{ "id": 3465515, "name": "LORRAINE WHITNEY et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees", "name_abbreviation": "Whitney v. City of Chicago", "decision_date": "1987-04-16", "docket_number": "No. 86\u20140198", "first_page": "714", "last_page": "720", "citations": [ { "type": "official", "cite": "155 Ill. App. 3d 714" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "499 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "114 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542275 ], "weight": 2, "pin_cites": [ { "page": "30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0023-01" ] }, { "cite": "466 N.E.2d 369", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 682", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633981 ], "pin_cites": [ { "page": "686" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0682-01" ] }, { "cite": "471 N.E.2d 208", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 485", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3524918 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0485-01" ] }, { "cite": "455 N.E.2d 839", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "118 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5658747 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/1019-01" ] }, { "cite": "368 N.E.2d 933", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 741", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3395441 ], "weight": 2, "pin_cites": [ { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0741-01" ] }, { "cite": "458 N.E.2d 530", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "120 Ill. App. 3d 409", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594536 ], "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0409-01" ] }, { "cite": "428 N.E.2d 614", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3087403 ], "pin_cites": [ { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0723-01" ] }, { "cite": "356 N.E.2d 89", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. 2d 230", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428384 ], "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/64/0230-01" ] }, { "cite": "270 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "48 Ill. 2d 339", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2905756 ], "year": 1976, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0339-01" ] }, { "cite": "381 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 461", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3330776 ], "pin_cites": [ { "page": "463" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0461-01" ] }, { "cite": "470 N.E.2d 1172", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "128 Ill. App. 3d 597", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3525421 ], "weight": 2, "pin_cites": [ { "page": "600" }, { "page": "600" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0597-01" ] } ], "analysis": { "cardinality": 681, "char_count": 13975, "ocr_confidence": 0.765, "pagerank": { "raw": 1.9416652411110527e-07, "percentile": 0.7355865148894781 }, "sha256": "e74d5e0542cd0e8e195235b72f667ac3ffce519fab7309357616f9faf64a7103", "simhash": "1:0df08555224494a4", "word_count": 2299 }, "last_updated": "2023-07-14T20:57:39.933265+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LORRAINE WHITNEY et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE MURRAY\ndelivered the opinion of the court:\nPlaintiffs Lorraine Whitney and David Nance appeal from a trial court\u2019s dismissal with prejudice of their amended complaint against defendant city of Chicago (the city). The facts pertinent to this appeal are undisputed.\nOn February 14, 1979, plaintiff Nance was driving his car in which plaintiff Whitney was a passenger. As the car approached 72nd Street on State Street, in Chicago, it was struck by a snowplow truck operated by defendant A. A. Conte, Inc. (Conte), and driven by defendant Michael Romano. The city had subcontracted the job of snowplowing to Conte. On November 21, 1979, plaintiffs filed a notice of claim with the city as required by statute. (Ill.Rev. Stat. 1979, ch. 85, par. 8 \u2014 102.) In addition to specifying the necessary information, including the location of the accident, the notice described the general nature of the accident as \u201cCity snow removal vehicle made a U-turn from the eastern most northbound lane of State Street and struck the vehicle in which claimant was a passenger/claimant\u2019s vehicle.\u201d\nPlaintiffs, on February 17, 1981, filed a one-count complaint alleging negligence against the city, Fulmer Trucking Company, Conte, and Romano, and Conte and Romano counterclaimed. In November 1984 a stipulation to dismiss, based on a settlement, was executed between plaintiffs and defendants Conte and Romano. This stipulation, signed by counsel for plaintiffs and the city, expressly reserved plaintiffs\u2019 right to proceed against the city. Each plaintiff then signed a \u201cJoint Tort Release of Fewer Than All Tort Feasors\u201d which stated in part: \u201cThis agreement is not intended to release any claim or causes of action for damages against any other person, firm or corporation *** ff\nIn December 1984, the trial court dismissed plaintiffs\u2019 complaint against all parties except the city, noting that the case against the city was still open. In March 1985, the court granted the city\u2019s motion to strike and dismiss plaintiffs\u2019 complaint. The city\u2019s motion was based on the ground that a provision of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) stating that \u201c[a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable\u201d (Ill. Rev. Stat. 1985, ch. 85, par. 2 \u2014 109) was applicable and on its claim that the release of Conte and Romano precluded proceeding against the city. Plaintiffs were granted leave to amend their complaint.