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06/26/89 Wanda Medina Et Al., v. Grammer Taylor Et Al.

June 26, 1989

WANDA MEDINA ET AL., PLAINTIFFS-APPELLANTS

v.

GRAMMER TAYLOR ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

542 N.E.2d 33, 185 Ill. App. 3d 808, 134 Ill. Dec. 33 1989.IL.992

Appeal from the Circuit Court of Cook County; the Hon. John P. Tully, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Wanda Medina and Charles Fogel brought separate negligence actions against Grammer Taylor and Oliver Robertson (defendants), both employee/bus drivers of the Chicago Transit Authority . The circuit court dismissed their actions for failure to give notice and file suit within the statutory limitations prescribed under the Metropolitan Transit Authority Act (the Act) (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 301 et seq.). In this consolidated appeal, Medina and Fogel raise the sole issue of whether the circuit court erred in applying the statutory limitations under the Act.

After Medina's vehicle was struck from behind by a CTA bus driven by Taylor on July 3, 1984, she filed a notice of claim with the CTA on July 1, 1985, and a civil action against Taylor in the circuit court of Cook County on June 19, 1986. Fogel filed suit against Robertson on September 19, 1985, in the circuit court of Cook County after his vehicle was struck from behind by a CTA bus driven by Robertson on October 8, 1984. Fogel did not, however, notify the CTA of his claim.

Defendants filed motions to dismiss pursuant to section 2-619 of the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(5)) based on Medina's and Fogel's failure to comply with the statutory limitations under section 41 of the Act, which requires notice to be given to the CTA within six months and suit to be filed within one year from the date of injury. (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 341.) The circuit court granted defendants' motions on the grounds that Medina and Fogel failed to give notice of their injuries within six months from the date of injury and Medina failed to file suit within one year from the injury date.

Section 41 of the Act contains limitations provisions for civil actions filed against the "Authority." It provides:

"No civil action shall be commenced in any court against the Authority by any person for any injury to his person unless it commenced within one year from the date that the injury was received or the cause of action accrued. Within six (6) months from the date that such an injury was received or such cause of action accrued, any person who is about to commence any civil action in any court against the Authority for damages on account of any injury to his person shall file in the office of the secretary of the Board and also in the office of the General Attorney for the Authority . . . a statement, in writing . . .. . . . If the notice provided for by this section is not filed as provided, any such civil action commenced against the Authority shall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing." (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 341.)

Thus, to file a civil action against the CTA, a plaintiff must (1) give written notice to the CTA within six months of the accident, and (2) file suit within one year after the accident.

Plaintiffs initially contend that these limitations provisions were intended to apply to the CTA and not to its employees when they are sued in their individual capacities. They maintain that the applicable statute of limitations is the two-year limitation for personal injuries under the Code (Ill. Rev. Stat. 1985, ch. 110, par. 13-202). We disagree.

The Illinois Supreme Court has recently held in a case involving the doctrine of respondeat superior that a similar statute of limitations was applicable to both employer and employee for the same tort. (Penkava v. Kasbohm (1987), 117 Ill. 2d 149, 157, 510 N.E.2d 883, 886.) In Penkava, a registered nurse was named as a party-defendant in a medical malpractice action, along with a doctor, a hospital and the administrator of plaintiff's estate. Each defendant filed a motion to dismiss plaintiff's complaint on the basis that her claims were barred by the statute of limitations for medical malpractice actions, which expressly addressed physicians, dentists, and hospitals, but did not mention registered nurses. *fn1 (Ill. Rev. Stat. 1981, ch. 83, par. 22.1; ch. 110, par. 13-212.) The appellate court affirmed the circuit court's dismissal of all defendants except as to the nurse, on the basis that the legislature did not intend her to be encompassed under the statute of limitations provisions for medical malpractice. The Illinois Supreme Court, however, reversed the appellate court, holding that one statute of limitations is applicable to both employer and employee for a single tort. Penkava, 117 Ill. 2d at 157, 510 N.E.2d at 886.

In reaching its Conclusion, the supreme court analyzed the intent of the legislature in enacting the statute, noting that intent should be gathered not only from the language used, but also from the reasons for the enactment. (Penkava, 117 Ill. 2d at 154, 510 N.E.2d at 885; Maloney v. Bower (1986), 113 Ill. 2d 473, 479, 498 N.E.2d 1102, 1104.) From its determination that the legislature enacted the provision to ensure continued availability of medical malpractice insurance, *fn2 the court concluded that the term "hospital," for purposes of the limitations provisions, embraces a registered nurse when acting within the scope of her employment. (Penkava, 117 Ill. 2d at 155, 510 N.E.2d at 886.) It reasoned that a hospital is more than a building which ...


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