Wheatley v. Chicago Transit Authority

                                   SECOND DIVISION
                                   June 30, 1997







No. 1-96-1824

MICHAEL J. WHEATLEY,                    )    Appeal from the
                                        )    Circuit Court of
          Plaintiff-Appellant,          )    Cook County.
                                        )
     v.                                 )
                                        )
CHICAGO TRANSIT AUTHORITY,              )    Honorable 
                                        )    Loretta C. Douglas,
          Defendant-Appellee.           )    Judge Presiding.

     JUSTICE McNULTY delivered the opinion of the court:

     Plaintiff Michael J. Wheatley appeals from the trial court
order dismissing his suit against defendant, the Chicago Transit 
Authority (CTA), on the basis that plaintiff did not serve the CTA
with notice of his injuries within six months from the date of his
injury or file suit within one year of the date he received the
injuries as required by section 41 of the Metropolitan Transit
Authority Act.  70 ILCS 3605/41 (West 1994).  Plaintiff claims on
appeal that because his injuries occurred while he was doing
construction work, his limitations period was governed by section
13-214 of the Code of Civil Procedure (Code) which provides a four-
year window for bringing claims arising out of construction
accidents.  735 ILCS 5/13-214 (West 1994).  We affirm.  
     Plaintiff filed suit against the CTA on October 16, 1995.
Plaintiff alleged in his complaint that on March 15, 1994, while 
employed as a laborer by Blinderman Construction Company, he was 
performing work on the CTA Sheffield/Addison elevated rail station
and was injured when a trench collapsed.  Plaintiff alleged that
the CTA was acting as a general contractor and that plaintiff was
injured as a result of the CTA's violation of the Illinois
Structural Work Act in failing to properly shore the trench to
prevent its collapse.  740 ILCS 150/01 (West 1994).         
     On January 18, 1996, the CTA filed a motion to dismiss based
on plaintiff's failure to serve a notice of personal injury within
six months and file a lawsuit within one year of the alleged
incident as required by section 41 of the Metropolitan Transit
Authority Act.  70 ILCS 3605/41 (West 1992).  On March 13, 1996,
plaintiff responded that because he sustained his injuries while
engaged in construction work on a CTA project, and not as a
passenger, his action was governed only by section 13-214 of the
Code, which allows four years for the bringing of a suit.  735 ILCS
5/13-214 (West 1994).  The trial court granted the CTA's motion to
dismiss, finding that section 41 of the Metropolitan Transit
Authority Act was more specific than section 13-214 of the Code and
should therefore control.  The court noted, however, that this was
a difficult decision since there was no controlling precedent and
that the court's decision could have also gone the other way.
     We must determine in this appeal whether the filing of a 
claim for injuries sustained while working on CTA property is
governed by section 41 of the Metropolitan Transit Authority Act or
by section 13-214 of the Code of Civil Procedure.  
     Section 41 of the Metropolitan Transit Authority Act provides:
          "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."  70 ILCS 3605/41 (West 1994)  
Section 13-214 of the Code of Civil Procedure provides:
          "Construction-Design management and supervision.  As
     used in this section 'person' means any individual, any
     business or legal entity, or any body politic.
          (a) Actions based upon tort, contract or otherwise
     against any person for an act or omission of such person
     in the design, planning, supervision, observation or
     management of construction, or construction of an
     improvement to real property shall be commenced within 4
     years from the time the person bringing an action, or his
     or her privity, knew or should reasonably have known of
     such act or omission."  735 ILCS 5/13-214 (West 1994).
There is no case law construing the relationship between section
41 of the Metropolitan Transit Authority Act and section 13-214 of
the Code.  
     The first rule of statutory construction is to ascertain and
give effect to the true intent and meaning of the legislature. 
Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 595 N.E.2d 561 (1992).  Plaintiff claims that the legislature only
intended section 41 of the Metropolitan Transit Authority Act to
apply to personal injury claims against the CTA that arose out of
the CTA's operations as a common carrier.  Plaintiff points out
that section 41 was enacted to address the unique problems caused
by the CTA's status as the nation s largest mass transit carrier. 
The magnitude of the CTA's operations and its special duty to
provide its passengers with the highest degree of care produced
large volumes of personal injury actions and therefore warranted
giving the CTA is own protective statute.  Fujimura v. Chicago
Transit Authority, 67 Ill. 2d 506, 368 N.E.2d 105 (1977); Segarra
v. Chicago Transit Authority, 265 Ill. App. 3d 480, 637 N.E.2d 572
(1994), Schuman v. Chicago Transit Authority, 407 Ill. 313, 95 N.E.2d 447 (1950).  Plaintiff argues that claims by people injured
while working on CTA property do not involve the concerns section
41 was intended to address, since there is no indication that the
