Grady v. Bi-State Development Agency ( 1986 )

JUSTICE WELCH,

dissenting:

I respectfully dissent. I would affirm the trial court’s order denying defendant’s motion to dismiss plaintiff’s complaint.

The majority recognizes the principle that substantial rather than literal compliance with section 8 — 102 of the Tort Immunity Act (Ill. Rev. Stat. 1981, ch. 85, par. 8 — 102) is sufficient. The purpose of the notice requirement is to allow the governmental entity the opportunity to examine the location of the occurrence at an early date so that conditions do not change and evidence does not become stale, to plan its budget in light of prospective liabilities, to settle claims and avoid costly civil litigation, and to correct the alleged defective condition so that future injuries and liabilities may be avoided. (Rio v. Edward Hospital (1983), 120 Ill. App. 3d 699, 704, 458 N.E.2d 606, 610, aff’d (1984), 104 Ill. 2d 354, 472 N.E.2d 421.) The statute is to be liberally construed with respect to the sufficiency of the elements as set forth in the written notice. Where the particular element as set forth is reasonably sufficient to fulfill the requirements of the statute and where the public has not been misled or prejudiced thereby, the notice itself is sufficient. (Lando v. City of Chicago (1984), 128 Ill. App. 3d 597, 600, 470 N.E.2d 1172, 1174.) Here the trial court apparently concluded the requirements of the statute were sufficiently met and the public was not misled or prejudiced by the shortcomings in the notice.

How was defendant prejudiced or misled by the omissions in the instant timely notice? The portion of defendant’s brief devoted to this point states in its entirety: “By the provisions of [statute], a local mass transit district such as the Bi-State Development Agency, as an uninsured municipal corporation, must rely on tax money in order to meet its potential tort liabilities. Without the certainty of the notice provisions, defendant Bi-State Development Agency will be unable to effectively forecast its potential tort liability.” What is implied is that defendant could not gather enough information from the instant notice to perceive its possible liability in this case. Let us examine the shortcomings in the instant notice as noted by the majority, with defendant’s allegations of prejudice in mind:

(1) The notice does not state the approximate time of the accident: The notice states the date and the street intersection at which the accident occurred, as well as the number of the bus involved. Defendant, a bus company, operates its busses on schedules. Any of defendant’s officials who cared to ascertain when the accident happened more exactly than plaintiff stated in her attorney’s letter of notice could resort to records and schedules to determine it.

(2) The notice does not state the general nature of the accident: According to the notice, it was a bus accident resulting in a personal injury. Surely this was sufficient if the statute is to be liberally construed. Lando v. City of Chicago (1984), 128 Ill. App. 3d 597, 470 N.E.2d 1172.

(3) The notice does not state plaintiffs address: This is true, but has nothing to do with defendant’s asserted inability to forecast its potential tort liability. In any event, this omission was readily rectifiable by contact with plaintiff’s attorney, who adequately identified himself in his letter.

(4) The notice does not state the address of any attending physician or treating hospital: According to the statute these items need be supplied only if the plaintiff was so treated. Further, this has nothing to do with defendant’s allegation of prejudice based on omissions in the notice. Finally, these facts were readily ascertainable by direct inquiry to plaintiff’s attorney.

Since the issue of defects in the notice arose on defendant’s motion to dismiss, the trial court and this court must assume the allegations well-pleaded in plaintiff’s complaint are true (Martin v. Federal Life Insurance Co. (1982), 109 Ill. App. 3d 596, 601, 440 N.E.2d 998, 1003), i.e., that plaintiff was involved in the accident and was injured and that defendant’s actions or omissions were a proximate cause of her injuries. By reversing the decision of the trial court in this case, this court consigns a presumptively valid claim to oblivion for technical reasons which have nothing to do with protecting defendant’s rights or the public. Section 8 — 102 has a valid purpose and should be implemented to effect that purpose, not to trap unwary injured parties.

In my opinion there is no just reason why plaintiff should not be permitted to prosecute her claim. The decision of the trial court was correct, and we should affirm it.