Glasgow v. Associated Banc–Corp

• Decision Date: 21 November 2012
• Docket Number: No. 2–11–1303.,2–11–1303.
• Parties: Takeisha GLASGOW, Individually and on Behalf of her two Minor Children, Brandon F. and Allivan G., Plaintiff–Appellant, v. ASSOCIATED BANC–CORP and Associated Banc–Corp–Lindenhurst Branch, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

980 N.E.2d 785

Takeisha GLASGOW, Individually and on Behalf of her two Minor Children, Brandon F. and Allivan G., Plaintiff–Appellant,

v.ASSOCIATED BANC–CORP and Associated Banc–Corp–Lindenhurst Branch, Defendants–Appellees.

No. 2–11–1303.

Appellate Court of Illinois, Second District.

Nov. 21, 2012.

Stuart H. Galesburg, Law Offices of Stuart H. Galesburg, Chicago, IL, for appellant.

Mark T. McAndrew, Hennessy & Roach, PC, Chicago, IL for appellees.

OPINION

Justice HUTCHINSON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Takeisha Glasgow, appeals the trial court's dismissal, pursuant to section 2–619.1 of the Code of Civil Procedure (the Code) ( 735 ILCS 5/2–619.1 (West 2008) ), of plaintiff's amended complaint against defendants, Associated Banc–Corp and Associated Banc–Corp–Lindenhurst Branch. Plaintiff contends that the trial court erred when it determined (1) that the Illinois Workers' Compensation Act (the Act) ( 820 ILCS 305/5(a) (West 2008)) constituted the exclusive remedy available; (2) that the pleaded facts failed to establish a cause of action against defendants; and (3) that the legislature did not intend to give immunity from suit for intentional inactions under the Act. We affirm.

¶ 2 On December 2, 2010, plaintiff filed a two-count complaint alleging injuries that arose during a bank robbery. On February 17, 2011, plaintiff filed an amended complaint additionally alleging that defendants' conduct was outrageous. Specifically, count I of plaintiff's amended complaint alleged that, on December 2, 2009, plaintiff was working as a bank teller at the Lindenhurst branch of Associated Banc–Corp (the Branch) with a female coworker. Around 3 p.m., a cash truck delivered fresh currency to the Branch. Five minutes before the bank was scheduled to close for the evening, three or four masked robbers took over the bank. One robber struck plaintiff on the head, neck, and right shoulder. Plaintiff and her coworker were ordered to give the robbers money from the cash drawers and the vault. Before leaving, the robbers ordered plaintiff to lie facedown on the floor. She was also ordered not to move and not to call police, under threat of additional harm. Plaintiff sustained "serious and permanent injuries of orthopedic, neurological, and psychiatric conditions of ill-being, and remains under treatment."

¶ 3 According to the amended complaint, the Branch was robbed twice previously, once in 2006 and again in 2008. Plaintiff had not been aware of the previous robberies and alleged that she would not have taken the teller position if she had been aware of the robberies. Plaintiff's complaint further alleged that, prior to the December 2, 2009, robbery, she and a coworker advised their supervisor that the Branch (1) lacked a security guard; (2) lacked bulletproof glass and preventive windows that would deter bank robbers from climbing over the counter to attack tellers; (3) should not have "open cash drawers at teller stations"; (4) should not keep its vault open throughout the business day; and (5) should have a male teller present.

¶ 4 According to her amended complaint, defendants "knowingly, willfully, [and] purposely failed, with obvious intent and outrageous conduct, [to] provide adequate bank security to deter and/or prevent the December 2, 2009, bank robbery, because of the costs, and any other issues, all less important, than the lives and welfare, of its employees, customers, and law enforcement personnel, tracking the alleged perpetrators for their arrest."

¶ 5 Plaintiff's amended complaint also maintained that defendants knew or should have known prior to December 2, 2009, that the Branch could reasonably be expected to be robbed. Plaintiff's complaint alleged that the December 2, 2009, robbery was not accidental, but that, because of defendants' failure to implement increased security measures to deter robberies, there was a "direct invite" to rob. Plaintiff sought punitive damages against defendants for their "outrageous conduct" and to encourage defendants and other banks to implement proper minimum security measures to prevent robberies.

¶ 6 On December 10, 2009, plaintiff filed a workers' compensation case which, as of the date this appeal was filed, is still pending with the Illinois Workers' Compensation Commission. Defendants' workers' compensation carrier is currently providing workers' compensation benefits to plaintiff.

¶ 7 On April 28, 2011, defendants filed a section 2–619.1 motion to dismiss. On August 9, 2011, the trial court granted defendants' motion on section 2–619 grounds. On September 8, 2011, plaintiff filed a motion to vacate and for leave to file a second amended complaint. On November 15, 2011, the trial court denied the motion. Plaintiff timely appeals.

