OFFICE RESEARCH MEMORANDUM

To: Kris Condon, Instructor

Statement of Assignment

You have asked me to prepare a persuasive memorandum addressing the following

assertion: Mrs. Foy has limited recourse against the Chicago Transit Authority for injuries

sustained.

Assertion

Plaintiff, Adair S. Foy has recourse against the Chicago Transit Authority (CTA) based on

the Metropolitan Transit Authority Act, 70 ILCS 3605/41 (1991) and related court decisions. Her

reliance on an attorney, Joseph Crowley, was based on various statements made by her attorney.

The statements made to Foy were enough for the Plaintiff not to question her attorney’s

representation of the case. Since the CTA did not provide her with a copy of their required notice

within a 10 day guideline, the Court’s order dismissing the Plaintiff’s claim in favor of the

Defendant, CTA, must be vacated.

Statement of Facts

Adair S. Foy was a passenger on a Chicago Transit Authority (CTA) bus on April 5,

1999. The bus was traveling south on Sheridan Road towards downtown Chicago. Foy paid her

fare and the bus driver pulled off prior to her taking a seat. She fell backward down the steps of

the bus and was injured. The bus driver stopped the bus and proceeded to offer her assistance.

Ms. Foy told the driver not to pull on her arms due to her current neck injury. The bus driver
opened the door and Mrs. Foy fell out onto Sheridan Road, sustaining injuries to her back, arms

and head.

Foy filed a written notice against the CTA and the bus driver on April 27, 1999, which

falls within six months of the incident, as required by the Metropolitan Transit Authority Act, 70

ILCS 3605/41 (1991). Her claim against the CTA was not filed until October, 2000, which was

eighteen months after the filing deadline. Instead of an answer to the Plaintiff within the 10 day

guideline addressed in the statute, the Defendant filed a motion to dismiss based on Mrs. Foy’s

failure to properly file a claim. The claim’s adjuster did not provide her with a copy of the

Section 41 and Mrs. Foy appealed the trial court’s finding that barred her civil action against the

Authority.

Analysis

Based on the Metropolitan Transit Authority Act 70 ILCS 3605/41 (1991).

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

2
 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.

The Metropolitan Transit Authority Act, 70 ILCS 3605/41 (1991), can be broken down

into the following elements that apply to Foy’s case:

(1) No civil action shall be commenced in any court against an Authority by any person

unless it is commenced within one year from the date that the injury received or the cause of the

injury accrued. On October 9, 2000, Ms. Foy filed a civil action, more than one year after the

incident on April 5, 1999. This element was not met due to her being misrepresented by her

attorney on record.

(2) Within six (6) months from the date that such an injury was received or such cause of

action accrued, the defendant must be notified. Ms. Foy notified the CTA on April 27, 1999, this

was twenty-two days after the incident happened. This element was met by Ms. Foy.

(3) 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.

The CTA acknowledged receipt of Mrs. Foy’s notice by its agent, John P. Smith. This element

was met.

(4) Ms. Foy included all pertinent information required for filing the notice. She gave the

name of the person to whom the cause of action has accrued and the residence of the person

injured. Ms. Foy provided the date and about the hour of the accident, along with the place or

3
location where the accident occurred. She provided the name and address of the attending

physician. This element was met by Ms. Foy.

(5) 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. However, Foy

complied with this element in a timely manner.

(6)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. This element was not met by the CTA.

(7). 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. In lieu of an answer to the complaint, the CTA filed a

motion to dismiss after one year and tried to close her claim, against the CTA for her injury. The

Authority did not meet this element of their statute.

(8) Compliance with this Section shall be liberally construed in favor of the person

required to file a written statement. In the interest of public safety, the Authority should be

willing to assist a plaintiff who has been injured within the scope of their operation. The Act

shall be construed in the favor of the plaintiff, when the CTA fails to meet this element.

. In referencing the case of Pothier v. CTA, 238 Ill. App. 3d 702, 179 Ill. Dec. 699, 606

N.E.2d 531 (1st. Dist.1992), the plaintiff was injured when she got off the bus. Pothier agreed

that she did not file a claim nor contact an attorney because she was told by the insurance

4
adjuster that her case would be handled and no further action need be taken. Pursuant to 70

ILCS 3605/41 (1991), the Metropolitan Transit Authority Act, the plaintiff was barred from filing

suit, when the statute of limitations had expired. Foy is not barred from filing a suit when the

statements made in the plaintiff’s affidavit are sufficient to raise a question of an error in the trial

court’s decision. The elements indicate that the plaintiff filed a civil action one year after the

requirement of the statute. Because the plaintiff filed her notice of complaint approximately

twenty-two days after the incident; she met the requirement of providing the CTA with notice in

a timely manner.

