                                                                SECOND DIVISION
                                                                JULY 25, 2006




No. 1-05-1186



PAULA JOHNSON,                            )      Appeal from the
                                          )      Circuit Court of
              Plaintiff-Appellant,        )      Cook County.
                                          )
       v.                                 )
                                          )      No. 01 L 14438
CHICAGO TRANSIT AUTHORITY, a              )
Municipal Corporation, and MEARL                 )
C. HARVEY,                                )      The Honorable
                                          )      Michael J. Hogan,
              Defendants-Appellees.              )     Judge Presiding
                                                 .


       PRESIDING JUSTICE GARCIA delivered the opinion of the court.

       The plaintiff, Paula Johnson, sued the defendants, Chicago Transit Authority

(CTA) and Mearl Harvey, for injuries she sustained when she fell exiting a CTA bus. 1

The trial court granted CTA's motion to dismiss Johnson's case because she failed to

strictly comply with the notice requirements of section 41 of the Metropolitan Transit

Authority Act (Transit Act) (70 ILCS 3605/41 (West 1996)). Johnson appeals, arguing

that she satisfied the notice provision by filing her complaint and serving the CTA within

the time for filing the section 41 notice. For the reasons that follow, we affirm the

judgment of the trial court.

       1
            Harvey is not a party to this appeal.
                                    BACKGROUND

       On December 27, 1996, Johnson was a passenger on a CTA bus. As she exited

the bus, she fell and injured herself. Johnson alleged that the last step on the bus

contained a dip or depression that caused her to lose her balance and fall forward.

       On May 29, 1997, Johnson sued the CTA and Harvey, the bus operator, for

injuries she sustained when she fell from the bus. Johnson served the CTA with her

complaint within six months of the accident. 2 The parties engaged in discovery. In

November 2000, the court granted Johnson's motion to voluntarily dismiss her

complaint with leave to refile.

       On November 8, 2001, Johnson refiled her complaint against the CTA, repeating

the allegations in the original complaint. The parties again engaged in discovery, which

included the production of her medical records in March 2003, and the identification of

Supreme Court Rule 213 (177 Ill. 2d R. 213) expert witnesses in June 2004.

       On December 28, 2004, the CTA filed a motion to dismiss Johnson's complaint

pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-

619(a)(9) (West 2004)). The CTA alleged that Johnson failed to comply with the notice

requirements under section 41 of the Transit Act. In response, Johnson argued that the

CTA waived this defense. She also argued that she satisfied the notice requirements of

section 41 because she filed her complaint and served the CTA within six months of the

accident. On March 11, 2005, the trial court granted the CTA's motion and dismissed

Johnson's complaint with prejudice. This appeal followed.


       2
           Harvey was later dismissed from the case.
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                                     ANALYSIS

    Section 41 of the Transit Act in pertinent part provides:

            "No civil action shall be commenced in any court against the

    [Chicago Transit 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." 70 ILCS 3605/41 (West 1996).

    Johnson argues that she satisfied the notice requirements of section 41 when


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she filed her complaint and served the CTA within the time for filing the section 41

notice. She argues that strict compliance is not required and that the holding in Curtis v.

Chicago Transit Authority, 341 Ill. App. 3d 573, 793 N.E.2d 83 (2003), which suggests

otherwise, is not controlling. In the alternative, Johnson argues that if this court finds

that Curtis is dispositive, that holding represented a significant change in the law and

should be applied only prospectively.

                                  A. Standard of Review

       Under section 2-619(a)(9) of the Code, a complaint may be dismissed where "the

claim asserted *** is barred by other affirmative matter avoiding the legal effect of or

defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2004). Affirmative matter is

"something in the nature of a defense that negates the cause of action completely or

refutes crucial conclusions of law or conclusions of material fact contained in or inferred

from the complaint." In re Estate of Schlenker, 209 Ill. 2d 456, 461, 808 N.E.2d 995

(2004). When ruling on a motion to dismiss, all pleadings and supporting documents

must be interpreted in the light most favorable to the nonmoving party. A court should

grant a motion to dismiss where the plaintiff can prove no set of facts that would support

his cause of action. Our standard of review is de novo. Rodriguez v. Sheriff's Merit

Comm'n, 218 Ill. 2d 342, 349, 843 N.E.2d 379 (2006).

                                   B. Strict Compliance

       In this case, Johnson does not argue that she provided the CTA with notice of

her accident before she filed her complaint. She instead argues that the filing and


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service of her complaint, within the statutory period for notice, satisfied the notice

requirements of section 41. Johnson's complaint provided the CTA with "the name of

the person to whom the cause of action has accrued, the name *** of the person

injured, the date and about the hour of the accident, [and] the place or location where

the accident occurred." 70 ILCS 3605/41 (West 1996). The complaint did not, however,

provide Johnson's address or "the name and address of the attending physician." 70

ILCS 3605/41 (West 1996). In addition, Johnson did not file her complaint with the

office of the secretary of the Chicago Transit Board (Board). 70 ILCS 3605/41 (West

1996).