¶ 8 We address only count I of plaintiff's complaint. Plaintiff acknowledges that count II of her complaint, on behalf of her minor children, was correctly dismissed with prejudice and notes that no discussion or argument regarding count II is presented on appeal.

¶ 9 Plaintiff contends that the trial court erred when it granted defendants' motion to dismiss. Specifically, plaintiff argues that (1) the Act did not constitute the exclusive remedy under the present circumstances; (2) the pleaded facts established a cause of action against defendants; and (3) the legislature did not intend to give immunity from suit for intentional inactions under the Act. Defendants respond that, pursuant to the Act, plaintiff's sole remedy is her pending workers' compensation claim. See 820 ILCS 305/5(a) (West 2008).

¶ 10 We agree with defendants. Once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act's provisions. See Collier v. Wagner Castings Co., 81 Ill.2d 229, 241, 41 Ill.Dec. 776, 408 N.E.2d 198 (1980). Accordingly, we conclude that, once plaintiff applied for and accepted workers' compensation benefits, she was barred from pursuing an intentional-tort action against defendants.

¶ 11 Section 2–619.1 of the Code permits a defendant to file a combined motion to dismiss pursuant to sections 2–615 and 2–619 of the Code. 735 ILCS 5/2–615, 2–619, 2–619.1 (West 2008). A section 2–615 motion to dismiss "tests the legal sufficiency of the complaint," while a section 2–619 motion "admits the legal sufficiency of the complaint, but asserts an affirmative matter outside the complaint that defeats the cause of action." Kean v. Wal–Mart Stores, Inc., 235 Ill.2d 351, 361, 336 Ill.Dec. 1, 919 N.E.2d 926 (2009). Under either section of the Code, our standard of review is de novo. Id. Because the trial court ultimately dismissed plaintiff's amended complaint pursuant to section 2–619, our analysis is based upon the constructs of section 2–619.

¶ 12 The purpose of a section 2–619 motion to dismiss is to dispose of issues of law and easily proved issues of fact at the outset of litigation. Van Meter v. Darien Park District, 207 Ill.2d 359, 367, 278 Ill.Dec. 555, 799 N.E.2d 273 (2003). "A section 2–619 motion admits as true all well-pleaded facts, along with all reasonable inferences that can be gleaned from those facts." Porter v. Decatur Memorial Hospital, 227 Ill.2d 343, 352, 317 Ill.Dec. 703, 882 N.E.2d 583 (2008). "On appeal from a section 2–619 motion, the reviewing court ‘must consider whether the existence of a genuine issue of material fact should have precluded dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.’ " O'Casek v. Children's Home & Aid Society of Illinois,

229 Ill.2d 421, 436, 323 Ill.Dec. 2, 892 N.E.2d 994 (2008) (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill.2d 112, 116–17, 189 Ill.Dec. 31, 619 N.E.2d 732 (1993) ).

¶ 13 In the present matter, the trial court determined that receiving compensation pursuant to the Act was plaintiff's exclusive remedy. Section 5(a) of the Act provides, in pertinent part:

"No common law or statutory right to recover damages from the employer * * * for injury or death sustained by any employee while engaged in his line of duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to anyone wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." 820 ILCS 305/5(a) (West 2008).

¶ 14 Plaintiff argues that the exclusivity provisions of the Act do not bar common-law causes of action against an employer for injuries that the employer or its alter ego intentionally inflicts upon an employee or that were commanded, or expressly authorized, by the employer. See Meerbrey v. Marshall Field & Co., 139 Ill.2d 455, 470, 151 Ill.Dec. 560, 564 N.E.2d 1222 (1990). Plaintiff asserts that defendants' refusal to increase security measures after her request and two prior robberies constituted the intentional act of "inviting" another robbery.

¶ 15 Defendants respond that their decision to implement or not implement tighter security standards did not rise to the level of a specific intent by them to inflict injury. Moreover, defendants assert that the actions of third parties, here the robbers, were not commanded, authorized, or in any way controlled by defendants. Defendants assert that plaintiff is attempting to circumvent the Act's exclusivity provisions by claiming that defendants knew or should have known that the Branch could reasonably be expected to be robbed.

¶ 16 Our supreme court has determined that an injured employee is not permitted to seek workers' compensation benefits, claiming that the injuries are compensable under the Act, while additionally pursuing a common-law action for an intentional tort. Collier, 81 Ill.2d at 241, 41 Ill.Dec. 776, 408 N.E.2d 198. In Collier, an employee brought a complaint against his employer, alleging that the employer...