United States District Court, Northern District of Illinois, E.D
January 9, 1969
RITSEMA-MILLGARD, INC., A CORPORATION, PLAINTIFF,
MICHAEL J. MCDERMOTT & COMPANY, A CORPORATION, AND THE CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Campbell, Chief Judge.
MEMORANDUM AND ORDER
Plaintiff has filed an amended complaint in Count Two of which
it charges that the defendant, City of Chicago, negligently and
carelessly, owned, operated, and maintained a certain watermain
so that it was in a defective, deteriorated and leaking
condition. By reason of the alleged negligence, water from the
main flooded plaintiff's caisson excavations causing a work
stoppage and damages following therefrom.
The City of Chicago has moved to dismiss Count Two (the only
Count in which it is named) for failure to comply with the six
month statutory notice requirement (Ill.Rev.Stat. C. 85, § 8-102)
and the applicable one year statute of limitations.
(Ill.Rev.Stat. C. 85, § 8-101). The alleged negligence occurred
August 29, 1966. Plaintiff's amended complaint was filed August
16, 1968. No statutory notice was filed.
In 1965 the Illinois legislature adopted the Local Government
and Governmental Employees Tort Immunity Act. (Ill.Rev.Stat. C.
85, § 1-101 et seq.) The act was adopted immediately after the
Illinois Supreme Court had repudiated the last vestige of the
doctrine of governmental immunity. (See Harvey v. Clyde Park
Dist., 32 Ill.2d 60, 203 N.E.2d 573 (1965).) It was intended to
assure uniformity in treatment to all units of local government
and to salvage certain protections for public entities some of
which had found themselves subject to suit for the first time.
The one-year statute of limitations and more particularly, the
six month notice provision were borrowed from prior law relating
to personal injury actions and thus retain the basic parlance of
those actions. (1963 Ill.Rev.Stat., C. 24, § 1-4-1, 2 and 3) In
the 1965 Act they (the notice requirement and one year
limitation) were intended no less to apply to all tort actions
brought against local public entities. The Local Government
Immunity Act and the notice requirements and limitations therein
apply to all tort actions brought against local governments.
Plaintiff's claim is based on negligence. It sounds in tort. I
can find no interpretation of the statute which would prevent the
application of the notice requirement or the short statute of
Accordingly, the motion of the City to dismiss is granted and
Count Two of the complaint is dismissed.
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