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05/14/87 Ora Hyman, Special Adm'r v. Sipi Metals Corporation

May 14, 1987

ORA HYMAN, SPECIAL ADM'R OF THE ESTATE OF ERIC HYMAN, DECEASED, PLAINTIFF-APPELLANT

v.

SIPI METALS CORPORATION, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

509 N.E.2d 516, 156 Ill. App. 3d 207, 108 Ill. Dec. 820 1987.IL.625

Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. McMORROW, P.J., and JIGANTI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Plaintiff, Ora Hyman, administratrix of the estate of Eric Hyman, appeals from the dismissal of her three-count complaint against defendant, Sipi Metals Corporation (Sipi), the employer of the deceased. Eric Hyman was fatally injured when a furnace located in his workplace exploded. On behalf of his estate, Ora Hyman (hereinafter Hyman) seeks damages against Sipi under theories of products liability and negligent maintenance of the workplace.

The trial court granted Sipi's motion to dismiss, finding that the action was barred by the exclusive remedy provision of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 138.5(a)). On appeal, Hyman contends that Sipi occupied capacities other than that of employer of the deceased and therefore is liable to his estate, as a manufacturer of a defective and dangerous product and as a landowner who failed to properly maintain the property.

After careful analysis of the relevant law, we affirm the trial court.

The facts are simple and uncontested. On August 18, 1983, the deceased was working at 1720 North Elston, Chicago, a metal fabricating business owned by Sipi. The corporation's business includes the manufacture and distribution of kilns and furnaces to the general public. Located on the premises was a furnace or smelter which exploded, causing Eric Hyman's death.

Thereafter, Hyman was appointed administratrix of her son's estate and filed the pending action. She alleges, in count I of the complaint, that Sipi defectively manufactured the exploded smelter, in that it was of inadequate strength and thickness to withstand the pressures of the collected fumes and gases, and that this was the proximate cause of the death of her son. Count II specifies certain alleged deficiencies in the design of the smelter, such as the lack of safety devices and warnings, and claims that these design defects were the proximate cause of the death. In count III, Hyman bases a negligence claim on the alleged failure of Sipi, as owner and operator of the premises, to maintain adequate safeguards, warnings, and other safety measures at the plant.

The motion court heard oral argument on Sipi's motion to dismiss the complaint pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) and concluded that the action was barred by the exclusive remedy provision of the Act because Hyman could not establish a dual capacity of Sipi, as a matter of law.

Opinion

This is another in a line of cases that attempts to find meaning in what is commonly called the dual capacity doctrine. Since the 1973 decision in Marcus v. Green (1973), 13 Ill. App. 3d 699, 300 N.E.2d 512, the first case to apply the doctrine in Illinois, much uncertainty in its application has resulted. The Fourth District Appellate Court in Marcus v. Green defined dual capacity in the employment situation as an employer's occupying, in addition to his capacity as an employer, "'a second capacity that confers upon him obligations, independent of those imposed upon him as employer.'" (13 Ill. App. 3d 699, 706, 300 N.E.2d 512, 517, quoting 2A A. Larson, Workmen's Compensation sec. 72.80, at 1.226.20 (1976).) The court held that the employer in Marcus v. Green was also an owner of the land upon which the injury occurred and therefore was occupying a second legal capacity apart from that of employer.

Ten years after the Marcus v. Green decision the First District Appellate Court found that the Illinois Supreme Court had shifted the focus of the doctrine from whether the employer occupied a second, independent role, to "an exclusive concern" with whether the controversy involved separate legal entities. Toth v. ...


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