Appeal from the Circuit Court of Cook County. No. 98 L 4688 Honorable Philip Bronstein, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Gordon
Plaintiff, Vicki Joseph, filed a one-count complaint on April 23, 1998 against defendants Chicago Transit Authority (CTA) and the City of Chicago seeking to recover for injuries she sustained on October 27, 1997 when she fell while boarding at a CTA bus stop alleged to be in an unsafe condition. The CTA moved to dismiss the complaint pursuant to sections 2-615 and 2-619(9) of the Code of Civil Procedure (735 ILCS 5/2-615, 2-619(9) (West 1996)) arguing that the plaintiff failed to plead and could not prove compliance with the six-month notice requirements of section 41 of the Metropolitan Transit Authority Act (the Transit Act) (70 ILCS 3605/41 (West 1996)). The trial court granted the CTA's motion to dismiss and provided language in its order allowing appeal pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)).
The sole issue raised in this appeal is whether the plaintiff's complaint, which was filed during the six-month notice period but served after the expiration of that period, satisfies the notice requirement of section 41 of the Metropolitan Transit Authority Act. For the reasons discussed below, we affirm the dismissal of plaintiff's complaint against the CTA.
Section 41 of the Metropolitan Transit Authority Act provides in pertinent part as follows:
"No civil action shall be commenced in any court against the Authority [the CTA] 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 [the Chicago Transit Board] and also in the office of the General Counsel for the Authority *** a statement, in writing, *** 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 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." 70 ILCS 3605/41 (West 1996). *fn1
Plaintiff's alleged injury occurred on October 27, 1997. It is conceded that no notice of that injury was provided to the CTA other than plaintiff's complaint which was filed on April 23, 1998 and served upon the CTA on April 30, 1998. That complaint alleged that the plaintiff was injured when she stepped down into a depression or hole at an area "adjacent to the west curb south of the appropriate loading zone" (bus stop) near 3472 North Lake Shore Drive. It alleged that the CTA was negligent by allowing its loading zone and/or bus stop to be adjacent to the condition of the depression or hole, which it knew or should have known was present; by enticing plaintiff to board its motor bus in a location other than an authorized loading zone or bus stop; and by being otherwise negligent in the operation and control of its motor bus.
As discussed, the trial court dismissed plaintiff's complaint finding that section 41 notice had not been provided to the CTA within the six-month statutory time period. The court found that the CTA did not have notice of the injury, even though plaintiff's complaint had been filed within that time period, because the CTA was not served with the complaint until after the time period had expired.
A motion to dismiss a complaint pursuant to section 2-615 of the Code of Civil Procedure admits all well-pleaded facts and attacks the legal sufficiency of the complaint, whereas a section 2-619 motion admits the legal sufficiency of plaintiff's complaint and raises defects, defenses or other affirmative matter which appear on the face of the complaint or are established by external submissions which act to defeat the plaintiff's claim. E.g., Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 639 N.E.2d 1282 (1994); Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732 (1993); Moran v. City of Chicago, 286 Ill. App. 3d 746, 676 N.E.2d 1316 (1997); Reuben H. Donnelley Corp. v. Brauer, 275 Ill. App. 3d 300, 655 N.E.2d 1162 (1995). Both motions raise questions of law which are reviewed de novo. Hodge, 156 Ill. 2d 112, 619 N.E.2d 732; Doe v. TCF Bank Illinois, FSB, 302 Ill. App. 3d 839, 707 N.E.2d 220 (1999); Village of Evergreen Park v. Commonwealth Edison Co., 296 Ill. App. 3d 810, 695 N.E.2d 1339 (1998).
The requirement under the Transit Act to file notice within six months of an accident "in the office of the secretary of the Board and also in the office of the General Attorney for the Authority" (70 ILCS 3605/41 (West 1996)) is mandatory (Streeter v. Chicago Transit Authority, 272 Ill. App. 3d 921, 651 N.E.2d 579 (1995)); and the plaintiff has the burden of strictly complying with that requirement. Niziolek v. Chicago Transit Authority, 251 Ill. App. 3d 537, 620 N.E.2d 1097 (1993); Sanders v. Chicago Transit Authority, 220 Ill. App. 3d 505, 581 N.E.2d 211 (1991). In accordance with the mandatory nature of that requirement, courts have dismissed lawsuits filed against the CTA when the plaintiff sent a timely letter to a transit authority claims manager or representative, rather than to the secretary of the Chicago Transit Board (the Board) and the general counsel of the CTA (Murphy v. Chicago Transit Authority, 191 Ill. App. 3d 918, 921, 548 N.E.2d 403, 405 (1989); Niziolek, 251 Ill. App. 3d at 542, 620 Ill. App. 3d at 1100); when the plaintiff sent notice of intent to sue to the CTA's general counsel but not to the secretary of the Board (Sanders, 220 Ill. App. 3d at 507, 581 N.E.2d at 212); and when the plaintiff timely communicated with CTA personnel and completed a claim form (Streeter, 272 Ill. App. 3d at 923, 651 N.E.2d at 580-81).
Several cases involving section 41 of the Transit Act have held, albeit by way of dictum, that the failure to give timely notice to commence a lawsuit to the CTA can be cured by filing a complaint within the six-month period. See Streeter, 272 Ill. App. 3d at 923, 651 N.E.2d at 580; Murphy, 191 Ill. App. 3d at 921, 548 N.E.2d at 405. These cases relied on the Illinois Supreme Court decision in Saragusa v. City of Chicago, 63 Ill. 2d 288, 348 N.E.2d 176 (1976) which was decided under section 8-102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1971,ch. 85, par. 8-102).
The plaintiff relies on dicta in Streeter and Murphy to support her contention that dismissal of her complaint was erroneous because, even though she did not give notice of intent to commence her civil action within six months of sustaining injury, she did file her complaint within that six-month period. The CTA takes the position that, even though the plaintiff filed her lawsuit within the six-month period, she did not cure her failure to give proper notice because the complaint was not served on the CTA until after the six-month period expired. *fn2
There are no cases directly addressing the extent to which the filing of a complaint can substitute or cure the lack of adequate statutory notice under section 41 of the Transit Act. There are, however, a number of cases that address that issue with respect to similar but now repealed language in section 8-102 of the Tort Immunity Act (Ill. Rev. Stat. 1973, ch. 85, par. 8-102). *fn3 See, e.g., Rio v. Edward Hospital, 104 Ill. 2d 354, 472 N.E.2d 421 (1984); Dunbar v. Reiser, 64 Ill. 2d 230, 356 N.E.2d 89 (1976); Saragusa, 63 Ill. 2d at 294, 348 N.E.2d at 180; Williams v. City of Chicago, 206 Ill. App. 3d 762, 768, 565 N.E.2d 80, 84 (1990); Lane v. Chicago Housing Authority, 147 Ill. App. 3d 876, 880, 498 N.E.2d 604, 606 (1986); Oliver v. City of Chicago, 137 Ill. App. 3d 958, 960, 485 N.E.2d 428, 430 (1985). Section 8-102 of the Tort Immunity Act required a person about to bring suit against a local public entity to give written notice within one year from the date the injury was received or the cause of action ...