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FIRST DIVISION
June 14, 2004

No. 1-03-1865

 

This appeal arises from an action brought by plaintiffDoriela Barrera against the Chicago Transit Authority (CTA) forinjuries she allegedly sustained when she suffered from anepileptic seizure on a CTA bus and the CTA employees left herunconscious on a public sidewalk where she was robbed. The trialcourt granted the CTA's motion to dismiss her cause of action onthe basis that her complaint failed to describe the exactlocation of the accident as required under section 41 of theMetropolitan Transit Authority Act (Act) (70 ILCS 3605/41 (West2002)). On appeal, plaintiff contends that her notice of claimadequately described the location where the accident occurred asrequired under the Act, and if not, her response to a letter fromthe CTA cured any defect in her notice of claim. Plaintiff alsoasserts that the CTA is estopped from arguing that she failed tocomply with the section 41 filing requirement. We affirm.

In August 2002, plaintiff filed her "notice of claim andintent to commence civil action" with the CTA's secretary of theboard and general counsel for the CTA. The notice provided thatplaintiff:

"Sustained injury and damages caused by the [CTA] andits employees on July 29, 2002, as a passenger on theArcher Avenue bus between 9:29 A.M. and 9:49 A.M. [Plaintiff] experienced a seizure, requested emergencyassistance, but was ejected from the bus and left in anunconscious state on a public sidewalk, during whichtime her money and umbrella were taken from her."

In a letter dated October 11, 2002, the CTA claimssupervisor informed plaintiff's counsel:

"We find no report of this incident. Before we canprocess this claim, the following information will berequired. Exact Date of Incident[;] Location ofIncident[;] Time of Incident[;] Nature of Incident[;]Direction of CTA Vehicle[; and] CTA employee Badgeand/or Bus Number[.] Upon receipt of the aboveinformation, we can then process this claim. For yourconvenience, a postage paid self-address envelope isbeing provided."

In a letter dated October 17, 2002, plaintiff's counselprovided the CTA claims supervisor the following information:

"Exact date of incident - July 29, 2002; location ofincident - Northeast bound Route 62 Archer bus. [Plaintiff] boarded at Brighton and Archer and wasdischarged near Archer and Western. Time of incident -soon after boarding at 9:29 A.M. Nature of incident -[plaintiff] experienced an epileptic seizure and wasremoved from the bus and left unconscious on a citysidewalk. During the course of this time she wasrobbed. Direction of CTA bus - Northeast on Archer;CTA badge or bus number - Bus #62; Badge number ofdriver is unknown. The driver was white and appearedto be thin and in his upper forties. Two other CTAemployees were on the bus. One was a short, black,thin man, wearing a mustache, and the second wasHispanic or white. The occurrence was promptlyreported to the [CTA] on the date of the occurrence,and a report was taken by a Mrs. Miller, who advised[plaintiff] that CTA employees cannot call forambulance assistance for passengers in distress."

In March 2003, plaintiff filed a complaint against the CTAfor injuries she sustained due to the negligent actions taken bythe CTA and its employees on July 29, 2002, when she was apassenger on the route 62 bus traveling northeast bound on ArcherAvenue. Plaintiff's complaint restated the allegations in hernotice of claim and also alleged that she boarded at Brighton.

The CTA filed a motion to dismiss plaintiff's complaint withprejudice pursuant to section 2-619 (735 ILCS 5/2-619 (West2002)) of the Code of Civil Procedure. The motion alleged thatplaintiff did not strictly comply with section 41 in that shefailed to list the place or location of the alleged accident asrequired under the Act.

On May 30, 2003, plaintiff filed a response to the CTA'smotion to dismiss, alleging "the place of the occurrence is theinterior of the moving Route 62 CTA bus," and plaintiff set forththe locations of where she boarded the bus and was discharged inher notice of claim and supplemental letter. On that same date,the trial court dismissed plaintiff's complaint with prejudice.

On appeal, plaintiff contends that her notice of claim tothe CTA sufficiently described the location of the incident, andeven if the notice of claim did not comply with section 41, hersupplemental letter dated October 17, 2002, cured any defect inher description of the location.

A trial court may dismiss a cause of action if it is barredby an affirmative matter, that defeats the claim or avoids thelegal effect. High v. Chicago Transit Authority, 345 Ill. App.3d 964, 967 (2004); 735 ILCS 5/2-619 (West 2002). We reviewsection 2-619 dismissals under the de novo standard of review. High, 345 Ill. App. 3d at 967.