Her notice included all required information needed. The CTA acknowledged receiving

the notice by its agent, John P. Smith. The notice was properly filed against the Authority and

Foy should not be barred from filing suit when the CTA filed a motion to dismiss the claim after

the statute of limitations had expired. However, the CTA failed to provide Foy with a copy of

Section 41 within 10 days of her notice being filed. Therefore, the CTA did not meet its own

statutory guidelines. She believed that her claim would be resolved. Mrs. Foy relied on her

attorney, but he failed to follow-up with his duty to represent her to the best of his ability. When

the Authority fails to provide a copy of Section 41, any action to dismiss the Authority’s liability

shall not be dismissed. This element addresses that the Authority should be liable for following

its guidelines completely. As the Authority did not, the civil action shall not be dismissed and

they shall be held liable for personal injuries sustained on their vehicles.

The disposition in Pothier v. CTA, 238 Ill. App. 3d 702 at 711, 179 Ill. Dec. at 705, 606

N.E.2d at 537 should be reversed and remanded. The complaint was dismissed with prejudice

and without written findings. The Plaintiff’s claim should be litigated. The guideline was not

met by the CTA. There was a questionable fact that must be addressed as to whether the plaintiff

5
could rely on statements to her claiming that her case was proceeding without any problems.

The CTA should not operate on the premise that a person would know the procedure for filing a

claim without the assistance of a lawyer.

No question was raised concerning Mrs. Foy’s notice being incomplete. Also in the

Medina case, it addresses the Plaintiffs bringing suit against an employee and not against the

CTA who has the responsibility to ensure safe transportation to riders on their buses. The

Defendants can be held liable for negligent driving of its employees and the CTA should be

ultimately responsible for these actions.

The CTA questions Foy’s claim being filed after the statute has expired and no liability

can be brought against the Authority per the strict construction of Section 41. Foy’s recourse

against the CTA is based on the failure to be provided with a copy of Section 41 within 10 days

of her notice. Therefore, this order does not apply to our client’s situation and Mrs. Foy has

recourse against the Defendant.

In the court opinion of Medina v. Taylor, 185 Ill. App. 3d 808, 134 Ill. Dec. 33, 542

N.E.2d 33, (1st Dist. 1989), Medina's vehicle was struck from behind by a CTA bus driven by

Taylor on July 3, 1984. She filed a notice of claim with the CTA on July 1, 1985, and a civil

action was brought against Taylor in the Circuit Court of Cook County on June 19, 1986. Fogel

filed suit against Robertson on September 19, 1985, in the Circuit Court of Cook County after his

vehicle was struck from behind by a CTA bus driven by Robertson on October 8, 1984. Fogel

did not, however, notify the CTA of his claim. Medina and Fogel filed a consolidated case

against the CTA for personal injuries sustained in incidents with bus drivers, Taylor and

Robertson.

6
 Both plaintiffs needed to file a notice within the six month statute and a claim within one

year against the Defendant, CTA. Based on the Metropolitan Transit Authority Act, 70 ILCS

3605/41 (1991), a civil action must be commenced within one year of filing a notice against the

Authority. The plaintiffs did not meet the element’s requirement that the defendants in a civil

action lawsuit must be properly identified. Nor did the complaint include the approximate time

of the injury within the complaint. Since all elements must be met in order to satisfy statutory

requirements of the Metropolitan Transit Act, the court must rule in favor of the defendant.

The argument to apply the statute retroactively to our client’s case is not applicable to the

issue of filing a proper notice with the Defendant, CTA. The plaintiff only brought an action

against an employee and the statute must apply to civil injury suits against the CTA. In the

consolidation of both cases upon appeal, the plaintiff, Medina, filed her notice timely and should

not have been barred from filing suit. Foy filed her notice properly and still has recourse against

the CTA. In the consolidation of both cases upon appeal, the plaintiff, Medina, filed her notice

timely and should not have been barred from filing suit. Foy filed her notice within the six

month statute of limitation and had no belief that her civil action was not proceeding properly.

