Grady v. Bi-State Development Agency

• Decision Date: 17 December 1986
• Docket Number: BI-STATE,No. 5-86-0189,5-86-0189
• Parties: , 104 Ill.Dec. 427 Shirley GRADY, Plaintiff-Appellee, v.DEVELOPMENT AGENCY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1087

502 N.E.2d 1087

151 Ill.App.3d 748, 104 Ill.Dec. 427

Shirley GRADY, Plaintiff-Appellee, v. BI-STATE DEVELOPMENT AGENCY, Defendant-Appellant.

No. 5-86-0189.

Appellate Court of Illinois Fifth District.

Dec. 17, 1986.

John L. McMullin, Steven P. Rouse, Brown, James & Rabbitt, P.C., St. Louis, Mo., Illinois office: Belleville, for defendant-appellant.

No plaintiff-appellee brief filed.

Justice KARNS delivered the opinion of the court:

Defendant, Bi-State Development Agency, appeals, pursuant to Supreme Court Rule 308 (87 Ill.2d R. 308), from a judgment of the circuit court of St. Clair County denying defendant's motion to dismiss plaintiff's action for personal injuries she allegedly sustained while a passenger on a bus owned and operated by defendant. We note that plaintiff, Shirley Grady, failed to file an appellee's brief. However, this does not prevent us from deciding the merits of this appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 133, 345 N.E.2d 493, 495.

Defendant's motion to dismiss is based upon the Local Governmental and Governmental Employees Tort Immunity Act (Ill.Rev.Stat.1981, ch. 85, pars. 1-101 et. seq.) (Tort Immunity Act). We are asked to decide whether defendant is a "local public entity" within the purview of the Tort Immunity Act for purposes of the requirement that plaintiff provide defendant with notice of her claim within one year from the date that the injury was received or the cause of action accrued. (Ill.Rev.Stat.1981, ch. 85, par. 8-102.) If we conclude that defendant is a "local public entity" entitled to notice, we must decide whether plaintiff gave defendant sufficient notice of her claim. Ill.Rev.Stat.1981, ch. 85, par. 8-102.

Section 1-206 of the Tort Immunity Act provides that a " 'local public entity' includes a county, township, municipality, municipal corporation, school district school board, forest preserve district, park district, fire protection district, sanitary district, and all other local government bodies." (Ill.Rev.Stat.1981, ch. 85, par. 1-206.) This court has held that a mass transit district and a hospital district are "local public entities." See La Sanche v. North Suburban Mass Transit District (1st Dist.1985), 142 Ill.App.3d 394, 96 Ill.Dec. 710, 491 N.E.2d 1170; Sappington v. Sparta Municipal Hospital District (5th Dist.1969), 106 Ill.App.2d 255, 245 N.E.2d 262.

Defendant was created by section 1 of "An Act providing for the State of Illinois to enter into a compact with the State of Missouri for the establishment of a Bi-State Development District and the creation of a Bi-State Development Agency * * *." (Ill.Rev.Stat.1981, ch. 127, par. 63r-1.) The district created by the Act encompasses the City of St. Louis and the counties of St. Louis, St. Charles and Jefferson in Missouri and the counties of Madison, St. Clair and Monroe in Illinois. (Ill.Rev.Stat.1981, ch. 127, par. 63r-1.) The Act provides that defendant "shall be a body corporate and politic." (Ill.Rev.Stat.1981, ch. 127, par. 63r-1.) Defendant's powers include: (1) planning, constructing and maintaining bridges, airports, and terminal facilities; (2) making plans for the coordination of streets and highways; (3) charging and collecting fees; (4) issuing bonds; (5) receive contributions from local, state and federal governments; and (6) exercising additional powers as shall be conferred on it by either state legislature. (Ill.Rev.Stat.1981, ch. 127, par. 63r-1.) Defendant is required to make annual reports to the governor of each state and to make recommendations to the states' legislatures for the improvement of the district. Ill.Rev.Stat.1981, ch. 127, par. 63r-1.

