Meerbrey v. Marshall Field & Co.

Decision Date18 September 1989
Docket NumberNo. 1-88-1150,1-88-1150
Citation137 Ill.Dec. 191,545 N.E.2d 952,189 Ill.App.3d 1085
CourtUnited States Appellate Court of Illinois
Parties, 137 Ill.Dec. 191 Kenneth A. MEERBREY, Plaintiff-Appellant, v. MARSHALL FIELD & COMPANY, a corporation and Tim Marcolini, Defendants-Appellees.

Rehearing Denied Nov. 17, 1989.

Thomas P. Cernek and Mark H. Barinholtz, Chicago, for plaintiff-appellant.

Wildman, Harrold, Allen & Dixon, Chicago (Douglas L. Prochnow, Mark P. Miller, of counsel), for defendants-appellees.

Justice BUCKLEY delivered the opinion of the court:

Kenneth A. Meerbrey (plaintiff) brought suit against defendants Marshall Field & Company (Marshall Field) and its agent, Tim Marcolini (Marcolini), for injunctive relief and damages for false imprisonment, false arrest, and malicious prosecution. The circuit court granted defendants' motion to dismiss Marshall Field from counts II through V of plaintiff's second-amended complaint 1 pursuant to section 2-619 of the Code of Civil Procedure (the Code) (Ill.Rev.Stat.1987, ch. 110, par. 2-619). The court also struck Marcolini's name from counts III through V pursuant to section 2-615 of the Code (Ill.Rev.Stat.1987, ch. 110, par. 2-615) for failure to allege sufficient factual allegations against him. 2 It is from these rulings that plaintiff appeals. We affirm in part and reverse in part.

Marshall Field employed plaintiff as a cashier and Marcolini as a security guard. On January 19, 1985, Marcolini interviewed plaintiff at work regarding the theft of approximately $600 from Marshall Field. During this interview, plaintiff signed a restitution form and promissory note acknowledging his theft and, under the terms of the restitution form, thereafter reimbursed Marshall Field $500.

On February 12, 1985, plaintiff returned to Marshall Field's premises and demanded his payroll check for past earnings. Rochella Davis, an agent of Marshall Field, informed plaintiff that he was forbidden to enter the premises and twice requested him to leave. After plaintiff failed to vacate the premises, he was arrested by the Chicago Police Department pursuant to Davis' sworn complaint.

Subsequently, plaintiff filed suit against Marshall Field and Marcolini alleging various causes of action. Count II of plaintiff's complaint alleges that Marshall Field and Marcolini falsely imprisoned plaintiff on January 19, 1985, while counts III through V assert claims against Marshall Field and Marcolini alleging false imprisonment, false arrest, and malicious prosecution stemming from the February 12, 1985 events.

Addressing first the circuit court's dismissal of Marshall Field from counts II through V of plaintiff's complaint, the court found that the exclusivity provisions of the Workers' Compensation Act (the Act) (Ill.Rev.Stat.1987, ch. 48, par. 138.5(a)) barred plaintiff's common law cause of action. The exclusive remedy provided for in section 5(a) of the Act reads in pertinent part, as follows:

"No common law or statutory right to recover damages from the employer * * * or the agents or employees of * * * [the employer] 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).)

Through this provision, the Act establishes a system of liability without fault. It abolishes traditional common law defenses available to the employer in exchange for the prohibition against common law suits by employees. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. (1958), 13 Ill.2d 460, 150 N.E.2d 141; Jablonski v. Multack (1978), 63 Ill.App.3d 908, 20 Ill.Dec. 715, 380 N.E.2d 924.) The exclusive remedy provision "is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while, the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts." 2A A. Larson, The Law of Workmen's Compensation § 65.11 (1988).

Plaintiff contends that the above exclusivity provisions do not apply to the case at bar. Specifically, as to Marshall Field, plaintiff argues that he is not barred by the exclusivity provisions contained in the Act because Marcolini's acts were intentional. Plaintiff's contention is without merit.

