The opinion of the court was delivered by: STIEHL
WILLIAM D. STIEHL, UNITED STATES DISTRICT JUDGE
Before the Court is defendants' Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. Plaintiff has filed a response to defendants' motion, and defendants have filed a reply brief.
The defendants assert that Count I is subject to the exclusivity provisions of the Illinois Workers' Compensation Act. Defendants further assert that Counts III and IV of the complaint should be dismissed because (1) they are subject to disposition via the Arbitration and Grievance Procedure of plaintiff's union, (2) plaintiff failed to exhaust administrative/contractual remedies, and (3) plaintiff failed to state a claim upon which relief may be granted. Count II has previously been stricken pursuant to Fed. R. Civ. P. 12(f) on grounds of redundancy.
The Court must first determine whether Count I is subject to the exclusivity provision of the Illinois Workers' Compensation Act (Act), Ill. Rev. Stat. ch. 48, para. 138.11 (1987), and, therefore, preempted.
Section 5 of the Act provides, in pertinent part:
No common law or statutory right to recover damages from 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 . . . .
Therefore, where an injury arose out of and in the course of employment, the Act serves as the employee's exclusive remedy. Rhodes v. Industrial Comm'n, 92 Ill. 2d 467, 442 N.E.2d 509, 511, 66 Ill. Dec. 83 (1982).
In order for an injury to be compensable under the Act, the "injury must 'arise out of' and 'in the course of' employment." Technical Tape Corp. v. Industrial Comm'n, 58 Ill. 2d 226, 317 N.E.2d 515, 517-18 (1974). For an injury to "arise out of the employment," there must be a "causal connection between the employment and the injury." 317 N.E.2d at 517-18. "The phrase 'in the course of employment' relates to the time, place and circumstances of the injury." 317 N.E.2d at 517.
The Illinois Supreme Court has held:
Plaintiff cites the Illinois case of Martin v. Kralis Poultry Co., 12 Ill. App. 3d 453, 297 N.E.2d 610 (1973), as controlling authority on the applicability of the Act. In Kralis, the court recognized that an injury must arise out of and occur during the course of employment, and so ruled that plaintiff, a plant worker who was injured when she returned to the plant to pick up her husband three hours after she had clocked out, was not injured by an event that had arisen out of her employment, and was, therefore, not precluded from seeking a common law recovery.
The instant case is clearly distinguishable from Kralis. In this case, plaintiff was walking from his job site to his car to drive home from work. The injury occurred four minutes after his shift had ended. "But for" plaintiff's employment, this injury would not have occurred. The injury "arose out of" plaintiff's employment, because plaintiff's injury allegedly occurred while plaintiff was walking down stairs he needed to descend to reach his automobile to leave his job site. The injury occurred "in the course of" plaintiff's employment, because of the propinquity in time between plaintiff's clocking out from work and plaintiff's alleged injury. In Kralis, plaintiff's injury occurred several hours after she had left the job site, and did not occur in circumstances that were unique to her employment. When circumstances such as those in Kralis exist, then the applicability of the Act is a question of fact that must be left to a jury to decide. 297 N.E.2d at 617. However, when, as here, the plaintiff's complaint clearly ...