ILLINOIS APPELLATE COURT FIRST DISTRICT, FOURTH DIVISION.
SEPTEMBER 9, 1964.
KENNETH E. HAYMES, A MINOR, BY DOROTHY HAYMES, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,
CATHOLIC BISHOP OF CHICAGO, A CORPORATION SOLE, DEFENDANT-APPELLEE.
Appeal from the Superior Court of Cook County; the Hon. HAROLD
G. WARD, Judge, presiding. Reversed and remanded.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied and opinion modified October 9, 1964.
Plaintiff, a minor, appeals *fn1 from a judgment for defendant entered on the latter's motion to dismiss an amended complaint which sought damages for injuries sustained January 18, 1960 on school premises operated by defendant.
One of the points raised in defendant's motion to dismiss, and relied on by defendant in this court, is that plaintiff's action is foreclosed because of his failure to comply with the notice provision of the 1959 School Tort Liability Act, relating to damages recoverable against nonprofit private schools. (Ill. Rev Stats 1959, c 122, §§ 823, 824.) There is no question but that the statute does require the filing of a written notice within six months from the date of injury, giving the name and address of the person injured, the date, hour, and place of the occurrence, and the name and address of the attending physician, if any. There is also no question but that the amended complaint does not allege the giving of such notice, and, since plaintiff was afforded an opportunity to amend further, it may be presumed that no such notice was filed.
So far as we know, this statute has not been construed by a reviewing court. Defendant urges us to consider it a parallel to statutes relating to dramshop and wrongful death actions (Ill. Rev Stats c 43, § 135; c 70, § 2), since in both those situations it has been held that the time fixed for the filing of suit is a condition of liability, not merely a limitation of the remedy, and that it is, therefore, applicable to all plaintiffs, including minors. Lowrey v. Malkowski, 20 Ill.2d 280, 284, 170 N.E.2d 147; Wilson v. Tromly, 404 Ill. 307, 310, 89 N.E.2d 22.
The language of the statute before us, however, does not follow the texts of the Dram Shop and Wrongful Death Acts, but, rather, it is virtually identical to the notice of claim provisions enacted earlier in regard to Cities and Villages (Ill. Rev Stats c 24, § 1-4-2) and the Metropolitan Transit Authority (c 111 2/3, § 341). The notice requirement contained in the first of these statutes has consistently been held inapplicable to minors: McDonald v. City of Spring Valley, 285 Ill. 52, 54, 120 NE 476; Doerr v. City of Freeport, 239 Ill. App. 560; Sobieski v. City of Chicago, 234 Ill. App. 382. And in a case arising under the Transit Authority Act it was also held that in "following the language of the Cities and Villages Act provision, the legislature will be considered to have adopted the judicial construction given the language of that act by the courts." Frowner v. Chicago Transit Authority, 25 Ill. App.2d 312, 317, 167 N.E.2d 26.
In arguing for the principle embodied in the Dram Shop and Wrongful Death Acts, defendant contends that, like these acts, the School Tort Liability Act creates an entirely new cause of action, *fn2 whereas the Cities and Villages Act deals with a previously existing common-law cause of action. We cannot accept the point, as we believe that the School Tort Liability Act merely establishes limitations with respect to a non-statutory cause of action. *fn3 This appears to us to be made clear by the language of Sections 1 and 10 of the Act.[fn3a] See also Garrison v. Community Consol. School Dist., 34 Ill. App.2d 322, 327, 181 N.E.2d 360; and Bergman v. Board of Education of Chicago, 30 Ill. App.2d 65, 69, 173 N.E.2d 565.
As to this point we therefore conclude that compliance with the notice requirement of the statute need not have been alleged by plaintiff in this case, a minor thirteen years of age.
