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06/29/94 CHARLES GLOWACKI v. MOLDTRONICS

June 29, 1994

CHARLES GLOWACKI, PLAINTIFF-APPELLANT,
v.
MOLDTRONICS, INC., JACK L. BEAL, DAN RUSZKOWSKI, DON JENSEN AND PAUL WASICKI, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Du Page County. No. 91-L-1751. Honorable William E. Black, Judge, Presiding.

Released for Publication August 3, 1994.

Quetsch, Woodward, Geiger

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Plaintiff, Charles Glowacki, sued defendants, Moldtronics, Inc., Jack L. Beal, Dan Ruszkowski, Don Jensen and Paul Wasicki, alleging battery and retaliatory discharge. Plaintiff appeals the dismissal of his second amended complaint. Plaintiff contends that his complaint pleaded a cause of action for battery which is not barred by the exclusivity provisions of the Workers' Compensation Act (the Act) (820 ILCS 305/5 (West 1992)).

Plaintiff's second amended complaint alleges that plaintiff was an employee of Moldtronics from February 5, 1979, until his termination on September 25, 1989. Defendant Beal was Moldtronics' president. Defendants Jensen, Wasicki, and Ruszkowski were also employees of Moldtronics.

Count I is entitled "Aggravated Battery." In it, plaintiff alleges that during his employment with Moldtronics the individual defendants committed a battery against plaintiff, in that, while acting within the scope of their employment as officers and employees of Moldtronics and with the specific intent to injure plaintiff, they caused plaintiff unknowingly to come into prolonged contact with certain chemicals. Exposure to these chemicals caused severe injuries to his neck, throat, and respiratory system.

Plaintiff further alleges that defendants intentionally failed to: disclose to him that he was working with toxic substances; instruct him in the proper handling of such substances; provide him with necessary safety equipment; provide him with a properly ventilated work area; and provide him with access to rest room facilities "that would allow him to practice reasonable care and cleanliness."

Count II alleged that defendants discharged plaintiff in retaliation for complaining about his exposure to dangerous chemicals. The dismissal of count II is not at issue in this appeal.

Defendants moved to dismiss the second amended complaint. The court granted the motion as to count I, inter alia, on the grounds that it was barred by the Act's exclusivity provisions and that plaintiff had failed to plead a cause of action for battery. The court also dismissed count II, a ruling which plaintiff does not challenge on appeal. However, plaintiff filed a timely notice of appeal from the court's order dismissing count I.

On appeal, plaintiff contends that his cause of action against both the corporate and individual defendants is not barred by the exclusive remedy provision of the Act. Section 5(a) of the Act provides:

"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 thanthe compensation herein provided, is available to any employee who is covered by the provisions of this Act * * *." (820 ILCS 305/5 (West 1992).)

Section 11 provides:

"The compensation herein provided * * * shall be the measure of the responsibility of any employer * * * for accidental injuries sustained by any employee arising out of and in the course of ...


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