Section 41 of the Act provides that within six months of analleged injury, the plaintiff must file written notice of theclaim against the CTA in the office of the secretary of the Boardand the general counsel for the CTA. Curtis v. Chicago TransitAuthority, 341 Ill. App. 3d 573, 576 (2003); 70 ILCS 3605/41(West 2002). The notice of claim must provide: (1) the name ofthe person to whom the cause of action has accrued; (2) theinjured plaintiff's name and residence; (3) the date andapproximate hour of the accident; (4) the place or location wherethe accident occurred; and (5) the name and address of theattending physician, if any. Curtis, 341 Ill. App. 3d at 576; 70ILCS 3605/41 (West 2002).

Plaintiff asserts that the 1998 amendment to section 41,which provides that "compliance with this Section shall beliberally construed in favor of the person required to file awritten statement," mandates a liberal construction of thenotification requirement. See 70 ILCS 3605/41 (West 2002). InPuszkarska v. Chicago Transit Authority, 322 Ill. App. 3d 75, 79(2001), this court held that the amendment requires the CTA toliberally construe the written communications it receives fromclaimants as constituting sufficient notification that a claimexists so that the CTA sends the claimants a copy of section 41,but does not mandate a liberal construction of the notificationelements of section 41. Furthermore, Illinois case law clearlyholds that the section 41 notification requirement demands strictcompliance. High, 345 Ill. App. 3d at 967. The strictcompliance burden rests solely upon the plaintiff. Curtis, 341Ill. App. 3d at 576. Where the plaintiff's attempt to designatean element is apparent, the notice of claim is deemed sufficientif the designation "reasonably fulfills the requirements of theAct and does not mislead or prejudice defendant, but defendant'sactual knowledge is not a consideration." High, 345 Ill. App. 3dat 967.

We find plaintiff's notice of claim did not set forth thelocation of the incident as required by section 41. The noticeof claim provided that the incident unfolded while plaintiff was"a passenger on the Archer Avenue bus between 9:29 A.M. and 9:49A.M." The Archer Avenue bus is not, by itself, a place orlocation. See High, 345 Ill. App. 3d at 967 (Brown line train isnot a place or location by itself). Plaintiff, however, insiststhat the location was "the moving Archer Avenue bus" because theincident unfolded "while the bus was in motion." However, inHigh, this court explained that although the plaintiff may be ona moving commuter rail, the plaintiff can specify a location byproviding the name of the two train stations she was between whenthe incident unfolded. Therefore, it follows that, although aplaintiff may be on a moving bus, the plaintiff can provide thebus stops she was between as the incident unfolded.

Furthermore, we find, contrary to plaintiff's assertion,that Yokley v. Chicago Transit Authority, 307 Ill. App. 3d 132(1999), is also instructive on this matter. In Yokley, theplaintiff's leg got caught in the doors of a moving CTA bus, theplaintiff was then thrown to the pavement, and his leg was freedbut then was crushed by the rear tires of the bus. Theplaintiff's notice of claim provided a nonexistent location. Theplaintiff argued that the exact location of the injury wasirrelevant because the injury arose from the manner in which thebus was operated. This court rejected the plaintiff's argumentthat an exact location was not necessary under thosecircumstances, and noted that even if the notice of claim wasliberally construed, the plaintiff failed to pinpoint theaccident location within two bus stops of the bus route. In thecase at bar, we reject plaintiff's similar contention thatbecause she was on a moving bus as the events unfolded no exactlocation was necessary. Plaintiff boarded the bus at an exactlocation, and when she was "ejected" from the bus, she was alsoat a specific location. Plaintiff could have at least providedthose two bus stops in her notice of claim.

However, plaintiff asserts, relying on Yokley, that thepurpose behind section 41 was to allow the CTA to make a timelyinvestigation into the facts giving rise to the claim, and thatpurpose was satisfied since she notified and informed the CTAemployee, Mrs. Miller, about the incident on the day it occurred. As previously stated, the burden of strict compliance withsection 41 falls solely upon plaintiff, and the fact that the CTAmay have had the correct information despite the deficiency inplaintiff's notice is irrelevant to the issue of whetherplaintiff strictly complied with section 41. See Curtis, 341Ill. App. 3d at 580-81.

Plaintiff also argues that section 41 does not state that astreet address or intersection must be used to describe thelocation, and therefore, the manner in which plaintiff describedthe location was as valid as any other. Although the descriptionof a location of an accident under section 41 does not require astreet address or intersection under every circumstance (seeHigh, 345 Ill. App. 3d at 967-968, plaintiff's interpretation ofsection 41 is neither logical, useful, nor reasonable, as itwould lead to absurd results where basically any description,whether it be that of a moving bus or train, would be sufficientto describe the location. See Phelan v. LaGrange Park PolicePension Fund, 327 Ill. App. 3d 527, 534 (2001) (statutes are notto be interpreted so liberally as to lead to absurd or unjustresults); see Yokley, 307 Ill. App. 3d at 137 (the notice ofclaim is insufficient if it requires the CTA to speculate as tothe location of the accident). Furthermore, the case lawspecifically provides that the identity of the moving CTAtransportation alone is not a location. See High, 345 Ill. App.3d at 967-968.

