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Davis v. Chicago Transit Authority

December 14, 2001

RUBY DAVIS, PLAINTIFF-APPELLANT
v.
CHICAGO TRANSIT AUTHORITY AND ROUHY CLAY, DEFENDANTS-APPELLEES



Appeal from the Circuit Court of Cook County. No. 98 L 9159 The Honorable David R. Donnersberger Presiding Judge.

The opinion of the court was delivered by: Justice Buckley

UNPUBLISHED

Plaintiff, Ruby Davis, filed a negligence complaint against defendant, Chicago Transit Authority (CTA), and its agent, Rouhy Clay, seeking damages for injuries she sustained while a passenger on a CTA bus. The trial court granted summary judgment in favor of the CTA pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 1998)) finding plaintiff had failed to comply with the notice requirements of section 41 of the Metro-politan Transit Authority Act (the Act) (70 ILCS 3605/41 (West 1998)). On appeal, plaintiff argues that CTA was not entitled to summary judgment because plaintiff substantially complied with the statutory requirements and CTA was able to and did investigate the facts of the occurrence immediately after it happened. For the reasons that follow, we affirm.

I. STATEMENT OF FACTS

On May 20, 1994, plaintiff was a passenger on a bus that was owned and operated by the CTA and was being driven by defendant Rouhy Clay, a CTA employee. While traveling westbound on 103rd Street, the driver applied the brakes suddenly. Plaintiff was thrown sideways, towards the bus driver, and her head and shoulder struck either a pole, a seat, or another passenger.

The bus driver pulled over and told the passengers to sit still if they were hurt and that he was going to call the CTA. He then passed out CTA courtesy cards to those who were hurt and told those who were not that another bus would be coming.

Plaintiff filled out a courtesy card and returned it to the driver. The completed courtesy card provided the following infor-mation: plaintiff's name, address, telephone number, employer's name, and employer's telephone number. Plaintiff also wrote the following remarks on the card: "Truck pull around in front of bus. I hit my head and neck against another passenger and I can feel a pull in my left shoulder." The driver also received courtesy cards from four other passengers.

The CTA police arrived at the scene and shortly thereafter an ambulance arrived and took plaintiff to the emergency room at Little Company of Mary Hospital. Plaintiff was X-rayed and given medication for the pain in her head. The emergency room physician, Dr. Joseph, told plaintiff to see her own doctor for follow-up treatment.

On November 18, 1994, plaintiff submitted her notice of claim for personal injuries to CTA's secretary of the board and its general attorney. In this notice, plaintiff stated the following: (1) that the accident occurred on May 20, 1994 at about noontime; (2) that it occurred at 103rd and Ashland; and (3) that the name of her attending physician is Dr. Zanelli of the city industrial clinic.

On May 18, 1995, plaintiff filed suit against the CTA and the bus driver, Rouhy Clay. In her complaint, plaintiff identified the location of the occurrence as "103rd Street, at or near its inter-section with Ashland Avenue." On September 15, 1997, plaintiff voluntarily dismissed her complaint and refiled on August 7, 1998. In her refiled complaint, plaintiff identified the location of the occurrence as "on 103rd Street, at or near the intersections of Vincennes Avenue, Ashland Avenue and 103rd Street, in Chicago, Illinois."

On February 22, 2000, CTA moved for summary judgment based on plaintiff's failure to comply with the provisions of section 41 of the Act (70 ILCS 3605/41 (West 1998)). The motion identified three deficiencies with plaintiff's notice.

First, the motion observed that by identifying "103rd and Ashland," a nonexistent location, the notice sets forth the wrong location. Attached to the motion was a Chicago police department map of the area and an affidavit from William Platt, the general manager of the 103rd Street garage. Platt's affidavit averred that "Ashland Avenue does not intersect with 103rd Street." The map supports this statement. The map shows that 103rd Street inter-secs with Vincennes, but not with Ashland Avenue. Ashland Avenue terminates at about 96th Street. A diagonal street called South Beverly Avenue originates at that point.

Second, the motion observed that the notice sets forth the wrong time of the occurrence. The notice stated that the incident took place at "about noontime." In contrast, the complaint identi-fied the time of the incident as "approximately 8:00 a.m." Like-wise, in her deposition, plaintiff stated that the incident occurred at "about 7:55 a.m."

Finally, the motion observed that the notice fails to list the name and address of an attending physician. At her deposition, plaintiff stated that she had received medical treatment right after the incident at Little Company of Mary Hospital. She indi-cated that she had been attended there in the emergency room by a Dr. Joseph. She was unsure whether Joseph was the doctor's first or last name. The notice contains no reference to Little Company of Mary Hospital or to any physician at that hospital. Instead, the notice identified plaintiff's attending physician as Dr. Zanelli at the city industrial clinic. In her deposition, plain-tiff identified her treatment as a type of massage, administered by a ...


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