Rodriguez v. Frankie's Beef/Pasta and Catering , 2012 IL App (1st) 113155 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Rodriguez v. Frankie’s Beef/Pasta & Catering, 2012 IL App (1st) 113155Appellate Court ALMA GUTIERREZ RODRIGUEZ, Special Administrator of the Estate
Caption of Jose Rodriguez, Plaintiff-Appellant, v. FRANKIE’S BEEF/PASTA
AND CATERING, a Corporation, Defendant-Appellee.
District & No. First District, Second Division
Docket No. 1-11-3155
Filed August 14, 2012
Held The exclusive remedy provision of the Workers’ Compensation Act
(Note: This syllabus barred plaintiff’s action alleging that the employer of plaintiff’s decedent
constitutes no part of was negligent in hiring and retaining the employee who shot decedent in
the opinion of the court an altercation over job assignments.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 07-L-009546; the
Review Hon. Jeffrey Lawrence, Judge, presiding.
Judgment Affirmed.
Counsel on Radtke & Nusbaum, of Chicago (Carl Nusbaum and Michael J. Radtke,
Appeal of counsel), for appellant.
Law Offices of Craig F. Miller, of Oak Lawn (Craig F. Miller, of
counsel), for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Quinn and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Alma Gutierrez Rodriguez, appeals the order of the circuit court granting
defendant Frankie’s Beef/Pasta & Catering’s (Frankie’s) motion for summary judgment on
plaintiff’s negligence claim. On appeal, plaintiff contends (1) the exclusive remedy provision
of the Workers’ Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) does not
apply in a claim where the employer negligently hired and retained an employee; and (2)
genuine issues of material fact exists as to whether the injury arose out of employment,
precluding summary judgment. For the following reasons, we affirm.
¶2 JURISDICTION
¶3 The trial court granted summary judgment on September 22, 2011. Plaintiff filed a notice
of appeal on October 21, 2011. Accordingly, this court has jurisdiction pursuant to Illinois
Supreme Court Rules 301 and 303 governing appeals from final judgments entered below.
Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶4 BACKGROUND
¶5 Plaintiff filed an amended complaint alleging negligence against defendant for retaining
Edan Maya as an employee. Plaintiff’s claim arose from an altercation between Edan Maya
and plaintiff’s decedent, Jose Rodriguez, in which Maya shot and killed Rodriguez. The
record contains the affidavit of Vincent Santoro, the president and owner of Frankie’s. In his
affidavit, Santoro stated that on September 15, 2005, he observed an altercation between
employees Carlos Flores, Rodriguez, and Maya. Santoro testified that he only observed an
argument and personally did not see the parties engaged in a physical confrontation. He told
the parties, “listen, I need you guys to work together here.” Santoro dismissed Maya “and
asked him to leave the premises.” In his deposition, Santoro stated that he told Edan to “go
home for the day” so he could “cool off.” He explained that if Edan had stayed, “they would
have kept on going all day. You know how these kids are. They get aggravated and then they
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kept going all day. *** I didn’t want things to get worse, okay?” He informed Edan’s brother,
David, that Edan could return to work as scheduled at 11 a.m. the following day.
¶6 Santoro later learned that the altercation arose from the fact that he had given Flores the
position of fry cook after Maya left for a two-month stay in Mexico. Santoro further stated
that prior to the altercation he did not know tension existed between Rodriguez and Maya
over the fry cook position. After speaking with other employees, Santoro decided to
terminate Maya on September 16, 2005. However, he was unable to inform Maya of the
termination before the shooting.
¶7 Santoro was interviewed by Officer David Seaquist. In the report, he told Seaquist that
on the morning of September 16, 2005, he arrived at Frankie’s and went into his office to
complete paperwork. Several employees, including decedent Rodriguez, were already present
to prepare Frankie’s for opening. Santoro heard what he believed were fireworks inside the
store and he left his office to investigate. He saw Edan Maya leaving the store with a gun in
his right hand. Edan looked directly at him before running away. Santoro also saw Flores and
Rodriguez bleeding and lying on the floor. He called 911. Santoro stated that Edan Maya was
“let go” the day before for not getting along with other employees.
¶8 Robyn Veres stated in an affidavit that she was an employee of Frankie’s at the time of
the shooting. She was aware of an altercation between Flores, Rodriguez, and Maya that
occurred on September 15, 2005. She also stated that she “was told the parties were arguing
about something employment related as to the position of fry cook.” She “personally never
knew of this tension between the parties and never witnessed any prior altercations *** nor
did [she] make Mr. Vincent Santoro aware of any problems” between Flores, Rodriguez, and
Maya.
¶9 In a police report, Veres told Officer Seaquist that Edan Maya had taken some time off
to go to his father’s funeral in Mexico and that Maya had returned about four months ago.