Courts have held under the Act that to escape the bar of exclusivity provisions and to recover against persons covered under the Act, plaintiff is required "to prove either that the injury (1) was not accidental (2) did not arise from his or her employment (3) was not received during the course of employment or (4) was noncompensable under the Act." (Collier, et al. v. Wagner Castings Co., et al. (1980), 81 Ill.2d 229, 237, 41 Ill.Dec. 776, 780, 408 N.E.2d 198, 202.) In issue here is whether plaintiff's injury was "accidental" within the meaning of the Act to bar the common law action against Marshall Field. Collier and Jablonski hold that although the injuries inflicted by a fellow employee may be intentional from the wrongdoer's standpoint, they are compensable under the Act because the injury is "accidental" from the employee's/injured party's point of view--that is, despite the obvious fact that the injury was intentionally inflicted, an employee's injuries will not be held to be noncompensable under the Act due to the intentions of the co-employee. (Collier, 81 Ill.2d at 238, 41 Ill.Dec. at 780, 408 N.E.2d at 202; Jablonski, 63 Ill.App.3d at 910-11, 20 Ill.Dec. at 716-17, 380 N.E.2d at 925-26.) Common law causes of action, however, will be sustained against an employer for the intentional tort of his employee against a fellow employee where the employer has committed, commanded or expressly authorized the intentional act. (Collier, 81 Ill.2d at 238-39, 41 Ill.Dec. at 780, 408 N.E.2d at 202; Jablonski, 63 Ill.App.3d at 912, 20 Ill.Dec. at 717-18, 380 N.E.2d at 926-27.) A plaintiff under these circumstances apparently is required to allege that the employee was the alter ego of the employer in order to state a common law cause of action. See Collier, 81 Ill.2d at 239, 41 Ill.Dec. at 780, 408 N.E.2d at 202; Jablonski, 63 Ill.App.3d at 912, 20 Ill.Dec. at 718-19, 380 N.E.2d at 927-28.

Plaintiff's complaint here does not allege that Marcolini was the alter ego of Marshall Field or that Marshall Field committed, commanded or expressly authorized Marcolini's acts, even after plaintiff was afforded the opportunity to amend his complaint to this effect. Plaintiff merely alleged that Marcolini was an agent of Marshall Field. Therefore, since no allegations exist that Marshall Field committed, commanded or expressly authorized the intentional conduct of its employee, the injury here is "accidental" within the meaning of the Act and plaintiff's common law cause of action against Marshall Field is barred.

We now shift our focus to whether section 5(a) of the Act also bars plaintiff's action against Marcolini. Although courts have concluded that intentional torts are considered "accidental" in the above context Jablonski has found that the co-employee responsible for the intentional act should not be shielded from liability, and, thus, a common law cause of action may be brought against him. (Jablonski, 63 Ill.App.3d at 914-15, 20 Ill.Dec. at 719, 380 N.E.2d at 928; see also Collier, 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198; Handley v. Unarco Industries, Inc. (1984), 124 Ill.App.3d 56, 79 Ill.Dec. 457, 463 N.E.2d 1011; Mier v. Staley (1975), 28 Ill.App.3d 373, 329 N.E.2d 1.) The socially beneficial purpose of the Act was not intended to permit a person who commits an intentional tort to use the compensation law as a shield against liability. (Jablonski, 63 Ill.App.3d at 915, 20 Ill.Dec. at 719, 380 N.E.2d at 928.) Here the exclusivity provisions of the Act do not bar plaintiff's action against Marcolini because the complaint alleges intentional torts.

We note, however, that Marcolini was dismissed from plaintiff's complaint based upon the insufficiency of factual allegations contained in plaintiff's complaint pursuant to paragraph 2-615(a) of the Code. (Ill.Rev.Stat.1987, ch. 110, par. 2-615(a).) On a 2-615 motion to dismiss, the court must consider all well-pleaded facts as true, and any reasonable inferences drawn from the allegations must necessarily be construed liberally in favor of the complainant, as the motion merely tests the legal sufficiency of the complaint and does not go to the merits of the claim. (Ill.Rev.Stat.1987, ch. 110, par. 2-615(a); see also Charles Hester Enterprises, Inc., et al. v. Illinois Founders Insurance Co., et al. (1986), 114 Ill.2d 278, 286, 102 Ill.Dec. 306, 309, 499 N.E.2d 1319, 1322; ...

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