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10/13/95 KENNETH FLIGELMAN v. CITY CHICAGO

October 13, 1995

KENNETH FLIGELMAN, PLAINTIFF-APPELLANT,
v.
CITY OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Joseph Casciato, Judge Presiding.

Rehearing Denied November 7, 1995. Released for Publication November 28, 1995. As Corrected December 7, 1995.

The Honorable Justice McNULTY delivered the opinion of the court: Cousins, P.j., and T. O'brien, J., concur.

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

Kenneth Fligelman, a Chicago police officer, sued the City of Chicago (City) for negligently causing injuries he suffered when part of a City bridge fell on him. The trial court granted the City's motion for summary judgment. In an earlier appeal this court found that it lacked jurisdiction because the trial court granted plaintiff leave to amend his complaint. ( Fligelman v. City of Chicago (1994), 264 Ill. App. 3d 1035, 637 N.E.2d 1195, 202 Ill. Dec. 459.) The trial court subsequently entered an order again granting the City summary judgment, but without giving plaintiff leave to amend the complaint. We now have jurisdiction to consider the merits of the appeal. Colvin v. Hobart Brothers (1993), 156 Ill. 2d 166, 170, 620 N.E.2d 375, 189 Ill. Dec. 407.

Plaintiff worked the evening shift, from 3 p.m. to 11:30 p.m., on June 5, 1988. Around 10 p.m. he drove to police headquarters on State Street near Roosevelt Road, to complete some reports. He parked in the parking lot for the police headquarters. As he walked through the lot he passed under the Roosevelt Road bridge. A chunk of concrete fell from the bridge and struck him, fracturing his arm. Plaintiff missed almost five months of work due to his injuries.

In the complaint, plaintiff alleged that the City negligently maintained the bridge, which was in an unreasonably dangerous condition. The City admitted that the bridge was in poor shape, with cracked and deteriorating concrete, but the City argued that the Illinois Pension Code (Code) (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 1-101 et seq., (now 40 ILCS 5/1-101 et seq. (West 1994))) barred the common law action.

In the Pension Code, the legislature intended to motivate municipalities to provide their employees with protections available to other workers under the Workers' Compensation Act (820 ILCS 305/1 et seq. (West 1994)). ( Mitsuuchi v. City of Chicago (1988), 125 Ill. 2d 489, 494, 532 N.E.2d 830, 127 Ill. Dec. 1.) The Code permits cities to enact ordinances providing for payment of medical expenses and an allowance to police officers injured in the line of duty. (Ill. Rev. Stat. 1987, ch. 108 1/2, par. 22-306 (now 40 ILCS 5/22-306 (West 1994)).) Plaintiff concedes that the City enacted such an ordinance. (See Mitsuuchi, 125 Ill. 2d at 492.) To encourage cities to enact these ordinances, the legislature gave them the same protections available to employers under the Workers' Compensation Act. In section 22-307 of the Code, the legislature said:

"Whenever any city or village enacts an ordinance pursuant to[section 22-306], no common law or statutory right to recover damages against such city or village for injury or death sustained by any policeman or fireman while engaged in the line of his duty as such policeman or fireman, other than the payment of the allowances of money and of the medical care and hospital treatment provided in such ordinance, shall be available to any policeman or fireman who is covered by the provisions of such ordinance ***." Ill. Rev. Stat. 1987, ch. 108 1/2, par. 22-307, (now 40 ILCS 5/22-307 (West 1994)).

Fligelman contends that section 22-307 does not apply here because he was not "engaged in the line of his duty," within the meaning of the Code, while he walked across the parking lot to headquarters. The Workers' Compensation Act guides our interpretation of the Code. ( O'Donnell v. City of Chicago (1984), 126 Ill. App. 3d 548, 552, 467 N.E.2d 971, 81 Ill. Dec. 849.) Cases under the Act establish that an employee is "engaged in the line of his duty" (820 ILCS 305/5(a) (West 1994)) when he is injured if the injury arises both out of, and in the course of, the employment. Caterpillar Tractor Co. v. Industrial Comm'n (1989), 129 Ill. 2d 52, 57, 541 N.E.2d 665, 133 Ill. Dec. 454.

An injury arises in the course of employment if the time, place and circumstances of the injury show that the employee was engaged in the line of his duty when injured. ( County of Cook v. Industrial Comm'n (1988), 165 Ill. App. 3d 1005, 1007, 520 N.E.2d 896, 117 Ill. Dec. 545.) The parties agree that the injury here occurred in the course of plaintiff's employment.

The injury arises out of the employment if a risk incidental to the employment led to the injury. ( County of Cook, 165 Ill. App. 3d at 1009.)

"An injury arises out of the employment if the conditions or nature of the employment increase the employee's risk of harm beyond that to which the general public is exposed. [Citation.] *** The fact that an employee was present at the place of his injury because of his employment duties does not by itself establish that the injury arose out of the employment." Sangster v. Keller (1992), 226 Ill. App. 3d 535, 539, 589 N.E.2d 940, 168 Ill. Dec. 540.

In general, "accidental injuries received on parking lots maintained by employers for the use of their employees are received in the course of and arise out of their employment." ( Flynn v. Rathnau (1990), 202 Ill. App. 3d 482, 483, 559 N.E.2d 1102, ...


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