Behrens v. Harrah's Illinois Corporation ( 2006 )

No. 3--05-0280
filed July 14, 2006
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
BARBARA BEHRENS and KIRK ) Appeal from the Circuit Court
BEHRENS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois
Plaintiffs-Appellants, )
)
v. ) No. 02--L--36
)
HARRAH'S ILLINOIS )
CORPORATION, d/b/a Harrah's )
Joliet Casino, )
) Honorable Robert L. Carter,
Defendant-Appellee. ) Judge, Presiding.
PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:
Plaintiffs, Barbara and Kirk Behrens, sued Harrah's Joliet
Casino (Harrah's) to recover damages for catastrophic injuries
which resulted from an automobile accident. The circuit court of
La Salle County granted defendant's motion to dismiss plaintiffs'
complaint. Plaintiffs appeal, claiming the dismissal of their
complaint was erroneous. We affirm.
BACKGROUND
As the circuit court dismissed plaintiffs' amended complaint
pursuant to section 2--615 of the Illinois Code of Civil
Procedure (the Code) (735 ILCS 5/2--615 (West 2004)), the
following facts, which we take as true for purposes of our
decision, are taken from the amended complaint. Barbara Behrens
was a salaried employee of Harrah's. In the early morning hours
of October 19, 1998, Barbara was traveling to her residence in
Streator, Illinois, when she was involved in a single-car
accident.
Barbara had worked overtime for several days preceding
October 19, 1998. On the night of October 18, and during the
early morning hours of October 19, 1998, she again worked
overtime. Defendant Harrah's had a new employment policy that
was transmitted to the employees via a memorandum. That
memorandum indicated that all employees and managers in Barbara's
department would work overtime in the event that other employees
failed to show up for work or were ill. As a result of this
policy, Barbara worked 13 hours for the October 16, 1998,
workday, 13 hours for the October 17, 1998, workday, and 122
hours for the October 18, 1998, workday.
Plaintiffs' complaint alleges that as a result of working
overtime, Barbara became fatigued while driving her vehicle home
from work, fell asleep at the wheel, and drove her vehicle into a
ditch. The vehicle flipped end-over-end and stopped once it hit
an electrical pole.
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Plaintiffs allege that Harrah's was guilty of negligence
for: (1) failing to monitor the physical condition of its
employees prior to having the employees leave work; (2)
overworking the salaried employees in an attempt to cut costs,
thereby causing the salaried employees to be overly exhausted
while working and traveling to and from work; and (3) failing to
properly staff Barbara's department so that salaried employees
did not have to work excessive overtime. Plaintiffs' further
allege that defendant's negligence was the proximate cause of
Barbara's accident and injuries.
Harrah's filed a motion to dismiss plaintiffs' amended
complaint pursuant to sections 2--615 and 2--619 of the Code.
735 ILCS 5/2--615, 2--619 (West 2004). Defendant claimed that
the plaintiffs failed to state a legally recognized cause of
action, as Illinois law does not recognize a duty by employers to
safeguard employees in their travel to and from work while they
are outside the course of their employment. Defendant noted that
plaintiffs did not plead that Barbara was in the course of her
employment at the time of the accident and, therefore, alleged
that dismissal was proper. The trial court agreed and dismissed
plaintiffs' amended complaint with prejudice. Plaintiffs appeal.
ANALYSIS
We review the granting of a section 2--615 motion to dismiss
de novo. Neade v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496
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(2000). A section 2--615 motion should not be granted unless it
clearly appears that no set of facts could ever be proved that
would entitle the plaintiffs to recover. Ostendorf v.
International Harvester Co., 89 Ill. 2d 273, 433 N.E.2d 253
(1982). In ruling on such a motion, the court may consider only
those facts apparent from the face of the pleadings, matters of
which the court can take judicial notice, and judicial admissions
in the record. Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995). On
review of an order granting a section 2--615 motion, all well-
pled facts and all reasonable inferences from them are taken as
true. First National Bank of Decatur v. Mutual Trust Life
Insurance Co., 122 Ill. 2d 116, 522 N.E.2d 70 (1988).
To properly plead an action based in negligence, plaintiff
must allege facts sufficient to establish that defendant owed a
duty of care to plaintiff, that defendant breached that duty, and
that the breach was the proximate cause of plaintiff's injuries.
Mt. Zion State Bank & Trust, 169 Ill. 2d at 116. Whether a duty
of care exists is a question of law, which must be resolved by
the court. O'Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 561
N.E.2d 18 (1990). "If no duty exists, it is axiomatic that no
recovery can occur." Mt. Zion State Bank & Trust, 169 Ill. 2d at
116.
