Davis v. Chicago Transit Authority

762 N.E.2d 40, 326 Ill. App. 3d 1023, 260 Ill. Dec. 774, 2001 Ill. App. LEXIS 927
CourtAppellate Court of Illinois
DecidedDecember 14, 2001
Docket1-00-1985
StatusPublished
Cited by3 cases

This text of 762 N.E.2d 40 (Davis v. Chicago Transit Authority) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Chicago Transit Authority, 762 N.E.2d 40, 326 Ill. App. 3d 1023, 260 Ill. Dec. 774, 2001 Ill. App. LEXIS 927 (Ill. Ct. App. 2001).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff, Ruby Davis, filed a negligence complaint against defendant, Chicago Transit Authority (CTA), and its agent, Rouhy Clay,u seeking damages for injuries she sustained while a passenger on a CTA bus. The trial court granted summary judgment in favor of the CTA pursuant to section 2 — 1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2 — 1005 (West 1998)) finding plaintiff had failed to comply with the notice requirements of section 41 of the Metropolitan Transit Authority Act (the Act) (70 ILCS 3605/41 (West 1998)). On appeal, plaintiff argues that CTA was not entitled to summary judgment because plaintiff substantially complied with the statutory requirements and CTA was able to and did investigate the facts of the occurrence immediately after it happened. For the reasons that follow, we affirm.

I. STATEMENT OF FACTS

On May 20, 1994, plaintiff was a passenger on a bus that was owned and operated by the CTA and was being driven by defendant Rouhy Clay, a CTA employee. While traveling westbound on 103rd Street, the driver applied the brakes suddenly. Plaintiff was thrown sideways, toward the bus driver, and her head and shoulder struck either a pole, a seat, or another passenger.

The bus driver pulled over and told the passengers to sit still if they were hurt and that he was going to call the CTA. He then passed out CTA courtesy cards to those who were hurt and told those who were not that another bus would be coming.

Plaintiff filled out a courtesy card and returned it to the driver. The completed courtesy card provided the following information: plaintiffs name, address, and telephone number, employer’s name, and employer’s telephone number. Plaintiff also wrote the following remarks on the card: “Truck pull around in front of bus. I hit my head and neck against another passenger and I can feel a pull in my left shoulder.” The driver also received courtesy cards from four other passengers.

The CTA police arrived at the scene and shortly thereafter an ambulance arrived and took plaintiff to the emergency room at Little Company of Mary Hospital. Plaintiff was X-rayed and given medication for the pain in her head. The emergency room physician, Dr. Joseph, told plaintiff to see her own doctor for follow-up treatment.

On November 18, 1994, plaintiff submitted her notice of claim for personal injuries to CTA’s secretary of the board and its general attorney. In this notice, plaintiff stated the following: (1) that the accident occurred on May 20, 1994, at about noontime; (2) that it occurred at 103rd and Ashland; and (3) that the name of her attending physician is Dr. Zanelli of the city industrial clinic.

On May 18, 1995, plaintiff filed suit against the CTA and the bus driver, Rouhy Clay. In her complaint, plaintiff identified the location of the occurrence as “103rd Street, at or near its inter-section with Ash-land Avenue.” On September 15, 1997, plaintiff voluntarily dismissed her complaint and refiled on August 7, 1998. In her refiled complaint, plaintiff identified the location of the occurrence as “on 103rd Street, at or near the intersections of Vincennes Avenue, Ashland Avenue and 103rd Street, in Chicago, Illinois.”

On February 22, 2000, CTA moved for summary judgment based on plaintiffs failure to comply with the provisions of section 41 of the Act (70 ILCS 3605/41 (West 1998)). The motion identified three deficiencies with plaintiffs notice.

First, the motion observed that by identifying “103rd and Ash-land,” a nonexistent location, the notice sets forth the wrong location. Attached to the motion was a Chicago police department map of the area and an affidavit from William Platt, the general manager of the 103rd Street garage. Platt’s affidavit averred that “Ashland Avenue does not intersect with 103rd Street.” The map supports this statement. The map shows that 103rd Street intersects with Vincennes, but not with Ashland Avenue. Ashland Avenue terminates at about 96th Street. A diagonal street called South Beverly Avenue originates at that point.

Second, the motion observed that the notice sets forth the wrong time of the occurrence. The notice stated that the incident took place at “about noontime.” In contrast, the complaint identified the time of the incident as “approximately 8:00 a.m.” Likewise, in her deposition, plaintiff stated that the incident occurred at “about 7:55 a.m.”

Finally, the motion observed that the notice fails to list the name and address of an attending physician. At her deposition, plaintiff stated that she had received medical treatment right after the incident at Little Company of Mary Hospital. She indicated that she had been attended there in the emergency room by a Dr. Joseph. She was unsure whether Joseph was the doctor’s first or last name. The notice contains no reference to Little Company of Mary Hospital or to any physician at that hospital. Instead, the notice identified plaintiff’s attending physician as Dr. Zanelli at the city industrial clinic. In her deposition, plaintiff identified her treatment as a type of massage, administered by a therapist, to improve blood circulation. Plaintiff began seeing Dr. Zanelli in June 1994 and stopped when the doctor told her she could not figure out why plaintiff was experiencing pain.

In her response to CTA’s motion for summary judgment, plaintiff did not argue that her notice complied with section 41. Rather, she argued that Dr. Zanelli was properly identified as plaintiffs treating physician and that the CTA is estopped from seeking dismissal by virtue of its “extensive” involvement in the litigation. Plaintiff conceded that the notice she filed identified the wrong time and a nonexistent address.

Following briefing, the trial court granted summary judgment in favor of the CTA. On May 15, 2000, the court entered an order dismissing the cause of action based on plaintiffs failure to meet the requirements of section 41. Plaintiff now appeals.

II. DISCUSSION

A. Standard of Review

Our review of a trial court’s grant of summary judgment is de novo. Dunlap v. Alcuin Montessori School, 298 Ill. App. 3d 329, 338 (1998). A summary judgment motion should be granted when “ ‘the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Purtill v. Hess, 111 Ill. 2d 229, 240 (1986), quoting Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1005(c) (now 735 ILCS 5/2 — 1005 (West 1998)). Summary judgment is a proper remedy where a claimant files a defective section 41 notice. Yokley v. Chicago Transit Authority, 307 Ill. App. 3d 132, 135-36 (1999).

B. Propriety of Trial Court’s Grant of Summary Judgment

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Related

White v. Chicago Transit Authority
869 N.E.2d 287 (Appellate Court of Illinois, 2007)
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357 Ill. App. 3d 705 (Appellate Court of Illinois, 2005)

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Bluebook (online)
762 N.E.2d 40, 326 Ill. App. 3d 1023, 260 Ill. Dec. 774, 2001 Ill. App. LEXIS 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-chicago-transit-authority-illappct-2001.