Pechan v. DynaPro, Inc.

• Court: Appellate Court of Illinois
• Writing for the Court: INGLIS
• Citation: Pechan v. DynaPro, Inc., 622 N.E.2d 108, 251 Ill.App.3d 1072, 190 Ill.Dec. 698 (Ill. App. 1993)
• Decision Date: 19 October 1993
• Docket Number: No. 2-92-1122,2-92-1122
• Parties: , 190 Ill.Dec. 698, 127 Lab.Cas. P 57,582, 8 IER Cases 1793 Pamela S. PECHAN, Plaintiff-Appellant and Cross-Appellee, v. DYNAPRO, INC., Defendant-Appellee and Cross-Appellant.

Page 108

622 N.E.2d 108

251 Ill.App.3d 1072, 190 Ill.Dec. 698,

127 Lab.Cas. P 57,582,

8 IER Cases 1793

Pamela S. PECHAN, Plaintiff-Appellant and Cross-Appellee, v. DYNAPRO, INC., Defendant-Appellee and Cross-Appellant.

No. 2-92-1122.

Appellate Court of Illinois Second District.

Oct. 19, 1993.

[190 Ill.Dec. 701] [251 Ill.App.3d 1074] Michael A. Benedetto, Oak Brook, argued, for Pamela S. Pechan.

Anthony J. Nasharr III (argued), John F. Gregorio, Gregorio & Nasharr, Chicago, for DynaPro, Inc.

Presiding Justice INGLIS delivered the opinion of the court:

In a case of first impression in the State of Illinois, we decide whether plaintiff, Pamela S. Pechan, has stated causes of action against her ex-employer, DynaPro, Inc., for injuries allegedly caused by secondhand cigarette smoke at DynaPro's facility.

On February 4, 1992, Pechan filed a motion for preliminary injunction, which was later denied, and a verified complaint for injunctive and other relief. Pechan did not demand a jury in her original complaint. She alleged that she had been employed as an office manager for DynaPro during and before July 1990. DynaPro employed both smoking and nonsmoking employees. Pechan claimed that she suffered harm because DynaPro allowed cigarette smoking at its facility. She requires injections, medication and an inhaler because of coughing, wheezing, difficulty breathing and sleeping, swelling sinuses, dripping sinuses, swelled face and eyes, hives, throat irritation and dryness, light-headedness, dizziness, watery eyes, burning nose, headaches and stress manifested by a spastic colon.

Pechan further alleged that DynaPro was notified of the smoking problem in (1) a petition presented by her and other employees requesting a smoke-free working environment; (2) written memos to DynaPro officials; (3) a letter from the Du Page County Health Department informing DynaPro that its facility was violating the Illinois Clean Indoor Air Act (the Act) (410 ILCS 80/1 et seq. (West 1992)); and (4) letters written by her allergists requesting that Pechan work in a smoke-free environment. Despite DynaPro's knowledge, Pechan alleged that DynaPro failed to prohibit smoking or take action to enforce the company policy to limit smoking to designated areas.

Pechan alleged that DynaPro also attempted to ostracize her because of her complaints about DynaPro's handling of the smoking policy. She claimed DynaPro eliminated regular job reviews, pay increases, avoided normal verbal contact, and generally discriminated against her for "exercising her right to breathe clean air."

In count I of her verified complaint, Pechan sought preliminary and permanent injunctive relief, praying that DynaPro be enjoined from "allowing, causing or contributing to smoking in its facility" and that it be required to impose an immediate smoking ban. Pechan also prayed that

DynaPro be enjoined from discriminating against her during the course of her employment.

Count II was an action at law based on negligence. Pechan alleged that DynaPro breached its duty of care to her by negligently, willfully and intentionally failing to prohibit smoking or enforce its smoking policy. In count III, Pechan alleged that DynaPro discriminated against her in violation of section 9 of the Act (410 ILCS 80/9 (West 1992)).

On March 16, 1992, DynaPro filed a motion for summary judgment on count I. DynaPro argued that Pechan had voluntarily resigned as office manager on March 3, 1992. DynaPro claimed that Pechan could not seek the injunctive relief requested in count I because she was no longer "personally affected by repeated violation" of the Act (410 ILCS 80/8 (West 1992)) and no longer had standing to pursue injunctive relief under the Act.

In Pecan's response to the motion for summary judgment, she claimed that she was forced to resign. She had been subjected to repeated humiliation and embarrassment, had items removed from her office that were necessary to perform her duties as office manager, and had, in effect, been demoted and given tasks never assigned to her in the past. She concluded that summary judgment was improper because the question of whether she had resigned voluntarily was a genuine issue of material fact.

