Smith v. City of Chicago

625 N.E.2d 300, 253 Ill. App. 3d 54, 192 Ill. Dec. 340, 1993 Ill. App. LEXIS 1361
CourtAppellate Court of Illinois
DecidedSeptember 7, 1993
Docket1-92-0103
StatusPublished
Cited by4 cases

This text of 625 N.E.2d 300 (Smith v. City of Chicago) 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
Smith v. City of Chicago, 625 N.E.2d 300, 253 Ill. App. 3d 54, 192 Ill. Dec. 340, 1993 Ill. App. LEXIS 1361 (Ill. Ct. App. 1993).

Opinion

JUSTICE BUCKLEY

delivered the opinion of the court:

Plaintiff Carolyn Smith filed a complaint against defendant Illinois Institute of Technology and codefendant City of Chicago for damages allegedly incurred when her foot became stuck in a hole. The circuit court granted codefendant’s and defendant’s motions to dismiss and denied plaintiff leave to amend her complaint instanter. Plaintiff appeals the order dismissing her complaint as to defendant and denying her leave to amend. We affirm in part and reverse and remand in part.

On November 25, 1985, plaintiff filed a lawsuit against defendant and codefendant alleging that she sustained multiple ankle and leg fractures as a result of falling in an unnatural hole in the “public grass-covered parkway located between the sidewalk and street located near what is commonly known as 70 East 33rd Street, in the City of Chicago.” On July 12, 1985, plaintiff filed a notice of claim with codefendant which stated that the site of the accident was “at or near 701 East 33rd Street, Chicago, Illinois.” On January 15, 1986, codefendant filed a demand for a bill of particulars requiring a description and exact location of the area of the alleged unsafe hole referred to in the complaint. On March 19, 1986, plaintiff filed a bill of particulars, attaching photocopies of the site and a diagram of the location of the hole. Although the diagram was not drawn to scale, it stated the distances in feet and inches from fixed objects and noted the location of the hole in the parkway area on the south side of East 33rd Street, across from the nearest building, 70 East 33rd Street, which happens to be on the north side of the street. The bill of particulars also claimed that the

“exact area cannot be stated precisely and could presumably be determined by [the City] by reference to public property documents which are within [the City’s] possession or available from the County of Cook, or by land survey.”

On July 3, 1989, codefendant filed a motion to dismiss plaintiff’s complaint as to it because the address provided in the notice of claim was incorrect. The circuit court granted codefendant’s motion and plaintiff appealed. The appellate court affirmed the circuit court on the basis that the address contained in the notice of claim was incorrect and, therefore, the notice was defective under the statute. See Ill. Rev. Stat. 1985, ch. 85, par. 8-103 (now 745 ILCS 10/8-103 (West 1992)).

Then, on October 16, 1991, defendant filed a motion to strike and dismiss plaintiff’s complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615 (now 735 ILCS 5/2 — 615 (West 1992))) based on the argument that through the depositions of witness Mary Merrill and of Myles McDarrah, superintendent of operations for the Department of Sewers for the City o£ Chicago, it discovered that the accident did not occur at the site alleged in the complaint. After hearing argument, the circuit court granted defendant’s motion to dismiss because “near what is commonly known as 70 E. 33rd St.” deficiently described the site of the alleged accident. The circuit court also denied plaintiff’s request to amend the complaint instanter, reasoning that the proposed amendment would state a new cause of action which would be time barred by the statute of limitations. The circuit court agreed with defendant’s argument that under Illinois case law, when a plaintiff pleads an incorrect address as the site where her injury occurred and subsequently amends the complaint to provide a different address as the occurrence site, the amended complaint states a new cause of action for which the doctrine of relation back pursuant to section 2— 616(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(b) (now 735 ILCS 5/2-616(b) (West 1992))) does not apply. Thus, the circuit court found that the doctrine of “relation back” pursuant to section 2 — 616(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-616(b) (now 735 ILCS 5/2— 616(b) (West 1992))) did not apply. Plaintiff appeals, arguing that the circuit court improperly dismissed her complaint or, in the alternative, erred in not allowing her to amend her complaint to allege the exact location of the accident pursuant to section 2 — 616(b) of the Illinois Code of Civil Procedure. Ill. Rev. Stat. 1985, ch. 110, par. 2 — 616(b) (now 735 ILCS 6/2 — 616(b) (West 1992)).

First, plaintiff argues that the circuit court improperly dismissed her complaint on the basis that she insufficiently alleged the site of the accident in her complaint. When reviewing a motion to strike and dismiss pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615 (now 735 ILCS 5/2— 615 (West 1992))), a reviewing court must determine whether allegations in the complaint, when viewed in a light most favorable to plaintiff, are sufficient to set forth a cause of action upon which relief can be granted. (Benhart v. Rockford Park District (1991), 218 Ill. App. 3d 554, 578 N.E.2d 600.) We must accept as true all well-pled facts and reasonable inferences that could be drawn therefrom. (Doll v. Bernard (1991), 218 Ill. App. 3d 719, 578 N.E.2d 1053.) If the complaint does not allege facts sufficient to state a cause of action, the deficiency may not be cured by liberal construction. (Benhart, 218 Ill. App. 3d 554, 578 N.E.2d 600.) The granting of a motion to dismiss is within the sound discretion of the trial court. Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.

In Zeh v. Wheeler (1986), 111 Ill. 2d 266, 489 N.E.2d 1342, the Illinois Supreme Court held that the location of an injury resulting from the alleged negligence in failing to maintain the premises in a reasonably safe manner is a necessary and material element in a negligence action. (Zeh, 111 Ill. 2d at 275, 489 N.E.2d at 1346; see also Gillmore v. City of Chicago (1906), 224 Ill. 490, 79 N.E. 596.) In the instant case, plaintiff’s complaint alleged that the accident occurred on the “public grass-covered parkway located between the sidewalk and street located near what is commonly known as 70 E. 33rd St.” Plaintiff argues that since there were no buildings or address markers in the immediate vicinity of the accident, the nearest numbered address should be a sufficient manner in which to plead the negligence action in her complaint. Plaintiff, however, failed to plead whether the site of the accident was on the north or south side of the street. We agree with the circuit court that plaintiff’s pleading of the location of the alleged accident was deficient.

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Bluebook (online)
625 N.E.2d 300, 253 Ill. App. 3d 54, 192 Ill. Dec. 340, 1993 Ill. App. LEXIS 1361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-city-of-chicago-illappct-1993.