         Illinois cases have consistently held that the section 41 notice requirements

demand strict compliance and that the burden of such compliance falls solely on the

plaintiff. Curtis, 341 Ill. App. 3d at 576; Cione v. Chicago Transit Authority, 322 Ill. App.

3d 95, 97, 748 N.E.2d 722 (2001); Joseph v. Chicago Transit Authority, 306 Ill. App. 3d

927, 930, 715 N.E.2d 733 (1999); Murphy v. Chicago Transit Authority, 191 Ill. App. 3d

918, 922, 548 N.E.2d 403 (1989) ("section 41 puts the burden upon the claimant to

ascertain her rights and to comply with the statutory prerequisites for maintaining a

lawsuit against the CTA"). However, appellate courts have recognized that, in some

instances, the failure to strictly comply with the notice requirements could be cured by

the filing of a complaint within the statutory period. Joseph, 306 Ill. App. 3d at 933-34;

Murphy, 191 Ill. App. 3d at 921.

         In Murphy, the plaintiff was injured when a CTA bus struck the bicycle she was


                                              5
1-05-1186


riding. The plaintiff's attorney did not file notice with the office of the general counsel or

the secretary of the Board, but mailed a letter to the CTA claims manager concerning

the accident. The plaintiff's attorney and the claims manager also exchanged phone

calls and other written documents. Murphy, 191 Ill. App. 3d at 920.

       More than one year after the accident, the plaintiff sued the CTA. The CTA

moved to dismiss the case because the plaintiff did not comply with the notice

requirements of section 41 and did not file her suit within one year of the accident. The

trial court dismissed the complaint and the appellate court affirmed, holding that

compliance with the notice requirements was mandatory and that the letters and

conversations with the claims manager were not sufficient. In dictum, the court noted

that "[i]t is true that in some instances the failure to give proper notice may be cured,

such as when a plaintiff files the actual complaint within the six-month period." Murphy,

191 Ill. App. 3d at 921; see also Streeter v. Chicago Transit Authority, 272 Ill. App. 3d

921, 923, 651 N.E.2d 579 (1995) (although the notice requirements are mandatory and

cannot be waived or lightly excused, "[p]laintiff could have cured the failure to give

notice by filing his lawsuit within the six-month period").

       In Joseph, the court considered whether the plaintiff's complaint, which was filed

during the six-month notice period but served after the expiration of that period, satisfied

the section 41 notice requirements. The court began its analysis by explaining that the

requirement that notice be filed with the general counsel of the CTA and the secretary of

the Board was mandatory and that it was the plaintiff's duty to strictly comply. Illinois


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courts have dismissed cases where a plaintiff provided notice to the CTA but failed to

specifically file notice with the general counsel and the secretary of the Board, and

where a plaintiff provided notice to only the general counsel. Joseph, 306 Ill. App. 3d at

930 (and cases cited therein).

       The court recognized that Illinois cases have, in dicta, suggested that the failure

to give timely notice could be cured where a plaintiff files the complaint within the six-

month notice period (Joseph, 306 Ill. App. 3d at 931) and in a footnote, it rejected the

CTA's argument that the filing of a complaint cannot excuse the sending of a notice

(Joseph, 306 Ill. App. 3d at 931 n.2). Those cases, which include Murphy, rely on the

supreme court's holding in Saragusa v. City of Chicago, 63 Ill. 2d 288, 348 N.E.2d 176

(1976), to support that contention. Saragusa was decided under section 8-102 of the

Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity

Act) (Ill. Rev. Stat. 1971, ch. 85, par. 8-102). Joseph, 306 Ill. App. 3d at 931. Like

section 41 of the Transit Act, section 8-102 of the Tort Immunity Act required that a

person about to bring a suit against a local public entity give written notice within six

months of the date the injury was received or the cause of action accrued. The

supreme court held that the filing of a complaint within the statutory notice period cured

the defect in the plaintiff's written notice, in that case, the failure to give the name and

address of the treating physician. Saragusa, 63 Ill. 2d at 294; Joseph, 306 Ill. App. 3d

at 932.

       The supreme court explained that the legislative purpose of the notice


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requirement was to encourage early investigation and that purpose could be furthered

with the filing of the complaint because such information would be revealed during

discovery. Saragusa, 63 Ill. 2d at 294 ("the filing of a complaint within the six-month

period affords as much time to investigate the claim as the defendant would have if the

notice had been filed within that period"); Joseph, 306 Ill. App. 3d at 932.