Plaintiffs ask this court to find that Harrah's owed a duty
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to Barbara Behrens to ensure that she was sufficiently able to
drive herself home after her shift. In support of their request,
plaintiffs catalog numerous statutes enacted by the Illinois
legislature to protect workers. See 820 ILCS 105/4a(1), (2)E
(West 2004); 820 ILCS 140/2 (West 2004); 820 ILCS 145/1 et seq.
(West 2004); 820 ILCS 305/1 et seq. (West 2004). However, none
of these statutes impose a duty upon an employer to ensure that
an employee, who is off the clock and not in the course of his or
her employment, drives home safely. Plaintiffs contend that,
given the overwhelming amount of legislation enacted to protect
workers in this state, it was reasonably foreseeable that
requiring an employee to work as many hours as Harrah's required
Barbara to work could result in sleep deprivation and lead to an
automobile accident. Therefore, plaintiffs argue that this court
should find that Harrah's owed such a duty to Barbara.
Barbara argues that she was required to work overtime as a
salaried employee so that Harrah's could avoid paying overtime to
hourly employees for the same work and, therefore, Harrah's
should be responsible for her accident. This argument has no
merit. Whether Barbara was being paid overtime for the hours she
worked had no proximate-cause relationship to her level of
fatigue and, therefore, the accident.
When considering whether a duty exists in a particular case,
a court must weigh the foreseeability of the injury, the
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likelihood of the injury, the magnitude of the burden of guarding
against the injury, and the consequences of placing that burden
on the defendant. Gouge v. Central Illinois Public Service Co.,
144 Ill. 2d 535, 582 N.E.2d 108 (1991); Kirk v. Michael Reese
Hospital & Medical Center, 117 Ill. 2d 507, 513 N.E.2d 387
(1987).
The first two factors do little to support plaintiff's
position. Even assuming the foreseeability-of-the-injury factor
weighs in favor of imposing a duty on the defendant,
"foreseeability alone provides an inadequate foundation upon
which to base the existence of a legal duty." Ward v. K mart,
136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990), citing Kirk v.
Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525,
513 N.E.2d 387, 396 (1987). An employer should be able to
presume that the person in the best position to avoid driving
while excessively fatigued, the employee, will either ask for a
ride from someone or pull off the roadway and rest if necessary.
The final two factors set forth by the supreme court, the
magnitude of the burden of guarding against an injury and the
consequences of placing that burden on the defendant, weigh
heavily against imposing a duty on an employer to ensure that its
off-duty employees drive home safely and sufficiently rested.
Before finding that a duty exists, a court must take into account
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the public policy and social requirements of the time and
community. O'Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 561
N.E.2d 18 (1990).
The burden plaintiffs request us to place on an employer
would be enormous. Would this duty be violated if the employee
started the shift tired due to no fault of the employer? Or,
would this duty only be violated if it is a policy of the
employer that causes the injured party to lose sleep? If the
latter is the case, would the duty be violated if the employee
were to lay awake at night considering job-related duties and
became tired, or would it only apply if the employee was tired
due to the employee's presence at work for a certain amount of
time? Undoubtedly, individual employees are in the best position
to determine whether they are sufficiently rested to drive home
safely. An employer is in a much inferior position when it comes
to making this determination. Many people routinely work 12-hour
"shifts," including lawyers, police officers, construction
workers, doctors, and nurses, to name a few. As a matter of law,
there is nothing unreasonable, by itself, about scheduling 12-
hour "shifts." Even those working eight-hour "shifts" can become
fatigued while at work, sometimes because of the nature of the
work and other times because of reasons beyond the control of the
employer, such as lack of adequate rest when not working, stress
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from family or social relationships, and the list goes on.
Moreover, even if an employer did determine that an employee was
too tired to drive home after the employee's shift, we are aware
of no authority that would allow an employer to stop the employee
from leaving the work place and driving home. Once the
employee's workday has ended, the employer's ability to control
physical conditions surrounding the employee is nonexistent.
Faced with such a legal duty, would employers refuse to hire
those with commutes of more than a few minutes, or even those not
within walking distance of the place of employment? We believe
that placing this burden on employers would be poor social policy
that is likely to have an onerous impact, not only on employers,
but also on the workforce.
After considering the four factors that the supreme court
tells us to consider in determining whether a duty exists, we
hold that no duty existed requiring the employer to assure that
an employee could drive home safely after working overtime.
Barbara's next contention is that "she must have a right to
sue." Failure to recognize her negligence action, she maintains,
infringes upon her constitutional right to bring a lawsuit
against someone. Barbara submits that this right is given to her
and all wronged parties by article I, section 12 of the Illinois
Constitution of 1970 which states:
"Every person shall find a certain remedy
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in the laws for all injuries and wrongs which
he receives to his person, privacy, property or
reputation. He shall obtain justice by law,
freely, completely, and promptly." Ill. Const.
