Joseph v. Chicago Transit Authority
Decision Date | 03 August 1999 |
Docket Number | No. 1-98-3298.,1-98-3298. |
Citation | 240 Ill.Dec. 46,306 Ill. App.3d 927,715 N.E.2d 733 |
Parties | Vicki JOSEPH, Plaintiff-Appellant, v. CHICAGO TRANSIT AUTHORITY, a Quasi Municipal Corporation, Defendant-Appellee (City of Chicago, a Municipal Corporation), Defendant. |
Court | United States Appellate Court of Illinois |
Dean Bastounes, Chicago; James G. Adros, for Appellant.
Duncan G. Harris, General Counsel of the Chicago Transit Authority, Chicago (Thomas J. Bamonte, Deputy General Counsel; Cheryl K. Lipton, Senior Attorney, of counsel), for Appellee. Presiding Justice GORDON delivered the opinion of the court:
Plaintiff, Vicki Joseph, filed a one-count complaint on April 23, 1998 against defendants Chicago Transit Authority (CTA) and the City of Chicago seeking to recover for injuries she sustained on October 27, 1997 when she fell while boarding at a CTA bus stop alleged to be in an unsafe condition. The CTA moved to dismiss the complaint pursuant to sections 2-615 and 2-619(9) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(9) (West 1996)) arguing that the plaintiff failed to plead and could not prove compliance with the six-month notice requirements of section 41 of the Metropolitan Transit Authority Act (the Transit Act) (70 ILCS 3605/41 (West 1996)). The trial court granted the CTA's motion to dismiss and provided language in its order allowing appeal pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)).
The sole issue raised in this appeal is whether the plaintiff's complaint, which was filed during the six-month notice period but served after the expiration of that period, satisfies the notice requirement of section 41 of the Metropolitan Transit Authority Act. For the reasons discussed below, we affirm the dismissal of plaintiff's complaint against the CTA.
BACKGROUND FACTS
Section 41 of the Metropolitan Transit Authority Act provides in pertinent part as follows:
70 ILCS 3605/41 (West 1996).1
Plaintiff's alleged injury occurred on October 27, 1997. It is conceded that no notice of that injury was provided to the CTA other than plaintiff's complaint which was filed on April 23, 1998 and served upon the CTA on April 30, 1998. That complaint alleged that the plaintiff was injured when she stepped down into a depression or hole at an area "adjacent to the west curb south of the appropriate loading zone" (bus stop) near 3472 North Lake Shore Drive. It alleged that the CTA was negligent by allowing its loading zone and/or bus stop to be adjacent to the condition of the depression or hole, which it knew or should have known was present; by enticing plaintiff to board its motor bus in a location other than an authorized loading zone or bus stop; and by being otherwise negligent in the operation and control of its motor bus.
As discussed, the trial court dismissed plaintiff's complaint finding that section 41 notice had not been provided to the CTA within the six-month statutory time period. The court found that the CTA did not have notice of the injury, even though plaintiff's complaint had been filed within that time period, because the CTA was not served with the complaint until after the time period had expired.
DISCUSSION
619 N.E.2d 732; Doe v. TCF Bank Illinois, FSB, 302 Ill.App.3d 839, 236 Ill.Dec. 375, 707 N.E.2d 220 (1999); Village of Evergreen Park v. Commonwealth Edison Co., 296 Ill.App.3d 810, 231 Ill.Dec. 220, 695 N.E.2d 1339 (1998).
The requirement under the Transit Act to file notice within six months of an accident "in the office of the secretary of the Board and also in the office of the General Attorney for the Authority" (70 ILCS 3605/41 (West 1996)) is mandatory (Streeter v. Chicago Transit Authority, 272 Ill.App.3d 921, 209 Ill.Dec. 401, 651 N.E.2d 579 (1995)); and the plaintiff has the burden of strictly complying with that requirement. Niziolek v. Chicago Transit Authority, 251 Ill.App.3d 537, 189 Ill.Dec. 780, 620 N.E.2d 1097 (1993); Sanders v. Chicago Transit Authority, 220 Ill.App.3d 505, 163 Ill.Dec. 260, 581 N.E.2d 211 (1991). In accordance with the mandatory nature of that requirement, courts have dismissed lawsuits filed against the CTA when the plaintiff sent a timely letter to a transit authority claims manager or representative, rather than to the secretary of the Chicago Transit Board (the Board) and the general counsel of the CTA (Murphy v. Chicago Transit Authority, 191 Ill.App.3d 918, 921, 139 Ill.Dec. 18, 548 N.E.2d 403, 405 (1989); Niziolek, 251 Ill.App.3d at 542, 189 Ill.Dec. 780, 620 N.E.2d at 1100); when the plaintiff sent notice of intent to sue to the CTA's general counsel but not to the secretary of the Board (Sanders, 220 Ill.App.3d at 507, 163 Ill.Dec. 260, 581 N.E.2d at 212); and when the plaintiff timely communicated with CTA personnel and completed a claim form (Streeter, 272 Ill.App.3d at 923, 209 Ill.Dec. 401, 651 N.E.2d at 580-81).
Several cases involving section 41 of the Transit Act have held, albeit by way of dictum, that the failure to give timely notice to commence a lawsuit to the CTA can be cured by filing a complaint within the six-month period. See Streeter, 272 Ill.App.3d at 923, 209 Ill.Dec. 401, 651 N.E.2d at 580; Murphy, 191 Ill.App.3d at 921, 139 Ill.Dec. 18, 548 N.E.2d at 405. These cases relied on the Illinois Supreme Court decision in Saragusa v. City of Chicago, 63 Ill.2d 288, 348 N.E.2d 176 (1976) which was decided under section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill.Rev.Stat.1971, ch.85, par. 8-102).
348 N.E.2d at 180; Williams v. City of Chicago, 206 Ill.App.3d 762, 768, 151 Ill.Dec. 809, 565 N.E.2d 80, 84 (1990); Lane v. Chicago Housing Authority, 147 Ill.App.3d 876, 880, 101 Ill.Dec. 280, 498 N.E.2d 604, 606 (1986); Oliver v. City of Chicago, 137 Ill.App.3d 958, 960, 92 Ill.Dec. 617, 485 N.E.2d 428, 430 (1985). Section 8-102 of the Tort Immunity Act required a person about to bring suit against a local public entity to give written notice within one year from the date the injury was received or the cause of action accrued. Earlier language in that provision, like the language in section 41 of the Transit Act, required that written notice be given within six months from the date injury was received or the cause of action accrued. See Ill.Rev.Stat.1971, ch. 85, par. 8-102.
Applying the tort immunity provision then applicable, which contained a notice provision nearly identical to section 41 of the Transit Act (compare Ill.Rev.Stat.1971, ch. 85, par. 8-102 with 70 ILCS 3605/41 (West 1996)), our supreme court held in Saragusa, 63 Ill.2d at 294, 348 N.E.2d at 180, that the filing of a complaint within six months following plaintiff's injury...
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