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12/30/88 Henry Hall, v. Frank Defalco

December 30, 1988

HENRY HALL, PLAINTIFF-APPELLANT

v.

FRANK DEFALCO, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

533 N.E.2d 448, 178 Ill. App. 3d 408, 127 Ill. Dec. 576 1988.IL.1936

Appeal from the Circuit Court of Cook County; the Hon. Thomas Hoffman, Judge, presiding.

APPELLATE Judges:

JUSTICE QUINLAN delivered the opinion of the court. MANNING and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

Plaintiff, Henry Hall, appeals the dismissal of his personal injury claim, contending that the circuit court of Cook County abused its discretion in refusing to reconsider and vacate its dismissal order and in refusing to consider plaintiff's counteraffidavit, which was filed after the dismissal order had been entered. We affirm.

The plaintiff, a passenger in the truck that the defendant was driving, sued the defendant, Frank DeFalco, for injuries that he sustained when the truck veered off the road and crashed into a building. The accident occurred on October 8, 1984. At the time of the accident, defendant was manager of a McDonald's restaurant in Winnetka, Illinois. Plaintiff was also a McDonald's employee. The truck veered off the road as defendant was driving plaintiff to an "L" station, after plaintiff had finished his work shift.

As a result of the accident, plaintiff filed a three-count complaint at law in the circuit court of Cook County. Count I alleged that the defendant was negligent in his operation of the truck and that plaintiff was injured as a direct and proximate result of defendant's negligence. Count III alleged that defendant was wilful and wanton in his operation of the truck and that plaintiff was injured as a direct and proximate result of defendant's wilful and wanton behavior. Count II was directed against Michael Bolling, the owner of the truck that defendant was driving. The trial court granted summary judgment in favor of Bolling on count II. Plaintiff does not appeal that decision.

Defendant filed a motion to dismiss counts I and III pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619) and section 5 of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)). Defendant argued that plaintiff was barred from bringing his action against defendant because plaintiff had received benefits for his injuries under the Workers' Compensation Act, which provides an exclusive remedy to an employee covered under the Act. Defendant contended that his regular duties included driving McDonald's employees to the local train station after their shift had ended and that plaintiff was injured while defendant was acting within the scope of his employment. Accordingly, defendant argued, under section 5 of the Workers' Compensation Act, plaintiff was barred from bringing a common law action.

With his motion to dismiss, defendant filed his own affidavit. In his affidavit, defendant asserted that he was acting within the scope of his employment by transporting a McDonald's employee to local public transportation when the accident giving rise to plaintiff's injuries occurred. Transporting these employees was a regular part of defendant's daily work duties, he stated, and this was done in furtherance of the interests of his employer, the McDonald's Corporation. Furthermore, DeFalco said, the plaintiff here had, in fact, filed a workers' compensation claim against the McDonald's Corporation for the injuries that he sustained in this accident and had received compensation from the McDonald's Corporation for his injuries.

Plaintiff filed a response to defendant's motion to dismiss, arguing that applying for and receiving benefits under the Workers' Compensation Act did not act as a bar to a common law action. Plaintiff did not, however, file any counteraffidavits in support of his response.

The circuit court granted defendant's motion to dismiss, holding that plaintiff's claim was barred by the exclusive remedy provisions of the Workers' Compensation Act. In granting defendant's motion, the court said that the question of whether an injury occurs within or outside the scope of employment becomes a question of law when the facts of the case are undisputed. In this case, the court noted that defendant's affidavit said that the accident occurred while he was within the scope of employment and that plaintiff failed to counter this affidavit. Hence, the court ruled that in this case the question was one of law and held that DeFalco had acted within the scope of his employment.

Thereafter, plaintiff filed a motion to vacate the dismissal order. Along with his motion to vacate, plaintiff now filed his counteraffidavit, stating that he was not in the course of employment when the accident occurred. The court denied plaintiff's motion to vacate and refused to consider his counteraffidavit. Plaintiff, as noted earlier, has now appealed to this court.

Plaintiff's first argument on appeal is that the trial court abused its discretion when it refused to consider the counteraffidavit that he filed after his case was dismissed. Plaintiff contends that the court should have considered his counteraffidavit because the late filing of the affidavit was not an egregious error and because it would not prejudice the defendant to do so. Defendant, however, contends that the trial court did not err in refusing to consider the plaintiff's ...


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