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Saragusa v. City of Chicago

OPINION FILED MAY 14, 1976.

MARGARET SARAGUSA, APPELLANT,

v.

THE CITY OF CHICAGO, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Raymond K. Berg, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

The plaintiff, Margaret Saragusa, brought this action in the circuit court of Cook County against the defendant, City of Chicago, to recover damages for injuries suffered when she fell into a hole in a sidewalk. The case was tried without a jury, and resulted in a judgment for the plaintiff in the amount of $14,100. The defendant made an oral motion, apparently at the time the case came on for trial, to dismiss the complaint on the ground that the plaintiff had failed to serve the city with a proper notice of her claim pursuant to section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 8-102). The circuit court denied this motion, but on appeal the Appellate Court for the First District reversed (18 Ill. App.3d 945). We allowed the plaintiff's petition for leave to appeal.

The plaintiff's accident took place on April 20, 1970, at which time the plaintiff was 79 years old. She suffered a broken hip. Immediately after her fall she was taken to a hospital where surgery was performed to remove a portion of the femur and to replace it with a prosthetic device. She remained in the hospital until June 6.

On June 23 the plaintiff's attorney served upon the city clerk of Chicago a written notice of claim, and on September 21, within six months of the date of her injury, the plaintiff filed her complaint.

At the time of the plaintiff's accident section 8-102 of the Tort Immunity Act provided as follows:

"Within 6 months from the date that the injury or cause of action, referred to in Sections 8-102 and 8-103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must personally serve in the Office of the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, signed by himself, his agent or attorney, 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, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any." Ill. Rev. Stat. 1971, ch. 85, par. 8-102.

A companion provision of the Act, section 8-103 (Ill. Rev. Stat. 1971, ch. 85, par. 8-103), provides that if the notice under section 8-102 is not served as provided therein, any action commenced against the local public entity is subject to dismissal.

In its motion the defendant challenged the sufficiency of the plaintiff's statement on two grounds. One was that it was not signed. The other was that it failed to give the name and address of the treating hospital. While the other items of information called for by section 8-102 (all of which were supplied in the present case) have been specified in that section since its enactment in 1965, that part of the section calling for the name and address of the treating hospital was added by an amendment which became effective October 10, 1969 (Laws of 1969, at 4132, sec. 1).

The defendant filed its answer to the complaint on October 15, 1970, and on the same date propounded interrogatories to the plaintiff, including one which asked whether the plaintiff had been hospitalized. The plaintiff filed her answers to the interrogatories on December 22, 1970. The answer to the interrogatory asking for the name of the treating hospital was not responsive, but in answering another interrogatory seeking the names of the physicians by whom the plaintiff had been treated, the name of the hospital was listed as the address of two of them. The appellate court states in its opinion that the defendant would not necessarily infer, and did not in fact infer from this circumstance that the plaintiff had been treated at the named hospital. That conclusion is not supported by the record, however, for the defendant's counsel admitted in argument before the trial court that the defendant did conclude from the answers to the interrogatories that the plaintiff had been hospitalized at the hospital named in the plaintiff's answers.

Despite the absence of a signature on the notice and the defendant's awareness of the plaintiff's hospitalization, the defendant made no objection to the sufficiency of the notice until the day when the case came on for trial two years later, in December, 1972. At that time the defendant's counsel advised the court that the defendant would not cross-examine any of the plaintiff's witnesses, since the defendant would stand on its motion challenging the sufficiency of the notice. Consistently with this position, the defendant also elected not to put in any evidence bearing on the merits of the plaintiff's claim.

With respect to the lack of a signature on the copy of the notice left with the city clerk, it was brought out at the trial that the original of the notice, possession of which had been retained by the plaintiff's counsel, did bear a signature. The trial court accordingly rejected the defendant's objection on that score. The appellate court agreed with the trial court, and the defendant has now abandoned that objection.

As to the failure of the notice to disclose the treating hospital, the trial court rejected that objection on the grounds that the notice did give the name and address of the attending physician, from whom the defendant could have ascertained the name of the treating hospital, and further that that information had been disclosed in the answers to the interrogatories.

On this issue the appellate court disagreed. It concluded that a notice which was incomplete, indefinite, or imprecise in some particular could be deemed legally sufficient only if the plaintiff had made a "substantial attempt" to comply with the statutory directive, an attempt which the court found lacking here, since the plaintiff here had wholly omitted the name of the treating hospital. As to the answers to the interrogatories, the appellate court held that these would not suffice since they were not supplied within six months from the date of injury.

We are inclined to believe that if any effect is to be given the 1969 amendment to section 8-102, the plaintiff's notice cannot be deemed to comply with that section. We hold, however, that the claimed deficiency in the notice did not warrant the dismissal of the plaintiff's complaint since the complaint ...


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