Reporting about §41 of the Transit Act -- what TV and the courts may have missed

NBC5's Lisa Parker reported last week about an Illinois statute that the Chicago Transit Authority is using "to shield" it "from paying the claims of legitimate accident victims."

The statute in question is §41 of the Metropolitan Transit Act, 70 ILCS 3605/41. Parker reports that §41 "demands precise details about an incident. One mistake and 'the case shall be dismissed' and 'the person forever barred from further suing.'"

Section 41 was enacted in 1945, according to Parker's report, "to protect the Chicago Transit Authority from fraudulent lawsuits." No representative of the CTA would appear on camera for the story, but in a written statement, the CTA reminded Chicago viewers that it "'is a target for numerous claims,' and this law helps combat fraudulent ones."

Parker reports that §41 is a "strict-compliance law" that some judges apply only "reluctantly." She quotes a plaintiff's attorney, Mike Baird, as saying, "It should be changed by the legislature, but the courts are not powerless." Parker noted that advocates of "a change in the law say one word would do the trick -- from 'strict' compliance to 'substantial compliance.'"

There is just one small problem with this suggestion: The word "strict" isn't in the statute now. Here is what the statute actually says:

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.

Any person who notifies the Authority that he or she was injured or has a cause of action shall be furnished a copy of Section 41 of this Act. 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.

But while the word "strict" is not used in §41, courts interpreting the statute have demanded strict compliance with the its provisions.

Curtis v. Chicago Transit Authority, 341 Ill.App.3d 573, 793 N.E.2d 83, 86 (1st Dist. 2003), illustrates how our courts have traditionally construed §41:

Where the word "shall" appears in a legislative provision, the requirements of that provision are generally interpreted as mandatory. * * * Our courts have consistently held that the section 41 notice requirement demands strict compliance and the burden of such compliance falls solely on the plaintiff. * * * Regardless of the CTA's actual knowledge of the facts pertaining to an injury, a notice missing a single element or containing an incorrect element is considered defective and requires dismissal.

In Curtis the fatal flaw was misstating the date of the accident that gave rise to the claim – by a single day. There was no question that the CTA knew about the mistake; it cited the correct date in an affirmative defense. Discovery was conducted, medical records and police reports obtained: Everyone involved in the case was ultimately quite satisfied that the accident in question took place on February 13, not February 12 as plaintiff had erroneously alleged in her §41 notice... and in her complaint.

And that's when the CTA moved to dismiss. The motion was granted, and the dismissal affirmed on appeal.

Curtis was again followed just this month in White v. Chicago Transit Authority, No. 1-05-3152 (Ill.App.1st Dist. 5/4/07).

Geneva White's case is rather distinctive among §41 cases because her case actually came to trial. A jury of her peers awarded her a verdict of $220,220. It seems safe to suppose that – but for the operation of §41 – White's case had some merit.

White was hurt on May 30, 1997, when she slipped on an oil or grease stain while departing a CTA train. On October 8 of that year, White filed a §41 notice with the CTA. In it, she identified the location of her accident as the "Railway Station at Randolph and Washington."

There was a small problem with this identification: Randolph and Washington are parallel streets; they do not intersect.

Nevertheless, the CTA did not assert the defect in the §41 notice, not right away.

In 2002, White voluntarily dismissed her original 1997 case. Under Illinois law, a case may be voluntarily dismissed and refiled within a year even though the statute of limitations had expired long since. (See, §13-217 of the Illinois Code of Civil Procedure, 735 ILCS 5/13-217.) The new opinion does not say why she took this step; it sometimes happens that a case may be voluntarily dismissed on the eve of trial because the plaintiff is still undergoing medical treatment or because the plaintiff's attorney is not yet ready to put on the case.

White refiled her complaint just before the end of 2002; the CTA asserted the defect in the §41 notice in response to the new pleading.

