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09/29/94 BRIAN DOWNING v. CHICAGO TRANSIT AUTHORITY

September 29, 1994

BRIAN DOWNING, APPELLANT,
v.
THE CHICAGO TRANSIT AUTHORITY, APPELLEE.



Heiple

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

On August 17, 1987, plaintiff, Brian Downing, awaited a red light while on his bicycle at the corner of Milwaukee Avenue and Belmont in Chicago. When the light turned green, he proceeded to cross Milwaukee Avenue. According to plaintiff about 15 feet into the intersection he was hit by a Chicago Transit Authority bus driven by Woodrow Williams. Plaintiff alleges that he suffered injuries to his left knee.

Thereafter, plaintiff brought this action against the Chicago Transit Authority (the CTA) and its "unknown employee and agent" on October 22, 1987. Plaintiff filed an amended complaint that corrected the date of his injury, and then filed a second-amended complaint on October 4, 1989, naming for the first time Woodrow Williams.

On March 26, 1992, the trial court granted summary judgment in favor of Williams, ruling that the two-year statute of limitations had run as to him. This ruling was based on the finding that Williams was not properly named as a defendant until the second-amended complaint was filed, more than two years after the accident. This ruling was made final and appealable pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) on June 11, 1992. Plaintiff did not appeal this ruling.

On September 4, 1992, the CTA filed a motion for summary judgment, alleging that the limitation provisions in section 41 of the Metropolitan Transit Authority Act (the Act) (Ill. Rev. Stat. 1991, ch. 111 2/3, par. 341) were applicable to the transit authority as well as transit authority employees. Plaintiff filed a motion to amend or correct the March 26, 1992, order on September 28, 1992, by inserting language that the order "was not intended by [the] court to be an adjudication on the merits of the action against [the] CTA as [the] employer of Woodrow Williams." Plaintiff also filed a section 2-1401 petition (Ill. Rev. Stat. 1991, ch. 110, par. 2-1401) on November 12, 1992, requesting that the trial court vacate and amend its March 26, 1992, order to reflect that the dismissal of Williams as a party was not an adjudication on the merits of plaintiff's claim against the CTA.

On November 12, 1992, the trial court ordered that: (1) plaintiff's motion to amend the order of March 26, 1992, nunc pro tunc was denied; (2) plaintiff's section 2-1401 petition was denied; and (3) summary judgment was entered in favor of the CTA and against plaintiff on all allegations of negligence in the second-amended complaint except for the allegation of the CTA's negligent maintenance of the bus. The basis for this ruling was that the summary judgment in favor of Williams was a prior adjudication on the merits, and therefore the doctrine of res judicata barred plaintiff's present claims against the CTA.

The trial court later granted plaintiff's motion for voluntary dismissal without prejudice on the remaining claims pursuant to section 2-1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2-1009), and plaintiff appealed. The appellate court affirmed (No. 1-93-0710 (unpublished order under Supreme Court Rule 23)). We granted leave to appeal (134 Ill. 2d R. 315(a)) and now reverse.

At issue is whether the summary judgment entered in favor of Williams precludes plaintiff's claim against Williams' employer, brought under a theory of vicarious liability for injuries arising out of the same incident. The lower courts ruled that Williams' summary judgment acted as res judicata to plaintiff's claim against the CTA.

Res judicata bars a subsequent action when three criteria are met: (1) there was a final judgment on the merits rendered by a court of competent jurisdiction; (2) there is an identity of cause of action; and (3) there is anidentity of parties or their privies. ( People ex rel. Burris v. Progressive Land Developers, Inc. (1992), 151 Ill. 2d 285, 294, 176 Ill. Dec. 874, 602 N.E.2d 820.) A prior judgment "estops the parties and all parties in privity with them from relitigating the issue in a subsequent proceeding." Progressive Land, 151 Ill. 2d at 295.

The second and third requirements for res judicata are apparent from the facts, and their existence is not seriously disputed by plaintiff. There is certainly an identity of the cause of action, since plaintiff is suing the CTA for the same injuries arising out of the same accident as he did in his suit against Williams. Further, the CTA is in privity with Williams, as plaintiff's cause of action against the CTA is based on the theory of vicarious liability. For vicarious liability claims, the employer and employee are "one and the same" defendant ( Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 125, 22 Ill. Dec. 519, 382 N.E.2d 1217) and "the liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one" ( Towns, 73 Ill. 2d at 124).

Whether the first res judicata element is met depends on whether the summary judgment entered in Williams' favor on the basis that the statute of limitations had run was an adjudication on the merits.

Plaintiff asserts that the summary judgment was not an adjudication on the merits, and in support offers a series of arguments that are generally off-point. Plaintiff suggests that Supreme Court Rule 273 (134 Ill. 2d R. 273) and this court's decision in Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 126, 22 Ill. Dec. 519, 382 N.E.2d 1217, require a ruling that a summary judgment entered because the statute of limitations had run is not a ruling "on the merits." Plaintiff also urges that equitable principles require this Conclusion.

Rule 273 states that, "unless the order of dismissal or a statute of this State otherwise specifies, an involuntarydismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits." (134 Ill. 2d R. 273.) As it specifically states, Rule 273 applies only to an involuntary dismissal of an action, such as what occurs when a motion to dismiss under ...


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