Carrillo v. Hamling

• Decision Date: 20 June 1990
• Docket Number: No. 2-89-0907,2-89-0907
• Citation: 144 Ill.Dec. 843,556 N.E.2d 310,198 Ill. App. 3d 758
• Parties: , 144 Ill.Dec. 843 Valerie L. CARRILLO, Plaintiff-Appellant, v. Leo HAMLING, Indiv. and in His Capacity as a Police Officer of the City of Aurora, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 310

556 N.E.2d 310

198 Ill.App.3d 758, 144 Ill.Dec. 843

Valerie L. CARRILLO, Plaintiff-Appellant, v.Leo HAMLING, Indiv. and in His Capacity as a Police Officer of the City of Aurora, Defendant-Appellee.

No. 2-89-0907.

Appellate Court of Illinois Second District.

June 20, 1990.

Phillip S. Wood, Pasky & Wood, Aurora, for Valerie L. Carrillo.

Querrey, Harrow & Callahan, P.C., Thomas P. Schreschel, Querrey & Harrow, Ltd., Geneva, Ellyn B. Dorf, and Michael Resis, Querrey & Harrow, Ltd., Chicago, for Leo Hamling.

Justice INGLISdelivered the opinion of the court:

Plaintiff, Valerie Carrillo, appeals the trial court's order dismissing her complaint against defendant, Leo Hamling, the trial court having found that defendant was on duty as a police officer at the time he allegedly inflicted injuries upon plaintiff, a fellow police officer.Thus, the trial court ruled that defendant was immune from plaintiff's common-law tort claim pursuant to the exclusivity provision of the Workers' Compensation Act(Act)( Ill.Rev.Stat.1987, ch. 48, par. 138.5(a)).On appeal, plaintiff contends that the trial court's ruling in this regard is erroneous as a matter of law.We agree and therefore reverse the order and remand the cause.

The trial court granted defendant's motion to dismiss filed pursuant to section 2-619(a)(9) of the Code of Civil Procedure(Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(9)).For purposes of such a motion, the trial court is obliged to accept as true all well-pleaded facts in the complaint, along with all the reasonable inferences which may be drawn therefrom.(Basler v. Webb(1989), 188 Ill.App.3d 178, 180, 135 Ill.Dec. 703, 544 N.E.2d 60.)Thus, we may adduce the following facts from plaintiff's complaint.

Plaintiff, an Aurora, Illinois, police officer, was on duty on December 10, 1986, when she responded to a call for aid at 325 West Downer Place, Aurora.There plaintiff found defendant, a fellow police officer, battering his wife.Plaintiff approached defendant and verbally ordered him to cease the attack.When defendant did not respond, plaintiff attempted to restrain him.However, defendant turned and flung plaintiff onto the cement sidewalk forcefully enough to cause multiple fractures to plaintiff's left leg, among other injuries.

On February 1, 1988, plaintiff filed a three-count complaint against defendant and various other city officials and employees including the chief of police.In count I, plaintiff named defendant individually, alleging that defendant had negligently caused her injuries; in count II, plaintiff alternatively alleged that defendant had intentionally injured her; in an amended count III, plaintiff charged defendant, the chief of police and other city officials and employees, in their official capacities, with conspiring to cover up defendant's alleged numerous attacks on other women, thus insulating defendant from arrest and/or departmental discipline.The police chief and the city have been dismissed as defendants by agreement, and they are not parties to this appeal.

Defendant filed an answer and various affirmative defenses, in which he claimed, inter alia, that plaintiff had been awarded worker's compensation benefits as a result of her worker's compensation claim for the injuries she sustained on December 10, 1986.Defendant claimed that since plaintiff elected her worker's compensation remedy, she"has forfeited her right to recover * * * from the Defendant, LEO M. HAMLING, a fellow servant and employee, on a common-law claim."Defendant cited section 5(a) of the Act(Ill.Rev.Stat.1987, ch. 48, par. 138.5(a)) in support of this affirmative defense.

Defendant subsequently filed a motion to dismiss plaintiff's complaint pursuant to section 2-619(a)(9)(Ill.Rev.Stat.1987, ch. 110, par. 2-619(a)(9)), in which he stated that according to a general order of the Aurora police department, an Aurora police officer "will be considered as being always on duty."Defendant argued that an injured police officer who receives worker's compensation benefits for her injuries, such as plaintiff, cannot maintain a separate civil action against a co-worker whose acts allegedly caused her injuries, whether such acts were negligent or intentional.Defendant relied upon Collier v. Wagner Castings Co.(1980), 81 Ill.2d 229, 241, 41 Ill.Dec. 776, 408 N.E.2d 198, andFregeau v. Gillespie(1983), 96 Ill.2d 479, 486, 71 Ill.Dec. 716, 451 N.E.2d 870.