       The Joseph court recognized that "[t]he filing of a complaint within the statutory

time period for notice also can cure plaintiff's failure to provide any prior notice to the

defendant because it provides notice of the injury or cause of action within the statutory

time period and allows the defendant time to obtain more complete information."

Joseph, 306 Ill. App. 3d at 933. However, the court held that the filing of the complaint

could only cure the failure to serve if the complaint was served within the notice period.

Joseph, 306 Ill. App. 3d at 933. If a party did not have actual notice before the

expiration of the notice period, the provision's legislative purpose, to ensure prompt

investigation, could not be met. The court opined that the legislative intent may be

stronger with respect to the CTA than with respect to other public entities because the

section 41 notice requirements generally have been stricter than the requirements in

section 8-102. 3 Joseph, 306 Ill. App. 3d at 935-36.

       3
           In contrast to the Transit Act, under the Tort Immunity

Act, service of the notice of injury was required only upon one

office - "the Office of the Secretary or Clerk" (Ill. Rev. Stat.

1971, ch. 85, par. 8-102).


                                              8
1-05-1186


       In Curtis, the court again considered whether a complaint filed within the

statutory notice period could cure a deficient notice. The plaintiff was injured on

February 13, 2000, at 12:12 a.m., when the vehicle she was driving was struck by a

CTA bus. The next day, the plaintiff telephoned the CTA to report the accident. On

March 16, 2000, the plaintiff filed notice of her claim. The notice erroneously stated that

the accident occurred on February 12, 2000, at 1:30 a.m. Curtis, 341 Ill. App. 3d at 574.



       On March 22, 2000, the plaintiff filed her complaint against the CTA, again

erroneously stating the date of the accident as February 12, 2000. The CTA answered

the complaint and filed its affirmative defenses. The parties also engaged in discovery.

Curtis, 341 Ill. App. 3d at 575.

       On February 20, 2001, the CTA filed a motion to dismiss the plaintiff's complaint

for failure to comply with the requirements of section 41. Specifically, the CTA argued

that the notice was deficient because it contained the wrong date and time of the

accident. The trial court dismissed the plaintiff's complaint and she appealed, arguing

that she substantially complied with section 41 and that the filing of her complaint within

the six-month notice period cured any defects. Curtis, 341 Ill. App. 3d at 575-76.

       The Curtis court explained there must be strict compliance with the notice

requirements and that the burden 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."


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1-05-1186


Curtis, 341 Ill. App. 3d at 576. The court recognized that Murphy, Streeter, and Joseph

all indicated that in some instances a plaintiff could cure a defective notice by filing a

complaint within the proscribed statutory period. However, it held that it "need not

revisit the proposition that the filing of a complaint is an acceptable alternative to section

41 notice because, in this case, as in Joseph, for reasons specific to their own

respective facts, the filing of the complaint would not have cured plaintiff's informational

deficit. A complaint that contains the same informational defect as the plaintiff's section

41 notice would in no event be curative in that it still fails to provide the CTA with the

information required by section 41." Curtis, 341 Ill. App. 3d at 577.

       The plaintiff, nevertheless, argued that pursuant to Saragusa, the mere filing of a

complaint within the statutory period cured the notice deficiency even if the complaint

did not supply all of the information required by the notice statute. The appellate court

disagreed. The court explained that although the notice provisions in the Tort Immunity

Act and the Transit Act were similar, the analysis was not the same. While the Transit

Act's notice requirements were to be strictly construed, Illinois courts had liberally

construed the provisions of the Tort Immunity Act.

       "The liberal construction of the 1971 Tort Immunity Act *** was consistent

       with the legislature's extension of the time within which notice must be

       filed under the Tort Immunity Act in 1973 [citation], and the subsequent

       total elimination of those notice requirements in 1986 [citations]. These

       liberalized revisions, however, were not correspondingly extended by the


                                             10
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       legislature to the six-month notice requirement of the Transit Act.

       Consequently, the Transit Act remained unchanged, explicitly providing

       that a cause of action must be dismissed for failure to comply with section

       41 requirements. [Citation]. Moreover, the more stringent requirements of

       the Transit Act have withstood constitutional equal protection challenges

       as a result of the magnitude of the CTA's operations. [Citations]." Curtis,

       341 Ill. App. 3d at 578-79.

       Accordingly, the court held that the mere filing of a complaint could not cure a

plaintiff's deficient notice. The court explained that "even 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." Curtis, 341 Ill. App.

3d at 579-80. Further, the CTA's actual notice of the omitted or incorrect information

was of no import. "The fact that the CTA had or could have obtained the correct

information despite the deficiency in plaintiff's notice is irrelevant to the issue of whether

notice was properly provided, as the CTA has no affirmative duty to obtain information

that is missing from or reported incorrectly in a plaintiff's section 41 notice." Curtis, 341

Ill. App. 3d at 580.