Her lawyer led her to believe that the case was being settled.

In the case of Rognant v. Palacios, 234 Ill. App. 3d 418, 166 Ill. Dec. 728, 586 N.E.2d

686, (1st Dist.1992), on September 10, 1986, the plaintiff was injured while riding a CTA bus

driven by the defendant. This complaint was filed two years after the date of the injury. The

defendant was protected under the Metropolitan Transit Authority Act, 70 ILCS 3605/41 (1991).

Therefore the existing law could apply. She did not file a claim against the CTA. The plaintiff

did not include the approximate time of the injury within the complaint. The plaintiff only

brought an action against an employee and the statute applies to civil injury suits against the

7
CTA. The one year statute of limitation had expired and the plaintiff had not properly identified

the defendant as stated in the Metropolitan Transit Authority Act.

The civil action was filed two years after the date of the injury. The defendant was

protected and the existing law could apply. She did not file a claim against the CTA. A

judgment was entered in favor of the bus driver on limitation grounds and the plaintiff filed a

motion to appeal the decision. An element that was missing from the plaintiff’s case was her not

including the approximate time of the injury within the complaint. The plaintiff only brought an

action against an employee and the statute applies to civil injury suits against the CTA.

Our client, Mrs. Foy, properly brought suit against the CTA and its Agent, the driver of

the bus. The decision was affirmed which dismissed the Plaintiff’s claim. Although, the plaintiff

agreed that she did not meet the statutory guidelines, the CTA should be held liable for injuries to

a passenger within the interest of public safety. Additionally, the CTA did not meet all required

elements of their statute.

Further case law found in Murphy v. CTA, 191 Ill. App. 3d 918,139 Ill. Dec. 18, 54 N.E.

2d 403 (1st Dist.1989) discusses the fact that the Plaintiff was injured in an accident involving a

CTA bus. She was not entitled to relief from complying with the one-year statute of limitations

to begin a suit. Because the attorney stated that CTA claims’ manager misled him by acting as if

claim was being processed, it lured him into a false sense of assurance that the claim had been

accepted and would be settled. There was no indication that the CTA ever admitted liability or

discussed a settlement. No one from the CTA stated to the attorney that he did not need to take

whatever steps were required by law to protect his client's claim. The CTA only admits to

conversations taking place after the expiration of the six-month period for filing notice of intent

to sue.

8
 Murphy filed a negligence lawsuit against the CTA. The Defendant successfully moved

to dismiss the complaint on the grounds that the plaintiff had failed to give the CTA proper notice

of the claim within six months of the incident and that she had failed to file the action within one

year. Murphy appealed stating that the trial court erred in its interpretation of the rule of law.

All elements of Section 41 must be met. Notice must be given in a written form within

six months of the injury and filed within one year of the statute. If these elements are not met,

the plaintiff is barred against filing a personal injury claim. Mrs. Foy did meet all elements of

the statute to her knowledge; therefore, she should be entitled to relief from complying with the

one-year statute of limitations to begin a suit. Since her attorney led her to believe that her case

was proceeding, Ms. Foy waited for further contact from him. There was no indication that the

CTA ever admitted liability or discussed a settlement. No one from the CTA stated to the

attorney that he did not need to take whatever steps were required by law to protect his client's

claim.

The CTA only admits to conversations taking place after the expiration of the six-month

period for filing notice of intent to sue. Murphy filed a negligence lawsuit. The one year statute

of limitation had expired and the plaintiff had not properly identified the defendant as stated in

Section 41. This complaint was filed two years after the date of the injury. The defendant was

protected under the statute; therefore, the existing law could apply. Murphy did not file a claim

against the CTA. An element that was missing from the plaintiff’s case was that she did not

include the approximate time of the injury within the complaint.

The plaintiff only brought an action against an employee and the statute applies to civil

injury suits against the CTA. Our client, Mrs. Foy, properly brought suit against the CTA and its

Agent, the driver of the bus. The plaintiff was not aware that her filing was not timely. Her

9
interaction with the attorney on record led her to believe that the case was being litigated

properly. She understood that she had complied with the statute.

