{ "id": 2614401, "name": "Margaret Saragusa, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant", "name_abbreviation": "Saragusa v. City of Chicago", "decision_date": "1974-04-01", "docket_number": "No. 59072", "first_page": "945", "last_page": "952", "citations": [ { "type": "official", "cite": "18 Ill. App. 3d 945" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "282 N.E.2d 437", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill.2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391966 ], "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0357-01" ] }, { "cite": "292 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill.2d 405", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2925003 ], "weight": 3, "pin_cites": [ { "page": "407" }, { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0405-01" ] }, { "cite": "12 N.E.2d 336", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "293 Ill.App. 625", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3273296, 3271370, 3270570, 3273756 ], "opinion_index": 0, "case_paths": [ "/ill-app/293/0625-01", "/ill-app/293/0625-02", "/ill-app/293/0625-03", "/ill-app/293/0625-04" ] }, { "cite": "18 Ill. App.3d 426", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2608857 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0426-01" ] }, { "cite": "105 N.E. 294", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "263 Ill. 510", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4761098 ], "weight": 2, "pin_cites": [ { "page": "511" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill/263/0510-01" ] }, { "cite": "18 Ill.2d 627", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "161 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill.App.2d 222", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5204217 ], "weight": 2, "pin_cites": [ { "page": "224, 225" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/23/0222-01" ] }, { "cite": "196 N.E. 191", "category": "reporters:state_regional", "reporter": "N.E.", "weight": 3, "opinion_index": 0 }, { "cite": "360 Ill. 328", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2599691 ], "weight": 4, "pin_cites": [ { "page": "333" } ], "opinion_index": 0, "case_paths": [ "/ill/360/0328-01" ] } ], "analysis": { "cardinality": 672, "char_count": 15125, "ocr_confidence": 0.741, "pagerank": { "raw": 1.3751620438537466e-07, "percentile": 0.6393017507970542 }, "sha256": "0a824beb85a4738035bf27ebade899db0d9892dda34a6cef7a0005a7588c8719", "simhash": "1:f932c760e24b3420", "word_count": 2537 }, "last_updated": "2023-07-14T18:19:57.388760+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Margaret Saragusa, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant." ], "opinions": [ { "text": "PER CURIAM:\nOn September 21, 1970, plaintiff, Margaret Saragusa, filed this action against the defendant, City of Chicago, for injury resulting from her fall on April 20, 1970, due to an allegedly defective City sidewalk. The court, sitting without a jury, found for the plaintiff and assessed damages in the amount of $14,000, and the City appeals, contending that the court should have dismissed the action because the plaintiff\u2019s written statement, filed with the city clerk on June 23, 1970, (1) was not signed and (2) did not give \u201cthe name and address of the treating hospital or hospitals, if any,\u201d as required by section 8\u2014102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, as amended. (III. Rev. Stat. 1969, ch. 85, par. 8\u2014102.) No question is raised as to the correctness or the amount of the verdict.\nThe City\u2019s answer to plaintiff\u2019s complaint admitted receipt of \u201cpurported notice.\u201d At trial, the assistant corporation counsel stated that he wanted the record to show that he had filed a motion to dismiss on the ground that the notice was defective in the two respects mentioned. Otherwise, the facts are not in dispute. The evidence showed that although the copy of the notice left with the assistant city clerk was not signed, the original which the assistant clerk signed for and which he stamped \u201cReceived\u201d did contain the plaintiff\u2019s signature. Plaintiff was hospitalized from April 20, 1970, the date of the accident, until June 6, 1970, as a patient at St. Mary of Nazareth Hospital. This information was omitted from the notice, which gave Dr. A. B. Vacante\u2019s name as the \u201cattending physician.\u201d\nIn ruling against the City on its motion to dismiss the case because the notice was insufficient, the trial judge said he based his decision on several factors, that the notice did contain the name of one Dr. Vacante and his address, that the information concerning the hospital was contained in the plaintiff\u2019s answers to the City\u2019s interrogatories, that the City did not raise the issue in its answer and did not file a motion to dismiss on the basis of improper notice until the date of trial. Under these circumstances, the court felt there was \u201csubstantial compliance\u201d with the statute and that the City should be estopped from moving to dismiss at so late a date.\nThe City\u2019s fifth interrogatory had asked for information concerning any attending or consulting physicians and the plaintiff\u2019s answer, filed December 22, 1970, stated:\n\u201c5. (1) Dr. A. B. Vacante\n6043 West Belmont Avenue Chicago, Illinois Tu 9-1777\n(2) Dr. Dereng\nSt. Mary of Nazareth Hospital 1120 North Leavitt Street Chicago, Illinois 60622\n(3) Dr. Mahin Hamidi Dr. Flitis\nSt. Mary of Nazareth Hospital 1120 North Leavitt Street Chicago, Illinois 60622\n(4) Dr. Vacante\u2014periodic visits in hospital.\nDr. Dereng\u20144-22-70.\nDr. Mahin Hamidi\u20144-22-70.\nDr. Flitis\u20144-22-70.\u201d\nAnd in response to the City\u2019s sixth interrogatory, which requested certain information about whether the plaintiff had been \u201ca patient or outpatient at any hospital or clinic,\u201d the plaintiff answered:\n\u201c6. Still under Doctor\u2019s care. Visits are made to patient\u2019s home.