SIXTH DIVISION

									December 14, 2001

No. 1-00-1985

RUBY DAVIS,					)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellant,		)	Cook County.

							)	

v.							)	No. 98 L 9159

							)

CHICAGO TRANSIT AUTHORITY and 	)	

ROUHY CLAY,					)	The Honorable

							)	David R. Donnersberger

	Defendants-Appellees.		)	Presiding Judge.

	JUSTICE BUCKLEY delivered the opinion of the court:

	Plaintiff, Ruby Davis, filed a negligence complaint against

defendant, Chicago Transit Authority (CTA), and its agent, Rouhy

Clay, seeking damages for injuries she sustained while a passenger

on a CTA bus.  The trial court granted summary judgment in favor of

the CTA pursuant to section 2-1005 of the Code of Civil Procedure

(Code) (735 ILCS 5/2-1005 (West 1998)) finding plaintiff had failed

to comply with the notice requirements of section 41 of the Metro-

politan Transit Authority Act (the Act) (70 ILCS 3605/41 (West

1998)).  On appeal, plaintiff argues that CTA was not entitled to

summary judgment because plaintiff substantially complied with the

statutory requirements and CTA was able to and did investigate the

facts of the occurrence immediately after it happened.  For the reasons that follow, we affirm.

	I.  STATEMENT OF FACTS

	On May 20, 1994, plaintiff was a passenger on a bus that was

owned and operated by the CTA and was being driven by defendant

Rouhy Clay, a CTA employee.  While traveling westbound on 103rd  Street, the driver applied the brakes suddenly.  Plaintiff was

thrown sideways, towards the bus driver, and her head and shoulder

struck either a pole, a seat, or another passenger.

	The bus driver pulled over and told the passengers to sit

still if they were hurt and that he was going to call the CTA.  He

then passed out CTA courtesy cards to those who were hurt and told

those who were not that another bus would be coming.

	Plaintiff filled out a courtesy card and returned it to the

driver.  The completed courtesy card provided the following infor-

mation:  plaintiff's name, address, telephone number, employer's

name, and employer's telephone number.  Plaintiff also wrote the

following remarks on the card:  "Truck pull around in front of bus. 

I hit my head and neck against another passenger and I can feel a

pull in my left shoulder."  The driver also received courtesy cards

from four other passengers.

	The CTA police arrived at the scene and shortly thereafter an

ambulance arrived and took plaintiff to the emergency room at

Little Company of Mary Hospital.  Plaintiff was X-rayed and given

medication for the pain in her head.  The emergency room physician,

Dr. Joseph, told plaintiff to see her own doctor for follow-up

treatment.  

	On November 18, 1994, plaintiff submitted her notice of claim for personal injuries to CTA's secretary of the board and its

general attorney.  In this notice, plaintiff stated the following:

(1) that the accident occurred on May 20, 1994 at about noontime;

(2) that it occurred at 103rd  and Ashland; and (3) that the name of her attending physician is Dr. Zanelli of the city industrial

clinic.

	On May 18, 1995, plaintiff filed suit against the CTA and the

bus driver, Rouhy Clay.  In her complaint, plaintiff identified the

location of the occurrence as "103rd Street, at or near its inter- section with Ashland Avenue."  On September 15, 1997, plaintiff

voluntarily dismissed her complaint and refiled on August 7, 1998. 

In her refiled complaint, plaintiff identified the location of the

occurrence as "on 103rd Street, at or near the intersections of Vincennes Avenue, Ashland Avenue and 103rd Street, in Chicago, Illinois."

	On February 22, 2000, CTA moved for summary judgement based on

plaintiff's failure to comply with the provisions of section 41 of

the Act (70 ILCS 3605/41 (West 1998)).  The motion identified three

deficiencies with plaintiff's notice.  

	First, the motion observed that by identifying "103rd and Ashland," a nonexistent location, the notice sets forth the wrong

location.  Attached to the motion was a Chicago police department

map of the area and an affidavit from William Platt, the general

manager of the 103rd Street garage.  Platt's affidavit averred that "Ashland Avenue does not intersect with 103rd Street."  The map supports this statement.  The map shows that 103rd Street inter- secs with Vincennes, but not with Ashland Avenue.  Ashland Avenue terminates at about 96th Street.  A diagonal street called South Beverly Avenue originates at that point. 