On September 16, 2005, she arrived for work. Other employees were also present, including
Rodriguez and David Maya. At approximately 10:10 a.m., she heard two “booms” and
looked on the video monitors. She saw Edan Maya running out the back door holding a small
pistol in his right hand. She also saw Rodriguez collapse to the floor. She stated that on
September 15, 2005, Edan Maya and Flores were involved in an altercation that “resulted in
Maya being terminated.”
¶ 10 David Seaquist stated in an affidavit that on September 16, 2005, he was an officer
assigned to investigate a double homicide at Frankie’s. In his investigation, he interviewed
employee David Maya and generated a police report based on the interview. He further stated
that the statements in the report reflect “a true and accurate account of the Interview.” David
Maya was the half-brother of Edan Maya. David informed Officer Seaquist that Rodriguez
was “making fun of” Edan and told him that Flores was a better fry cook. David told Seaquist
that Rodriguez “kept egging [Edan] Maya to fight [Flores] for taking his position.” He stated
that no one at Frankie’s liked Edan. David said that Edan had left Frankie’s for two months
because his father had passed away, and while he was gone, Flores had taken over the
position of fry cook. He further informed Seaquist that he had never before seen Edan with
a gun.
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¶ 11 Defendant filed a motion for summary judgment arguing that plaintiff’s claim is barred
by section 5(a) of the Act, which provides an exclusive remedy for injuries arising from the
course of employment. The trial court granted the motion on September 22, 2011. Plaintiff
filed this timely appeal.
¶ 12 ANALYSIS
¶ 13 Summary judgment is proper where the pleadings, depositions, and admissions on file,
along with any affidavits, show no genuine issue of material fact exists and the moving party
is entitled to judgment as a matter of law. A.B.A.T.E. of Illinois, Inc. v. Quinn, 2011 IL
110611, ¶ 22. We review the trial court’s grant of summary judgment de novo. Millenium
Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 309 (2010).
¶ 14 In support of its motion for summary judgment, defendant attached the affidavits of
Santoro, Officer Seaquist, and Veres, as well as police reports prepared by Seaquist
summarizing his interviews with witnesses. Generally, statements contained in police reports
are considered inadmissible hearsay. People v. Shinohara, 375 Ill. App. 3d 85, 113 (2007).
Evidence not admissible at trial cannot be used to support or oppose a motion for summary
judgment. Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 394 Ill.
App. 3d 105, 108 (2009). However, no objection was made to the admission of the police
reports. Hearsay evidence admitted without objection is considered and given its natural
probative effect. People v. Akis, 63 Ill. 2d 296, 299 (1976).
¶ 15 Plaintiff first contends that the trial court erred in granting summary judgment on the
basis that the Act provides an exclusive remedy for Rodriguez’s injury. Section 5(a) of the
Act states:
“(a) No common law or statutory right to recover damages from 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, *** or any one otherwise entitled to recover
damages for such injury.” 820 ILCS 305/5(a) (West 2006).
Section 11 of the Act states:
“The compensation herein provided, together with the provisions of this Act, shall be the
measure of the responsibility of any employer *** for accidental injuries sustained by any
employee arising out of and in the course of the employment according to the provisions
of this Act ***.” 820 ILCS 305/11 (West 2006).
¶ 16 In Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990), our supreme court
observed that the purpose of the Act is “to provide financial protections to workers for
accidental injuries arising out of and in the course of employment,” and in return for
imposing liability without fault on the employer, the Act “prohibits common law suits by
employees against the employer.” It reasoned that “[t]he 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.’ [Citation.]” Id. Accordingly, the Act prohibits employees from
bringing a common law cause of action against an employer unless the employee can show
that the injury (1) was not accidental; (2) did not arise from his employment; (3) was not
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received in the course of his employment; or (4) was not compensable under the Act. Collier
v. Wagner Castings Co., 81 Ill. 2d 229, 237 (1980). The parties do not dispute that Rodriguez
received his injuries in the course of his employment at Frankie’s. We therefore determine
whether plaintiff has proved any of the remaining factors.
¶ 17 In Meerbrey, our supreme court defined “accidental” as a term that describes “ ‘anything
that happens without design or an event which is unforseen by the person to whom it
happens.’ ” (Internal quotation marks omitted.) Meerbrey, 139 Ill. 2d at 463 (quoting
Pathfinder Co. v. Industrial Comm’n, 62 Ill. 2d 556, 563 (1976)). Thus, an “accidental”
injury in the employment context includes “injuries inflicted intentionally upon an employee
by a co-employee *** since such injuries are unexpected and unforeseeable from the injured
employee’s point of view. [Citation.] Such injuries are also accidental from the employer’s
point of view, at least where the employer did not direct or expressly authorize the co-
employee to commit the assault.” Id. See also Richardson v. County of Cook, 250 Ill. App.
3d 544, 549 (1993) (claim based on intentional torts committed by co-employees barred by
the exclusivity provision of the Act because the injuries were unexpected and unforseen by
the plaintiff and not authorized by the employer).
