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October 2, 1985


The opinion of the court was delivered by: Aspen, District Judge:


Plaintiff Lee Cain*fn1 ("Cain") brought this action individually, as the administrator of decedent Michael Cain's ("the decedent") estate and on behalf of the decedent's next of kin under 42 U.S.C. § 1981, 1983 and 1985. There are also several pendent state law causes of action. The defendants in this case are the City of Chicago ("the City"), Chicago Police Superintendent Fred Rice ("Rice"), Chicago police officers Gerald Dahlberg ("Dahlberg"), Robert Hacker ("Hacker") and Dorothy Stefan ("Stefan") and "John Doe" and other unknown Chicago police officers. Rice and all of the defendant police officers are named both individually and in their official capacity.

I. Factual Allegations

Cain alleges that on September 14, 1983, defendants Dahlberg, Hacker and Stefan, along with other unknown Chicago police officers, were parked in an unmarked police car in the vicinity of decedent's home. Somewhere between 4:30 p.m. and 5:00 p.m., the decedent, a 28-year old black man, arrived on the block, parked his car, walked to another car parked across the street and drove away in that car. Decedent drove into a nearby alley, but was blocked on one side by the car of Dahlberg, Hacker and Stefan. Other police officers blocked off the other entrance to the alley, trapping decedent in the middle. Dahlberg, Hacker and Stefan, who were all dressed in plain clothes, allegedly got out of their unmarked car, failed to announce that they were police officers and fired approximately fifteen shots at decedent's car, sending at least four bullets into his upper body. The decedent had raised his hands up in the air at or before the time that defendants first fired their weapons. After the initial round of fire, defendant Stefan approached. the decedent's slumped body and fired two or three more shots through the driver's side window into his head and neck. Decedent's body remained at the scene for over an hour before being transported to a hospital where he was pronounced dead on arrival.

The defendants respond that the defendant police officers when attempting to apprehend the decedent, property identified themselves, that decedent first fired upon defendants, and that defendant Dahlberg shot the decedent in self-defense.

The defendants have also filed a motion to dismiss Counts IV, V and VI of Cain's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, defendants' motion is granted in part and denied in part.

II. State Law Claims

We turn first to the pendent state law claims in this action. Count IV is a claim under the Illinois wrongful death statute, Ill.Rev.Stat. ch. 70, § 1, 2 (1983), filed by Cain on behalf of the decedent's next of kin against defendants the City and Rice. Count V, on its face, differs little from Count IV. Its state law component constitutes a wrongful death claim against defendants the City and Rice under a theory of respondeat superior. Count VI is an Illinois common law claim against the City and Rice for negligent hiring, retention and entrustment of the defendant police officers.

In order to sue a local governmental entity or one of its employees under Illinois law, a plaintiff must first comply with the notice provisions of the Illinois Local Governmental and Governmental Employees Tort Immunity Act ("the "Tort Immunity Act"), Ill.Rev.Stat. ch. 85, § 8-101 — 8-103 (1983).*fn2

The Tort Immunity Act was enacted in order to provide a statutory basis for the easing of sovereign immunity principles. In their current form, its provisions require any party to file a written notice of injury with the Secretary or Clerk of any municipal entity before commencing a damage suit against that entity or any of its employees. This notice must be filed within one year of the alleged injury, must be served personally or by registered or certified mail, return receipt requested, and must contain certain details concerning the incident which caused the injury. Ill.Rev.Stat. ch. 85, § 8-102 (1983). Failure to serve notice as required by the Tort Immunity Act is a basis for dismissal and results in a bar from further suit for the injury. Ill.Rev.Stat. ch. 85, § 8-103 (1983).

The defendants have moved to have Counts IV, V and VI dismissed on the grounds that (1) plaintiffs failed to allege compliance with the statutory notice provision in their complaint and (2) plaintiffs failed to serve the City Clerk of defendant City of Chicago with the statutory notice. It is true that plaintiffs' complaint contains no reference to the Tort Immunity Act, and that compliance with the notice provisions of that Act should be pled. In other circumstances, this Court might grant leave to amend the complaint regarding statutory notice, but in the present case that would be a meaningless formality since we find that notice was not properly served on the City Clerk of the City of Chicago.

The following facts are not in dispute with respect to plaintiffs' attempts to comply with the Tort Immunity Act.*fn3 With their motion to dismiss, defendants filed an affidavit from Mary Frances Meyer, an investigator in the City Clerk's Office of defendant City of Chicago. Meyer states in this affidavit that a notice of injury was never served on the City Clerk's Office by any of the plaintiffs within one year of the time the shooting is alleged to have occurred in plaintiffs' complaint. Plaintiffs do not contest that they never served notice on the City Clerk's Office, but have submitted a copy of a notice which was served on the City Corporation Counsel's Office at 2:11 p.m. on September 13, 1984, just within one year from the date of the alleged shooting. This notice is stamped as received by the City Corporation Counsel's Office.

Defendants' central claim in their motion to dismiss is that service on the Corporation Counsel's Office fails to adequately meet the notice requirement of Ill.Rev.Stat. ch. 85, § 8-102 (1983). They also argue that, because plaintiffs' written notice does not contain a statement as to "about the hour" that the shooting occurred and is not personally signed by any of the plaintiffs, it is insufficient notice. Plaintiffs respond that their notice was sufficient to satisfy the purposes underlying the Tort Immunity Act since the Corporation Counsel's Office represents the City in legal matters. They argue that the statute should be liberally interpreted in evaluating the sufficiency of notice.

There seems to be some confusion among the Illinois courts on the extent of compliance necessary to satisfy the notice requirements of § 8-102. While some Illinois opinions profess a general rule of liberal construction of the statute and sometimes merely require "substantial compliance" with its provisions, Reynolds v. City of Tuscola, 48 Ill.2d 339, 343, 270 N.E.2d 415, 417 (1971); Klein v. City of Chicago, 10 Ill. App.3d 670, 674-75, 294 N.E.2d 755, 758 (1st Dist. 1973), others have applied § 8-102 with unmitigated severity, often rendering harsh results. See, e.g., Zavala v. City of Chicago, 66 Ill.2d 573, 578-79, 6 Ill.Dec. 901, 903, 363 N.E.2d 848, 850 (1977) (complaint dismissed where plaintiff neglected to include in the notice the names of hospitals at which the plaintiff received treatment for his injuries); Smith v. City of Chicago, 92 Ill. App.3d 247, 251, 48 Ill. Dec. 125, 128; 416 N.E.2d 20, 23 (1st Dist. 1980) ...

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