	Second, the motion observed that the notice sets forth the

wrong time of the occurrence.  The notice stated that the incident

took place at "about noontime."  In contrast, the complaint identi-

fied the time of the incident as "approximately 8:00 a.m."  Like-

wise, in her deposition, plaintiff stated that the incident

occurred at "about 7:55 a.m."

	Finally, the motion observed that the notice fails to list the

name and address of an attending physician.  At her deposition,

plaintiff stated that she had received medical treatment right

after the incident at Little Company of Mary Hospital.  She indi-

cated that she had been attended there in the emergency room by a

Dr. Joseph.  She was unsure whether Joseph was the doctor's first

or last name.  The notice contains no reference to Little Company

of Mary Hospital or to any physician at that hospital.  Instead,

the notice identified plaintiff's attending physician as Dr.

Zanelli at the city industrial clinic.  In her deposition, plain-

tiff identified her treatment as a type of massage, administered by

a therapist, to improve blood circulation.  Plaintiff began seeing

Dr. Zanelli in June 1994 and stopped when the doctor told her she

could not figure out why plaintiff was experiencing pain.

	In her response to CTA's motion for summary judgment,

plaintiff did not argue that her notice complied with section 41. 

Rather she argued that Dr. Zanelli was properly identified as

plaintiff's treating physician and that the CTA is estopped from

seeking dismissal by virtue of their "extensive" involvement in the litigation.  Plaintiff conceded that the notice she filed identi-

fied the wrong time and a nonexistent address.

	Following briefing, the trial court granted summary judgment

in favor of the CTA.  On May 15, 2000, the court entered an order

dismissing the cause of action based on plaintiff's failure to meet

the requirements of section 41.  Plaintiff now appeals.

	II. DISCUSSION

	A.  Standard of Review

	Our review of a trial court's grant of summary judgment is de novo.  Dunlap v. Alcuin Montessori School, 298 Ill. App. 3d 329, 338 (1998).  A summary judgment motion should be granted when " 'the

pleadings, depositions, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.' " Purtill v. Hess, 111 Ill. 2d 229, 240 (1986), quoting Ill. Rev. Stat. 1983, ch. 110, par. 2-1005(c) (now

735 ILCS 5/2-1005 (West 1998)).  Summary judgment is a proper

remedy where a claimant files a defective section 41 notice. 

Yokley v. Chicago Transit Authority, 307 Ill. App. 3d 132, 135-36 (1999).

	B.  Propriety of Trial Court's Grant of Summary Judgment

	Plaintiff argues that summary judgment was improperly granted

in favor of the CTA because the CTA timely investigated the

occurrence based on plaintiff's immediate notice of the injury via

the courtesy card, the reports of other passengers and occurrence

witnesses, and plaintiff's timely filed statutory notice.

	At the time of plaintiff's accident, section 41 of the Act provided as follows: 

			"§41.  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 sec- tion 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."  (Emphasis added.) 70 ILCS 3605/41

(West 1996).

	The purpose of section 41 of the Act was most recently stated

in Yokley v. Chicago Transit Authority, 307 Ill. App. 3d 132, 136- 37 (1999), as follows:

		"The section 41 notice statute was enacted to

allow the CTA to make a timely investigation

into the facts surrounding an injury that

might give rise to a claim against it and to

permit prompt settlement of any meritorious

claims.  [Citations.]  If the section 41

notice is filed in the proper form and within

the statutory period, the CTA will be able to

conduct an investigation while facts are

accessible.  [Citation.]  Without timely and

exact notice of an alleged accident, the CTA

would be severely handicapped in its investi-

gation.  [Citation.]"

	Applying the Act, this court has consistently required a

claimant to "strictly comply" with section 41 by filing and

properly serving, within six months of the alleged injury, a notice

that completely and correctly sets forth all of the statutory

information.  See, e.g., Yokley v. Chicago Transit Authority, 307 Ill. App. 3d 132, 136-37 (1999), appeal  denied, 185 Ill. 2d 670 (1999); Dimeo v. Chicago Transit Authority, 311 Ill. App. 3d 152, 155 (1999); Bonner v. Chicago Transit Authority, 249 Ill. App. 3d 210, 212 (1993); Niziolek v. Chicago Transit Authority, 251 Ill. App. 3d 537, 542 (1993).  Under the applicable strict compliance

standard, a proper section 41 notice "must contain each of the

required elements set forth in the statute and is insufficient if

one or more of the essential elements is omitted."  Yokley, 307 Ill. App. 3d at 137.   Supplying incorrect information is the equi-

valent of supplying no information.  See Yokley, 307 Ill. App. 3d at 137 ("[p]roviding a nonexistent location is tantamount to

providing no location at all"); Thomas v. Chicago Transit Authority, 29 Ill. App. 3d 952, 955 (1975) ("[l]isting the wrong attending physician in the notice is tantamount to a complete

omission of an essential element").

