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02/27/89 Shirley M. West, v. Northeastern Illinois

February 27, 1989

SHIRLEY M. WEST, PLAINTIFF-APPELLANT

v.

NORTHEASTERN ILLINOIS RAILROAD CORPORATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

535 N.E.2d 987, 180 Ill. App. 3d 307, 129 Ill. Dec. 222 1989.IL.249

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Plaintiff, Shirley West, sued the defendant, Northeast Illinois Regional Commuter Railroad Corporation, *fn1 alleging that it was negligent in operating and maintaining its train station, and that as a result of defendant's negligence, she was injured. The circuit court dismissed plaintiff's claim for failure to comply with the one-year notice provision set forth in the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1983, ch. 85, par. 8-102). Plaintiff now appeals the dismissal of her action to this court.

The lengthy procedural history of this case is as follows. Plaintiff was allegedly injured on September 28, 1982, as she was walking in the Rock Island train station. On May 17, 1984, plaintiff filed a complaint at law, naming as defendants the Northeastern Illinois Railroad Corporation, or the Rock Island Railroad Corporation, or the Northern Illinois Rail Corporation. On July 6, 1984, defendant Northeast Illinois Regional Commuter Railroad Corporation filed a motion to dismiss based on plaintiff's failure to serve it with notice of her personal injury, as required by the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1983, ch. 85, par. 8-102). This act provides, in part:

"Within 1 year from the date that the injury or cause of action . . . was received or 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 notice on [that entity's] Secretary or Clerk . . .." (Ill. Rev. Stat. 1983, ch. 85, par. 8 -- 102.)2

If a party fails to comply with the foregoing notice provision, that party's cause of action is dismissed and he is barred from further suit. Ill. Rev. Stat. 1983, ch. 85, par. 8-103.

Defendant's motion to dismiss stated that it was a public corporation, that plaintiff failed to serve the requisite notice within one year of the personal injury, and that plaintiff's lawsuit was filed more than one year after the date of her injury. Defendant's motion to dismiss also said that its true and correct name was the Northeast Illinois Regional Commuter Railroad Corporation, not the Northeastern Illinois Railroad Corporation. Along with its motion to dismiss, defendant filed the affidavit of its secretary, Edmund Wolf. In his affidavit, Mr. Wolf said that he was responsible for receiving notice of personal injury pursuant to the Tort Immunity Act and he had never received any notice of personal injury from plaintiff or her agent relative to the alleged occurrence on September 28, 1982.

The circuit court of Cook County granted defendant's motion to dismiss on August 9, 1984, following which plaintiff filed a motion to vacate the dismissal. The circuit court subsequently granted the motion to vacate and reinstated the case.

Plaintiff then served interrogatories on defendant NIRC. In its answers to plaintiff's interrogatories, NIRC said that its correct name was Northeast Illinois Regional Commuter Railroad Corporation and that it had been formed in 1980 by the Regional Transportation Authority. NIRC said that it has also done business since 1982 under the name the "Northeast Illinois Railroad Corporation." Thereafter, in lieu of an answer, NIRC again filed a motion to dismiss based on plaintiff's failure to comply with the Tort Immunity Act's notice provision. The circuit court held a hearing on NIRC's motion to dismiss. The court did not rule on NIRC's motion, but instead granted plaintiff leave to amend her complaint.

Accordingly, plaintiff filed an amended two-count complaint at law for personal injury. She alleged in count I that NIRC had a duty to maintain the railroad station where she was injured, that it breached that duty due to its negligence, and that she was injured as a direct result of that breach.3 Plaintiff alleged that NIRC held itself out to the public and to plaintiff as the Northeastern Illinois Railroad Corporation and the Northern Illinois Rail Corporation. Plaintiff also asked that the Tort Immunity Act's one-year notice requirement be waived and that NIRC be estopped from asserting the notice requirement as an affirmative defense.

Along with her amended complaint, plaintiff filed her own affidavit. In her affidavit, plaintiff said that she did not know until 1984 that the Rock Island Railroad Corporation did not own or operate the railroad station where she was injured. She said that she never saw any sign or ticket or other document indicating that she was on anything but the Rock Island Railroad. Further, plaintiff said that she received a letter in 1984 from the Northeast Illinois Railroad Corporation which led her to believe it was involved with her accident in 1982 and that this letter did not indicate that NIRC ...


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