Appeal from the Circuit Court of Cook County. No. 99 M1 306788 Honorable John Laurie, Judge Presiding.
The opinion of the court was delivered by: Justice Cohen
Plaintiff, Annie Fields, filed a negligence complaint against defendant, Chicago Transit Authority (CTA), and its agent, Tom Deyamfer, seeking damages for injuries she sustained while she was a passenger on a CTA bus. The trial court dismissed plaintiff's cause of action pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1998)) finding plaintiff had failed to comply with the notice requirements of section 41 of the Metropolitan Transit Authority Act (Act) ( 70 ILCS 3605/41 (West 1998)). On appeal, plaintiff argues that the CTA should have been precluded from raising section 41 as an affirmative defense as the CTA failed to furnish her with a copy of section 41 within 10 days after being notified of the accident as required by the statute. For the following reasons, we reverse.
On February 4, 1999, plaintiff was a passenger on a bus that was owned and operated by the CTA and was being driven by defendant Tom Deyamfer, a CTA employee. While traveling southbound on Western Avenue, the CTA bus came to a sudden stop at or near the intersection of Western Avenue and 96th Street, causing plaintiff to be forcefully thrown onto her knees.
Immediately after her fall, plaintiff filled out a CTA courtesy card given to her by defendant Deyamfer. Prior to exiting the bus, plaintiff returned the courtesy card to Deyamfer which included the following information: plaintiff's name, address, telephone number, date of birth, the time and date of the accident, the bus driver's name and badge number, the bus number, and the bus's garage location.
On October 18, 1999, plaintiff filed a negligence complaint against the CTA and Deyamfer, as agent of the CTA. In lieu of an answer, defendants filed a motion to dismiss pursuant to section 2-619 (a) of the Code (735 ILCS 5/2-619(a) West (1998)) asserting plaintiff's failure to comply with the notice requirements of section 41 of the Act ( 70 ILCS 3605/41 (West 1998)). In response, plaintiff argued that defendants were precluded from asserting section 41 as an affirmative defense because the CTA failed to comply with the statute's mandatory requirement that it provide her with a copy of section 41 within 10 days of being notified of the accident. In reply, the CTA argued that the information provided by plaintiff on the CTA's courtesy card did not constitute notice that plaintiff "was injured" or "has a cause of action" within the meaning of the statute and the CTA was therefore not obligated to send plaintiff a copy of section 41. On January 13, 2000, the trial court dismissed plaintiff's complaint with prejudice. This appeal followed.
The standard of review of a trial court's dismissal of a complaint pursuant to section 2-619 is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 189 Ill. Dec. 31 (1993). The construction of a statute is a question of law that is also independently determined by a reviewing court. Milledgeville Community Credit Union v. Corn, 307 Ill. App. 3d 8, 12 (1999). On review, we must determine whether the trial court's dismissal of plaintiff's complaint for failure to comply with section 41 was proper as a matter of law. Zedella v. Gibson, 165 Ill. 2d 181, 185-86, 650 N.E.2d 1000, 209 Ill. Dec. 27 (1995).
At all relevant times herein, Section 41 of the Metropolitan Transit Authority Act provided as follows:
"Sec. 41. 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 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." (Emphasis added.) 70 ILCS 3605/41 (West 1998).
The section 41 notice requirement was enacted to afford the CTA the opportunity to make timely investigations into the facts surrounding injuries that might give rise to claims against it and to promote prompt settlement of meritorious claims. Yokley v. Chicago Transit Authority, 307 Ill. App. 3d 132, 136 (1999). Strict compliance with the notice requirement is mandated in order to avoid any prejudice to the CTA that would enure as a result of its inability to conduct investigations while the facts are readily accessible. Yonkley, 307 Ill. App. 3d at 136, citing Frowner v. Chicago Transit Authority, 25 Ill. App. 2d 312, 317 (1960). Failure to file a written notice containing each of the essential elements as set forth in the statute is grounds for dismissal. Bonner v. Chicago Transit Authority, 249 Ill. App. 3d 210, 212 (1993).
In the case at bar, plaintiff concedes that case law requires strict application of the section 41 notice provision. Plaintiff further concedes that she did not comply with the formal notice requirement outlined in the first paragraph of the statute. However, plaintiff argues that dismissal of her complaint is precluded by a recent amendment to section 41, effective July 1, 1998, which added a second paragraph to this section and provides as follows:
"Any person who notifies the Authority that he or she was injured or has a cause of action shall be furnished a copy of Section 41 of this Act. Within 10 days after being notified in writing, the Authority shall either send a copy by certified mail to the person at his or her last known address or hand deliver a copy to the person who shall acknowledge receipt by his or her signature. When the Authority is notified later than 6 months from the date the injury occurred or the cause of action arose, the Authority is not obligated to furnish a copy of Section 41 to the person. In the event the Authority fails to furnish a copy of Section 41 as provided in this Section, any action commenced against the Authority shall not be dismissed for failure to file a written notice as provided in this Section. Compliance with this Section shall be liberally construed in favor of the person required to file a written statement." (Emphasis added.) 70 ILCS 3605/41 (West 1998).
Plaintiff argues that the courtesy card she filled out and turned in to Deyamfer on the day of the accident constituted notice to the CTA that she "was injured" or "has a cause of action" and thus the CTA, having gotten such notice, was then statutorily required to furnish her with a copy of section 41 within 10 days of receiving her courtesy card. Plaintiff further contends that CTA's failure to comply with the statute's new distribution requirement by failing to send her a copy of section 41 precluded the CTA from asserting section 41 as an affirmative defense. Plaintiff therefore argues that the trial court erred as a matter ...