	Here there can be no dispute, indeed plaintiff concedes, that

her notice lists a nonexistent location.  This court's recent

decision in Yokley specifically determined that a notice that sets forth a nonexistent location fails to comply with section 41. 

Plaintiff's notice also set forth an incorrect time of occurrence. 

Although the time element of section 41 requires that a potential

plaintiff state only "about" the hour of the accident (70 ILCS

3605/41 (West 1998)), it cannot be said that noon is "about" 8 a.m. 

Once again, because listing the wrong information is the same as

listing no information, failure to list the correct time likewise

requires dismissal.  Dimeo, 311 Ill. App. 3d at 155.  

	Plaintiff also failed to provide the name of her attending

physician.  Indeed, plaintiff's notice does not even mention that

she was treated at Little Company of Mary Hospital.  Plaintiff correctly notes that in Margolis v. Chicago Transit Authority, 69 Ill. App. 3d 1028, 1033 (1979), our court described an attending

physician as one "who treats plaintiff for injuries which were

allegedly the result of the incident in question."  However, plain-

tiff would like us to apply the Health Care Surrogate Act's

definition, which identifies an "attending physician" as one who is

"selected by or assigned to the patient" and who had "primary

responsibility" for the patient's care and treatment.  755 ILCS

40/10 (West 1998).  Plaintiff fails to explain why the definition

found in the Health Care Surrogate Act would be relevant here. 

Plaintiff further fails to explain how the name and address of a

doctor who may not have even treated plaintiff for injuries

sustained in the accident would be relevant to and aid in the CTA's

investigation of the accident and alleged injuries to a passenger. 

The listing of Dr. Zanelli fails to satisfy the requirements of

disclosing the name of plantiff's attending physician.  See

Margolis, 69 Ill. App. 3d at 1033.

	Notwithstanding the foregoing, plaintiff argues that her

failure to meet the applicable strict construction standard should

be excused.  She argues that this case is "different," that she

"substantially complied" with section 41, and that despite her

failure to strictly comply with section 41, the CTA had all the

information it needed to thoroughly investigate her claim.  This

court has repeatedly rejected similar arguments regarding substan-

tial compliance.  See, e.g., Dimeo, 311 Ill. App. 3d at 154-55 (dismissal required where "time" element omitted despite plain-

tiff's claim that the "defect in her notice is so minimal that it should be disregarded in order to ensure a just result"); Niziolek, 251 Ill. App. 3d at 541 (dismissal required despite plaintiff's

arguments that "a strict interpretation of section 41 would result

in absurd and unjust consequences" and that the mistake in service

did not harm or prejudice the CTA); Sanders v. Chicago Transit Authority, 220 Ill. App. 3d 505, 507 (1991) (dismissal required where secretary not served despite plaintiff's argument that "a

strict construction of the Act would be inequita-ble").  In

addition, we have likewise rejected similar arguments regarding the

CTA's claimed ability to investigate or its actual knowledge.  See Margolis, 69 Ill. App. 3d at 1031-32; Repaskey v. Chicago Transit Authority, 60 Ill. 2d 185, 187-88 (1975).  "[I]t is solely the plaintiff's burden to comply with the section 41 notice

requirements."  Dimeo, 311 Ill. App. 3d at 155, citing Streeter v. Chicago Transit Authority, 272 Ill. App. 3d 921, 2924 (____1995).

	In conclusion, we find that the result here is clear. Section

41 of the Act mandates dismissal of a complaint where a claimant

files a defective statutory notice.  Plaintiff filed an admittedly

defective notice and the trial court properly granted summary

judgment in the CTA's favor.

	III.  CONCLUSION

	Based on the above, we hereby affirm the trial court's order

granting summary judgment in favor of the CTA.

	Affirmed.

	GFallagher, P.J., and O'Mara Frossard, J., concur.