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06/29/88 James Morgan, v. the Retirement Board of

June 29, 1988

JAMES MORGAN, PLAINTIFF-APPELLANT

v.

THE RETIREMENT BOARD OF THE POLICEMEN'S ANNUITY AND BENEFIT FUND, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

526 N.E.2d 493, 172 Ill. App. 3d 273, 122 Ill. Dec. 234 1988.IL.1016

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

The circuit court of Cook County affirmed the administrative decision of defendant, the Retirement Board of the Policemen's Annuity and Benefit Fund, denying the application of plaintiff, James Morgan, a Chicago police officer, for duty disability benefits under section 5-101 et seq. of the Illinois Pension Code (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 5-101 et seq.).

Plaintiff was on duty at the Grand Crossing District police station on January 15, 1984. At that time he was assigned to the front desk. A citizen entered the station and plaintiff proceeded to take a police report from him. Apparently while doing so, plaintiff was seated in a chair with casters. Plaintiff arose from the chair to hand some items of identification back to the person from whom he was taking the information for the police report. When he attempted to sit down in the chair, it rolled away from him and plaintiff struck the chair and/or floor with his head, neck and back. It is not disputed that as a result of his injuries plaintiff was no longer able to perform the duties of a Chicago police officer.

Defendant denied plaintiff's duty disability claim, concluding that he was entitled only to ordinary disability benefits "in that his injuries were not sustained as a consequence of an act of duty as defined by" section 5-113 of the Pension Code. (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 5-113.) Specifically, defendant determined that plaintiff's act of attempting to sit on a chair which rolled away from him did not fall within the meaning of that section. The circuit court of Cook County affirmed this decision on the ground that the activity which led to plaintiff's injury was one ordinarily assumed by a citizen in the ordinary walks of life, not one involving a special risk, as those phrases are used in section 5-113. The court also found the facts of this case distinguishable from those in Johnson v. Retirement Board of the Policemen's Annuity & Benefit Fund (1985), 137 Ill. App. 3d 546, 484 N.E.2d 1250, aff'd (1986), 114 Ill. 2d 518, 502 N.E.2d 718.

Section 5-154 of the Illinois Pension Code establishes, inter alia, the right of a police officer covered by article 5 of the Code to receive a "duty disability benefit" equal to 75% of his salary at the time the disability is allowed where the disability results from injury incurred "in the performance of an act of duty." (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 5-154.) Section 5-155 of the Code, in contrast, provides that an officer disabled as the result "of any cause other than . . . an act of duty" is to receive an "ordinary disability benefit" of 50% of his salary at the time the disability occurs. (Ill. Rev. Stat. 1983, ch. 108 1/2, par. 5-155.) Section 5-113 defines an "[act] of duty" as, inter alia :

"Any act of police duty inherently involving special risk, not ordinarily assumed by a citizen in the ordinary walks of life, imposed on a policeman by the statutes of this State or by the ordinances or police regulations of the city in which this Article is in effect or by a special assignment . . .." Ill. Rev. Stat. 1983, ch. 108 1/2, par. 5-113.

On appeal, plaintiff contends that he is entitled to a duty disability benefit because he sustained his injuries in the performance of an act of duty as that term is defined in section 5 -- 113. We disagree.

Section 5 -- 113 was most recently construed in Johnson v. Retirement Board of the Policemen's Annuity & Benefit Fund (1986), 114 Ill. 2d 518, 502 N.E.2d 718. Therein, a Chicago police officer assigned to direct traffic at a downtown intersection suffered a disabling injury when he slipped and fell while crossing the intersection to investigate a traffic accident. The defendant board denied the plaintiff duty disability benefits on the ground that the mere act of crossing the street while directing traffic was not an act of duty qualifying him for such benefits. On appeal, the board contended that the phrase "inherently involving special risk" qualified the phrase "act of duty" to include only inherently dangerous acts and that the mere act of crossing the street did not involve a special risk not ordinarily assumed by a citizen.

In affirming the appellate court's reversal of the denial of duty disability benefits, the supreme court stated:

"We do not find anything in the statute or in its legislative history to support the defendant's strained construction that the term 'special risk' only encompasses 'inherently dangerous' activities. Police officers assigned to duties that involve protection of the public discharge those duties by performing acts which are similar to those involved in many civilian occupations. Driving an automobile, entering a building, walking ...


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