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Curtis v. Chicago Transit Authority

Case Date: 06/23/2003
Court: 1st District Appellate
Docket No: 1-02-0815 Rel

FIRST DIVISION
June 23, 2003



No. 1-02-0815
 
   
DAVEN CURTIS,

                                        Plaintiff-Appellant,

v.

CHICAGO TRANSIT AUTHORITY, a
Municipal Corporation, and JEANNE BUTLER,
Individually, and as Agent, Servant and/or
Employee of Chicago Transit Authority,

                                       Defendants-Appellees.

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Circuit Court of
Cook County.

No. 00 L 003327

The Honorable
Philip L. Bronstein,
Judge Presiding.



PRESIDING JUSTICE GORDON delivered the opinion of the court:

Plaintiff, Daven Curtis, filed a four-count complaint against defendants, Chicago TransitAuthority (CTA) and Jeanne Butler, a CTA employee, on March 22, 2000, seeking damages for atraffic collision involving her car and a CTA bus driven by defendant Butler. The CTAultimately moved to dismiss the complaint pursuant to section 2-619 of the Code of CivilProcedure (735 ILCS 5/2-619 (West 2000)), arguing that plaintiff's notice under section 41 of theMetropolitan Transit Authority Act (the Transit Act ) (70 ILCS 3605/41 (West 2000)) wasdefective because it provided the wrong date of the accident. The trial court granted the CTA'smotion to dismiss and plaintiff appeals. We affirm for the following reasons.

BACKGROUND

Plaintiff's alleged injury occurred shortly after midnight on February 13, 2000, when aCTA bus, driven by Bulter, collided with her car at the intersection of Jeffrey and 79th Streets inChicago. On February 14, 2000, plaintiff telephoned the CTA and reported she had been in anaccident with a CTA bus at 12:12 a.m. on February 13, 2000. On March 16, 2000, plaintiff filednotice of her negligence claim pursuant to section 41 of the Transit Act, alleging that shesustained injuries when a CTA bus ran a red light at the intersection of 79th and Jeffrey Streetsand hit her car. The notice stated in error that the accident occurred on February 12, 2000, atapproximately 1:30 a.m. Plaintiff's notice further reported that plaintiff was initially treated byemergency technicians and transported by ambulance to Cook County Hospital, where she wasdiagnosed with a fractured left clavicle and broken ribs. She stated that she had also been treatedby Dr. Joseph Jackson, Dr. Stamelos and doctors at Northwest Community Hospital.

On March 22, 2000, plaintiff filed a four-count complaint against the CTA, also alleging,in error, that she was injured due to an accident with a CTA bus on February 12, 2000. On May1, 2000, the CTA filed an answer to plaintiff's complaint denying the allegation that plaintiff waslawfully driving her automobile on February 12, 2000, when she was negligently struck by aCTA bus. The CTA also filed an affirmative defense, alleging that plaintiff was contributorilynegligent in causing the accident. The affirmative defense properly identified the date of theaccident as February 13, 2000. On May 19, 2000, plaintiff filed a denial of all of the CTA'saffirmative defense allegations.

Both parties filed answers to written interrogatories and the CTA responded to plaintiff'srequest for production on August 15, 2000. Attached to the response were: (1) an incident reportcompleted by bus driver Christopher Clemons, identifying the date of the accident as February12, 2000; (2) a telephone complaint report filed by another claimant, Christopher Roberts, whoreported the accident date as February 13, 2000; and (3) multiple pictures of the scene of theaccident. Thereafter, plaintiff was deposed on January 22, 2001, at which time she stated theaccident occurred just after midnight on February 13, 2000. A Chicago police department reportalso indicated that the accident occurred on February 13.

On February 20, 2001, the CTA filed a motion to dismiss plaintiff's complaint, allegingthat plaintiff failed to comply with the requirements of section 41 of the Transit Act. The CTAargued that plaintiff's section 41 notice was deficient because it contained the wrong date andtime of the accident, as evidenced by her deposition testimony. Plaintiff responded that revisedsection 41 (effective July 1, 1998, pursuant to Public Act 90-451