Our reading of the statute which defines defendant's powers and responsibilities leads us to conclude that defendant is a "local government body" and, consequently, a "local public entity" under the Tort Immunity Act. (Ill.Rev.Stat.1981, ch. 85, par. 1-206.) This conclusion is further supported by the following definition of an "interstate transportation authority" as set forth in the Local Mass Transit District Act (Ill.Rev.Stat.1981, ch. 111 2/3, par. 352(h)):

" 'Interstate transportation authority' shall mean any political subdivision created by compact between this State and another state, which is a body corporate and politic and a political subdivision of both contracting states * * *." (Emphasis added.)

As a "local public entity," defendant is entitled to notice of plaintiff's claim against it as required by section 8-102 of the Tort Immunity Act. Ill.Rev.Stat.1981, ch. 85, par. 8-102.

Having reached the above conclusion, we must decide whether plaintiff gave proper notice in accordance with the requirements of the statute. (Ill.Rev.Stat.1981, ch. 85, par. 8-102.) Section 8-102 of the Act (Ill.Rev.Stat.1981, ch. 85, par. 8-102) provides that plaintiff must serve, either personally or by registered or certified mail, written notice on the Secretary or Clerk of the "local public entity" giving in substance the following information:

"the name of the person to whom the cause of action has accrued, the name and residence of the person injured, the date and about the hour of the accident, the place or location where the accident occurred, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any."

Plaintiff's attorney's letter of January 27, 1982, sent to defendant by certified mail, contains only the following pertinent information:

"Please be advised that I have been retained by Miss Shirley Grady to represent in a claim for personal injuries which she sustained in accident on the 25th day of September, 1981, at Johnson and Piper Road, Golden Gardens, East St. Louis, County of St. Clair, State of Illinois. I believe the bus involved in this accident was numbered 7003."

The letter does not supply defendant with plaintiff's address or with information pertaining to the approximate time of the accident the general nature of the accident or the name and address of any attending physician or treating hospital.

Substantial compliance with the statute is required. (Lando v. City of Chicago (1st Dist.1984), 128 Ill.App.3d 597, 600, 83 Ill.Dec. 752, 754, 470 N.E.2d 1172, 1174.) Substantial compliance necessitates that each element of information required by the Act be included in the written notice and that each element be set forth with reasonably sufficient clarity so as not to mislead the "local public entity." (Lando v. City of Chicago (1st Dist.1984), 128 Ill.App.3d 597, 600, 83 Ill.Dec. 752, 754, 470 N.E.2d 1172, 1174; Smith v. City of Chicago (1st Dist.1980), 92 Ill.App.3d 247, 250, 48 Ill.Dec. 125, 127, 416 N.E.2d 20, 22.) We note that this cause does not present the situation where a complaint filed within the notice period can be deemed to substantially comply with section 8-102 because of the availability of information under discovery procedures. (Rio v. Edward Hospital (1984), 104 Ill.2d 354, 366-67, 84 Ill.Dec. 461, 465-66, 472 N.E.2d 421, 425-26.) Where, as here, several elements have been completely omitted from the formal notice required by section 8-102 of the Tort Immunity Act (Ill.Rev.Stat.1981, ch. 85, par. 8-102), we cannot conclude that plaintiff has substantially complied with the Act. Failure to substantially comply with the notice requirement requires that plaintiff's action against defendant be dismissed with prejudice. Ill.Rev.Stat.1981, ch. 85, par. 8-103.

For the reasons given, the judgment of the circuit court of St. Clair County denying defendant's motion to dismiss is reversed and plaintiff's action is hereby dismissed with prejudice.

REVERSED.

JONES, J., concurs.

WELCH, Justice, dissenting:

I respectfully dissent. I would affirm the trial court's order denying defendant's motion to dismiss plaintiff's complaint.

The majority recognizes the principle that substantial rather than literal compliance with section 8-102 of the Tort Immunity Act (Ill.Rev.Stat.1981, ch. 85, par. 8-102) is sufficient. The purpose of the notice requirement is to allow the governmental entity the opportunity to...