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February 3, 1994



Released for Publication March 18, 1994.

Hoffman, Johnson, Theis

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiffs, Robert and Hattie Mayfield, appeal from an order which dismissed numerous counts of their second-amended complaint with prejudice based on the exclusive remedy of the Workers' Compensation Act (Ill. Rev. Stat. 1989, ch. 48, par. 138.5(a)).

Robert Mayfield was injured on July 23, 1990, when a steel drum he was loading into an incinerator at his place of employment exploded. At the time of his injury, he was employed by ACME Barrel Company (ACME) which reconditions used steel drums and barrels. In counts XIII through XXII of their second-amended complaint, the plaintiffs sought recovery against ACME on a variety of theories including negligence, spoliation of evidence, intentional misconduct, and loss of consortium.

ACME moved to dismiss all of the counts pending against it pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch 110, par. 2-619), relying upon the exclusive remedy provision of the Workers' Compensation Act. Additionally, ACME argued that Illinois does not recognize a cause of action for the spoliation of evidence. The trial court granted ACME's motion on the exclusive remedy argument and dismissed counts XIII through XXII of the plaintiffs' second-amended complaint and included the requisite findings under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) in its order of dismissal. This appeal followed.

Section 2-619 affords a defendant an expeditious means to obtain a summary Disposition of an action based upon an affirmative bar to the plaintiff's right to recovery. ( Kontos v. Boudros (1993), 241 Ill. App. 3d 198, 608 N.E.2d 573.) In ruling upon a motion brought pursuant to that section, a court must accept as true all well-pled facts in the complaint under attack ( Austin View Civic Association v. City of Palos Heights (1980), 85 Ill. App. 3d 89, 405 N.E.2d 1256), and draw all inferences from those facts which are favorable to the plaintiff ( Holubek v. City of Chicago (1986), 146 Ill. App. 3d 815, 497 N.E.2d 348). However, Conclusions of fact or law in the complaint which are not supported by specific factual allegations are not taken as true and are not considered by the court in ruling on the motion. ( Bell Fuels, Inc. v. Lockheed Electronics Co. (1985), 130 Ill. App. 3d 940, 474 N.E.2d 1312.) Such a motion should only be granted in those cases where there are no material facts in dispute and the defendant is entitled to be dismissed as a matter of law.

We first address whether it was proper to dismiss counts XIII, XIV, XXI, and XXII of the plaintiff's second-amended complaint.

In count XIII, Robert Mayfield sought recovery from ACME upon the theory that ACME's unlicensed, unauthorized, and negligent operation of a hazardous waste disposal site proximately caused his injuries. In count XXI, he sought recovery from ACME on the theory that in its unauthorized and unlicensed operation of a hazardous waste disposal site, ACME proximately caused his injuries by intentionally failing to warn him that he would be handling hazardous waste, failing to train him in the procedures for disposing of such materials, accepting barrels for disposal without proper certification, and failing to comply with certain directions on the barrels that were accepted. Counts XIV and XXII sought recovery in favor of Hattie Mayfield for loss of consortium and their charging allegations mirror the allegations of counts XIII and XXI, respectively.

The Workers' Compensation Act provides an exclusive statutory scheme which obligates employers to compensate their employees for accidental injuries sustained out of and in the course of their employment. (Ill. Rev. Stat. 1989, ch. 48, par. 138.1 et seq.) The Act provides a remedy to an injured employee without regard to fault on the part of the employer, but the remedy provided is exclusive and in lieu of all common law actions against the employer for damages. ( Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 564 N.E.2d 1222.) Section 5(a) of the Act provides in pertinent part as follows:

"(a) 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, to any one wholly or partially dependent upon him, * * * or any one otherwise entitled to recover damages for such injury." (Ill. Rev. Stat. 1991, ch. 48, par. 138.5(a).)

In addition to barring actions for damages by the employee against his employer, the exclusivity provision of the Act precludes actions by a spouse for loss of consortium. ( Fregeau v. Gillespie (1983), 96 Ill. 2d 479, 451 N.E.2d 870.) To escape the exclusive remedy against an employer as provided by the Act, an employee must establish that his injury was not accidental, did not arise from his employment, was not received during the course of his employment, or was not compensable under the Act. Meerbrey, 139 Ill. 2d at 463, 564 N.E.2d 1222.

Whether an injury is accidental for the purposes of applying the Act is dependent upon the object of the employer's intention. It is only when the employer acts with a specific intent to injure the employee that the resultant injury is stripped of its accidental character. ( Wells v. IFR Engineering Co. (1993), 247 Ill. App. 3d 43, 617 N.E.2d 204; Copass v. Illinois Power Co. (1991), 211 Ill. App. 3d 205, 569 ...

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