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Haymes v. Catholic Bishop of Chicago

SEPTEMBER 9, 1964.

KENNETH E. HAYMES, A MINOR, BY DOROTHY HAYMES, HIS MOTHER AND NEXT FRIEND, PLAINTIFF-APPELLANT,

v.

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 ...


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