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09/18/89 Kenneth A. Meerbrey, v. Marshall Field & Company

September 18, 1989

KENNETH A. MEERBREY, PLAINTIFF-APPELLANT

v.

MARSHALL FIELD & COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

545 N.E.2d 952, 189 Ill. App. 3d 1085, 137 Ill. Dec. 191 1989.IL.1434

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Kenneth A. Meerbrey (plaintiff) brought suit against defendants Marshall Field & Company (Marshall Field) and its agent, Tim Marcolini (Marcolini), for injunctive relief and damages for false imprisonment, false arrest, and malicious prosecution. The circuit court granted defendants' motion to dismiss Marshall Field from counts II through V of plaintiff's second-amended complaint *fn1 pursuant to section 2-619 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2-619). The court also struck Marcolini's name from counts III through V pursuant to section 2-615 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) for failure to allege sufficient factual allegations against him. *fn2 It is from these rulings that plaintiff appeals. We affirm in part and reverse in part.

Marshall Field employed plaintiff as a cashier and Marcolini as a security guard. On January 19, 1985, Marcolini interviewed plaintiff at work regarding the theft of approximately $600 from Marshall Field. During this interview, plaintiff signed a restitution form and promissory note acknowledging his theft and, under the terms of the restitution form, thereafter reimbursed Marshall Field $500.

On February 12, 1985, plaintiff returned to Marshall Field's premises and demanded his payroll check for past earnings. Rochella Davis, an agent of Marshall Field, informed plaintiff that he was forbidden to enter the premises and twice requested him to leave. After plaintiff failed to vacate the premises, he was arrested by the Chicago police department pursuant to Davis' sworn complaint.

Subsequently, plaintiff filed suit against Marshall Field and Marcolini alleging various causes of action. Count II of plaintiff's complaint alleges that Marshall Field and Marcolini falsely imprisoned plaintiff on January 19, 1985, while counts III through V assert claims against Marshall Field and Marcolini alleging false imprisonment, false arrest, and malicious prosecution stemming from the February 12, 1985, events.

Addressing first the circuit court's dismissal of Marshall Field from counts II through V of plaintiff's complaint, the court found that the exclusivity provisions of the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)) barred plaintiff's common law cause of action. The exclusive remedy provided for in section 5(a) of the Act reads in pertinent part, as follows:

"No common law or statutory right to recover damages from the employer . . . or the agents or employees of . . . [the employer] for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act . . .." (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a).)

Through this provision, the Act establishes a system of liability without fault. It abolishes traditional common law defenses available to the employer in exchange for the prohibition against common law suits by employees. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill. 2d 460, 150 N.E.2d 141; Jablonski v. Multack (1978), 63 Ill. App. 3d 908, 380 N.E.2d 924.) The exclusive remedy provision "is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while, the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts." 2A A. Larson, The Law of Workmen's Compensation § 65.11 (1988).

Plaintiff contends that the above exclusivity provisions do not apply to the case at bar. Specifically, as to Marshall Field, plaintiff argues that he is not barred by the exclusivity provisions contained in the Act because Marcolini's acts were intentional. Plaintiff's contention is without merit.

Courts have held under the Act that to escape the bar of exclusivity provisions and to recover against persons covered under the Act, plaintiff is required "to prove either that the injury (1) was not accidental (2) did not arise from his or her employment, (3) was not received during the course of employment or (4) was non-compensable under the Act." (Collier v. Wagner Castings Co. (1980), 81 Ill. 2d 229, 237, 408 N.E.2d 198, 202.) In issue here is whether plaintiff's injury was "accidental" within the meaning of the Act to bar the common law action against Marshall Field. Collier and Jablonski hold that although the injuries inflicted by a fellow employee may be intentional from the wrongdoer's standpoint, they are compensable under the Act because the injury is "accidental" from the employee's/injured party's point of view -- that is, despite the obvious fact that the injury was intentionally inflicted, an employee's injuries will not be held to be noncompensable under the Act due to the intentions of the co-employee. (Collier, 81 Ill. 2d at 238, 408 N.E.2d at 202; Jablonski, 63 Ill. App. 3d at 910-11, 380 N.E.2d at 925-26.) Common law causes of action, however, will be sustained against an employer for the intentional tort of his employee against a fellow employee where the employer has committed, commanded or expressly authorized the intentional act. (Collier, 81 Ill. 2d at 238-39, ...


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