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December 19, 1994


Appeal from the Circuit Court of Cook County. Honorable PADDY H. McNAMARA, Judge Presiding.

As Modified on Denial of Rehearing May 22, 1995. Rehearing Denied May 11, 1995.

The Honorable Justice Buckley delivered the opinion of the court: Cousins, P.j. and Wolfson, J.,* concur.

The opinion of the court was delivered by: Buckley


The Honorable Justice BUCKLEY delivered the opinion of the court:

Michael Laird (plaintiff) as Administrator of the Estate of Susan Kilroy, deceased, filed a complaint against Baxter Health Care Corporation (Baxter), Kimberly Hudson (Hudson), Link Carnival (Link), and Joe Stanford Payne (Payne) to recover damages the decedent's parents and siblings suffered as a result of her death. The trial court granted Baxter's and Hudson's motions to dismiss counts I and II on the ground that the exclusivity provision of the Workers' Compensation Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 138.5 (now 820 ILCS 305/5 (West 1993))) barred these claims. It also granted Hudson's motion for summary judgment as to count IV on the ground that there was no genuine issue of material fact that Hudson was not in the scope of her employment at the time of the accident. Finally, the trial court granted Link and Payne's motion for summary judgment on the ground that no genuine issue of material fact existed that they were negligent.

On appeal, plaintiff contends: (1) that because the next of kin's injuries are not compensable under the Act they fall within an exception to the exclusivity provision and therefore, the common law action against Baxter and Hudson is not barred; (2) that the evidence presented to the trial court created a genuine issue of material fact as to whether Hudson was on a "frolic" at the time of the accident; and (3) that a genuine issue of material fact exists as to whether Link and Payne were negligent.

Plaintiff brought this action against decedent's employer, Baxter, her coemployee, Hudson, and two third parties, Link and Payne, for damages decedent's next of kin sustained as a result of her death due to a motor vehicle accident on July 16, 1990. Counts I, II, and III are premised on common law negligence; the former two against Baxter and Hudson and the latter against Link and Payne. Count IV alleges in the alternative to counts I and II that at the time of the accident Hudson had departed from the scope of her employment and was engaged in a "frolic."

At the time of her death, decedent was 25 years old. Surviving her were her parents and two brothers as next of kin. Neither the decedent's parents or siblings were financially dependent on her nor have they filed a claim for death benefits under the Act.

On July 16, 1990, Hudson and decedent were employed by Baxter. Their duties consisted of calling on hospitals in Illinois and Wisconsin to sell Baxter's products. Hudson was a new employee who began work four weeks prior to the accident. Because Hudson was taking over decedent's accounts, decedent accompanied Hudson to introduce her to the accounts.

On the day of the accident, the two met at the Hinsdale Oasis at 6 a.m. They decided to drive Hudson's car to their appointments. Hudson believed they were to call on four or five hospitals that day. They proceeded to Kankakee for their first appointment at St. Mary's Hospital where they met with a blood bank supervisor for about 20 minutes. They next went to another hospital in Kankakee but Hudson could not remember which one. However, she testified that they left that hospital around 9 a.m. after which they went to McDonald's at the I-57 interchange where they had coffee and remained for 15 to 20 minutes. Prior to arriving at McDonald's, they had discussed the route they would take to Peoria. According to Hudson, decedent planned the route. However, Hudson could not recall the route nor could she recall if the two discussed that they had gone too far prior to the accident. As far as she could recall, Hudson believed they were on the proper route. She testified that while driving, the two had a general conversation and talked about having lunch with an "old friend" in Peoria.

According to Hudson, the last thing she remembers was leaving McDonald's, getting on I-57, and proceeding south on I-57. She did not remember seeing the semi-trailer, any flashing lights, or orange markers before the accident. The next thing she recalled was waking up at a hospital two days later.

Hudson did not recall speaking to a State trooper subsequent to the accident and telling him "that while traveling southbound on I-57 was listening to the radio and must have driven off the roadway striking the disabled truck and trailer." In a conversation with plaintiff's investigator, Hudson answered that she was not lost at the time of the accident and that her intended route was to take I-57 from Kankakee south to Route 24, and Route 24 into Peoria. Hudson did not recall making this statement.

Subsequent to her deposition, Hudson executed an affidavit in which she stated that at the time of the accident, she and decedent were enroute to meet a blood bank supervisor in Peoria. She indicated that the meeting was to begin at the hospital and then they planned to take the supervisor out to lunch. The affidavit avers:

"That the reference in my deposition of June 7, 1991 to having lunch with an old friend is a reference to the blood bank supervisor we were going to have lunch with in order to generate additional sales on behalf of Baxter Health Care Corporation."

The most direct route between Kankakee and Peoria is I-57 to Route 24, then Route 24 westbound into Peoria. In her answer, Hudson admits that the accident occurred at milepost 267, or 16 miles ...

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