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05/23/95 ROGER STREETER v. CHICAGO TRANSIT

May 23, 1995

ROGER STREETER, PLAINTIFF-APPELLANT,
v.
CHICAGO TRANSIT AUTHORITY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Sidney A. Jones, III, Judge Presiding.

The Honorable Justice McCORMICK delivered the opinion of the court: Scariano, P.j., and Hartman, J., concur.

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

Plaintiff brought a negligence action against defendant arising from injuries he sustained as a passenger on a Chicago Transit Authority (CTA) bus. The circuit court dismissed plaintiff's action with prejudice upon defendant's motion, brought pursuant section 2-619(5) of the Illinois Code of Civil Procedure (Code)(735 ILCS5/2-619(5) (West 1992)), for plaintiff's failure to file notice of his claim with the general counsel of the CTA and with the office of the secretary of the CTA Board as required by section 41 of the Metropolitan Transit Authority Act. (70 ILCS 3605/41 (West 1992), formerly Ill. Rev. Stat. 1991, ch. 111 2/3, par. 341.) The issues raised in this appeal are: (1) whether the trial court erred in dismissing plaintiff's action with prejudice pursuant to section 2-619(5) of the Code; and (2) whether the CTA is equitably estopped to assert the defense of lack of notice under section 41 of the Metropolitan Transit Authority Act. We affirm.

On November 22, 1991, the CTA bus in which plaintiff was riding accelerated suddenly as plaintiff attempted to sit down, causing plaintiff to be thrown against the metal arm of the seat. Plaintiff sustained contusions to the sacrum (tailbone) and a cervical fracture.

On December 6, 1991, plaintiff met with a CTA representative at the latter's office. He was instructed to complete CTA Form 4417 and return it to the CTA. Plaintiff returned the completed form to the CTA by mail. After hearing nothing more from the CTA, plaintiff obtained a lawyer and commenced this action by filing a complaint for negligence on November 13, 1992. Defendant moved to dismiss the complaint pursuant to sections 2-615 and 2-619(5) of the Code. (735 ILCS 5/2-615, 5/619(5) (West 1992).) The basis of defendant's motion was that plaintiff failed to file a notice of intent to sue with the general counsel and the secretary of the CTA in accordance with section 41 of the Metropolitan Transit Authority Act (Act). 70 ILCS 3605/41 (West 1992).

Section 41 of the Act mandates the following:

"No civil action shall be commenced in any court against the Authority by any person for any injury to his person unless it is 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 Counsel for the Authority either by himself, his agent, or attorney, a statement, in writing, signed by himself, his agent, or attorney, giving 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 and the name and address of the attending physician, if any. If the notice provided for by this section is not filed as provided, any such civil action commenced against the Authorityshall be dismissed and the person to whom any such cause of action accrued for any personal injury shall be forever barred from further suing." 70 ILCS 3605/41 (West 1992).

In response to the motion, plaintiff argued that the filing of Form 4417 with the CTA within six months of the accident fully complied with the requirements of section 41, and thus, the CTA was estopped from claiming lack of proper notice. Plaintiff further argued that because he received no instructions from the CTA that its Form 4417 would not satisfy section 41 of the Act, and because he received no instructions from the CTA that he had to file a notice of intent to sue pursuant to section 41, defendant was estopped from claiming lack of proper notice as a matter of public policy.

The trial court dismissed plaintiff's action with prejudice on February 22, 1993. Plaintiff filed a timely notice of appeal.

Plaintiff first argues that the circuit court erred in dismissing his case with prejudice pursuant to section 2-619(5) of the Code. Section 2-619 provides that a defendant may move for dismissal of an action upon several grounds. Dismissal under section 2-619(5) may be had upon showing that the plaintiff's action was not commenced within the time limit provided by law. 735 ILCS 5/2-619(5) (West 1992).

Section 41 of the Act requires that within six months from the date the action accrues, the plaintiff file a notice with the general counsel and with the secretary of the Board of a transit authority. The law is well settled that this requirement is mandatory, a condition precedent to bringing an action against a transit authority. It cannot be waived or lightly excused. Repaskey v. Chicago Transit Authority (1975), 60 Ill. 2d 185, 188-89, 326 N.E.2d 771; Bonner v. Chicago Transit Authority (1993), 249 Ill. App. 3d 210, 212, 618 N.E.2d 871, 188 Ill. Dec. 301; Patinkin v. Chicago Transit Authority (1991), 214 Ill. App. 3d 973, 976, 574 N.E.2d 743, 158 Ill. Dec. 630; Murphy v. Chicago Transit Authority (1989), 191 Ill. App. 3d 918, 921-23, 548 N.E.2d 403, 139 Ill. Dec. 18.

In the instant case, plaintiff did not notify the general counsel and the secretary of the Board of the CTA within six months of the accident as required by statute. Plaintiff could have cured the failure to give notice by filing his lawsuit within the six-month period. ( Murphy, 191 Ill. App. 3d at 921-22.) However, since plaintiff failed to give notice or file suit within the statutory period, we find that the trial court did not err in dismissing plaintiff's case with prejudice.

Plaintiff also argues that defendant should be estopped from raising the statute of limitations defense because (a) defendant's Form 4417 complies with section 41 of the Act and (b) defendant failed to inform him of the requirements of section 41 or to inform him ...


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