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12/30/88 Stephen Jackson, v. the Village of Rosemont Et

December 30, 1988

STEPHEN JACKSON, PLAINTIFF-APPELLANT

v.

THE VILLAGE OF ROSEMONT ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

536 N.E.2d 720, 180 Ill. App. 3d 932, 129 Ill. Dec. 670 1988.IL.1921

Appeal from the Circuit Court of Cook County; the Hon. Thomas E. Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. LORENZ, P.J., concurs. JUSTICE PINCHAM, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Plaintiff, Stephen Jackson, appeals from an order of the circuit court of Cook County dismissing his amended complaint for failure to serve a statutory notice of his claim upon defendant, the Village of Rosemont, a municipal corporation and owner of the Rosemont Horizon Stadium pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 8-101 et seq.). On appeal, plaintiff contends that (1) the village's failure to register its ownership of the Rosemont Horizon pursuant to "An Act in relation to the use of an assumed name in the conduct or transaction of business . . ." (Assumed Business Name Act) (Ill. Rev. Stat. 1985, ch. 96, par. 4 et seq.) precluded it from asserting its notice defense and, in any event, (2) his action can proceed against the Rosemont Horizon as an unregistered fictitious entity and a judgment enforced against its assets. For the reasons set forth below, we affirm.

On June 21, 1985, plaintiff attended a wrestling match event at the Rosemont Horizon and was injured when he slipped and fell on a stairway in the stadium. On December 9, 1986, plaintiff filed a complaint in the circuit court of Cook County, naming as defendants the Village of Rosemont and the Rosemont Horizon Stadium, "an unincorporated association"; the complaint did not contain any allegation that the village was insured or that plaintiff had served notice of his claim upon the village pursuant to section 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 8-102). Plaintiff subsequently amended his complaint, adding a paragraph alleging (1) that the Rosemont Horizon was not listed with the Secretary of State as a corporation or with the Cook County clerk's office on its assumed name register and (2) asking that judgment be entered against the Rosemont Horizon and "its unknown owner or owners" pursuant to the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4 et seq.).

The village filed two section 2-619 motions to dismiss plaintiff's complaint (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). One motion sought dismissal based on plaintiff's failure to serve a notice of claim or file a lawsuit within one year from the date of plaintiff's injury as required by sections 8-102 and 8-103 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 8-102, 8-103) and the second motion sought dismissal of the Rosemont Horizon as a defendant on the ground that it does not have the legal capacity to be sued. In response, plaintiff argued that his complaint had been timely filed within the two-year limitation period for personal injury claims (Ill. Rev. Stat. 1985, ch. 110, par. 13-202) and that the village and the Rosemont Horizon could not invoke the Tort Immunity Act's notice requirement because the Rosemont Horizon was not registered under the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4 et seq.).

Following a hearing on the motions to dismiss, the trial court dismissed plaintiff's complaint for failure to timely serve notice upon the village, and this appeal followed.

Defendants argue, and the trial court so held, that the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par 1-101 et seq.) is controlling in this matter. Specifically, section 8-102 of the Act provides:

"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, either by personal service or by registered or certified mail, . . . a written notice on the Secretary or Clerk, as the case may be, for the entity against whom . . . the action is contemplated a written statement, . . . 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." *fn1

Pursuant to section 8-103 of the Act, if notice is not served as required, any civil action against a local public entity will be dismissed and the person to whom a cause of injury accrued will be forever barred from further suing. (Ill. Rev. Stat. 1985, ch. 85, par. 8-103.) Accordingly, since plaintiff's action was filed approximately 18 months after his injury accrued, defendants argue his action is barred.

On the other hand, plaintiff argues that the village is estopped from raising the defense of his failure to timely file a notice of injury pursuant to the Tort Immunity Act because of its corresponding failure to register its ownership of the Rosemont Horizon pursuant to section 1 of the Assumed Business Name Act (Ill. Rev. Stat. 1985, ch. 96, par. 4), which provides in pertinent part:

"No person or persons shall conduct or transact business in this State under an assumed name . . . other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the County Clerk of the County in which such person or persons conduct or transact . . . such business, a certificate setting forth the name under which the business is, or is to be, conducted or transacted, and the true or real full name or names of the ...


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