It will surprise no one that the opinion in the new White case does not address why the CTA did not assert this defense earlier. Nor does the opinion state exactly when her original complaint was filed, only that it was filed in 1997. I speculate that the original complaint may have been filed within six months of the May 30, 1997 accident.

Daven Curtis' complaint had been filed within about five weeks of her accident in 2000, well within the six month notice period. Before the Curtis case it was believed, at least in some circles, that filing a complaint against the CTA within six months of an accident obviated the necessity of strict compliance with §41. The Curtis court rejected that notion (793 N.E.2d at 89): "[E]ven if a defective section 41 notice may be cured by the filing of a complaint within the statutory period, the complaint must at least provide the statutorily required information, which was previously incorrect or omitted, in order to comply with the strict demands of section 41."

The plaintiff in Johnson v. Chicago Transit Authority, 366 Ill.App.3d 867, 853 N.E.2d 783, 790 (1st Dist. 2006), claimed that, in the foregoing statement, Curtis worked "a sea change in the law governing the construction of municipal notice statutes." But the Appellate Court disagreed (853 N.E.2d at 790-91 – strict compliance with §41 was "not a new rule of law in Illinois" and "Curtis did not overrule any clear past precedent").

So maybe, in 1997 when Geneva White filed her first complaint, the CTA didn't accept the idea that filing a complaint within six months of an accident obviated the necessity of filing a meticulously detailed §41 statement; maybe, in her case, the CTA simply forgot to assert its rights.

But, whatever the reason, when Geneva White nonsuited and refiled her case, the CTA had another chance to invoke §41. And this time the CTA did not miss that chance.

The motion judge assigned to the case, however, Cook County Circuit Judge Diane Larsen, felt that the argument was raised too late: She found that the CTA had waived its right to invoke §41 (slip op. at p. 2).

The CTA raised the issue again when the case was assigned for trial before Cook County Circuit Judge Sharon Johnson Coleman, and the CTA revived its §41 argument before her, but Judge Coleman wasn't willing to second guess her colleague. The Appellate Court's unanimous opinion, written by Sixth Division Presiding Justice James Fitzgerald Smith, quotes Judge Coleman as saying, "[I]f Judge Larsen's ruling was wrong which I am not going to overturn because that is not my job, if her ruling was wrong, the appellate court will take care of it." (Slip op. at p. 2)

The Appellate Court decided that Judge Larsen's ruling was wrong (slip op. at p. 3): "Plaintiff's second [refiled] complaint constituted a separate and distinct action, not a reinstatement of the first action. [Citations omitted.] Thus, although the CTA did not assert a section 41 defense in plaintiff's initial action, this did not preclude the CTA from raising it in the new action." Geneva White's $220,220 verdict was thrown out.

White's other, unsuccessful argument on appeal was that the CTA failed to send her the notice required by the second paragraph of §41. This second paragraph was added by P.A. 90-451 , effective July 1, 1998 – over a year after Geneva White's injury and seven or eight months after she first filed her suit. But White suggested that the CTA had to serve a copy of §41 in connection with White's refiled suit. The Appellate Court, however, found (slip op. at p. 4), "Because plaintiff was injured in 1997, any notice provided by her 2002 complaint occurred well outside of the six-month period specified in the Act and, thus, the CTA did not have to provide her with a copy of section 41 and no waiver resulted from its failure to do so."

We've already seen that the word "strict" is not found within §41. In fact, a very different rule of construction seems to be suggested by the very last sentence of the 1998 amendment: "Compliance with this Section shall be liberally construed in favor of the person required to file a written statement."

Most of the added-on second paragraph of §41 deals with the CTA's obligation to respond to any arguable notice of a claim received within six months of an injury by serving on the claimant a copy of §41 – making certain that the claimant has actual notice of all that is required by the statute. But this last sentence of the 1998 amendment seems to suggest that the many courts which have strictly construed §41 (at least since 1998) have gotten it wrong: It looks like this sentence mandates a liberal construction in favor of the person required to put together the §41 notice.

