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07/23/87 Gerald E. Curtis, v. the Industrial Commission

July 23, 1987

GERALD E. CURTIS, APPELLANT

v.

THE INDUSTRIAL COMMISSION (THE CITY OF ALTON, APPELLEE)



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT, INDUSTRIAL COMMISSION DIVISION

511 N.E.2d 866, 158 Ill. App. 3d 344, 110 Ill. Dec. 689 1987.IL.1047

Appeal from the Circuit Court of Madison County; the Hon. Paul E. Riley, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. WOODWARD, McCULLOUGH, and KASSERMAN, JJ. concur. PRESIDING JUSTICE BARRY, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Petitioner Gerald E. Curtis filed an application for adjustment of claim for burn injuries sustained during his lunch period while employed by respondent, the City of Alton. An arbitrator denied the claim after finding that the injuries did not arise out of and in the course of petitioner's employment. The Industrial Commission affirmed the arbitrator's decision, and the circuit court of Madison County confirmed the Commission's decision.

Petitioner was employed by respondent as a truck driver and general laborer in street maintenance for 15 years. On August 4, 1982, petitioner asked James Corwin, the employee in charge of respondent's main garage, for permission to take home a barrel of waste gasoline from the garage. Petitioner intended to use the gasoline either for greasing his hogs or as fuel for his tractor. Corwin gave petitioner permission, but told petitioner the gasoline was probably worthless. Corwin also told petitioner not to take the barrel itself because there was a deposit on it.

Petitioner asked a fellow employee, John Watts, to help him load the barrel into petitioner's personal pickup truck. Petitioner then drove the truck over to a nearby municipal washrack. The washrack is a building with a sliding overhead door where city vehicles are washed. Petitioner and Watts tipped the barrel and poured some of the gasoline into a bucket which petitioner kept in the truck. Petitioner then decided that he could not use the liquid.

At that point, one of the two bungs in the barrel came off and gas began to pour out. The two men began to flush the gas down the drain with a water hose. Petitioner suddenly saw a flash as the gas ignited. The two men ran out of the building and petitioner hit the control to lower the overhead door, which had been open. As a result of the fire, petitioner sustained serious burns on both arms and on the side of his face and ear.

Petitioner testified further that he had never taken waste gasoline from the garage prior to that date and did not know of any other employee who had done so. Petitioner raises hogs in his spare time and had previously used respondent's waste oil for his hogs. In addition, prior to the accident, petitioner and other employees had often washed their personal vehicles in the washrack, either during the lunch hour or after work. Occasionally, when one employee was having trouble with his car, several co-workers would meet him at the washrack and help fix the car. It was not necessary to ask permission to work on personal cars at the washrack, and sometimes the supervisor would help with the work. Petitioner had also used the washrack to wash the superintendent's car. In addition, employees washed paint equipment and then flushed paint and thinner down the drain in the washrack.

Respondent introduced into evidence an executive order issued on July 10, 1980, by the mayor of Alton. The order prohibited city employees from remaining in the complex beyond 15 minutes after their shift ended; from working on their privately owned vehicles on city property or using city tools for that purpose; and from lingering in the complex after working hours. Petitioner testified that he never saw the executive order prior to his accident, but that it had been posted subsequently.

Clinton Everage, Aaron Lovett, and Stephen Sanders, who had been employees of respondent for over 10 years, testified for petitioner. The three men had taken home waste oil from respondent's main garage either for use on their hogs or in their gardens to kill weeds, or had used the washrack to wash or repair their personal vehicles. Everage had seen waste oil, gas and paint thinner poured down the drain in the washrack and had seen it dumped in a field. Everage and Sanders had not seen the 1980 executive order prior to petitioner's accident. Lovett had seen the order when it was first issued, but believed that the order was generally disregarded.

James Corwin, a parts manager, testified for respondent that on the day of the accident, Corwin was in charge of the garage. Corwin may have had a conversation with petitioner regarding the gasoline, but he did not recall petitioner asking for the gasoline, and denied ever giving permission to take the gasoline. If he had known the gasoline was worthless, he would have so informed the petitioner. Corwin was at home eating when petitioner took the gasoline.

Corwin believed that at the time of petitioner's accident the policy at the garage was that no personal vehicles were to be worked on at the garage or washrack. He was aware of the 1980 executive order. When asked if it was enforced, Corwin answered, "Yes and no." He explained that it was possible that employees worked on their cars in the washrack, but when a supervisor told the employees to move the cars, the employees would comply because they knew they were not supposed to work on their vehicles. Corwin was not aware that any employees used waste oil for ...


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