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Dunbar v. Reiser

OPINION FILED OCTOBER 1, 1976.

FLORENCE DUNBAR, ADM'R, APPELLEE,

v.

ISAAC REISER ET AL. — (THE CITY OF CHICAGO, APPELLANT.)



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

MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

Plaintiff, Florence Dunbar, administrator of the estate of Josephine Burdick, deceased, filed this wrongful death action in the circuit court of Cook County against defendants, Dr. Isaac Reiser, Northwest Hospital and the City of Chicago. The city filed a motion to dismiss the action as to it on the ground that plaintiff had failed to serve the city with notice of her claim as required by 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 the motion, and in its order made findings as provided in Rule 308. The appellate court, pursuant to Rule 308, allowed the city's application for leave to appeal, and affirmed. (26 Ill. App.3d 708.) We allowed the city's petition for leave to appeal.

Count II of the complaint alleged that on June 16, 1973, the decedent suffered what appeared to be a heart attack; that the inhalator unit of the city's fire department was called and administered oxygen to the decedent; and that before decedent was transported to, or pronounced dead by, a licensed physician, and while she may have still been alive, the firemen withdrew the oxygen. The complaint was filed on July 13, 1973, and the city was served with summons on July 17. On August 14 the city filed its appearance, a jury demand and a motion to dismiss on grounds unrelated to this appeal. After a hearing on September 25, that motion was denied and the city was given 28 days to file its answer. The city filed its answer on October 1, 1973. On January 8, 1974, it filed a motion to dismiss on the ground that plaintiff had failed to give the notice required by section 8-102.

On the relevant date, section 8-101 of the Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 8-101) provided that no action could be commenced against a local public entity for any injury unless it was commenced within one year from the date "that the injury was received or the cause of action accrued." Section 8-102 provided that, within six months from the date that the injury or cause of action was received or accrued, any person who was about to commence an action for damages on account of such injury must serve the local public entity a written notice containing specified information concerning the claim. Section 8-103 provided that if the notice under section 8-102 was not served as provided therein, any action commenced against the local public entity should be dismissed.

The statutory scheme embodied in sections 8-101, 8-102 and 8-103 was first enacted in 1905. (Laws of 1905, at 111, secs. 1, 2 and 3.) In Erford v. City of Peoria, 229 Ill. 546, a personal injury action was filed against the city within six months after the injury, but no statutory notice of the action was given. The plaintiff contended that the filing of his action before the expiration of the six months period was a sufficient compliance with the spirit of the statute, and that the statute should apply only when the action was brought more than six months after the injury. The court rejected this argument stating, "Statutes of this character are mandatory, and the giving of the notice is a condition precedent to the right to bring such suit, and the giving of the notice must be averred and proved by the plaintiff to avoid a dismissal of his suit." 229 Ill. 546, 553.

Relying upon Erford, the city contended in the appellate court that the notice requirement of section 8-102 was a condition precedent which could not be waived and that the city could not be estopped from raising it as a defense. The appellate court, citing Housewright v. City of LaHarpe, 51 Ill.2d 357, and Helle v. Brush, 53 Ill.2d 405, rejected the city's argument and held that a public entity, under some circumstances, may be estopped from raising the issue of failure to give the notice required by section 8-102. It found that the city "had to know" of the lack of notice prior to its filing the original motion to dismiss and before it filed the answer but waited until 10 days after the expiration of the six-month period to raise the question; that such action lulled the plaintiff into a false sense of security; and that unless the city could show some reasonable excuse for its failure to raise the issue prior to the expiration of the six months, and also show some overriding prejudice to its position by the failure to give notice, it would be estopped from raising the question.

In this court, the city concedes that the notice requirement of section 8-102 may be waived. It argues: "The application of estoppel in the circumstances of this case in which the defendant merely did not take the initiative in warning plaintiff that she must comply with the procedural requirements of the Tort Immunity Act but asserted its defense pursuant to the terms of that statute at the earliest possible date, is particularly harsh and contrary to precedent. * * * Nor can defendant's failure to call attention to the omission prior to the time the notice was finally due, and before it was yet available as a defense to the complaint, be reasonably construed by plaintiff as a manifestation of any intention to forever waive service of the notice."

