Hemphill v. Chicago Transit Authority

• Decision Date: 12 May 2005
• Docket Number: No. 1-03-2886.,1-03-2886.
• Citation: 829 N.E.2d 852
• Parties: Ashley HEMPHILL, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, and Ben Siciliano, Individually, Defendants-Appellees.
• Court: Illinois Supreme Court

Page 852

829 N.E.2d 852

Ashley HEMPHILL, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Municipal Corporation, and Ben Siciliano, Individually, Defendants-Appellees.

No. 1-03-2886.

Appellate Court of Illinois, First District, Fourth Division.

May 12, 2005.

Thomas P. Routh, Scott E. Encher, Borth & Routh, LLC, Chicago, IL, for Appellant.

Darka Papushkewych, Elen Partridge, Stephen L. Wood, General Counsel of the CTA, Chicago, IL, for Appellee.

Justice THEIS delivered the opinion of the court:

Plaintiff Ashley Hemphill, a passenger on a Chicago Transit Authority (CTA) train allegedly involved in an accident, appeals from the trial court's order granting summary judgment in favor of defendants CTA and train operator Ben Siciliano (collectively, defendants). The trial court found that plaintiff's notice of personal injury (notice), filed pursuant to section 41 of the Metropolitan Transit Authority Act (the Act) (70 ILCS 3605/41 (West 2002)), failed to identify the place or location of the alleged accident. On appeal, plaintiff contends that (1) the trial judge was without authority to grant summary judgment in favor of defendants after another judge denied defendants' motion to dismiss on the same issue; and (2) the trial court erred in granting summary judgment in favor of defendants because plaintiff's notice complied with section 41. For the following reasons, we affirm.

On August 2, 2002, plaintiff filed a complaint against defendants alleging negligence and common carrier liability. Defendants filed a motion to dismiss the complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 2002)), arguing that plaintiff's notice supplied a nonexistent location as the accident site, which effectively omitted that element of the notice; therefore, it did not strictly comply with section 41. Defendants attached a copy of plaintiff's timely filed section 41 notice, in which plaintiff stated:

"1) On August 3, 2001, at approximately 8:45 a.m., Ms. Hemphill boarded the `Blue Line' of the CTA at Sedgwick Station.

2) Shortly thereafter, the train stopped just before the Chicago Street Station, and after a few minutes, Ms. Hemphill felt a hard crash and was thrown to the floor of the train."

She also stated that she exited the train at the Chicago station.

In support of their motion to dismiss, defendants also attached an affidavit of CTA clerk John Griswold, who averred that "the CTA does not have any Blue line rail station on Sedgwick Avenue." Furthermore, he stated that "the CTA Blue line does not run between Sedgwick Avenue and Chicago Avenue in Chicago, Illinois." Judge Larsen denied defendants' motion to dismiss on January 31, 2003, finding that "the location was adequately identified" in plaintiff's notice. This case was transferred to Judge McCarthy shortly thereafter.

Defendants then filed a motion for summary judgment, again arguing that plaintiff's complaint failed because her notice did not identify the location of the accident in strict compliance with section 41. Moreover, defendants argued that this court's decision in Curtis v. Chicago Transit Authority, 341 Ill.App.3d 573, 275 Ill.Dec. 603, 793 N.E.2d 83 (2003), issued after Judge Larsen's January 31, 2003, order, clarified the standard for evaluating section 41 notices and rejected the case law upon which Judge Larsen based her ruling.

Plaintiff responded that Judge Larsen ruled on the merits of defendants' motion to dismiss when she found that plaintiff "adequately identified" the location of the accident. Therefore, plaintiff argued, Judge McCarthy could not revisit that ruling unless there was a change in circumstances or facts to warrant such review. Furthermore, plaintiff asserted that summary judgment should be denied because there was an issue of material fact as to whether plaintiff's notice complied with section 41. In support of her motion, plaintiff attached a map showing the Blue line train route and all other CTA trains that run near the alleged accident site. The map showed that the Brown and Purple line trains run between the Sedgwick and Chicago stations.

At the August 28, 2003, hearing on defendants' summary judgment motion, Judge McCarthy stated that Towns v. Yellow Cab Co., 73 Ill.2d 113, 22 Ill.Dec. 519, 382 N.E.2d 1217 (1978), required her "to review the interlocutory orders where there is new case law that has come down, and apparently, there is new law that has come down [in this case]." She also noted that Judge Larsen found the accident location "adequately identified" in plaintiff's notice, but added, "I'm not sure that adequate identification is what the statute calls for." On August 29, 2003, Judge McCarthy relied on Curtis and granted summary judgment in favor of defendants, finding that plaintiff's notice was defective because it failed to strictly comply with section 41. Plaintiff then filed this timely appeal.