\nDr. A. B. Vacante on following dates:\n6-25-70 $15.00\n9- 9-70 15.00\n10-31-70 15.00.\u201d\nI.\nThe single issue in this case is whether the plaintiff\u2019s written notice complied with section 8\u2014102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1969, ch. 85, par. 8\u2014102), which at the time of plaintiff\u2019s accident in 1970 read as follows:\n\u201c\u00a7 8\u2014102. Notice of injury. Within 6 months from the date that the injury or cause of action, referred to in Sections 8\u2014102 and 8\u2014103, was received or accrued, any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employee caused the injury, must personally serve in the Office of the Secretary or Clerk, as the case may be, for the entity against whom or against whose employee the action is contemplated a written statement, 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, the general nature of the accident, the name and address of the attending physician, if any, and the name and address of the treating hospital or hospitals, if any.\u201d\nIf the notice did not meet these requirements the trial court should have dismissed the suit in accordance with the requirements of section 8\u2014103 of chapter 85.\nArguing first that the copy of the notice left with the City must be signed, the City cites as authority Minnis v. Friend, 360 Ill. 328, 196 N.E. 191, where the court held the notice fatally defective because \u201cone of the essential elements,\u201d i.e., the signature, was omitted. However, in the later cases, this requirement has been somewhat relaxed and in an identical factual situation in Klapkowski v. City of Chicago, 23 Ill.App.2d 222, 161 N.E.2d 865, leave to appeal denied, 18 Ill.2d 627, the notice was held sufficient, the court stating (23 Ill.App.2d 222, 224, 225):\n\u201cThe City was served with an original signed statement giving it proper notice of the injury. The fact that both copies were unsigned does not warrant the application of a different rule.\u201d\nConsequently, the absence of the plaintiff\u2019s signature on the copy left with the city clerk did not render the notice insufficient.\nH.\nSecondly, the City maintains, the notice was insufficient because it did not name the treating hospital. Plaintiff answers that her notice was \u201cin substantial compliance\u201d with the statute, citing Minnis v. Friend, 360 Ill. 328, 196 N.E. 191. The court there distinguished McComb v. City of Chicago, 263 Ill. 510, 511, 105 N.E. 294, which had held that \u201cat or near the corner of Thirty-ninth Street and Campbell Avenue\u201d was a sufficiently definite description, although it did not state on which corner the accident had occurred, and laid down the following rule regarding attempts to comply with the statute (360 Ill. 328, 333):\n\u201cThe McCornb case would be applicable if there had been some attempt to comply with the requirement of the statute that the notice be signed and if the question were as to the sufficiency of the signature. No reason appears to us why the plain terms of the statute should not be followed.\u201d\nThe City points to the recent case of Nikolic v. City of Chicago 18 Ill. App.3d 426, where a written notice was held insufficient since it failed altogether to describe the general nature of the accident which the City argued was \u201ca necessary part\u201d of the required notice. The court added (slip opinion, page 3):\n\u201cIn so finding, we are not unmindful of the cases which plaintiff urges in support of his contention that where a substantial attempt to comply with the notice provisions of the statute is made, the notice will be deemed sufficient.\u201d\nThe question, then, is whether as plaintiff contends there has been a substantial attempt to comply with the statutory provision that the written notice give \u201cthe name and address of the treating hospital or hospitals, if any,\u201d as was required for the first time by the 1969 amendment to the statute which became effective October 10, 1969. Plaintiff first argues that she attempted to comply with the provision by including the doctor\u2019s name in the original notice. Musser v. City of Chicago, 293 Ill.App. 625, 12 N.E.2d 336 (abstract opinion), cited by plaintiff, found a notice sufficient which did not give the name of the physician who had treated the plaintiff for 24 days immediately following the injury, but did name the physician who thereafter took over treatment of the plaintiff. We do not think that giving Dr. Vacante\u2019s name can be construed as an attempt to comply with the new provision because furnishing the physician\u2019s name is a requirement independent of and in addition to the requirement that the notice supply the name of the treating hospital.\nIn other words the test is not whether, in general, a plaintiff has attempted to comply with the statutory requirement, i.e., \u201csubstantial compliance\u201d with the overall requirements of section 8\u2014102. The test, rather, is whether plaintiff has made \u201csome attempt\u201d to comply with the particular requirement at issue (here, the requirement that the treating hospital be designated) and, if so, whether that attempt is \u201csubstantial.\u201d Thus, in the case before us, it is known from the answers to the interrogatories quoted earlier that at least three physicians attended plaintiff yet her notice named only one. Had the City contended plaintiff did not comply with the statutory requirement that she give \u201cthe name and address of the attending physician, if any,\u201d citation of Musser would be appropriate, but the City has not so contended. Therefore, compliance with the one provision concerning the attending physician was not an attempt to comply with the separate and distinct requirement that the notice name the treating hospital. Since plaintiff has not shown that she made \u201csome attempt\u201d to comply with this provision, we can make no appraisal of whether the attempt was \u201csubstantial.