DynaPro also moved to strike counts II and III of Pechan's complaint. Pechan was granted leave to amend her pleadings, and she filed amended counts II through V. She also filed a motion for leave to file a jury demand. Count II is a cause of action for express authorization of the intentional tort of battery. Pechan alleges that DynaPro expressly authorized cigarette smoking in its facility and that the "smoke did contact and enter into and upon" Pechan's body without her consent continuously since at least March 1, 1990. The contact with the smoke caused her numerous injuries. Even after Pechan notified DynaPro that the smoke caused her harm and affected her job performance, DynaPro continued to expressly allow smoking in its facility.

Count III alleges common-law negligence and willful and wanton conduct. Pechan states that DynaPro owed her the duty "to prevent the harm and injury caused to her based upon actual knowledge of said harm and injury." She further claims that DynaPro breached this duty by failing to prevent or control cigarette smoke at its facility and that DynaPro had a conscious and reckless disregard for Pechan's health and safety. As a result of DynaPro's alleged negligence, Pechan suffered harm and injury.

Count IV alleges statutory negligence and willful and wanton conduct based on the Act. Pechan claims that the Act was intended to protect employees from the harmful effects of tobacco smoke at the workplace. She further alleges that DynaPro violated the Act by failing to limit smoking to private, enclosed offices and failing to use "existing physical barriers, ventilation systems and other physical elements of the premises to minimize the intrusion of smoke in areas occupied by [Pechan]."

Count V is a cause of action based on statutory discrimination. Pechan alleges that after she filed complaints and legal action against DynaPro, it:

"(a) removed all company property from her office without her knowledge and consent;

(b) prevented her from performing her usual assigned tasks;

(c) assigned to her the single task of entering resume data into a computer, a menial task intended to degrade, humiliate and ostracize her; and

(d) failed to take adequate action to eliminate or substantially reduce cigarette smoking and tobacco smoking, thus placing Plaintiff in continuing risk of harm and injury."

Because of DynaPro's actions, Pechan claims that she was "required to involuntarily leave her position," thereby suffering lost wages and reduced prospects for employment.

DynaPro responded to the amended complaint by filing a combined motion to dismiss and strike amended count II (see 735 ILCS 5/2-619.1 (West 1992)) based upon sections 2-615 and 2-619(a)(9) of the Civil Practice Law (the Code) (735 ILCS 5/2-615, 2-619(a)(9) (West 1992)). DynaPro argues that Pechan failed to state a cause of action for battery because the employees who smoke did not intend that the emitted smoke touch Pechan. DynaPro also argues that count II should be dismissed because the act of smoking is a lawful act that does not rise to the level of a battery.

DynaPro simultaneously filed a separate motion to dismiss and strike amended counts III and IV pursuant to section 2-619(a)(9) of the Code. DynaPro contends that it did not have a common-law duty to provide a smoke-free environment. In addition, DynaPro claims that counts III and IV were barred by the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1992)). Finally, DynaPro claims that count IV should be dismissed because the Act does not provide for a private right of action for damages, only for injunctive relief.

DynaPro stood on its motion for summary judgment on count I of the original complaint and also filed a motion for summary judgment on amended count V pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 1992)). DynaPro contends that all of the purported acts of discrimination alleged by Pechan occurred on February 6, 1992. DynaPro claims that Pechan's deposition testimony directly contradicted the allegations in count V. Thus, DynaPro concludes that no genuine issue of material fact existed to support a claim of discrimination.

Pechan responded to DynaPro's motions and a hearing was held on July 13, 1992. The parties argued the merits of the motions attacking counts I through V and also addressed Pechan's motion for leave to file a jury demand, which was granted by the trial court. In a letter opinion and order written the day after the hearing, the trial court, adopting DynaPro's positions, granted summary judgment on counts I and V and dismissed counts II, III and IV. However, the trial court continued the matter until August 25, 1992, for a hearing on DynaPro's motion for sanctions. After the trial court denied DynaPro's motion for sanctions, Pechan filed a timely appeal of the trial court's July 23, 1992, order. DynaPro cross-appealed the July 13, 1992, order allowing Pechan leave to file a jury demand.

For purposes of procedural consistency, we will address first whether summary judgment was proper on counts I and V. Thereafter, we will address whether counts II, III and IV should have been dismissed under sections 2-615 and 2-619(a) of the Code.

Summary judgment is proper when the pleadings, depositions, admissions and affidavits show that there is no genuine issue of material fact and, as a matter of law, the moving party is entitled to a judgment. (735 ILCS 5/2-1005(c) (West 1992).) Because summary judgment is a drastic procedure to dispose of litigation, it should be granted only when the moving party's right is clear and free from doubt. (Gonzalez v. State Farm Mutual Automobile Insurance Co. (1993), 242 Ill.App.3d 758, 761, 183 Ill.Dec. 185, 611 N.E.2d...