Thrown Under The

CTA? CYA! Joseph R. Marconi, Esq.1 Back in the 70’s, Evel Knievel made a living jumping through fiery hoops and over buses on a motorcycle. Attorneys who attempt to make a living filing against public transportation entities such as CTA buses and trains must likewise jump through some very important and specialized hoops. In particular, the six month, pre-suit notice requirement of the Metropolitan Transit Authority Act (70 ILCS 3605/41) is the first and most critical hoop. An attorney who fails to successfully launch a claim through that hoop with complete accuracy will crash and burn like Knievel at Caesar’s Palace. Chicago and Cook County, operating its mass transit system through a legislatively created “district” known as the Chicago Transit Authority, certainly provides ample opportunity for liability. The CTA “operates the nation's second largest public transportation system and covers the City of Chicago and 40 surrounding suburbs. On an average weekday, 1.6 million rides are taken on the CTA. CTA has approximately 2,000 buses that operate over 154 routes and 2,273 route miles. Buses provide about 1 million passenger trips a day and serve more than 12,000 posted bus stops...CTA trains provide about 500,000 customer trips each day and serve 144 stations.”2 The myriad ways that claims can arise—collisions, equipment malfunctions, employee malfeasance, slip and falls, criminal acts—means that many plaintiffs’ attorneys will see some CTA related claims walk, hobble or roll into their offices. 1 Joe is a shareholder of Johnson & Bell, Ltd., and the chairman of the business litigation/transaction group and co-chair of the employment group. He gratefully acknowledges the assistance of Johnson & Bell paralegal, Mike Castellaneta, J.D., for his assistance in the drafting of this article. 2 See, http://www.transitchicago.com/welcome/overview.html#a Given the public necessity of affordable public transportation through common carriers such as the CTA, it is no wonder that the legislature has inserted special notice requirements on any and all individuals making claims against it. The notice requirements of Section 41 are strictly enforced—not only is the failure to provide timely notice an absolute bar to the claim, but any material mistake in the notice will also bar recovery. This article sets forth the notice requirements, the time limitations, and passes through the relevant case law involving claims made against the CTA. The notice requirements are set forth in 70 ILCS 3605/41: 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. Note that the information required in the notice is detailed. Let’s review them again, because it’s that important: (1) the notice must include the name of the claimant; (2) his/her residence; (3) the date and approximate hour of the incident; (4) the location of the incident; and (5) the name and address of the attending physician. It must be sent to both the CTA’s Board secretary3 and its general counsel.4 3 Office of the CTA Secretary: The section was amended in 1998 to require the CTA to provide a copy of this notice provision to any person who gives any notice of a potential claim: 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. Do not be deceived, however, by the last line of the amended section. The liberality referenced there is limited to whether the written communications it receives from claimants constitutes sufficient notification to trigger the CTA’s duty to send the claimant a copy of Section 41, but does not mandate a liberal construction of the notification elements of Section 41. Puszkarska v. CTA, 322 Ill.App.3d 75, 748 N.E.2d 755 (1st Dist. 2001). The CTA’s failure to send a copy of Section 41 will constitute a defense to any subsequent motion to dismiss based on Section 41. But as to the actual Section 41 notice, Illinois case law clearly holds that the section 41 notifications requirements demand strict compliance. Barrera v. CTA, 349 Ill.App.3d 539, 542, 812 N.E. 413 (1st Dist. 2004). Gregory Longhini Phone: 1-312-681-5022 or 1-312-681-5026 Fax: 1-312-681-5035 Mail: P.O. Box 7567, Chicago, IL 60680-7567. In Person: 567 W. Lake St., Chicago, IL 60661. Email: [email protected] 4 CTA General Counsel: Karen Rowan P.O. Box 7564 Chicago, IL 60680-7564. Phone: 1-312-681-3173 The court’s characterization of the strict compliance requirements enforced in Illinois case law was quite correct-- the courts are not remotely forgiving of errors and omissions. Even inaccuracies which are elsewhere known as “scrivener errors” will doom an otherwise viable and compelling claim. It is from such tiny acorns that great malpractice oaks arise. For instance, identifying the location as the bus or train itself is not sufficient—a geographical location must be specified, if only as being between two identified bus or train stops. High v. CTA, 345 Ill.App.3d 964, 967-968, 803 N.E.2d 1058 (1st Dist. 2004). Listing the wrong L line (or, presumably, bus route) will cause dismissal. Hemphill v. CTA, 357 Ill.App.3d 705 (1st Dist. 2005). Listing an incorrect date and neglecting to specify the time justified dismissal. Bonner v. CTA, 249 Ill.App.3d 210, 618 N.E.2d 871 (1st Dist. 1993). Listing the right date but an incorrect hour will result in dismissal. Davis v. CTA, 326 Ill.App.3d 1023, 762 N.E.2d 40 (1st Dist. 2001). Listing the wrong treating physician will result in dismissal, even if the error is corrected by a second notice served after the six month deadline. Thomas v. CTA, 29 Ill.App.3d 952, 331 N.E.2d 952 (1st Dist. 1975). Listing only a medical group or association, rather than an actual treating physician, will result in dismissal. Watson v. Howard, 322 Ill.App.3d 562, 749 N.E.2d 427 (1st Dist. 2001). Identifying a medical practitioner, such as a regular family doctor who does not actually treat the claimant for the CTA related injury, will result in dismissal. Margolis v. CTA, 69 Ill.App.3d 1028, 388 N.E.3d 1028 (1st Dist. 1979). Serving on general counsel and not the CTA’s secretary as well will result in dismissal. Segarra v. CTA, 265 Ill. App.3d 480, 637 N.E.2d 572 (1st Dist. 1994); see also, Sanders v. CTA, 220 Ill. App. 3d 505; 581 N.E.2d 211 (1st Dist. 1991). There are other aspects of the notice requirements that are important to note. Suits against employees of the CTA, acting in their roles as CTA employees, trigger the notice requirements even if the action does not name the CTA as a party. Medina v. Grammer Taylor, 185 Ill.App.3d 808, 542 N.E.2d 33 (1st. Dist. 1989). Actual notice to the CTA, no matter how complete, does not excuse a failure to serve a proper notice with all required information accurately stated. Dimeo v. CTA, 311 Ill.App.3d 152, 724 N.E.2d 92 (1 Dist. 1999). A complaint which includes all the required information and which is filed within the six month period will likely survive a Section 41 challenge, but not if it served on the CTA beyond the six months—and to be more certain, one should serve both the general counsel and send a copy to the secretary of the board. Joseph v. CTA, 306 Ill.App.3d 927, 715 N.E.2d 733 (1st Dist.

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