Next, plaintiff contends that her letter dated October 17,2002, which was sent to the CTA claims supervisor, cured anydefect in her notice of claim. The CTA, however, asserts for thefirst time that the letter cannot be used to cure any defects inthe notice of claim because it was not filed in the office of thesecretary of the board and the general counsel for the CTA asrequired under section 41.

An appellee may defend a judgment on appeal by raising anissue not raised before the trial court if the necessary factualbasis for the determination of such point is contained in therecord. Curtis, 341 Ill. App. 3d at 582. Section 41 requiresthe notice of claim to be filed in both the office of thesecretary of the board and the office of the general attorney forthe CTA and failure to do so warrants dismissal of the cause ofaction. Niziolek v. Chicago Transit Authority, 251 Ill. App. 3d537, 541-42 (1993); Sanders v. Chicago Transit Authority, 220Ill. App. 3d 505, 507-08 (1991); Murphy v. Chicago TransitAuthority, 191 Ill. App. 3d 918, 921 (1989). Notice to theclaims representative does not satisfy the notice requirement ofsection 41. Niziolek, 251 Ill. App. 3d at 542.

We find that the letter sent to the claims representative,irrespective of whether it may have cured the defect of providinga location of the incident, failed to satisfy the filingrequirement of section 41 because it was not filed with thesecretary of the board and the general attorney for the CTA asrequired under section 41. Plaintiff argues that she was notrequired to file the supplemental letter with the secretary ofthe board and the general counsel for the authority because shealready filed a notice of claim. The Act specifically lists fiveitems which must be included in the notice that is filed with thesecretary and general counsel (70 ILCS 3605/41 (West 2002)), andtherefore, it follows that the filing of a deficient notice ofclaim does not relieve plaintiff of her obligation to file thecorrected or missing information with the secretary and generalcounsel. We also note that we need not address whether thefiling of a complaint within the six-month period would cure adefective notice because the complaint here was filed outsidethat time period. See generally Curtis, 341 Ill. App. 3d at 577-80.

Plaintiff further asserts that the CTA is estopped fromraising the defense of noncomplaince with the section 41 filingrequirement because she detrimentally relied on therepresentation by the CTA in its letter that "upon receipt of[further] information, [it] can then process [her] claim." Plaintiff asserts that the letter from the claims supervisorimplied that the claim was "delegated" to the claims supervisor.

The CTA may be estopped from asserting a plaintiff's failureto comply with section 41 where the plaintiff demonstrates thatshe detrimentally relied upon the conduct or statements of theCTA and that reliance was in good faith. Curtis, 341 Ill. App.3d at 581. However, we have refused to invoke the doctrine ofestoppel to excuse the noncompliance with section 41 where aplaintiff's counsel was assured by a claims representative thatsettlement was proceeding or where the plaintiff's counselfollowed a claims representative's instructions and thoseinstructions did not include the submission of a formal notice. See Curtis, 341 Ill. App. 3d at 581-82 (and cases cited therein);Murphy, 191 Ill. App. 3d at 923.

Here, the CTA claims representative sent a letter withinstructions to plaintiff's counsel, who was clearly aware of thesection 41 requirements, but failed to comply with thoserequirements when responding to the letter. The CTA's letter didnot represent that plaintiff's counsel need not take whateversteps were required by law to safeguard his client's claim. Plaintiff's counsel could not rely on the vague assertion by theclaims supervisor that if he sent the information requested, theclaim would then be processed, but rather, he was required tocomply with the section 41 notification requirements. SeeMurphy, 191 Ill. App. 3d at 923 (court held that plaintiff'scounsel could not rely on vague assertions by the claimsrepresentative that "everything was okay" and would be taken careof, but was required to take steps to ensure that his client'sinterests were safeguarded). Furthermore, the CTA did not havean affirmative duty to notify plaintiff that her notice wasdefective, and the CTA's failure to do so is not the kind ofconduct implicated under the doctrine of equitable estoppel. SeeCurtis, 341 Ill. App. 3d at 582.

For all the foregoing reasons, we affirm the trial court'sjudgment.

Affirmed.

GORDON and MCNULTY, JJ., concur.