INST. OF TECH. RES. v. INDUSTRIAL COM'N

• Decision Date: 15 May 2000
• Docket Number: No. 1-99-1474 WC.,1-99-1474 WC.
• Citation: 731 N.E.2d 795,247 Ill.Dec. 22,314 Ill. App.3d 149
• Parties: ILLINOIS INSTITUTE OF TECHNOLOGY RESEARCH INSTITUTE, Appellee and Cross-Appellant, v. The INDUSTRIAL COMMISSION et al. (Catherine Kaufman, Widow, Lester A. Bonaguro, Appellant and Cross-Appellee).
• Court: United States Appellate Court of Illinois

731 N.E.2d 795

314 Ill. App.3d 149

247 Ill.Dec. 22

ILLINOIS INSTITUTE OF TECHNOLOGY RESEARCH INSTITUTE, Appellee and Cross-Appellant, v. The INDUSTRIAL COMMISSION et al. (Catherine Kaufman, Widow, Lester A. Bonaguro, Appellant and Cross-Appellee).

No. 1-99-1474 WC.

Appellate Court of Illinois, First District, Industrial Commission Division.

May 15, 2000.

Rehearing Denied June 26, 2000.

John P. Scanlon; Martin J. Healy & Associates, Chicago, for Appellants.

Matthew B. Schiff, Bridget A. Neuson and Linda C. Kramer; Schiff & Hulbert, Chicago, for Appellees.

Justice RAKOWSKI delivered the opinion of the court:

Thomas Kaufman (decedent) was killed by a stray bullet while working for Illinois Institute of Technology Research Institute (employer). His widow, Catherine Kaufman (claimant), filed an application for adjustment of claim for death benefits pursuant to the Workers' Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1998)). The arbitrator concluded that claimant failed to prove decedent's death arose out of his employment and denied benefits. The Industrial Commission (the Commission) affirmed but the circuit court reversed. On remand, the Commission followed the circuit court's decision and determined that claimant's decedent was subjected to a greater risk of injury than that to which the general public is exposed and, therefore, concluded that his death arose out of his employment. On administrative review, a different judge of the circuit court reversed, finding decedent was not subjected to an increased risk of injury. The principal question before this court is whether decedent was subjected to a greater risk of injury from stray bullets than that to which the general public is exposed. Because the building in which decedent worked bordered on a police district with a very high crime rate, the building was located directly across the street from a project where rival gangs were feuding, gunfire was an almost everyday occurrence, bullets had previously hit employer's building, and decedent sat in the lobby of the building fronted by floor-to-ceiling glass windows, we answer yes and, therefore, find decedent's death arose out of his employment. We also find that the arbitrator properly allowed claimant to correct her application for adjustment of claim under the doctrine of misnomer or, alternatively, properly allowed her to amend the application under the doctrine of relation back. Therefore, the Commission had jurisdiction to consider the cause. Finally, we conclude that the proper legal standard for assessing risk is to compare claimant's risk to that of the general public, not to other individuals in the vicinity or area. Based on the above, we reinstate the Commission's decision on remand dated June 2, 1998.

FACTS

Claimant's decedent, a security guard for employer, was killed on November 9, 1989, by a stray bullet fired from across the street from his place of employment. He worked inside the lobby at 10 West 35th Street, Chicago, fronted by floor-to-ceiling glass windows. He sat behind a desk and console approximately 20 feet from the windows where his torso and head were exposed. Decedent's duties included monitoring alarms in the building, manning the front desk, patrolling the empty office building, and safeguarding secret United States government documents. Decedent was not required to patrol outside the building and the building was not open to the public.

Across the street from employer's building, south of 35th Street, are the Stateway Gardens homes. Rival gang members had been attempting to take control of the building directly across from employer's building. As a result of this dispute, seven armed gang members began firing shots at a man in the playground. To avoid the gunfire, the man ran from the playground, toward employer's building. While running, he was struck by a bullet. He continued to run and when he was in front of employer's second revolving door, he fell to the ground. Apparently, his hand was on the door at the time he began to fall. He died shortly thereafter. One of the bullets fired by the gang pierced a window of employer's building, struck Thomas Kaufman, and killed him.

