APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
533 N.E.2d 1, 178 Ill. App. 3d 169
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE HOWARD M. MILLER, JUDGE PRESIDING. 1988.IL.1359
JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL, J. and O'CONNOR, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY
JUSTICE BUCKLEY delivered the opinion of the court:
Plaintiffs, Bernard A. Motsch ("plaintiff") and Tracy Motsch ("Tracy") filed a complaint against their former employers, Martin J. Pine and Pine Roofing Company, Inc. ("defendants"), alleging retaliatory discharge and retaliatory refusal to recall. Under count I of their complaint, plaintiff and Tracy claimed that defendants discharged them in retaliation for plaintiff having filed a claim under the Workers' Compensation Act ("Act"). Count II further charged that defendants refused to recall plaintiff and Tracy to active service for the same reason. During a jury trial, the court directed a verdict against Tracy at the close of his evidence. After deliberations, the Jury returned a verdict in favor of defendants on count I, but awarded plaintiff $9,410.25 compensatory damages and $28,639 punitive damages on count II of the complaint.
Defendants appeal the jury's verdict on count II, requesting a judgment notwithstanding the verdict, a new trial, or, in the alternative, a remittitur of damages. To support their appeal, defendants raise the following errors: (1) the evidence does not establish the essential elements for the tort of retaliatory discharge based upon refusal to recall; (2) the trial court erred in striking defendants' affirmative defense; (3) the trial court erred in tendering faulty Jury instructions relating to the elements of the tort; (4) defendant Pine cannot be held personally liable as a matter of law; (5) the trial court erred in tendering a faulty Jury instruction relating to punitive damages; (6) the punitive damage award is excessive and unsupported by the evidence; and (7) the compensatory damage award is excessive and against the manifest weight of the evidence.
Plaintiff filed a cross-appeal as to the jury's verdict on count I, conditioned upon this court granting defendants' requested relief on count II. Plaintiff alleges that the trial court committed reversible error by refusing to admit plaintiff's opinion testimony as to what constitutes a termination of employment, and by admitting the same testimony from plaintiff's witness on cross-examination. For the following reasons, we affirm the Jury verdict on count II, and therefore need not address issues raised by plaintiff's cross-appeal.
The record discloses that defendant Pine Roofing is a union roofing company who employs at-will journeymen roofers through defendant Martin Pine, its executive vice president and sole shareholder. According to expert testimony, there is a seasonal slowdown in roofing work in Chicago from November until March, during which time roofers are terminated from their employment. Generally, such terminated employees are paid in full and informed that there is no more work available. Roofing companies often call back the same employees at the end of the seasonal slowdown that they employed before the slowdown.
For over 30 years, plaintiff was employed seasonally as a roofer for many contractors. Before commencing his employment with defendants in August 1982, defendant had been employed by one contractor for seven years and in 1982 voluntarily terminated his employment with another employer which began in 1980. At the time of trial in 1987, plaintiff was working for an employer for two consecutive years.
On December 3, 1982, after picking up his paycheck, plaintiff fell down some stairs on defendants' premises and sustained injuries. As a result, plaintiff filed a Workers' Compensation claim on December 10, 1982. Plaintiff introduced the following testimony concerning the events that occurred thereafter. In March 1983, plaintiff's wife, Joan Motsch, telephoned defendant Pine to inquire into plaintiff's returning to work. In response to her inquiry, Pine stated: "No roofer that sues me is coming back." Although defendants hired roofers from April through June 1983, plaintiff never returned to work for defendant and did not obtain steady employment elsewhere until October 1983.
Under the general rule governing employment relationships, an at-will employee may be terminated at any time for any or no cause. (Palmater v. International Harvester Co. (1981), 85 Ill. 2d 124, 128, 421 N.E.2d 876, 878; Pleasure Driveway & Park District v. Jones (1977), 51 Ill. App. 3d 182, 190, 367 N.E.2d 111, 117.) Illinois courts have recognized an exception to this general rule, however, for certain retaliatory discharges. In Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353, for example, our supreme court sanctioned a tort action against employers who discharge employees for exercising their statutory rights under the Workers' Compensation Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.), in order to implement the Act's policies of protecting employees and promoting the State's general welfare. (74 Ill. 2d 172, 181, 384 N.E.2d 353, 358.) The section of the Act on which the tort action is premised makes it unlawful for any employer "to discharge . . . or to refuse to rehire or recall to active service" an employee for exercising his rights under the Act. Ill Rev. Stat. 1985, ch. 48, par. 138.4(h).
Focusing on the language of this section, defendants initially challenge the jury's verdict on the ground that the elements of the tort are lacking. Illinois courts have construed section 138.4(h) to include the following elements: (1) plaintiff's status as an employee before injury; (2) plaintiff's exercise of a right granted by the Act; and (3) a discharge of plaintiff that is causally related to his ...