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04/16/87 Lorraine Whitney Et Al., v. the City of Chicago Et Al.

April 16, 1987

LORRAINE WHITNEY ET AL., PLAINTIFFS-APPELLANTS

v.

THE CITY OF CHICAGO ET AL., DEFENDANT-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

508 N.E.2d 293, 155 Ill. App. 3d 714, 108 Ill. Dec. 132 1987.IL.507

Appeal from the Circuit Court of Cook County; the Hon. Mary Heftel Hooten, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiffs Lorraine Whitney and David Nance appeal from a trial court's dismissal with prejudice of their amended complaint against defendant city of Chicago (the city). The facts pertinent to this appeal are undisputed.

On February 14, 1979, plaintiff Nance was driving his car in which plaintiff Whitney was a passenger. As the car approached 72nd Street on State Street, in Chicago, it was struck by a snowplow truck operated by defendant A. A. Conte, Inc. (Conte), and driven by defendant Michael Romano. The city had subcontracted the job of snowplowing to Conte. On November 21, 1979, plaintiffs filed a notice of claim with the city as required by statute. (Ill. Rev. Stat. 1979, ch. 85, par. 8-102.) In addition to specifying the necessary information, including the location of the accident, the notice described the general nature of the accident as "City snow removal vehicle made a U-turn from the eastern most northbound lane of State Street and struck the vehicle in which claimant was a passenger/claimant's vehicle."

Plaintiffs, on February 17, 1981, filed a one-count complaint alleging negligence against the city, Fulmer Trucking Company, Conte, and Romano, and Conte and Romano counterclaimed. In November 1984 a stipulation to dismiss, based on a settlement, was executed between plaintiffs and defendants Conte and Romano. This stipulation, signed by counsel for plaintiffs and the city, expressly reserved plaintiffs' right to proceed against the city. Each plaintiff then signed a "Joint Tort Release of Fewer Than All Tort Feasors" which stated in part: "This agreement is not intended to release any claim or causes of action for damages against any other person, firm or corporation . . .."

In December 1984, the trial court dismissed plaintiffs' complaint against all parties except the city, noting that the case against the city was still open. In March 1985, the court granted the city's motion to strike and dismiss plaintiffs' complaint. The city's motion was based on the ground that a provision of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) stating that "[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable" (Ill. Rev. Stat. 1985, ch. 85, par. 2-109) was applicable and on its claim that the release of Conte and Romano precluded proceeding against the city. Plaintiffs were granted leave to amend their complaint.

On April 10, 1985, plaintiffs filed a two-count amended complaint alleging non- respondeat superior counts of (1) negligent hiring and entrustment and (2) failure to warn of or barricade against dangerous conditions. The city moved to dismiss the amended complaint alleging that it stated new causes of action that were barred by the statute of limitations and that the statutory notice of the accident improperly described the "general nature of the accident" as it pertained to the new causes of action. The trial court dismissed plaintiffs' amended complaint with prejudice, citing the release of Conte and Romano and referring to specific provisions of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2 -- 109 (effect of employee's nonliability), 8 --101 (statute of limitations), 8 -- 102 to 8 -- 103 (notice of injury requirements).) Plaintiffs' motion for reconsideration was denied and this appeal followed.

The issues on appeal are (1) whether plaintiffs' notice of claim was sufficient under the statutory requirements, including the statute of limitations, and (2) whether plaintiffs' settlement with Conte and Romano released the city from liability.

The Tort Immunity Act required notice to be served on a public entity within one year from the date the injury was received or the cause of action accrued. (Ill. Rev. Stat. 1979, ch. 85, par. 8-102.) In this case, the injury occurred on February 14, 1979, and the notice was filed on the city on November 21, 1979, within a year's time. It is to be noted that the provision of our local government law relating to notice was repealed effective November 25, 1986, by Public Act 84-1431, article I, section 3, during the pendency of this appeal. The repeal does not

Despite the timeliness of plaintiffs' notice, the city contends it was inadequate. The city argues that the notice improperly described the general nature of the accident as it applied to plaintiffs' new causes of action set forth in their amended complaint, i.e., negligent hiring and failure to warn or barricade. This argument must fail as the notice did describe the "general nature of the accident" according to case law and the statute. Ill. Rev. Stat. 1979, ch. 85, par. 8-102.

It is true that the elements to be set forth in the notice are to be strictly construed as to whether a plaintiff made an attempt to provide the necessary information. (Lando v. City of Chicago (1984), 128 Ill. App. 3d 597, 600, 470 N.E.2d 1172.) However, the statute is to be liberally construed as to whether an element as set forth is reasonably sufficient to fulfill the statutory requirements such that the public entity has not been misled or prejudiced; where there is no prejudice, the notice itself is sufficient. (128 Ill. App. 3d 597, 600, 470 N.E.2d 1172.) There is nothing in the present record that suggests the city ...


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