If this sentence only applied to the second paragraph in which it is found, it would seem superfluous. The second paragraph of §41 does not require the "person required to file a written statement" to do much... except to receive a copy of the statute. What need is there for liberal construction on this point? No, limiting this last sentence to only the second paragraph would seem to offend the familiar principle of statutory construction, "A statute should be construed so that no word or phrase is rendered superfluous or meaningless." Kraft, Inc. v. Edgar, 138 Ill.2d 178, 561 N.E.2d 656, 661 (1990).

But that's not how the Appellate Court saw it in the one and only case that so far has directly considered the applicability of the "liberal construction" provision of §41.

In Yokley v. Chicago Transit Authority, 307 Ill.App.3d 132, 717 N.E.2d 451 (1st Dist. 1999), the fatal defect cited in the §41 motion was an allegedly inaccurate address where the accident took place. Myron Yokley was trying to get off a northbound bus in July 1993, but the bus started moving before Yokley was clear. The bus ran over Yokley; despite surgery and therapy, Yokley eventually lost his leg.

His §41 notice said the accident occurred on July 15, 1993 "at or about" 8:39 pm "[a]t or near 34th and King Drive" in Chicago. But 34th Street does not intersect King Drive. The responding paramedic put 3400 S. King Drive on his report but testified at a deposition that he found Mr. Yokley just north of 35th street, in front of a shopping center, at a location that had "no exact address." Moreover, there was a question as to whether the northbound No. 4 Cottage Grove bus, on which Yokley said he was riding at the time of his accident, was even authorized to stop where Yokley was found. The CTA contended that the bus stopped on 35th Street, before turning north onto King Drive, and didn't stop again on King Drive until 33rd Place. The trial court granted the CTA's motion for summary judgment because Yokley's §41 notice did not "accurately specify the place or location where the accident occurred." (717 N.E.2d at 453-54.)

The Appellate Court affirmed – despite Yokley's protestations that his §41 notice should be liberally construed in his favor.

Rejecting this argument the court stated (717 N.E.2d at 456), "Courts do not view retroactive legislation favorably, and there is a strong presumption that new legislation will operate prospectively. [Citation omitted.] In addition, postponement of an act's effective date indicates that the amendment should have only prospective application. [Citation omitted.] Although the other provisions of section 99 of Public Act 90-451 were made effective on January 1, 1998, the provision regarding section 41 was made effective on July 1, 1998. Pub. Act 90-451, § 99 (eff. July 1, 1998). The legislature expressly postponed the effective date of the amendment to section 41; therefore, the amendment is not retroactive to the date of plaintiff's injury in 1993."

The Yokley court then goes on to state, "Even if the amendment were retroactive, the sentence that plaintiff relies on applies to initial communications from possible claimants, not to the section 41 statutory notices that these claimants might file later. The legislative history shows that the purpose of the amendment was to notify possible claimants of the six-month statute of limitations and filing requirements of section 41 so that legitimate claims would not be dismissed because the claimant was unaware of the notice requirement. 90th Ill. Gen. Assem. Senate Debates May 21, 1997, at 52. The sentence regarding liberal construction comes at the end of the new paragraph. The sentence obviously requires the CTA to liberally construe the written communications it receives from possible claimants as constituting sufficient notification that a cause of action may exist so that these potential claimants are sent a copy of the section 41 statute by the CTA. The clear import of the amendment is that the legislature did not intend that compliance with the notification elements of section 41 be liberally construed." (717 N.E.2d at 457.)

I submit, however, that this is mere dicta – and, worse, dicta that doesn't make sense: The last sentence of §41 does not mention the CTA; it specifically mentions the "person required to file a written statement." It is this person in whose favor the statute is to be liberally construed. Nevertheless, the strict construction rule is so well established in the case law that the dicta in Yokley has apparently precluded any further consideration of whether the legislature has already prescribed a contrary rule of liberal construction.

The Supreme Court has never addressed this issue. It would be interesting to see what might happen if it takes a look at White.