       Illinois cases have consistently held that the section 41 notice provision requires

strict compliance. Therefore, even if we agree that the filing and serving of a complaint

within the six-month notice period could satisfy the notice requirements, in this case,


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Johnson's complaint was insufficient. For a complaint to satisfy the section 41 notice

requirements, it must provide all of the statutorily required information. See Curtis, 341

Ill. App. 3d at 579-80. Johnson's complaint did not provide that information. She

omitted the name and address of her attending physician and failed to file the complaint

with the office of the secretary of the Board. Accordingly, the trial court did not err in

dismissing Johnson's complaint.

                                  C. Application of Curtis

       Johnson argues that even if this court finds Curtis dispositive, it should not apply

that judgment retroactively because it represented a significant change in the law.

Specifically, Johnson contends that "Curtis represented a sea change in the law




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governing the construction of municipal notice statutes." 4

       4
           At oral argument, in response to the CTA's argument that

Johnson should be no better off than the plaintiff in Curtis,

counsel for Johnson stated that the plaintiff in Curtis never

argued that an adverse holding in Curtis should have prospective

effect only.       While that is literally true, the more telling

explanation is that the plaintiff in Curtis never sought to have
an adverse holding apply prospectively only because such a

holding was not understood to be a "significant change in the

law."      Thus, the outcome in Curtis, as it was in Streeter, Murphy

and Joseph (each of which Johnson contends provides support for

her position), affirmed the complaint's dismissal based on the




                                            13
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failure to strictly comply with section 41.



                               14
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       Generally, an appellate court decision is presumed to apply both retroactively

and prospectively. This presumption can be overcome where: (1) the opinion expressly

states that it is to be applied prospectively or (2) a later court decides that the opinion

has only prospective effect. Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 86,

679 N.E.2d 1224 (1997). Illinois courts apply a three-pronged test to determine whether

an opinion will only be applied prospectively. First, courts consider whether the decision

established a new principle of law, either by overruling clear past precedent on which

the litigants relied or by deciding an issue of first impression whose resolution was not

clearly foreshadowed. Aleckson, 176 Ill. 2d at 92. Courts next weigh the merits of each

case by looking at the prior history, purpose, and effect of the rule in question and

whether retrospective operation will further or retard its operation. Aleckson, 176 Ill. 2d

at 92-93. Finally, courts determine whether substantial inequitable results would be

produced if the decision is applied retroactively. Aleckson, 176 Ill. 2d at 93.

       Johnson argues that although Curtis did not technically overrule a prior case, the

dicta in Joseph, Streeter, and Murphy reasonably established the prevailing law

concerning the filing of a complaint in lieu of filing notice. Joseph, Streeter, and Murphy

each stated that in some instances, the failure to give proper notice could be cured if a

plaintiff filed her lawsuit within the six-month statutory period. Joseph, 306 Ill. App. 3d

at 933; Streeter, 272 Ill. App. 3d at 923; Murphy, 191 Ill. App. 3d at 921. None of the

cases, however, was decided based on that proposition. In each case, the notice or the

complaint (as a substitute for the notice) was deficient in some way, leading to the


                                             15
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complaints being ultimately dismissed. While it may have been better if these courts

had refrained from making such statements in dicta, the courts' comments did not

establish (or even propose) a rule of law as broad as the one proposed by Johnson, i.e.,

that the mere filing (and service) of a complaint within the statutory period is sufficient to

cure a deficient notice or serve as a substitute for notice.

       Joseph, Streeter, and Murphy recognized that the requirements in section 41 are

mandatory and that it is the plaintiff's burden alone to ensure that they are met. Joseph,

306 Ill. App. 3d at 930; Streeter, 272 Ill. App. 3d at 923; Murphy, 191 Ill. App. 3d at 922.

Assuming, therefore, that this court agrees with the proposition that the filing (and

service on the required offices) of a complaint within the statutory notice period can

effectively cure a deficient notice, that finding must be reconciled with the clearly

established precedent that a plaintiff must strictly comply with section 41. As we

previously stated, for a complaint to satisfy the section 41 notice requirements, it must

provide all of the statutorily required information. See Curtis, 341 Ill. App. 3d at 579-80.

Because strict compliance is not a new rule of law in Illinois, and Curtis did not overrule

any clear past precedent, Johnson was required to strictly comply with the section 41

notice requirements. Because she failed to do so, the trial court properly dismissed her

complaint.



                                       CONCLUSION

       For the reasons stated, we affirm the judgment of the trial court.


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    Affirmed.

    SOUTH and HALL, JJ., concur.




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