APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
P. COMAN, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
This is an appeal by plaintiff from two orders granting the separate motions of defendants for summary judgment in an action brought to recover damages for personal injuries allegedly sustained as the result of an assault and battery. The sole question presented is whether section 5(a) of the Workmen's Compensation Act (the Act) (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(a)) provides an exclusive remedy which bars an employee's action for damages against his employer and a co-employee for an intentional tort committed by the latter in the course of the employment of both the employee and the co-employee.
Plaintiff was employed by defendant Max Lee Corporation (Max Lee) in one of the latter's restaurants in which defendant Barry Multack (Multack) worked for the same employer as manager. In his complaint, plaintiff asked damages against Max Lee and Multack for injuries allegedly resulting when he was assaulted by Multack in the restaurant. Both motions for summary judgment asserted that plaintiff and Multack were employees of Max Lee and were performing duties in the course of their employment at the time of the occurrence complained of and that, as a result, plaintiff's action was barred by section 5a of the Act. Plaintiff, in his response to the motions, while admitting that section 5a bars a common law action by an employee against an employer or a co-employee for injuries due to negligence, asserts that "the statute does not bar a common law action against an employer or co-employee where said action is based upon an intentional tort grounded in malice as is the action in the case at bar."
The exclusive remedy provided for in section 5(a) in pertinent part is as follows:
"No common law or statutory right to recover damages from the employer, * * * or the agents or employees of * * * [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, * * *."
The Act established a system of liability without fault and abrogated the common law defenses of contributory negligence, assumption of risk, and fellow servant. In exchange therefor, it provided that the employee give up certain elements of damage by prohibiting common law and statutory actions against the employer for injuries received in the course of employment. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill.2d 460, 150 N.E.2d 141.) In Larson's treatise on workmen's compensation law, the author states that the 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, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts." 2A Larson, The Law of Workmen's Compensation § 65.10 (1976) (hereinafter cited as Larson).
Initially, we note that although the Act provides for compensation to an employee for accidental injury resulting in his death (Ill. Rev. Stat. 1975, ch. 48, par. 138.7) and not resulting in his death (Ill. Rev. Stat. 1975, ch. 48, par. 138.8), the term "accidental injury" is not defined. It has been stated that its meaning cannot be determined from any definition found in the dictionaries (Matthiessen & Hegeler Zinc Co. v. Industrial Board (1918), 284 Ill. 378, 120 N.E. 249) and that it is not a technical legal term but encompasses anything that happens without design or event which is unforeseen by the person to whom it happens (E. Baggot Co. v. Industrial Com. (1919), 290 Ill. 530, 125 N.E. 254). However, it has been recently held that injury is accidental within the meaning of the Act "when it is traceable to a definite time, place and cause and occurs in the course of employment unexpectedly and without affirmative act or design of the employee." International Harvester Co. v. Industrial Com. (1973), 56 Ill.2d 84, 89, 305 N.E.2d 529, 532.
Thus, injuries sustained by an employee as a result of an unprovoked and unjustifiable assault by a fellow worker in the course of employment have been held to be compensable as accidental injuries within the meaning of that term as used in the Act, where the assault stems from a quarrel arising out of the work or duties being performed by the employees. (City of Chicago v. Industrial Com. (1920), 292 Ill. 406, 127 N.E. 49; Pekin Cooperage Co. v. Industrial Com. (1918), 285 Ill. 31, 120 N.E. 530. See also McGrew v. Consolidated Freightways, Inc. (1963), 141 Mont. 324, 377 P.2d 350.) These cases treat the injuring incident as an "accident" on the theory that it was unexpected or unusual or unintended from the standpoint of the employee.
In the instant case, plaintiff contends that the motions for summary judgment were improperly granted. He argues that section 5a does not bar an action by an employee for the intentional tort by a fellow employee or an action against his corporate employer for the intentional tort of a co-employee who acts as its alter ego, and he maintains that Multack, as manager of its restaurant, was acting as alter ego of Max Lee.
In this regard, the parties are in accord that no Illinois decision has directly confronted the question of whether an action for damages because of injuries intentionally inflicted by an employer or a co-employee is barred by section 5a. It was indirectly considered, however, in Mier v. Staley (1975), 28 Ill. App.3d 373, 329 N.E.2d 1. In Mier, the directors and officers of a corporation, responding to a strike, decided to use office personnel to continue work in the factory. Plaintiff, a clerk, was injured in a fall while working in the factory and she sued, among others, the directors and officers of her corporate employer, alleging they were negligent in requiring office personnel to work in the factory knowing that machinery there was dangerous to inexperienced persons. She separately alleged that their conduct was wilful and wanton negligence. It was held the action was barred, with the court stating:
"The Workmen's Compensation Act bars all suits for accidental injuries arising out of and in the course of employment. * * * It is generally held that injuries caused by wilful and wanton negligence of the employer are to be compensated by the Act; the only injuries, if any, outside the Act would be intentional torts." (Emphasis added.) 28 Ill. App.3d 373, 381, 329 N.E.2d 1, 8.
Defendants correctly argue that the court in Mier was concerned only as to whether negligent acts were covered under the Act and that the underlined language was dicta. We note, however, that a number of jurisdictions have held that where an individual employer or a corporation where an employee acts as its alter ego inflicts an intentional injury on another employee, the employer may be made the subject of a common law action for damages on the theory that, in such an action, the employer should not be permitted to assert that the injury was accidental and, thus, under the exclusive remedy provision of their workmen's compensation laws. Readinger v. Gottschall (1963), 201 Pa. Super. 134, 191 A.2d 694; Garcia v. Gusmack Restaurant Corp. (1954), 150 N.Y.S.2d 232; Heskett v. Fischer Laundry & Cleaners Co. (1950), 217 Ark. 350, 230 S.W.2d 28; Le Pochat v. Pendleton (1946), 187 Misc. 296, 63 N.Y.S.2d 313; Stewart v. McLellan's Stores Co. (1940), 194 S.C. 50, 9 S.E.2d 35.
In Larson, at section 68.11, it is stated "[a]n intentional assault by the employer upon the employee, when the employer acts in person as distinguished from constructively through an agent, will ground a common law action for damages"; and the best reason advanced to support this result "is that the employer will not be heard to allege that the injury was `accidental' and therefore was under the ...