\nOn April 10, 1985, plaintiffs filed a two-count amended complaint alleging non-respondeat superior counts of (1) negligent hiring and entrustment and (2) failure to warn of or barricade against dangerous conditions. The city moved to dismiss the amended complaint alleging that it stated new causes of action that were barred by the statute of limitations and that the statutory notice of the accident improperly described the \u201cgeneral nature of the accident\u201d as it pertained to the new causes of action. The trial court dismissed plaintiffs\u2019 amended complaint with prejudice, citing the release of Conte and Romano and referring to specific provisions of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2 \u2014 109 (effect of employee\u2019s nonliability), 8\u2014 101 (statute of limitations), 8 \u2014 102 to 8 \u2014 103 (notice of injury requirements).) Plaintiffs\u2019 motion for reconsideration was denied and this appeal followed.\nThe issues on appeal are (1) whether plaintiffs\u2019 notice of claim was sufficient under the statutory requirements, including the statute of limitations, and (2) whether plaintiffs\u2019 settlement with Conte and Romano released the city from liability.\nThe Tort Immunity Act required notice to be served on a public entity within one year from the date the injury was received or the cause of action accrued. (Ill. Rev. Stat. 1979, ch. 85, par. 8 \u2014 102.) In this case, the injury occurred on February 14, 1979, and the notice was filed on the city on November 21, 1979, within a year\u2019s time. It is to be noted that the provision of our local government law relating to notice was repealed effective November 25, 1986, by Public Act 84\u2014 1431, article I, section 3, during the pendency of this appeal. The repeal does not affect the outcome of this cause.\nDespite the timeliness of plaintiffs\u2019 notice, the city contends it was inadequate. The city argues that the notice improperly described the general nature of the accident as it applied to plaintiffs\u2019 new causes of action set forth in their amended complaint, i.e., negligent hiring and failure to warn or barricade. This argument must fail as the notice did describe the \u201cgeneral nature of the accident\u201d according to case law and the statute. Ill. Rev. Stat. 1979, ch. 85, par. 8 \u2014 102.\nIt is true that the elements to be set forth in the notice are to be strictly construed as to whether a plaintiff made an attempt to provide the necessary information. (Lando v. City of Chicago (1984), 128 Ill. App. 3d 597, 600, 470 N.E.2d 1172.) However, the statute is to be liberally construed as to whether an element as set forth is reasonably sufficient to fulfill the statutory requirements such that the public entity has not been misled or prejudiced; where there is no prejudice, the notice itself is sufficient. (128 Ill. App. 3d 597, 600, 470 N.E.2d 1172.) There is nothing in the present record that suggests the city was misled or prejudiced by the accident description. The statute does not require \u201cthe nature of the action,\u201d but rather the \u201cgeneral nature of the accident.\u201d\nThe city claims that the accident description was insufficient in that it failed to direct the city\u2019s attention to records or witnesses necessary to adequately investigate the hiring of outside contractors or to determine the necessity of warning signs at the scene. Furthermore, the city asserts that it was misled by the snow removal vehicle being described as a \u201ccity vehicle\u201d in the notice.\nThe primary purpose of the notice requirement is to furnish timely notice of injury so that the municipality can investigate and make prompt settlement of meritorious claims and also to give notice to a public entity of possible liability so that budgetary provisions may be knowledgeably arranged. (Mounce v. City of Lincoln (1978), 64 Ill. App. 3d 461, 463, 381 N.E.2d 421.) As the Tort Immunity Act is in derogation of the common law action against local public entities, it must be strictly construed against the public entity. (Reynolds v. City of Tuscola (1971), 48 Ill. 2d 339, 342, 270 N.E.2d 415.) The notice requirement was designed to give the local public entity notice, not that an injury was suffered, but that a person was about to file a civil action for damages arising out of that injury. Dunbar v. Reiser (1976), 64 Ill. 2d 230, 235, 356 N.E.2d 89.\nIn the present case, plaintiffs\u2019 notice did contain \u201cin substance\u201d certain information relating to the accident. (Ill. Rev. Stat. 1979, ch. 85, par. 8 \u2014 102.) A party is not required to set forth theories upon which the civil claim will be based, but merely the general nature of the accident giving rise to the claim. Plaintiffs\u2019 notice adequately set forth the general nature of the accident so as to permit the city to investigate all the surrounding circumstances. The fact that the snowplow was operated and owned, not by the city, but by a subcontractor, could have been easily determined by the city based on the information given in the notice. The same reasoning applies to the city\u2019s ability to investigate conditions existent at the time of the occurrence, including whether warnings were present or necessary.\nThe sufficiency of the notice applies both to plaintiffs\u2019 first complaint and their amended complaint. It has long been the law in Illinois that the provisions of our civil practice act are to be liberally construed. (Ill. Rev. Stat. 1985, ch. 110, par. 1 \u2014 106.) Such liberal construction fulfills the policy underlying our procedural rules which favors a hearing on the merits of a litigant\u2019s claim. (Meeker v. Payne (1981), 101 Ill. App. 3d 723, 727, 428 N.E.2d 614.) At any time before a final judgment, amendments may be allowed on just and reasonable terms including, among other reasons, the changing of the cause of action if the cause \u201cgrew out of the same transaction or occurrence set up in the original pleading.