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02/28/94 DANIELLE N. BERCAW AS SPECIAL ADM'R ESTATE

February 28, 1994

DANIELLE N. BERCAW AS SPECIAL ADM'R OF THE ESTATE OF JASON W. BERCAW, DECEASED; AND JOHN A. BERCAW, CHARLOTTE M. GILLETTE, AND DANIELLE N. BERCAW, AS SURVIVORS AND NEXT OF KIN TO JASON W. BERCAW, DECEASED, PLAINTIFFS-APPELLANTS,
v.
DOMINO'S PIZZA, INC., DEFENDANT (JAMES E. SHIPMAN, PETEZA, INC., PRECISION PIZZA, INC., DEFENDANTS-APPELLEES).



Appeal from the Circuit Court of Kane County. No. 92-L-0256. Honorable Pamela K. Jensen, Judge, Presiding.

Inglis, Geiger, Bowman

The opinion of the court was delivered by: Inglis

PRESIDING JUSTICE INGLIS delivered the opinion of the court:

This case presents an issue of first impression in the second district: whether the exclusive remedy provision of the Workers' Compensation Act (the Act) (820 ILCS 305/5(a) (West 1992)) bars a suit against a pizza delivery business brought by relatives of a deliveryman killed by assailants during the course of a delivery, when the relatives allege that the business knew with substantial certainty that the deliveryman would be attacked. We hold that the exclusive remedy provision does bar this suit.

The plaintiffs are the survivors, or next of kin, and the special administrator of the estate of Jason Bercaw (Bercaw). The defendants are Domino's Pizza, Inc. (Domino's), and James E. Shipman; Peteza, Inc.; and Precision Pizza, Inc. (collectively referred to as Shipman). Plaintiffs sued Domino's and Shipman after Bercaw was killed while delivering pizza. Count I of plaintiffs' complaint alleged wrongful death and negligence against Domino's. That count was stayed pending this appeal. Count II alleged against Shipman a tort the plaintiffs have labelled intentional endangerment to wrongful death. The circuit court of Kane County dismissed count II with prejudice pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1992)) on the ground that the claim was barred by the Act's exclusive remedy provision. Plaintiffs appeal.

In this court, plaintiffs argue that: (1) the exclusive remedy provision does not bar the suit; (2) the trial court erroneously distinguished cases in which employees success fully stated claims against their employers for injuries caused by airborne asbestos and toxins in the workplace; (3) the trial court erred in deciding that an intervening cause precluded the suit; and (4) the trial court's failure to rule on Shipman's election of remedies argument "renders the issue moot" on appeal.

We detail the allegations of count II. Shipman operated a Domino's Pizza franchise in Aurora, Illinois. Shipman, as a Domino's franchisee, was required to follow Domino's safety procedures. Shipman knew or should have known that pizza delivery personnel were increasingly becoming the victims of robbery and murder. Bercaw, age 20, worked for Shipman as a deliveryman. Domino's made available to Shipman training and written materials covering procedures for keeping delivery personnel safe on their deliveries. Shipman knew or should have known that untrained delivery personnel risked life and limb during deliveries. Despite such knowledge, Shipman intentionally failed to require its employees to follow the prescribed safety precautions and intentionally allowed its management to subject pizza delivery personnel to dangerous delivery practices.

Shipman intentionally endangered Bercaw's life by: (1) failing to train Bercaw in the prescribed safety regulations; (2) failing to warn Bercaw of the dangers inherent in pizza delivery; (3) allowing his employees to accept a delivery order from a "Mr. Jones" calling from a known pay phone in Aurora; (4) allowing management to require Bercaw to deliver that order to a darkened residence adjacent to a darkened lot; (5) failing to refuse delivery orders from known pay phones; (6) failing to refuse delivery in areas that were likely locations for crime; and (7) failing to require two-person delivery teams when orders came from known pay phones. As a result of Shipman's intentional acts, Bercaw was strangled by third persons while attempting to deliver an order to the darkened house in Aurora. On appeal from a dismissal with prejudice under section 2-619, all well-pleaded facts in the complaint are taken as true. ( Elliott v. L R S L Enterprises, Inc. (1992), 226 Ill. App. 3d 724, 727, 168 Ill. Dec. 674, 589 N.E.2d 1074.) Our job is to view the complaint in the light most favorable to plaintiffs and to determine if the complaint alleges any set of facts upon which relief may be granted. ( Incandela v. Giannini (1993), 250 Ill. App. 3d 23, 26, 189 Ill. Dec. 143, 619 N.E.2d 844.) We look at the complaint de novo, in light of all the pertinent factual and legal circumstances. Mitchell v. Skubiak (1993), 248 Ill. App. 3d 1000, 1004, 188 Ill. Dec. 443, 618 N.E.2d 1013.

The exclusive remedy provision 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, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury." (820 ILCS 305/5(a) (West 1992).)

This section prohibits an employee from bringing a common-law cause of action against his employer to recover for injuries suffered by the employee. However, exceptions exist which allow a common-law suit when the employee can prove that the injury (1) was not accidental, (2) did not arise from his employment, (3) was not suffered in the course of his employment, or (4) is not compensable under the Act. Meerbrey v. Marshall Field & Co. (1990), 139 Ill. 2d 455, 463, 151 Ill. Dec. 560, 564 N.E.2d 1222.

At issue in this case is whether Bercaw's death was "not accidental" within the meaning of the above test. Plaintiffs argue that Bercaw's death was "not accidental" in that Shipman knew with substantial certainty that sending the untrained Bercaw out to deliver an order placed on a pay phone would result in an assault on Bercaw. Shipman claims that Bercaw's death was accidental because Shipman did not specifically intend to injure Bercaw. Thus, the underlying issue is whether "not accidental" requires that the employer know with substantial certainty that its actions will injure the employee or that the employer specifically intend that its actions injure the employee.

Plaintiffs cite Rockford Redi-Mix, Inc. v. Teamsters Local 325, General Chauffeurs, Helpers & Sales Drivers (1990), 195 Ill. App. 3d 294, 306-07, in which this court held that workers who had let cement sit idle in their employer's cement trucks, knowing that the cement would harden and damage the trucks, committed an intentional tort against their employer. There, we relied on section 8A of the Restatement (Second) of Torts in defining intentional conduct. The comment to section 8A provides:

"All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by law as if he had in fact desired ...


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