The trial court heard the parties' arguments on the motion and concluded, on the basis of the cited general order, that:

"Police officers in the City of Aurora are on duty around the clock.And therefore, the fellow servant rule and the cases cited by [defendant's counsel] * * * are appropriate, and the complaint is dismissed."

Plaintiff's timely appeal ensued.

The issue presented in this appeal is whether section 5(a) of the Act, the so-called exclusivity provision (Ill.Rev.Stat.1987, ch. 48, par. 138.5(a)), precludes plaintiff's common-law tort action against defendant, a co-worker.Section 5(a) provides, in pertinent part:

"No common law or statutory right to recover damages from the employer, his insurer, his broker * * * or the agents or employees of any of them for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act * * *."(Ill.Rev.Stat.1987, ch. 48, par. 138.5(a).)

Thus an individual who is injured in the course of his employment may not sue his employer or fellow employees for damages.

The supreme court has interpreted this provision in the Act as barring an injured employee's suit against a co-worker who has inflicted injuries through his negligence (Rylander v. Chicago Short Line Ry. Co.(1959), 17 Ill.2d 618), 161 N.E.2d 812); through his wilful or wanton conduct (Sjostrom v. Sproule(1965), 33 Ill.2d 40, 210 N.E.2d 209); and even through his intentional acts (Fregeau v. Gillespie(1983), 96 Ill.2d 479, 71 Ill.Dec. 716, 451 N.E.2d 870;Collier v. Wagner Castings Co.(1980), 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198): Interestingly, however, the court has held that this section provides for the election of remedies, that is, the injured employee who chooses to pursue his worker's compensation claim and receives benefits pursuant to the Act forfeits any right to maintain a common-law action, while, apparently, an employee who foregoes his worker's compensation claim and the attendant benefits may sue the tort-feasor/co-worker.(SeeFregeau, 96 Ill.2d at 485-86, 71 Ill.Dec. 716, 451 N.E.2d 870;Collier, 81 Ill.2d at 241-42, 41 Ill.Dec. 776, 408 N.E.2d 198.)Recently, the appellate court has considered the holdings in both Collier and Fregeau and has held that section 5(a) of the Act does not bar the injured employee's intentional tort action against a co-worker where the injured employee has filed a compensation claim but has not yet recovered any benefits.(Witham v. Mowery(1987), 161 Ill.App.3d 322, 324-325, 112 Ill.Dec. 868, 514 N.E.2d 531.)As the Witham court observed:

"The Fregeau opinion repeated much of the language of Collier and stated that the court still had not determined whether an employee can sue a coemployee for an intentional tort arising in the course of and out of employment.Both decisions were based on the actual receipt of workers' compensation benefits by the employee claiming to have been intentionally injured.Neither decision is authority for the proposition that the mere filing of a claim for such benefits bars a suit in tort against the coemployee."161 Ill.App.3d at 324, 112 Ill.Dec. 868, 514 N.E.2d 531.

In the instant cause, it is undisputed that plaintiff has received worker's compensation benefits for the injuries she sustained when defendant threw her on the sidewalk on December 10, 1986.The trial court determined that, by virtue of his status as an Aurora city police officer, defendant was "on duty around the clock."The trial court then concluded that plaintiff's complaint should be dismissed.

In essence, the trial court ruled that plaintiff was barred from maintaining a common-law tort action against defendant because the parties were co-workers who were "on duty" at the time defendant injured plaintiff.The trial court's order dismissing plaintiff's complaint relies upon the holdings of Collier and Fregeau, cited by defendant in his motion to dismiss, and upon the Aurora police department's general order, which provide that an officer "will be considered as being always on-duty."We hold that the trial court's decision that defendant was "on duty" is erroneous as a matter of law; further, we hold that defendant's mere status as plaintiff's co-worker does not shield defendant from liability for plaintiff's injuries which resulted from defendant's intentional acts.Thus, the judgment of the trial court dismissing plaintiff's complaint must be reversed.

Defendant's section 2-619(a)(9)motion to dismiss plaintiff's complaint relied heavily upon paragraph 12.6.1 of the Aurora police department general orders to establish that defendant was on duty at the time he injured plaintiff.The trial court's judgment rests squarely on its interpretation and application of this local rule.Although neither party submitted a certified copy of the police department's general orders, both submitted photocopies purporting to portray the rule at issue.The trial court apparently took judicial notice of the photocopies and issued its order accordingly.This court, too, may take judicial notice of documents under section 8-1002 of the Code of Civil Procedure, which provides that "[u]pon the review of any court of appellate jurisdiction of a judgment or order of a circuit courtthe court of appellate jurisdiction shall take judicial notice of all matters of which the circuit court was required to take judicial notice."(...