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Smith v. City of Chicago

OPINION FILED DECEMBER 29, 1980.

GASTON SMITH, PLAINTIFF-APPELLANT,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD C. HOFERT, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Gaston Smith (plaintiff) appeals from an order granting the motion of city of Chicago (defendant) for summary judgment. The issue involved is whether plaintiff failed to serve defendant with a proper written notice of the occurrence. Ill. Rev. Stat. 1979, ch. 85, pars. 8-102, 8-103.

Plaintiff sustained injury on defendant's property in front of 1931 West Waveland Avenue on September 10, 1975 at 9:30 a.m. The "Notice of Claims for Personal Injuries" was served on defendant on August 30, 1976. The date of injury on the notice was incorrectly typed in as "the 10th day of September 1976 * * *." The location where the injury occurred was described as the "North Side of Waveland Avenue, in front of 1929 W. Waveland Avenue, Chicago, Illinois." Plaintiff filed his complaint on October 8, 1976, more than one year after the injury occurred. (See Zavala v. City of Chicago (1977), 66 Ill.2d 573, 579, 363 N.E.2d 848.) The complaint stated the correct date of injury.

Defendant filed an answer on November 12, 1976, denying the material allegations of the complaint. Three years later, on November 16, 1979, defendant filed its motion for summary judgment based on the erroneous date and address of the claimed accident. The notice was described as "totally defective" for failure to satisfy the statutory requirements.

In this court, plaintiff contends the typographical error in the date on the notice was an obvious error which could not have prejudiced or misled defendant and defendant should therefore be estopped from asserting improper notice. Furthermore, plaintiff argues the notice adequately described the location of the occurrence.

Under the view we take of this case, the issue of the effect of the erroneous date on the notice is dispositive. We need not discuss the second contention raised by plaintiff.

Section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, par. 8-102) provides, in part:

"Within 1 year from the date that the injury or cause of action * * * accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, * * * must serve * * * a written statement, signed by himself, his agent or attorney, giving in substance the following information: 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."

Section 8-103 of the same statute provides:

"If the notice under Section 8-102 is not served as provided therein, any such civil action commenced against a local public entity * * * shall be dismissed and the person to whom such cause of injury [sic] accrued shall be forever barred from further suing."

In the instant case, the date of the accident typed on the notice was erroneous on its face because the date September 10, 1976 was subsequent to the time notice was served. Plaintiff urges since defendant knew, or should have known that an error had been made, no prejudice resulted from the defect and defendant could readily have taken steps to ascertain the correct date. Thus, plaintiff concludes defendant should have been estopped from asserting improper notice. In support of this conclusion, plaintiff cites a number of cases which have taken a "liberal" approach to the notice statute. See Meisenheimer v. City of Chester (1973), 15 Ill. App.3d 1088, 1091, 305 N.E.2d 322, appeal denied (1974), 55 Ill.2d 605, and cases cited therein.

In particular, plaintiff cites Reynolds v. City of Tuscola (1971), 48 Ill.2d 339, 342-43, 270 N.E.2d 415, in which the supreme court held:

"[T]he Local Governmental and Governmental Employees Tort Immunity Act is in derogation of the common-law action against local public entities and must, therefore, be strictly construed against the local public entity. * * *.

* * * A liberal interpretation of the statute is necessary because of its position in relation to the common law and because a more restrictive interpretation could lead to ...


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