We come, then, to the question of whether or not the amended complaint sufficiently alleges facts which state a cause of action. In this court no criticism is made of the portions of the complaint alleging: due care on the part of plaintiff; a duty on the part of defendant to use ordinary care in the maintenance of its premises so that its students, including plaintiff, would not be injured; a fall by plaintiff while using the cloak room on the premises; injuries sustained by plaintiff; and proximate cause. Thus defendant's position is narrowed to the contention that the complaint was properly dismissed because it does not allege facts sufficient to constitute negligence on the part of defendant or a breach of the duty alleged. The questioned allegations are all found in one paragraph of the amended complaint which reads as follows:
8. That at the time and place aforesaid the defendant, Catholic Bishop of Chicago, a corporation sole, was then and there guilty of one or more of the following acts:
(a) Carelessly and negligently managed, maintained, controlled and operated its premises so that as a direct and proximate result thereof the plaintiff was injured;
(b) Carelessly and negligently allowed the floor of said premises to be and remain in an unsafe and dangerous condition although the defendant knew or in the exercise of ordinary care ought to have known of said dangerous and unsafe condition;
(c) Carelessly and negligently allowed an unsafe and dangerous condition to be and remain on said premises in that the floor of the portion of the said premises used as a cloak room was allowed to be and remain in a highly slippery condition;
(d) Carelessly and negligently allowed an unsafe and dangerous condition to exist on said premises in that it allowed a certain coat or coats or other objects to be and remain on the floor of the cloak room in such a place that it was likely that the plaintiff would come into contact with said objects;
(e) Carelessly and negligently allowed articles of clothing to be and remain on a highly slippery floor although the defendant knew or in the exercise of ordinary care ought to have known that this could cause injury to the plaintiff;
(f) Carelessly and negligently failed to give the plaintiff warning of the nature of said premises although the defendant knew or in the exercise of ordinary care ought to have known that such warning was reasonably necessary to prevent injury to the plaintiff;
(g) Carelessly and negligently failed to examine and inspect the aforesaid premises within reasonable time prior to the occurrence herein complained of;
(h) Carelessly and negligently failed to furnish, provide and maintain adequate lighting at or near the location in said premises where the aforesaid occurrence took place.
[3-6] In a recent opinion we expressed at some length what we consider to be the proper approach in determining the sufficiency of pleadings. Kita v. YMCA of Metropolitan Chicago, 47 Ill. App.2d 409, 198 N.E.2d 174. *fn4 The rules are easy to state but sometimes very difficult to apply. A complaint must allege facts stating a cause of action; evidentiary facts need not be stated; ultimate facts should be stated; facts stated must not contain conclusions; and so on.
Section 31 of the Practice Act preserves the requirement that "substantial averments of fact" are necessary to state any cause of action, and Section 33 provides that "pleadings shall contain a plain and concise statement of the pleader's cause of action, counterclaim, defense, *fn5 or reply." Ill. Rev Stats c 110, §§ 31, 33. We believe that the complaint in the instant case meets the requirements of these sections, especially in view of the general purpose of the Act, and bearing in mind the Act's own directive that it be liberally rather than strictly construed. Ill. Rev Stats c 110, § 4. Our conclusion that the complaint is sufficient is supported also by Sections 33(3) and 42(2) which provide that "[p]leadings shall be liberally construed with a view to doing substantial justice between the parties," and that "[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet." Ill. Rev Stats c 110, §§ 33(3) and 42(2).
If defendant considers that the amended complaint's "allegations are so wanting in details" that particulars are required for preparation of his defense, then he may take action under Section 37 of the Act or proceed along any of the avenues of discovery which are available to him. Ill. Rev Stats c 110, §§ 37, 58.
Paragraph 11 of the amended complaint states:
11. Plaintiff alleges that the defendant, Catholic Bishop Of Chicago, has purchased and procured insurance coverage out of which any judgment obtained in this cause may be satisfied.
This allegation (which was specifically attacked in defendant's motion to dismiss) is neither necessary nor appropriate since Molitor v. Kaneland Community Unit Dist. No. 302, 18 Ill.2d 11, 163 N.E.2d 89. Paragraph 11 of the amended complaint is, therefore, stricken.
Further in regard to the School Tort Liability Act, plaintiff concedes that Section 5B thereof (Ill. Rev Stats c 122, § 825) limits the amount recoverable in the case at bar to $10,000. The amended complaint contains an ad damnum of $40,000, and defendant urges this as a sufficient ground, in itself, to justify affirmance. We cannot agree to so harsh a result, and, therefore, to remove this issue from the case we hereby order that the amended complaint be further amended by reducing the ad damnum to $10,000. Ill. Rev Stats c 110, §§ 46(1), 92(1); Supreme Court Rule 50.
The order of the trial court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
DRUCKER and McCORMICK, JJ., concur.