number or type of claims will present any unusual problems.      
     However, as the CTA notes, the terms of section 41 are 
comprehensive and do not distinguish between different types of
personal injury claimants.  Section 41 provides that "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."  (Emphasis added.)  70 ILCS 3605/41
(West 1994).  The statute also requires that notice be served
within six months of the incident by "any person who is about to
commence any civil action" against the CTA for damages on account
of "any injury to his person." (Emphasis added.)  70 ILCS 3605/41
(West 1994).  Thus, the statute does not limit its terms to
persons injured as a result of the operation of buses or trains,
or to persons who were passengers on buses or trains. Rather,
section 41 applies to all personal injury claims brought against
the CTA including those sustained during construction related
activities.
     In fact, section 41 of the Metropolitan Transit Authority Act
has been applied in many incidences where the CTA did not owe the
highest degree of care as a common carrier.  See Repaskey v.
Chicago Transit Authority, 60 Ill. 2d 185, 326 N.E.2d 771
(1975)(section 41 applied to plaintiff injured on an escalator on
CTA property); Niziolek v. Chicago Transit Authority, 251 Ill.
App. 3d 537, 620 N.E.2d 1097 (1993)(section 41 applied to
plaintiff driving his auto when allegedly struck by a CTA bus); 
Bonner v. Chicago Transit Authority, 249 Ill. App. 3d 210, 618 N.E.2d 871 (1993) (section 41 applied to plaintiff whose vehicle
collided with a CTA bus).  We therefore find that section 41 of
the Metropolitan Transit Authority Act is applicable to any injury
sustained by any person.      It is thus apparent that section 41
of the Metropolitan Transit Authority Act and section 13-214 of
the Code are both applicable to construction workers injured while
doing work on CTA property.  We therefore turn to an analysis of
whether one statute is more specific.  Where two statutory
provisions cover the same subject matter, the more specific
statute governs.  Zimmer v. Village of Willowbrook, 242 Ill. App.
3d 437, 610 N.E.2d 709 (1993).  Plaintiff claims that section 13-
214 of the Code is more specific since it concerns only those
personal injuries sustained from construction work, while section
41 of the Metropolitan Transit Authority Act deals with all
personal injury claims against the CTA.  See Hernon v. E.W.
Corrigan Construction Co., 149 Ill. 2d 190, 595 N.E.2d 561
(1992)(holding that section 13-214 is a specific statute).  In
support of his argument, plaintiff relies on several cases in
which statutes have been found more specific than section 8-101 of
the Local Governmental and Governmental Employees Tort Immunity
Act (Tort Immunity Act) (745 ILCS 10/8-101 (West 1994)).  In
Zimmer v, Village of Willowbrook, 242 Ill. App. 3d 437, 610 N.E.2d 709 (1993), the court determined that section 13-214 of the Code
is more specific than section 8-101 of the Tort Immunity Act.  The
court determined that section 13-214 of the Code more specifically
applied to actions against any body politic when an construction
injury is involved.  In Bertolis v. Community Unit School District
No. 7, 283 Ill. App. 3d 874, 671 N.E.2d 79 (1996), the court
determined that section 13-211 of the Code of Civil Procedure (735
ILCS 5/13-211 (West 1994)), allowing suit to be filed two years
after a plaintiff reaches the age 18, is more specific than the
one-year statute of limitations provided in section 8-101 of the
Tort Immunity Act.  745 ILCS 10/8-101 (West 1994).  The court
concluded that section 13-211 of the Code addresses a specific
class of plaintiffs as well as the nature of the injury, while
section 8-101 of the Tort Immunity Act applies only to a given
group of defendants and could encompass any type of civil action. 
In Cleaver v. Marrese, 253 Ill. App. 3d 778, 625 N.E.2d 1129
(1993), the court found that section 13-212 of the Code of Civil
Procedure, which governed the time period for bringing medical
malpractice claims, was more specific than section 8-101 of the
Tort Immunity Act.  The court noted that section 13-212 was
specifically limited to actions against doctors and hospitals,
while section 8-101 dealt with all injuries against any
municipality.
     We do not find the cases cited by plaintiff helpful since 
they concerned the application of section 8-101 of the Tort
Immunity Act.  The Tort Immunity Act has broad application to
thousands of public municipalities throughout the state and covers
all types of civil suits against them.  It is also applicable to
all types of suits, including contract and property damage claims. 
Section 41 of the Metropolitan Transit Authority Act is much more
specific than section 8-101 since it is only applicable to
personal injury claims and only applicable to the CTA. 
     Section 41 of the Metropolitan Transit Authority Act is also
more specific than section 13-214 of the Code.  Section 41 applies
to only one entity, the CTA, while section 13-214 of the Code
could be applied to any person or entity being sued for a
construction-related activity.  Furthermore, while section 41 only
applies to personal injury lawsuits, section 13-214 applies to all
actions based upon tort or contract.
     Accordingly, for the reasons set forth above, we affirm the
trial court order dismissing plaintiff s suit against the CTA on
the basis that is was untimely filed.
     Affirmed. 
     RAKOWSKI and TULLY, JJ., concur.