against the CTA "shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing." 70 ILCS 3605/41 (West 2000). Where the word "shall" appears in a legislative provision, the requirements of that provision are generally interpreted as mandatory. Watson v. Howard, 322 Ill.App.3d 562, 565, 255 Ill.Dec. 326, 749 N.E.2d 427 (2001). Our courts have consistently held that the section 41 notice requirement demands strict compliance and the burden of such compliance falls solely on the plaintiff. See Cione v. Chicago Transit Authority, 322 Ill.App.3d 95, 97, 255 Ill.Dec. 18, 748 N.E.2d 722 (2001); Dimeo v. Chicago Transit Authority, 311 Ill.App.3d 152, 155, 243 Ill.Dec. 783, 724 N.E.2d 92 (1999); Yokley v. Chicago Transit Authority, 307 Ill.App.3d 132, 136, 240 Ill.Dec. 358, 717 N.E.2d 451 (1999). Regardless of the CTA's actual knowledge of the facts pertaining to an injury, a notice missing a single element or containing an incorrect element is considered defective and requires dismissal. Cione, 322 Ill.App.3d at 97, 255 Ill.Dec. 18, 748 N.E.2d 722, quoting Dimeo, 311 Ill.App.3d at 155, 243 Ill.Dec. 783, 724 N.E.2d 92 ("notices missing even a single element are defective, as well as notices containing an incorrect element * * *."); accord Yokley, 307 Ill.App.3d at 137, 240 Ill.Dec. 358, 717 N.E.2d 451.

Plaintiff in the instant action concedes that her section 41 notice contained the incorrect date. Her notice listed the date and time of the accident as February 12, 2000, at approximately 1:30 a.m., while the accident occurred on February 13, 2000, at approximately 12:12 a.m. Nevertheless, plaintiff contends the dismissal of her cause of action was improper because the filing of her complaint within the six-month notice period provided in section 41 cured the defect, thereby satisfying the statutory notice requirement. Plaintiff cites this court's decision in Joseph v. Chicago Transit Authority, 306 Ill.App.3d 927, 240 Ill.Dec. 46, 715 N.E.2d 733 (1999), in support of this argument. In Joseph, the plaintiff failed to provide the CTA with written notice of her injury pursuant to section 41. Although she filed her complaint against the CTA within the six-month statutory period, the CTA was not served with the complaint until after the notice period expired. As a result, we found that the plaintiff's failure to comply with section 41 could not be cured by the filing of her complaint, as there was a complete failure to provide the CTA with notice within the required time period. Joseph, 306 Ill.App.3d at 937, 240 Ill.Dec. 46, 715 N.E.2d 733.

In reaching this conclusion, we discussed the case of Saragusa v. City of Chicago, 63 Ill.2d 288, 348 N.E.2d 176 (1976), as well as the dicta based thereon in Streeter v. Chicago Transit Authority, 272 Ill.App.3d 921, 209 Ill.Dec. 401, 651 N.E.2d 579 (1995), and Murphy v. Chicago Transit Authority, 191 Ill.App.3d 918, 139 Ill.Dec. 18, 548 N.E.2d 403 (1989), which stated that the failure to give timely statutory notice could be cured by the filing of a complaint within the proscribed statutory period. Saragusa, 63 Ill.2d at 294, 348 N.E.2d 176; Streeter, 272 Ill.App.3d at 923, 209 Ill.Dec. 401, 651 N.E.2d 579; Murphy, 191 Ill.App.3d at 921, 139 Ill.Dec. 18, 548...