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Scheffler Greenhouses v. Ind. Com.





Appeal from the Circuit Court of Cook County; the Hon. Arthur L. Dunne, Judge, presiding.


Claimant, Rebecca Ann Greene, filed an application for adjustment of claim with the Industrial Commission, seeking compensation from her employer, Scheffler Greenhouses, Inc. The arbitrator made an award, finding that the claimant's injuries did arise out of and in the course of her employment. The Commission affirmed, and on certiorari the circuit court of Cook County confirmed the order of the Commission. Respondent, Scheffler Greenhouses, Inc., has appealed to this court.

Respondent is engaged in the florist and nursery business. It employs students part time during the school year and full time during the summer months to work in and around the greenhouses. Claimant and a school friend, Sandy Bachorski, were hired by the respondent in February of 1973, as part-time greenhouse workers. Later that spring, the claimant was informed that, starting June 13, 1973, she could begin working full time during the summer months. Claimant's duties consisted of planting flowers, potting plants, and other types of greenhouse work. Much of her work was performed inside sheds and buildings where at times it became very hot and humid.

A few years prior to 1973, Albert Scheffler, the president of the respondent corporation, gave Joseph Carroll, a full-time employee who rented a house on the greenhouse premises, permission to build and maintain an above-the-ground swimming pool. A 12-foot by 25-foot pool, which stood 4 feet off the ground, was placed between two greenhouses behind the florist shop. One side of the pool was approximately 18 inches from the wall of one greenhouse. A 12-inch-wide plank along the side of the pool was used as a deck for entering and leaving the pool. Approximately 3 feet above this plank was a 12-inch-wide gutter attached to the roof of the greenhouse next to the pool. There were no chairs, benches, or tables around the pool, and the plank along side the pool was allegedly too narrow for persons to rest upon.

On the morning of June 13, the claimant arrived at work at 8 a.m. and was assigned to the potting shed. After working all morning in the shed where it had been hot and muggy, claimant and a co-worker, Sally Ahl Cappiello, broke for lunch, rode their bikes to a nearby hamburger stand, and brought their lunches back to the premises. Employees were permitted to eat their lunches on or off the premises, but were not permitted to eat inside the florist shop. The girls ate their lunches at poolside and then decided to cool off in the pool before returning to work. Claimant, who was 5 feet 4 inches tall, climbed out of the pool and onto the plank. As there were no chairs or benches in the vicinity, and the plank was too narrow to lie on, claimant sat on the gutter overhanging the greenhouse roof. As she leaned back onto the roof to sunbathe, the glass-platted roof broke, and she sustained lacerations to her left leg.

At arbitration, the claimant testified that, during her interview in February, Scheffler informed her and her friend, Sandy Bachorski, that a swimming pool was located on the greenhouse premises, and that it could be used by employees during their work breaks on muggy summer days. Claimant also testified that she had discussed the use of the pool with Scheffler during a conversation several weeks previous to her working full time.

Respondent then called Scheffler, who testified that he could not recall ever having had a conversation with claimant concerning the use of the pool, and that he had never given any employee permission to use the pool. He did admit, however, that at times employees would ask him if it was alright to ask Joe Carroll if they could use the pool, and that he would say "Okay," as long as the employees had finished their jobs.

Sandy Bachorski testified that Scheffler had told her and claimant at the interview in February that the pool could be used on hot, muggy days during lunch hour. Sally Ahl Cappiello testified that one day during May, while she was working in the greenhouse, Scheffler walked by checking on the employees. Sally informed Scheffler that she felt ill due to the heat, and Scheffler reportedly told her that, if she wanted to, he did not mind if she took a dip in the pool and then returned to work. Sally stated that she did not accept Scheffler's offer because she did not have a swimming suit with her but, after that conversation, she wore a bathing suit under her clothes for the next two or three weeks.

Respondent recalled Scheffler to the stand following Bachorski's and Cappiello's testimony. Scheffler did not recall the conversation with Capiello, but denied he told Bachorski that there was a pool on the property and that she could use it on hot days.

Joe Carroll testified, on behalf of the respondent, that he owned the pool and that he permitted other people, including the respondent's employees, to use the pool if he thought they could swim. None of the girls had asked his permission to use the pool on the day of the accident. He had, however, permitted Scheffler's employees to use the pool on previous occasions during their lunch hour. Carroll had worked for respondent for 30 years and thought Scheffler knew his employees were using the pool. After the accident, Scheffler told Carroll not to let anyone use the pool unless Carroll knew they were qualified. Scheffler's employees continued to use the pool after the accident.

Initially, the respondent argues that the only issue presented is one of law to be determined by this court. A question, of law, however, is presented only where no factual matters are disputed or where no conflicting inferences can be drawn from the facts. (Newgard v. Industrial Com. (1974), 58 Ill.2d 164, 170; Union Starch v. Industrial Com. (1974), 56 Ill.2d 272, 275.) Respondent's contention must, therefore, be rejected, as conflicting inferences do exist, and some factual matters are disputed.

The issue presented, then, involves the Commission's finding that the claimant's injury arose out of and in the course of her employment, and whether these findings are against the manifest weight of the evidence.

The dual requirements for compensability under the Workmen's Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.2) have been defined many times by this court. An injury "`arises out of' one's employment if its origin is in some risk connected with or incident to the employment, so that there is a causal connection between the employment and the accidental injury." (Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill.2d 38, 40.) The phrase "in the course of" relates to the time, place, and circumstances of the injury. (Fire King Oil Co. v. Industrial Com. (1976), 62 Ill.2d 293, 294.) An injury is received in the course of employment where it occurs within a period of employment, at a place where the worker may reasonably be in the performance ...

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