\u201d\nPlaintiff also contends that her answers to the interrogatories provided the information omitted in the notice. However, although the City\u2019s sixth interrogatory specifically and pointedly asked whether the plaintiff had been a patient at a hospital or clinic, plaintiff\u2019s answer did not furnish the name of any hospital or clinic, but only Dr. Vacante\u2019s name and certain charges he made. And plaintiffs answer to the fifth interrogatory (for the names, addresses and other information concerning attending or consulting physicians) does not give the name of the hospital, as such. This was not a substantial attempt to comply with the provision at issue. Plaintiffs answer to that interrogatory, quoted in fuH above, did list two doctors in addition to Dr. Vacante and gave their addresses as \u201cSt. Mary of.Nazareth Hospital, 1120 North Leavitt Street, Chicago.\u201d It might be inferred from this information that these doctors were attending physicians at St. Mary of Nazareth Hospital, but it does not necessarily follow that the City could or should have interpreted this information to mean that the plaintiff had been hospitalized there or that St. Mary of Nazareth Hospital was the treating hospital within the meaning of the statute. Apparently the City did not so interpret the information and so did not realize plaintiff had been hospitalized. This is why the City did not raise this defect in the notice earlier in the proceedings.\nIn any event, even if we were to conclude that the information furnished by plaintiff in her answers to the City\u2019s interrogatories did name the treating hospital, or at least was a sufficient attempt to comply with that particular provision of the statute, the information was not furnished within 6 months from the date of the injury as required by the statute. In so holding, we are aware of the recent case of Helle v. Brush, 53 Ill.2d 405, 292 N.E.2d 372, which held that the defendant\u2019s timely counterclaim, arising out of the same occurrence as an underlying suit filed by the City against it, was not subject to dismissal for failure to comply with the notice requirements of section 8\u2014102. The court listed the purposes of the statute (53 Ill.2d 405, 407): \u201cto permit early investigation and prompt settlement of meritorious claims; to avoid the expenses and costs of suit where settlement can be achieved; and to permit the public entity to determine its budget in advance, for taxing purposes\u201d, and held that these purposes were served in the case at bar, stating (53 Ill.2d 405, 408):\n\"Here, the fact that the public entity commenced the action indicates that the facts were not stale, and the avowed purpose of avoiding the expenses of litigation cannot be achieved since the public entity initiated the litigation. While the additional purpose of enabling a public entity to determine its budget for tax purposes is laudable, it must be weighed against the rights of the person who is sued to assert a cause of action against the litigant who brought him to court.\u201d\nThe case at bar is clearly distinguishable from Helle v. Brush because here the City did not commence the litigation, and because the purposes of the statute listed above are not served if in a case such as that at bar, the name of the hospital can be omitted and the cost of 6 weeks\u2019 hospitalization not come to light until trial. Nevertheless, plaintiff argues that the purposes of the statute were served first because suit was filed within the 6 months\u2019 limitation and because the name of the hospital was contained in her answer to the City\u2019s written interrogatories, in effect that the City had actual notice of the formation missing from the notice (the name of the treating hospital). But the case of Housewright v. City of LaHarpe, 51 Ill.2d 357, 361, 282 N.E.2d 437, explicitly rejected the contention of the plaintiff there, that an allegation of actual notice satisfied the statutory requirement of written notice within the 6-month period. The contention that the City waived tire notice requirement by failing to set it up as an affirmative defense in its answer and by waiting until the day of trial to raise the issue is not persuasive. In McComb v. City of Chicago, 263 Ill. 510, at 514, the court, even when giving the statute a liberal interpretation in favor of the plaintiff, was careful to point out: \u2018We do not mean to be understood that the proof can be made to supply defects in the notice * * * Likewise, we can see no reason here why the holding in Helle v. Brush should be extended to nullify the 1969 amendment to the statute.\nThe 1969 amendment has for the first time required that the written statement give the name and address of the treating hospital or hospitals, if any. This requirement was an essential element of the notice. The plaintiff omitted this element altogether from her notice and she has not shown that she made any attempt and certainly no substantial attempt to comply with this provision, as she was required to do by the language of Minnis v. Friend, 360 Ill. 328, 196 N.E. 191. The notice, therefore, lacked a necessary element and was fatally defective. Accordingly, the motion to dismiss should have been granted and the judgment of the circuit court of Cook County is reversed.\nJudgment reversed.\nBURKE, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "PER CURIAM:" } ], "attorneys": [ "Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel), for appellant.", "Sol I. Dvorkin, of Chicago (Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellee." ], "corrections": "", "head_matter": "Margaret Saragusa, Plaintiff-Appellee, v. The City of Chicago, Defendant-Appellant.\n(No. 59072;\nFirst District (1st Division)\nApril 1, 1974.\nRehearing denied April 30, 1974.\nBURKE, J., took no part.\nRichard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel), for appellant.\nSol I. Dvorkin, of Chicago (Michael A. Gerrard and Allen S. Gerrard, of counsel), for appellee." }, "file_name": "0945-01", "first_page_order": 965, "last_page_order": 972 }