After this case was argued and taken under advisement, we filed our opinion in Saragusa v. City of Chicago, 63 Ill.2d 288. In that case plaintiff was injured on April 20, 1970. On June 23, 1970, she served the city with a defective, unsigned notice, and filed her complaint on September 21, 1970. After holding that the notice did not comply with the requirements of section 8-102, this court stated, "We hold, however, that the claimed deficiency in the notice did not warrant the dismissal of the plaintiff's complaint since the complaint itself was also filed within six months of the injury for which recovery was sought." 63 Ill.2d 288, 292-93.

In response to plaintiff's contention that the filing of her complaint within six months of the injury satisfied the notice requirement of section 8-102, the city argues: "It was specifically held in Erford v. City of Peoria, 229 Ill. 546 (1907), that the filing of a complaint within six months of the injury does not constitute compliance with the notice statute. Of course the decisions in Helle v. Brush, 53 Ill.2d 405 (1973), and Housewright v. City of LaHarpe, 51 Ill.2d 357 (1972), have diminished the authority of Erford. Nevertheless this Court denied the sufficiency of actual notice in unmistakable terms in Housewright * * *. The court gave emphasis to its holding in Housewright * * * in Repaskey v. Chicago Transit Authority, 60 Ill.2d 185 (1975) * * *. Moreover, even if actual notice or notice of the required information through the filing of a complaint were an acceptable substitute for the statutory notice, the complaint herein did not include items specified by the statute, including the address of the injured person and the hour of the occurrence."

The holding in Erford that notice "is a condition precedent to the right to bring such suit" was not only "diminished" by Housewright and Helle, it was impliedly overruled by those two cases (see also Fanio v. John W. Breslin Co., 51 Ill.2d 366), and explicitly overruled in Saragusa. It is true that Housewright and Repaskey hold that actual knowledge of the injury by the public entity does not satisfy the requirement of written notice, but this holding is not inconsistent with the holding in Saragusa. The notice statute, since its original enactment, has been designed to give the local public entity notice, not that an injury was suffered, but that a person "is about to commence [a] civil action for damages on account of such injury." (Ill. Rev. Stat. 1971, ch. 85, par. 8-102.) As we said in Saragusa:

"In 1907, when Erford was decided, the requirement of a presuit notice served a legitimate need, for discovery before trial as we know it today did not exist, except for the device of the bill of particulars, and the right to obtain the latter was at best doubtful in actions for common law negligence (see Whittington v. National Lead Co. (1925), 236 Ill. App. 104, 107-108). Except to the extent that the complaint itself might disclose the operative facts underlying a claim, the defendant would not learn them until the trial, and his ability to controvert the plaintiff's evidence was correspondingly impaired.

As we have already noted, the pretrial discovery techniques which were made available to a defendant with the passage of the Civil Practice Act in 1933 now afford a local governmental entity an adequate alternative method of obtaining notice of the basis of a plaintiff's claim." (63 Ill.2d 288, 295.)

Thus although in Housewright and Repaskey the city and the transit authority had actual notice of the occurrence within six months, they had no notice that any civil action for damages was about to be commenced. Here, as in Saragusa, the filing of the complaint within six months gave the city notice of that fact and accomplished the statutory purpose to "furnish timely notice of injury so that there can be an investigation and a prompt settlement of meritorious claims." King v. Johnson, 47 Ill.2d 247, 250-51.

The complaint here was filed less than one month after the alleged cause of action arose. It does not contain all the information required by section 8-102, but in Saragusa we stated, "Under our discovery procedures, a defendant may commence an inquiry into the relevant facts by serving interrogatories as soon as the defendant's appearance or answer is filed, * * *. The information bearing on the defendant's liability which may be obtained in this manner will be more complete than what would be obtained under the limited and generalized specifications called for in the statutory notice. Since section 8-102 prescribes no minimum period by which the service of the notice must antedate the commencement of suit, the filing of a ...


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