Injury claim dismissed for failure to SERVE "notice" within 60 days of injury
Paska Nuculovic was badly hurt when a SMART bus made a left-turn directly in front of her on Harper Avenue. Smart Bus, Inc., received a copy of the police report disclosing Nuculovic's injury, and both the driver and the driver's supervisor filed detailed incident reports, however, Nuculovic did not "serve" them with a formal notice of her injury in the first 60 days: perhaps she was too busy being treated.
A statute pertinent to governmental immunity requires mass transit passengers to "serve" notice of injury on the transit authority within 60 days and the Court dismissed the injury victim's claim because she did not serve this notice. It made this ruling even though the transit authority had suffered no prejudice and had actual, detailed knowledge of the incident. It also refused to allow the plaintiff to raise the fact that the authority had not timely raised this affirmative defense, as required by Court Rule, because she had not objected to the timeliness issue in the lower court.
Judge Stephen Borrello objected to this interpretation and outcome, noting that it elevated a technical description of "serving notice" above the substantive rights of the parties, given the fact that the Defendant did, in fact, have extensive knowledge of the incident and its impact on the plaintiff.