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014 616(b).) This section also provides that if the cause set forth in the amended complaint arose out of the same occurrence or transaction, the amended complaint, for purposes of time limitations, relates back to the filing of the original complaint. This statute is to be liberally construed. (Frankenthal v. Grand Trunk Western R.R. Co. (1983), 120 Ill. App. 3d 409, 417, 458 N.E.2d 530.) And, where a pleading contains facts entitling a plaintiff to relief but the wrong remedy is sought, the court may permit the pleading to be amended. Ill. Rev. Stat. 1985, ch. 110, par. 2-617.\nThe city\u2019s reliance on Smetzer v. County of La Salle (1977), 53 Ill. App. 3d 741, 368 N.E.2d 933, is misplaced. In Smetzer, a plaintiff involved in an automobile collision filed a complaint based on the county having put a slippery chemical on the road. She later attempted to amend the complaint alleging that weeds along the road obstructed her view. The court held that these were two separate occurrences and, thus, her motion to amend was properly denied. (53 Ill. App. 3d 741, 745, 368 N.E.2d 933.) In the present case, the basic facts supporting both plaintiffs\u2019 original and amended complaints are the circumstances surrounding the occurrence wherein a snowplow, operating on a city street for the city, collided with plaintiffs\u2019 vehicle. The general nature of the accident did not change and the Smetzer ruling is inapplicable. Plaintiffs have merely changed the remedy sought.\nIn Cunningham v. Hasbargen (1983), 118 Ill. App. 3d 1019, 455 N.E.2d 839, the court permitted a dramshop cause of action to be amended to add counts of common law negligence and wilful and wanton conduct. The court in Gary v. Joe Roth Truck Parts & Sales, Inc. (1984), 128 Ill. App. 3d 485, 471 N.E.2d 208, permitted a negligence complaint to be amended to include a breach of warranty claim because the original complaint adequately informed the defendant of facts necessary to investigate the claim. (128 Ill. App. 3d 485, 471 N.E.2d 208.) In our case, the city was actually in a better position than plaintiffs to know who was driving the snowplow and the relationship, if any, to the city. Also, it is reasonable to presume that the city, upon receiving notice of the accident, would have checked its records regarding the employment and deployment of the snowplow at that location. Thus, the concepts of negligent entrustment and/or lack of warnings do not differ significantly from the original negligence claim when the circumstances of this case are considered. Plaintiffs\u2019 amended complaint merely set forth different theories of liability which arose from the same occurrence or transaction alleged in their original complaint. Accordingly, plaintiffs\u2019 amended complaint relates back to the filing date of their original complaint and it was error to dismiss it on this ground.\nThe trial court\u2019s dismissal of plaintiffs\u2019 amended complaint was based in part on section 2 \u2014 109 of the Tort Immunity Act, which provides that a municipality is not liable for injuries caused by an act or omission of its employee where the employee is not liable. (Ill. Rev. Stat. 1985, ch. 85, par. 2 \u2014 109.) The court apparently considered Conte and Romano not liable because of the settlement and release. In Illinois, it is the parties\u2019 intent that determines the effect of a release. (Chubb v. Amax Coal Co. (1984), 125 Ill. App. 3d 682, 686, 466 N.E.2d 369.) In the present case, the releases specifically released only Conte and Romano and reserved plaintiffs\u2019 rights as to other responsible parties. And the stipulation to dismiss, approved by the court, expressly did not release the city.\nRecently, our supreme court in Stewart v. Village of Summit (1986), 114 Ill. 2d 23, 499 N.E.2d 450, held that execution of a covenant not to sue an employee tortfeasor does not bar suit against the employer not named in the covenant where the agreement explicitly and unambiguously reserved the right to sue other responsible parties as long as the claims arose out of the same occurrence. The Stewart court noted that this ruling is consistent with the long-established rule that the agreement is the controlling factor and the primary fact to be determined is the intent of the parties. (114 Ill. 2d 23, 30, 499 N.E.2d 450.) Moreover, a provision of the Contribution Among Joint Tortfeasors Act provides that release of one tortfeasor does not discharge other tortfeasors unless expressly stated. (Ill. Rev. Stat. 1985, ch. 70, par. 302(c).) Therefore, the release of Conte and Romano did not act to bar suit against the city.\nFor the foregoing reasons, we find that plaintiff\u2019s notice of claim was sufficient as to the amended complaint and that there was compliance with the statute of limitations since the claims in both complaints arose out of the same occurrence or transaction. Additionally, the release of Conte and Romano did not release the city from potential liability. Accordingly, the trial court\u2019s dismissal of plaintiffs\u2019 amended complaint is reversed and the cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nSULLIVAN, P.J., and PINCHAM, J., concur.", "type": "majority", "author": "JUSTICE MURRAY" } ], "attorneys": [ "James R. Vassilos, of Chicago, for appellants.", "Judson H. Miner, Acting Corporation Counsel, of Chicago (Ramsay Laing Klaff and Sharon Baldwin, Assistant Corporation Counsel, of counsel), for appellee." ], "corrections": "", "head_matter": "LORRAINE WHITNEY et al., Plaintiffs-Appellants, v. THE CITY OF CHICAGO et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 86\u20140198\nOpinion filed April 16, 1987.\nJames R. Vassilos, of Chicago, for appellants.\nJudson H. Miner, Acting Corporation Counsel, of Chicago (Ramsay Laing Klaff and Sharon Baldwin, Assistant Corporation Counsel, of counsel), for appellee." }, "file_name": "0714-01", "first_page_order": 736, "last_page_order": 742 }