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Washington v. Draper And Kramer

MAY 11, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


Plaintiff appeals from orders granting two motions for summary judgment, one on behalf of defendants Draper and Kramer, Incorporated, and 7000 South Shore Drive Hotel, a corporation, and the other on behalf of defendants Allen Michaels and Mrs. Allen Michaels.

It appears that plaintiff had been in the employ of the defendants Michaels as a day worker or maid working three days per week in their rented apartment owned by the Hotel and managed by Draper and Kramer.

An accident occurring elsewhere in the building resulted in water damage to the Michaels' apartment requiring repairs, including paper hanging. On the date of the alleged injury to plaintiff, an employee of the Calumet Decorating Service was hanging paper in the kitchen of the Michaels' apartment. Plaintiff, in a statement included as an exhibit in the Michaels' motion for summary judgment, stated that earlier she had helped the paper hanger move his paper boards in the kitchen and when she returned to look for her misplaced dusting rag, she fell and was injured. She noticed a ball of paste on the floor and as she attempted to avoid the paste she stated that she must have stepped in some more of it causing her to fall. "* * * that's what I stepped in, the paste from the paper hanger." Plaintiff indicated in her statement that Mrs. Michaels was present at the time of her fall and that she was working overtime that day in order to finish her work in another room of the apartment. She apparently was not to do any work in the kitchen that day.

• 1, 2 The Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57), provides that summary judgment shall be rendered "* * * if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment or decree as a matter of law." The purpose of the procedure is thus to render expeditious judgment on a question of law, but only after first deciding that no genuine issue as to any material fact exists between the parties. (Applicolor, Inc. v. Surface Combustion Corp. (1966), 77 Ill. App.2d 260, 265, 222 N.E.2d 168.) In making such determinations, a court should construe the pleadings and other documentation strictly against the moving party and liberally in favor of the opponent. Board of Education of District No. 68 v. Green Valley Builders, Inc. (1973), 10 Ill. App.3d 235, 293 N.E.2d 183.

We will first consider the contention of the Michaels which was raised in the trial court but has not been argued in their brief here: that plaintiff's exclusive remedy is under the Workmen's Compensation Act of Illinois. While we might deem this point to have been abandoned, we shall consider it, as it apparently was the sole basis for the trial court's judgment with respect to these defendants.

Our examination of the Act indicates there are two controlling sections: sec. 138.2 which gives an employer the right to elect to come within the provisions and thereby relieve himself of any liability except as provided in the Act and sec. 138.3 which automatically applies the provisions of the Act to all employees engaged in certain listed enterprises and businesses which are declared to be extra hazardous. (Ill. Rev. Stat. 1971, ch. 48, pars. 138.2 and 138.3.) Where an employer does not elect under sec. 138.2 or is engaged in a business not declared to be extra hazardous in sec. 138.3, the Workmen's Compensation Act does not apply. (Vol. 1, Angerstein, Illinois Workmen's Compensation, Rev. Ed. 1952, sec. 41; 37 I.L.P., Workmen's Compensation, 1958, sec. 25, p. 261.) In Glessner v. Industrial Com. (1971), 49 Ill.2d 558, 276 N.E.2d 313, it was held that a domestic or household servant was not an employee within the meaning of the Workmen's Compensation Act where the employer did not elect to come under the Act and did not otherwise qualify under the Act. See also vol. 2, Wm. R. Schneider's Workmen's Compensation Law, 3d Ed. 1942, p. 626.

Nothing in the record here or in the briefs indicates any election by defendants Michaels to bring themselves under the Workmen's Compensation Act nor is there any contention that they or the plaintiff were engaged in a business or enterprise declared by the Act to be extra hazardous.

• 3 Accordingly, we conclude there has been no showing that plaintiff's remedy was under the Workmen's Compensation Act and we hold that the circuit court was in error in granting summary judgment on this contention.

In their brief here the defendants Michaels have raised additional points not presented or argued in the circuit court. We will examine first the contention that summary judgment should be sustained on the theory that the plaintiff assumed the risks incidental to her employment.

In Coselman v. Schleifer (1968), 97 Ill. App.2d 123, 128, 239 N.E.2d 687, cited by them in support of this position, the court stated, "An employee assumes all of the usual and customary risks of his or her employment." In that case, plaintiff was a domestic servant whose duties included going up and down a basement stairway where she fell. The court held that the risks involved in the use of the stairway were normally incident to her employment.

• 4 This question of assumed risk was not raised or argued in the circuit court and, in apparent consequence, no affidavits or depositions were filed as to the usual and customary nature of her work. Therefore, from our examination of the record, we are unable to determine, as a matter of law, that the work of the paper hanger or the condition of the kitchen floor were normally incident to her employment or that the risks she encountered on entering the kitchen were usual and customary risks of her work. Accordingly, we believe that summary judgment cannot be sustained here on this contention.

We turn now to the remaining point raised in Michaels' brief, namely, that summary judgment should be affirmed for the reason that the paper hanger was an independent contractor whose negligence, if any, was not imputable to them.

The plaintiff has not replied to this point, neither was it presented or argued in the lower ...

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