1970, art. I, '12.
Plaintiffs acknowledge that the remedy and justice provision
of the state constitution does not mandate the creation of a
cause of action where one did not exist. See Stephens v. Trinity
Medical Center, 292 Ill. App. 3d 165, 685 N.E.2d 403 (1997).
Nevertheless, plaintiffs cite this provision and request that we
use it as authority to create a new cause of action here. We
decline to do so.
Our supreme court has repeatedly held that the remedy and
justice provision of the Illinois Constitution of 1970 is merely
an expression of a philosophy and not a mandate that a certain
remedy be provided in any specific form. Segers v. Industrial
Comm'n, 191 Ill. 2d 421, 732 N.E.2d 488 (2000); DeLuna v. St.
Elizabeth's Hospital, 147 Ill. 2d 57, 588 N.E.2d 1139 (1992);
Sullivan v. Midlothian Park District, 51 Ill. 2d 274, 281 N.E.2d
659 (1972). The provision was "not meant to have a substantive
effect on Illinois law." Huter v. Ekman, 137 Ill. App. 3d 733,
735, 44 N.E.2d 1224, 1226 (1985). Even if article I, section 12,
were a mandate, to avoid an absurd construction the phrase "all
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injuries and wrongs" must be read in the conjunctive. Read in
the disjunctive, it would seem to give a constitutional right to
recover damages for every "injury," regardless of the cause, and
for every "wrong," even in the absence of damages proximately
resulting from the wrong. Read in the conjunctive, it must be an
injury and a wrong. We have already held that the employer
breached no duty and, therefore, there was no "wrong." Article
I, section 12, of the Illinois Constitution of 1970 does not
require that the plaintiffs be allowed to bring a common law
cause of action against Harrah's.
Plaintiffs' final contention is that had Barbara injured
someone else on her drive home, that injured party "would have
had a cause of action for negligence against Harrah's."
Therefore, plaintiffs contend that denying them the right to also
bring an action for negligence against Harrah's violates their
constitutional guarantees of "equal protection under the law for
all." See U.S. Const., amend. XIV, '1; Ill. Const. 1970, art. I,
'2. This argument is without merit for a number of reasons.
To support their contention that a third party injured
during Barbara's drive home could have successfully maintained an
action against Harrah's, plaintiffs cite to an Oregon Court of
Appeals case (Faverty v. McDonald's Restaurants of Oregon, Inc.,
133 Or. App. 514, 892 P.2d 703 (1995)) and an unreported case
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from the United States District Court from the Eastern District
of Pennsylvania (Lesser v. Nordstrom, Inc., No. 96--8121, No. 97-
-6070 (E.D. Penn. August 13, 1998)). We, of course, are not
bound to follow decisions by federal courts other than the United
States Supreme Court (People v. Qualls, 233 Ill. App. 3d 394, 599
N.E.2d 141 (1992)) or decisions by courts of any state other than
Illinois. Kroger Co. v. Department of Revenue, 284 Ill. App. 3d
473, 673 N.E.2d 710 (1996). We believe the dissent in Faverty is
better reasoned. The 5 to 4 decision of the Oregon appellate
court stands alone as an aberration in negligence law.
Recently, in Brewster v. Rush-Presbyterian-St. Luke's
Medical Center, 361 Ill. App. 3d 32, 836 N.E.2d 635 (2005), the
First District Appellate Court upheld the dismissal of an injured
third party's complaint against the employer of a driver
suffering from an alleged employment-related sleep deprivation.
Brewster, 361 Ill. App. 3d at 37. In Brewster, a first-year
medical resident was driving home following a 36-hour work shift
when she fell asleep behind the wheel and struck a car driven by
the plaintiff. Brewster, 361 Ill. App. 3d at 35. The plaintiff
in Brewster sued the hospital for which the resident worked,
claiming that it was negligent in that it knew or should have
known that the resident was sleep deprived when she left the
hospital. Brewster, 361 Ill. App. 3d at 35. The circuit court
granted the employer hospital's section 2--615 motion to dismiss
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and the appellate court affirmed, holding that employer hospitals
are not liable to third parties for the conduct of off-duty,
employee resident physicians who are required to work excessive
hours. Brewster, 361 Ill. App. 3d at 37.
Even without Brewster, plaintiffs' argument that a fatigued
driver and the driver struck by a fatigued driver are similarly
situated fails. As we pointed out earlier, the fatigued driver
is in the best position to know of his/her fatigue and to stay
off the roadway. The person struck by the fatigued driver is, on
the other hand, by definition, the victim of the negligence of
one who chooses to drive despite being too tired to do so safely.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of La Salle County is affirmed.
Affirmed.
McDADE and SLATER, JJ., concur.
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