¶ 18 In the case at bar, plaintiff’s decedent Rodriguez had an altercation with Edan Maya on
the day before the shooting. The next day, Maya returned to Frankie’s while Rodriguez was
working and shot him. There is no reason to believe that Rodriguez expected the shooting
to occur; in fact, he reported for work the day after the altercation. Nor is there any indication
that Santoro directed or expressly authorized Maya’s actions. Instead, Santoro stated that he
was unaware of any tensions between the parties before the altercation. Since Rodriguez’s
injury is considered “accidental” under the Act, plaintiff’s sole remedy against defendant is
under the Act.
¶ 19 Plaintiff disagrees, arguing that the element of forseeability in determining whether an
injury is accidental should be a consideration from the employer’s perspective as well. She
contends the shooting was not accidental because on the day of the altercation Santoro
believed that Edan Maya posed a threat of serious harm to others. Santoro sent Maya home
to “cool off” and planned to terminate his employment the following day. Plaintiff contends
that Santoro had a duty to protect Rodriguez from imminent harm, and it cannot be Illinois
policy that the Act negates this duty.
¶ 20 First, there is no indication that Santoro believed Edan Maya posed a serious threat of
harm to others. Immediately after the altercation, Santoro sent Maya home to cool off but
thought he would return the following day to report for work. The most important
consideration for Santoro was for his employees to get along so they could work together.
Also, plaintiff cites no cases to support her position. The cases plaintiff does cite, Petersen
v. U.S. Reduction Co., 267 Ill. App. 3d 775 (1994), MacDonald v. Hinton, 361 Ill. App. 3d
378 (2005), Johnson v. Mers, 279 Ill. App. 3d 372 (1996), and Carter v. Skokie Valley
Detective Agency, Ltd., 256 Ill. App. 3d 77 (1993), do not involve the Worker’s
Compensation Act. Illinois law is clear that unless an employer has committed or expressly
authorized a co-employee to commit an intentional tort against an employee, the Act
prohibits common law actions seeking damages for such torts. See Collier, 81 Ill. 2d at 239;
Meerbrey, 139 Ill. 2d at 466; Richardson, 250 Ill. App. 3d at 548. Since plaintiff cannot
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recover common law damages against defendant for the shooting by Maya, it follows that she
cannot bring a claim against defendant for negligently hiring/retaining Maya based on the
shooting. We decline plaintiff’s invitation to create a new exception to the Act’s exclusivity
provision.
¶ 21 Plaintiff also contends that a question of fact exists as to whether the altercation leading
to the shooting arose out of employment or was a purely personal dispute. In the Act, the
phrase “arising out of the employment” refers to the causal connection between employment
and the injury suffered. (Internal quotation marks omitted.) Martinez v. Gutmann Leather,
LLC, 372 Ill. App. 3d 99, 101 (2007). An injury arises from employment when a causal
connection exists between working conditions and the resulting injury. Castaneda v.
Industrial Comm’n, 97 Ill. 2d 338, 342 (1983). It must be apparent that employment
increased the risk of injury, and that the employee would not have been subject to the same
attack if he had encountered the offender for the first time upon the street. Huddleston v.
Industrial Comm’n, 27 Ill. 2d 446, 448 (1963).
¶ 22 All of the witnesses testified that the altercation at Frankie’s between Rodriguez and
Edan Maya involved Flores taking over the position of fry cook from Maya and taunts that
Flores was the better fry cook. If Rodriguez had not been employed at Frankie’s, it is unlikely
he would have been involved in the altercation with Maya or subsequently shot by Maya.
Plaintiff contends that the dispute was purely personal because David Maya told Officer
Seaquist that no one at Frankie’s liked Edan. However, a purely personal dispute is one
where the verbal exchange is “completely unrelated to the employer’s work.” Castaneda, 97
Ill. 2d at 342. David Maya consistently stated that the altercation involved who was the better
fry cook and that Rodriguez “kept egging [Edan] Maya to fight [Flores] for taking his
position.” Nothing contained in the record indicates the altercation resulted from anything
other than the fry cook dispute.
¶ 23 Plaintiff also argues that Rodriguez’s injuries were not compensable under the Act
because he was the aggressor in the altercation. “[W]here the party seeking compensation
was the aggressor, the party’s acts are not within the scope of employment and are not
compensable.” Franklin v. Industrial Comm’n, 341 Ill. App. 3d 128, 135 (2003). This
particular issue was not brought before the trial court below and thus plaintiff has waived this
claim upon review. Meerbrey, 139 Ill. 2d at 467. Nonetheless, the law generally defines
“ ‘initial aggressor’ ” in the context of the Act as “the employee who makes the first physical
contact.” Franklin, 341 Ill. App. 3d at 135. Although it is arguable whether Rodriguez started
the taunts, no one stated that he observed the parties exchange physical blows prior to the
shooting. Therefore this exception does not apply and the trial court properly granted
summary judgment in favor of defendant.
¶ 24 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 25 Affirmed.
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