Detective Edward Winstead of the Chicago police department testified on behalf of claimant. He was assigned to Area One Violent Crimes and explained that Stateway Gardens is located in the second district of Area One, and employer's building is located in the twenty-first district. He stated that since the project building was being fought over, activity in the area had increased and gunshots were heard daily. Winstead had been called to the area on prior occasions for purse snatchings and robberies, but not for shootings. He stated the crime rate south of 35th Street (project side) was very high, while the crime rate north of 35th Street (employer's side) was "pretty low."

Winstead investigated decedent's shooting. According to him, the bullet crossed the playground, the sidewalk on the south side of 35th Street, 35th Street, the sidewalk in front of employer's building, and then entered the window of employer's building. It traveled over 200 feet before striking decedent. Winstead further testified that anyone walking on the sidewalk on 35th Street, driving by in a car, waiting on the L platform, returning from the White Sox game, or visiting the day care center on the south side of the street, the McDonald's on 35th Street or the liquor store on State Street just south of 35th Street would have been in the path of the bullet. Further, any passing train would have been in its path.

Claimant also called Richard Hammer, decedent's co-employee. He had been a security guard for 17 years for employer. He testified he heard gunshots at least weekly. Further, he stated that sometimes he heard them daily. According to him, bullets had previously struck the upper floors of the building but none had entered the lobby. Hammer did not know how many bullets had hit the building nor how many he had found, stating he did not count them. When the gang first began shooting on the day of the incident, Hammer stated to decedent that "they were at it again." Hammer stated no murders had occurred in the building in the 17 years he had worked there.

Claimant filed her application for adjustment of claim as "Catherine Kaufman, on behalf of her husband Thomas Kaufman, deceased." At arbitration, employer orally asserted, for the first time, that the case was brought on behalf of a dead person (Thomas) and, therefore, the Commission lacked jurisdiction. Over employer's objection, claimant was allowed to amend the application to state "Catherine Kaufman, widow." The arbitrator found the amendment proper as did each of the subsequent tribunals.

Substantively, the arbitrator found that claimant failed to prove decedent's death arose out of his employment because she failed to "show that Decedent's employment increased his risk of being shot over that of other persons in the neighborhood." The Commission adopted and affirmed. The circuit court (Judge Bonaguro) reversed. Judge Bonaguro first determined that the Commission applied an incorrect legal standard, comparing decedent's risk to others in the neighborhood rather than the general public. He held that, for this reason alone, the Commission's decision had to be reversed. He then concluded, as a matter of law, that "there is no doubt that, by being at his post, decedent's risk of being shot was greater than that of the general public. Any finding to the contrary would, as a matter of law, be against the manifest weight of the evidence." The circuit court remanded for proceedings consistent with its order. We dismissed employer's appeal based on lack of jurisdiction for want of a final order because of the remand to the Commission. Kaufman v. Industrial Comm'n, No. 1-96-1774WC, 286 Ill.App.3d 1112, 237 Ill.Dec. 537, 709 N.E.2d 1006 (February 25, 1997) (unpublished order under Supreme Court Rule 23).

On remand, the Commission found that decedent was subjected to an increased risk and, therefore, his death arose out of his employment. On administrative review, however, the circuit court (Judge Lanigan) reversed. Judge Lanigan first concluded that the Commission did not lack jurisdiction based on a faulty application for adjustment of claim. She found that the relation back doctrine applied to cure any defect in claimant's application. She then found that employer had waived its statute of limitations defense for failure to properly raise it before the Commission, concluding that its mention in a footnote was insufficient. Substantively, Judge Lanigan found that the Commission, in its original decision, applied the proper legal standard (vicinity) and that Judge Bonaguro applied an incorrect standard (general public). Further, she found that differing inferences could be drawn from the facts and, therefore, Judge Bonaguro erred in deciding the case as a matter of law. Finally, she concluded that the Commission's original decision was not against the manifest weight of the evidence, finding that the bullet that struck decedent could have struck anyone in its path and, thus, the general public in that vicinity was subject to the same risk.

ANALYSIS

I. JURISDICTION AND STATUTE OF LIMITATIONS

On appeal, employer contends the Commission lacked jurisdiction. Specifically, claimant's application named a dead person, who cannot be a party, and, therefore, the application was a nullity. Further, claimant failed to amend the application or file a claim on her own behalf within the applicable statute of limitations period. Thus, the application was barred. Employer also argues the relation back doctrine is not applicable to workers' compensation actions because the Act makes no such provision. Moreover, there is nothing to relate back to because claimant's original application was a nullity. Employer relies on Vaughn v. Speaker, 126 Ill.2d 150, 127 Ill.Dec. 803,...