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Illinois Bell Telephone Co. v. Industrial Commission

October 25, 1989

ILLINOIS BELL TELEPHONE COMPANY, APPELLEE

v.

THE INDUSTRIAL COMMISSION ET AL. (MARY CONOBOY, APPELLANT)



Appeal from the Industrial Commission Division of the Appellate Court; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Alexander White, Judge, presiding.

The opinion of the court was delivered by: HONORABLE JUDGE STAMOS

JUSTICE CALVO took no part in the consideration or decision of this case.

Claimant, Mary R. Conoboy, was injured when she slipped and fell in a common area of the Woodfield Shopping Mall shortly after leaving her place of employment on the second floor of the mall. Claimant filed an application for adjustment of claim under the Workers' Compensation Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 138.1 et seq.). The arbitrator awarded claimant compensation. The Industrial Commission adopted the arbitrator's decision, and the circuit court modified the award and confirmed the remainder of the Commission's decision. The Industrial Commission division of the appellate court reversed the circuit court's decision and vacated all awards of compensation, finding that claimant's injury did not arise out of and in the course of her employment (173 Ill. App. 3d 272), as required by the Act (Ill. Rev. Stat. 1985, ch. 48, par. 138.2). The appellate court certified that a substantial question existed warranting review by this court, and we granted claimant's petition for leave to appeal (107 Ill. 2d R. 315(a)).

This appeal raises the issue of whether an injury sustained by an employee of a tenant in a multilevel shopping mall building, while in a common area of the mall on her way home from work, arises out of and in the course of her employment.

Claimant's unopposed testimony before the arbitrator established that claimant was employed by Illinois Bell Telephone Company (Illinois Bell) on March 15, 1980, the day of the incident. Claimant testified that at 5 p.m. she finished work and left her employer's premises on the second level of the mall, using the nearest escalator to descend to the first floor of the mall. Upon reaching the first level, she began walking toward one of approximately 10 exits from the mall. When she was about 12 feet from an exit door, her left leg skidded and went out and she fell on her knee. She testified that the floor was waxed and slippery. Claimant then proceeded through the exit, the doors of which were locked; she stated that the mall doors are locked an hour to an hour and a half after the mall closes. The area in which she fell was open to the public when the mall itself was open for business.

Claimant had been employed at Illinois Bell's mall store for six months prior to the accident. She stated that she had used other mall entrances and exits to go to and from work, and testified that she had crossed the area where she fell only about 20 times in the six months she had worked at the mall store. She further stated that Illinois Bell did not require her to use any specific exit or entrance.

An examination of Illinois Bell's lease agreement indicates that the area in which claimant was injured was a "common area." The landlord was solely responsible for the maintenance of the common areas of the mall; the lease also states that the common areas are to be maintained and operated at the sole discretion of the landlord. The landlord also has the right under the lease to prescribe regulations governing the use of common areas and to close temporarily any common area to make repairs or changes. Illinois Bell is required to pay a pro rata share of the expenses of maintaining the common areas.

Claimant argues that the appellate court improperly reversed the decision of the circuit court. Claimant contends that her injury arose out of and in the course of her employment and that she is entitled to compensation under the Act. Illinois Bell contends that claimant's injury did not arise out of and in the course of her employment because it occurred off its premises in a common area of the mall over which it had no control.

We initially note that if undisputed facts upon any issue permit more than one reasonable inference, the determination of such issue presents a question of fact, and the Conclusion of the Industrial Commission will not be disturbed on review unless it is contrary to the manifest weight of the evidence. Caterpillar Tractor Co. v. Industrial Comm'n (1989), 129 Ill. 2d 52, 60; Orsini v. Industrial Comm'n (1987), 117 Ill. 2d 38, 44.

The purpose of the Act is to protect employees against risks and hazards which are peculiar to the nature of the work they are employed to do. (Orsini, 117 Ill. 2d at 44; Fisher Body Division, General Motors Corp. v. Industrial Comm'n (1968), 40 Ill. 2d 514, 517.) An injury is compensable under the Act only if it "aris[es] out of" and "in the course of" the employment. (Ill. Rev. Stat. 1985, ch. 48, par. 138.2.) The phrase "in the course of" refers to the time, place and circumstances under which the accident occurred. (Orsini, 117 Ill. 2d at 44; Chmelik v. Vana (1964), 31 Ill. 2d 272, 278.) The words "arising out of" refer to the origin or cause of the accident and presuppose a causal connection between the employment and the accidental injury. (Caterpillar, 129 Ill. 2d at 57-58; Chmelik, 31 Ill. 2d at 277.) Both elements must be present at the time of the accidental injury in order to justify compensation. Caterpillar, 129 Ill. 2d at 57-58; Orsini, 117 Ill. 2d at 45; Eagle Discount Supermarket v. Industrial Comm'n (1980), 82 Ill. 2d 331, 337.

This court has repeatedly held that "'when an employee slips and falls, or is otherwise injured, at a point off the employer's premises while traveling to or from work, his injuries are not compensable.'" (Butler Manufacturing Co. v. Industrial Comm'n (1981), 85 Ill. 2d 213, 216, quoting Reed v. Industrial Comm'n (1976), 63 Ill. 2d 247, 248-49.) Prior decisions of this court have noted two exceptions to this general rule. Recovery has been permitted for off-premises injuries incurred by an employee when the employee's presence at the place where the accident occurred was required in the performance of his duties and the employee is exposed to a risk common to the general public to a greater degree than other persons. (Butler Manufacturing Co., 85 Ill. 2d at 216; Bommarito v. Industrial Comm'n (1980), 82 Ill. 2d 191, 194; Deal v. Industrial Comm'n (1976), 65 Ill. 2d 234, 239; Reed v. Industrial Comm'n (1976), 63 Ill. 2d 247, 249; see Gray Hill, Inc. v. Industrial Comm'n (1986), 145 Ill. App. 3d 371, 375.) Recovery has also been permitted for injuries sustained by an employee in a parking lot provided by and under the control of an employer. Hiram Walker & Sons, Inc. v. Industrial Comm'n (1968), 41 Ill. 2d 429; De Hoyos v. Industrial Comm'n (1962), 26 Ill. 2d 110.

The facts here do not establish a basis for compensation under the first exception to the general premises rule. In Bommarito, which claimant cites, all employees were required to enter and exit the store through a rear door. The court held that the claimant's injuries fell under the Act because of the employer's requirement that employees enter through a particular door and the hazardous risks presented by an alley through which employees had to pass in order to enter through the rear door. The court specifically noted that the case did not involve a situation where a claimant freely chooses to use a certain route and is injured in doing so. (Bommarito, 82 Ill. 2d at 196.) Similarly, in Gray Hill, Inc. v. Industrial Comm'n (1986), 145 Ill. App. 3d 371, another case cited by claimant, the court upheld compensation because it found that the claimant's presence where she was injured was required by her employer. 145 Ill. App. 3d at 375.

In Deal v. Industrial Comm'n (1976), 65 Ill. 2d 234, this court upheld an award of compensation to a claimant who was injured while leaving his employer's premises. The court found that evidence of the actual ownership of the cement apron upon which the claimant was standing when he was injured was not necessary to uphold compensation, because the doorway the claimant exited through was the only practical means of leaving the premises and the position of the exit created a greater degree of risk of injury to the claimant than to the general public.

Claimant in the case at bar testified that she was not required by her employer to use any particular mall entrance or exit and admitted using entrances and exits other than the one she was using when she was injured. For these reasons, we believe that claimant has ...


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