Plaintiff first argues that Judge McCarthy erred in entertaining defendants' motion for summary judgment because Judge Larsen previously denied defendants' motion to dismiss on the same ground. Defendants respond that Judge McCarthy was empowered to grant their motion for summary judgment because Judge Larsen's prior order was interlocutory and subject to revision. Defendants also argue that Judge Larsen's ruling was erroneous as a matter of law because she applied the wrong standard in evaluating the sufficiency of the notice. We agree with defendants.

The Illinois Supreme Court repeatedly has held that the denial of a motion to dismiss is interlocutory and may be revisited at any time before the final disposition of the case. Landmarks Preservation Council v. City of Chicago, 125 Ill.2d 164, 174, 125 Ill.Dec. 830, 531 N.E.2d 9, 13 (1988); Towns, 73 Ill.2d at 121, 22 Ill.Dec. 519, 382 N.E.2d at 1220; see also 155 Ill.2d R. 304(a); Bailey v. Allstate Development Corp., 316 Ill.App.3d 949, 956, 250 Ill.Dec. 225, 738 N.E.2d 189, 195 (2000). The trial court has jurisdiction over an entire controversy and retains jurisdiction until final judgment. Towns, 73 Ill.2d at 121, 22 Ill.Dec. 519, 382 N.E.2d at 1220. Although judges of coordinate jurisdiction should use caution when vacating or amending prior rulings, especially if there is evidence of "judge shopping" by the party receiving the adverse ruling, they are not bound by orders of previous judges and have the "traditional power * * * to amend and revise interlocutory orders" that they consider to be erroneous. Towns, 73 Ill.2d at 119, 121, 22 Ill.Dec. 519, 382 N.E.2d at 1219-20.

Here, there is no danger of "judge shopping" because it is clear from the record that this case was consolidated and transferred to Judge McCarthy as a matter of procedure and efficiency, not by defendants' effort to obtain a favorable ruling. Moreover, Judge McCarthy could properly consider defendants' summary judgment motion, even though Judge Larsen previously denied a motion to dismiss on the same basis, because Judge Larsen's order was interlocutory and was not a final disposition of the controversy between plaintiff and defendants. See Towns, 73 Ill.2d at 121, 22 Ill.Dec. 519, 382 N.E.2d at 1220. According to the August 28 proceedings and subsequent order, Judge McCarthy primarily granted summary judgment in favor of defendants based on Towns and Curtis. Specifically, she quoted a passage from Curtis, which reiterated Illinois courts'"consistent" holding that section 41 required "strict compliance," rendering erroneous Judge Larsen's previous order finding the location "adequately identified." See Curtis, 341 Ill.App.3d at 576, 275 Ill.Dec. 603, 793 N.E.2d at 86.

Plaintiff contends that Curtis is not new law and, therefore, does not meet the conditions under which Judge McCarthy could revise Judge Larsen's order. Assuming arguendo that we agreed with plaintiffs, Judge McCarthy was nevertheless empowered to revise Judge Larsen's order based on an error of law and was not required to base her order on new law. Curtis not only reaffirmed the proposition that personal injury notices must strictly comply with section 41, making Judge Larsen's order erroneous, but also distinguished the line of cases upon which Judge Larsen based her order. Curtis, 341 Ill.App.3d at 578-79, 275 Ill.Dec. 603, 793 N.E.2d at 87-88.

At the August 28 hearing before Judge McCarthy, the parties agreed that Judge Larsen based her ruling on Margolis v. Chicago Transit Authority, 69 Ill.App.3d 1028, 26 Ill.Dec. 566, 388 N.E.2d 190 (1979). Plaintiff also consistently relied on Margolis throughout this litigation. The Margolis court reasoned that because the wording of section 41 was taken "almost verbatim from sections 8-102 and 103 of the Local Governmental and Governmental Employees Tort Immunity Act [(Tort Immunity Act) (now 745 ILCS 10/1-101 et seq. (West 2002))]," the case law interpreting the Tort Immunity Act also applied to the interpretation of section 41. Margolis, 69 Ill.App.3d at 1032, 26 Ill.Dec. 566, 388 N.E.2d at 193. The court then cited to Bickel v. City of Chicago, 25 Ill.App.3d 684, 323 N.E.2d 832 (1975), which was brought under the Tort Immunity Act, and concluded that a section 41 notice was deemed sufficient if "some attempt to designate an element [of the notice] is apparent * * * [and] the designation reasonably fulfills the requirements of the [Act]." Margolis, 69 Ill.App.3d at 1033, 26 Ill.Dec. 566, 388 N.E.2d at 193.

However, this court recently analyzed the history of both the Tort Immunity Act and the Act in Curtis. The Curtis court concluded that although the Act historically had been interpreted commensurately with the Tort Immunity Act, "[i]t is at this juncture, [regarding notice provisions] that an analysis under the Tort Immunity Act and section 41 of the * * * Act must diverge." Curtis, 341 Ill.App.3d at 578, 275 Ill.Dec. 603, 793 N.E.2d at 88.

Curtis noted that the legislature amended the Tort Immunity Act to allow a...