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Johnson v. Chicago Transit Authority

July 25, 2006

PAULA JOHNSON, PLAINTIFF-APPELLANT,
v.
CHICAGO TRANSIT AUTHORITY, A MUNICIPAL CORPORATION, AND MEARL C. HARVEY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 01 L 14438 The Honorable Michael J. Hogan, Judge Presiding .

The opinion of the court was delivered by: Presiding Justice Garcia

The plaintiff, Paula Johnson, sued the defendants, Chicago Transit Authority (CTA) and Mearl Harvey, for injuries she sustained when she fell exiting a CTA bus.*fn1 The trial court granted CTA's motion to dismiss Johnson's case because she failed to strictly comply with the notice requirements of section 41 of the Metropolitan Transit Authority Act (Transit Act) (70 ILCS 3605/41 (West 1996)). Johnson appeals, arguing that she satisfied the notice provision by filing her complaint and serving the CTA within the time for filing the section 41 notice. For the reasons that follow, we affirm the judgment of the trial court.

BACKGROUND

On December 27, 1996, Johnson was a passenger on a CTA bus. As she exited the bus, she fell and injured herself. Johnson alleged that the last step on the bus contained a dip or depression that caused her to lose her balance and fall forward.

On May 29, 1997, Johnson sued the CTA and Harvey, the bus operator, for injuries she sustained when she fell from the bus. Johnson served the CTA with her complaint within six months of the accident.*fn2 The parties engaged in discovery. In November 2000, the court granted Johnson's motion to voluntarily dismiss her complaint with leave to refile.

On November 8, 2001, Johnson refiled her complaint against the CTA, repeating the allegations in the original complaint. The parties again engaged in discovery, which included the production of her medical records in March 2003, and the identification of Supreme Court Rule 213 (177 Ill. 2d R. 213) expert witnesses in June 2004.

On December 28, 2004, the CTA filed a motion to dismiss Johnson's complaint pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2004)). The CTA alleged that Johnson failed to comply with the notice requirements under section 41 of the Transit Act. In response, Johnson argued that the CTA waived this defense. She also argued that she satisfied the notice requirements of section 41 because she filed her complaint and served the CTA within six months of the accident. On March 11, 2005, the trial court granted the CTA's motion and dismissed Johnson's complaint with prejudice. This appeal followed.

ANALYSIS

Section 41 of the Transit Act in pertinent part provides:

"No civil action shall be commenced in any court against the [Chicago Transit 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." 70 ILCS 3605/41 (West 1996).

Johnson argues that she satisfied the notice requirements of section 41 when she filed her complaint and served the CTA within the time for filing the section 41 notice. She argues that strict compliance is not required and that the holding in Curtis v. Chicago Transit Authority, 341 Ill. App. 3d 573, 793 N.E.2d 83 (2003), which suggests otherwise, is not controlling. In the alternative, Johnson argues that if this court finds that Curtis is dispositive, that holding represented a significant change in the law and should be applied only prospectively.

A. Standard of Review

Under section 2-619(a)(9) of the Code, a complaint may be dismissed where "the claim asserted *** is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2- 619(a)(9) (West 2004). Affirmative matter is "something in the nature of a defense that negates the cause of action completely or refutes crucial conclusions of law or conclusions of material fact contained in or inferred from the complaint." In re Estate of Schlenker, 209 Ill. 2d 456, 461, 808 N.E.2d 995 (2004). When ruling on a motion to dismiss, all pleadings and supporting documents must be interpreted in the light most favorable to the nonmoving party. A court should grant a motion to dismiss where the plaintiff ...


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