Joseph v. Chicago Transit Authority

715 N.E.2d 733, 306 Ill. App. 3d 927, 240 Ill. Dec. 46
CourtAppellate Court of Illinois
DecidedAugust 3, 1999
Docket1-98-3298
StatusPublished
Cited by49 cases

This text of 715 N.E.2d 733 (Joseph 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
Joseph v. Chicago Transit Authority, 715 N.E.2d 733, 306 Ill. App. 3d 927, 240 Ill. Dec. 46 (Ill. Ct. App. 1999).

Opinions

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 óf 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 plaintiffs 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 plaintiffs complaint against the CTA.

BACKGROUND FACTS

Section 41 of the Metropolitan Transit Authority Act provides in pertinent part as follows:

“No civil action shall be commenced in any court against the Authority [the CTA] by any person for any injury to his person unless it is commenced within one year from the date that the injury was received or the cause of action accrued. Within six (6) months from the date that such an injury was received or such cause of action accrued, any person who is about to commence any civil action in any court against the Authority for damages on account of any injury to his person shall file in the office of the secretary of the Board [the Chicago Transit Board] and also in the office of the General Counsel for the Authority *** a statement, in writing, *** giving 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 and the name and address of the attending physician, if any. If the notice provided for by this section is not filed as provided, any such civil action commenced against the Authority 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 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 plaintiffs 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 plaintiffs 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

A motion to dismiss a complaint pursuant to section 2 — 615 of the Code of Civil Procedure admits all well-pleaded facts and attacks the legal sufficiency of the complaint, whereas a section 2 — 619 motion admits the legal sufficiency of plaintiffs complaint and raises defects, defenses or other affirmative matters that appear on the face of the complaint or are established by external submissions that act to defeat the plaintiffs claim. E.g., Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994); Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732 (1993); Moran v. City of Chicago, 286 Ill. App. 3d 746, 676 N.E.2d 1316 (1997); Reuben H. Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300, 655 N.E.2d 1162 (1995). Both motions raise questions of law, which are reviewed de novo. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732; Doe v. TCF Bank Illinois, FSB, 302 Ill. App. 3d 839, 707 N.E.2d 220 (1999); Village of Evergreen Park v. Commonwealth Edison Co., 296 Ill. App. 3d 810, 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 Counsel for the Authority” (70 ILCS 3605/41 (West 1996)) is mandatory (Streeter v. Chicago Transit Authority, 272 Ill. App. 3d 921, 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, 620 N.E.2d 1097 (1993); Sanders v. Chicago Transit Authority, 220 Ill. App. 3d 505, 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, 548 N.E.2d 403, 405 (1989); Niziolek, 251 Ill. App. 3d at 542, 620 Ill. App. 3d 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, 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, 651 N.E.2d at 580-81).

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Bluebook (online)
715 N.E.2d 733, 306 Ill. App. 3d 927, 240 Ill. Dec. 46, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-chicago-transit-authority-illappct-1999.