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06/23/94 STEMBRIDGE BUILDERS v. INDUSTRIAL

June 23, 1994

STEMBRIDGE BUILDERS, INC., APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (MARIO ZEPEDA, APPELLEE).



Appeal from the Circuit Court of Kane County. No. 93-MR-150. Honorable Donald C. Hudson, Judge, Presiding.

Rehearing Denied August 1, 1994.

McCULLOUGH, Rakowski, Woodward, Slater, Rarick

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Claimant was severely injured in a one-car accident while completing an errand for his employer. An eyewitness testified claimant was traveling at approximately 65 to 70 miles per hour in a 40-miles-per-hour zone when he lost control of his vehicle and flipped it over several times. The arbitrator and Industrial Commission (Commission) awarded benefits concluding claimant's negligence in speeding did not remove him from the scope of his employment. The circuit court confirmed the Commission. On appeal, respondent contends that claimant's accident did not arise out of his employment, as a matter of law, because he was speeding in excess of 25 to 30 miles per hour over the posted limit when the accident occurred.

Except for claimant's testimony concerning the moments immediately preceding the accident, the evidence is largely undisputed. Claimant, who was almost 17 years of age on the date of the accident, was employed on a part-time basis by a family friend, Harold Stembridge, to perform odd jobs for the respondent construction company which Stembridge owned. On April 7, 1992, claimant completed his chores at 6 p.m. and went to the Stembridge home where Stembridge asked him to run an errand. The errand entailed driving to a nearby bank and cashing a personal check for Stembridge while depositing a business-related check. Claimant was permitted to drive Stembridge's 1991 Honda Accord.

Claimant drove the approximately 1 1/2 miles to the bank, made the transactions and began driving directly back toward the Stembridge residence. Claimant turned onto Montgomery Road heading west. At this point, the witnesses' stories diverge.

In claimant's estimation, he was driving between 50 to 60 miles per hour. Montgomery Road is a two-lane highway with a posted speed limit of 40 miles per hour. Claimant stated that a woman in another vehicle attempted to pass him in the left-hand lane. Claimant offered that he became frightened, slammed on the brakes, the car tipped over and he was thrown through the sunroof. He was familiar with the area, it was a clear day, and the road was straight, flat, and dry. Claimant also conceded that Stembridge did not tell him that he needed to hurry to complete the errand. Claimant had no further recollection of the accident.

Linda Dileo testified as the only other eyewitness. She was driving in the same direction as claimant. In her rearview mirror, she saw claimant turn onto Montgomery Road from a bank entrance. At that time, claimant was approximately 1,000 feet behind her. Dileo was driving at approximately 40 to 45 miles per hour and noticed claimant rapidly close the gap between his vehicle and hers.

As claimant's car came up behind her, he swerved to pass her in the left-hand lane and lost control of the vehicle. Although there was a van in the distance coming toward Dileo and claimant, it was still a long way off and there was more than sufficient time and distance for claimant to successfully pass Dileo's car. Nevertheless, claimant's car began swerving as he passed her, and, approximately 500 feet aheadof her, claimant's car flipped over several times. Dileo estimated claimant's speed at 65 to 70 miles per hour.

Bradley Edwards, a police officer, investigated the accident. In his opinion, there was no condition of the roadway which caused the accident. Based on the witness report, Edwards believed that the accident was caused by claimant's driving in excess of the posted speed limit. Edwards had no opinion, however, as to whether driving at 65 to 70 miles per hour would increase the likelihood of an accident or losing control of a vehicle on a highway such as Montgomery Road.

In awarding benefits, the arbitrator chose to believe Dileo's version of the events. He concluded that claimant's excessive speed was the cause of the accident and that this conduct could be characterized as reckless. Nevertheless, because claimant was performing an act requested by the employer for the benefit of the employer, claimant was still within the scope of his employment even though he was acting negligently or recklessly when the accident occurred.

The Commission affirmed the arbitrator noting that an employee's negligent conduct while performing a job task did not, as a matter of law, take the employee out of the scope of employment. The Commission found claimant's injuries arose out of and in the course of employment because at the time of the accident claimant was performing assigned work duties, albeit negligently.

Respondent argues that the act which caused the injuries was claimant's intentional, personal decision to "grossly" speed 25 to 30 miles per hour over the posted speed limit and this act was totally unconnected to the work or task to which he had been assigned by his employer. For that reason, respondent maintains, ...


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