According to case law discussed in Searcy v. CTA, 146 Ill. App. 3d 779, 100 Ill. Dec. 432,

497 N.E.2d 410 (1st Dist.1986), the Plaintiff sustained a personal injury while exiting from a

CTA elevated train. The plaintiff filed her written notice in a timely manner. However, this

lawsuit was not filed until more than a year later. The plaintiff was informed that her complaint

was being dismissed by the CTA due to the statute of limitation.

The claim adjuster led the plaintiff to believe that the case was proceeding and being

handled by the CTA. She needed only to provide documentation of medical bills and the adjuster

would “settle” the claim. A “lay person’s” ability to address a claim for personal injury has to

rely on an experienced person to give reasonable advice to pursue a lawsuit.

The Plaintiff should file a written notice within six months of her personal injury and this

element was met by Ms. Foy in a timely manner. However, this lawsuit was not filed until more

than a year later. The plaintiff was informed that her complaint was being dismissed by the CTA

due to the statute of limitation. The plaintiff relied on the conduct of the claim adjuster and Ms.

Foy relied on her attorney for guidance. The advice given was questionable and the plaintiff,

Ms. Foy was not provided with clear direction needed to follow up with her claim against the

CTA. Therefore the CTA could not raise Section 41 as a defense to bar the claim.

The plaintiff asked the claim adjuster if she should retain an attorney. She was told that it

would not be necessary for her to do so. The Plaintiff’s reliance on his statements led her to

comply only with his request for additional information regarding the extent of her injuries. She

provided the information after receiving documentation from her physician. Although this

10
occurred outside of the statute of limitation, the Plaintiff still was not notified that a problem

existed with her claim.

The plaintiff was not aware that her filing was not timely. Her interaction with the

attorney on record led her to believe that the case was being litigated properly. She understood

that she had complied with the statute. The CTA cannot reasonably believe that the Plaintiff

knew what was needed to properly file a claim after she retained counsel to proceed with the

claim for her. The CTA was obligated to keep in contact with her counsel prior to the statute’s

expiration. Their failure to provide a copy of Section 41 should be the basis for not finding in

favor of the Defendant as stated in this case.

As addressed in the case of Hinz v. CTA, 133 Ill.App.2d 642, 273 N.E.2d 427 (1st Dist.

1971), on October 17, 1963, the plaintiff was injured as a result of a collision between an

automobile she was operating and a vehicle operated by an agent of the defendant. In the

complaint, filed on October 16, 1964, the plaintiff failed to provide notice to the Defendant.

The CTA's answer was silent with respect to plaintiff's failure to plead notice. Throughout the

course of the trial no objection was made by defense counsel concerning plaintiff’s claim. The

plaintiff was allowed to file an amended complaint, due to the Defendant not raising an

objection until after the judgment was filed in favor of the plaintiff.

A jury trial was held and a verdict was rendered in favor of the plaintiff. If the court

determines that there is no genuine issue of material fact as to the timely filing of a proper notice

in compliance with the statute, judgment should be entered in favor of the plaintiff. If the court

determines that there is such an issue of fact, then the court shall order a new trial. The

Defendant then files its written motion for a directed verdict alleging plaintiff’s failure to plead

and prove the six month notice required by the Metropolitan Transit Authority Act. The

11
Authority must file its answer within a timely manner and the Defendant failed to do so based on

its statutory guidelines. A decision should be made in the plaintiff’s favor.

Conclusion

Adair S. Foy has a valid defense against the CTA, as the defendant failed to follow the

guidelines to provide a copy of Section 41. Her notice was filed in a timely manner. However,

her attorney did delay in some aspects of her claim. The CTA is ultimately liable for injuries in

view of public safety. An exception to the statute of limitations can be made when all elements

of the Metropolitan Transit Authority Act have not been complied with. The CTA should be

held accountable for injuries to its passengers and this claim should be allowed on Foy’s behalf.

The absence of providing Foy with a copy of Section 41 is an issue to be construed in favor of

the plaintiff.

Recommendation(s)

It is recommended that Mrs. Foy’s claim against the CTA be litigated by our firm

without prejudice. Due to an error made by the lower court to properly address the Authority’s’

failure to comply with all the requirements of their statute; Mrs. Foy has some recourse against

the CTA.

It is also recommended that along with the litigation case against the CTA, the Plaintiff

could pursue a personal injury case against the bus driver, Jose Carabellos, and Joseph

Crowley’s estate based on lawyer misrepresentation.

12