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Jensen v. Industrial Commission

April 13, 1999

JOSEPH S. JENSEN, APPELLANT,
v.
THE INDUSTRIAL COMMISSION ET AL. (BALDWIN AIRCRAFT CORPORATION AND NATIONAL UNION FIRE INSURANCE COMPANY, APPELLEES).



Appeal from the Circuit Court of Cook County. No. 96-L-50697 Honorable John A. Ward, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Industrial Comm'n

Claimant, Joseph S. Jensen, appeals from an order of the circuit court of Cook County confirming a decision of the Industrial Commission (Commission) finding that claimant's August 10, 1991, injury did not arise out of and in the course of his employment with respondent, Baldwin Aircraft Corporation. Claimant appealed, and we affirm.

On appeal, claimant contends that the Commission's Conclusion that his injuries did not arise out of and in the course of his employment and that its calculation of his average weekly wage are against the manifest weight of the evidence. Based on our ruling, we need only address the issue of whether claimant's injuries arose out of and in the course of his employment.

FACTS

In August 1991, respondent was in the business of maintaining and operating a private jet-aircraft and providing air transportation for its owner, Tom Baldwin, and his guests to Baldwin's private 5,000 acre summer retreat, "Granot Loma," near Marquette, Michigan and, on occasion, to other destinations. Robert Purcell was respondent's chief pilot, and claimant was one of respondent's co-pilots.

Between December 1990 and August 1991, claimant co-piloted anywhere between 9 to 13 of respondent's 25 flights. Claimant testified that he had stayed over on most trips to Granot Loma. Purcell determined on a cost-effective basis whether claimant would stay over at Granot Loma before the return flight or whether he would fly a commercial airliner back and then return when he was scheduled to co-pilot the return flight. Claimant testified he was occasionally required to do paperwork during his stays at Granot Loma but his job was mostly to "get along" with Baldwin and his family and guests and to help clean up after meals.

During claimant's stays at Granot Loma, Baldwin allowed claimant to use his recreational vehicles, including two all-terrain vehicles (ATV), on the property at Granot Loma. Prior to working for respondent, claimant had never ridden an ATV. Purcell showed claimant how to operate an ATV, and they rode together on several occasions.

On August 7, 1991, claimant and Purcell flew Baldwin's wife and children to Granot Loma with a return trip scheduled for August 11. Claimant stayed at Granot Loma on this occasion.

On August 9, claimant and Purcell made plans to take an ATV ride to an unfamiliar area of Baldwin's property located across a state highway. Neither claimant nor Purcell had been to this area before.

The next day, August 10, between 3:00 p.m. and 3:30 p.m., claimant and Purcell began preparations for their ride. While Purcell wore a helmet, claimant did not, even though helmets were available for claimant to use. Claimant testified that he never wore a helmet when riding the ATVs. Purcell testified that he always wore a helmet when he left the courtyard and went out on the trails. Purcell further testified that when he asked claimant if he was going to wear a helmet, claimant said no in a joking fashion. Claimant denied that Purcell asked him if he was going to wear a helmet.

Purcell testified that he was driving a black, 185 CC Kawasaki, and claimant was driving a newer blue and white, 225 CC Kawasaki. Claimant testified that he was driving a black ATV.

Claimant and Purcell left the Granot Loma courtyard and proceeded to ride about three-quarters of a mile down a driveway to a gate. At this point, they were still on Baldwin's property. Claimant and Purcell then rode out of the gate and onto a road. Claimant did not know if the road was a county or public road but described it as a gravel, sand road. Purcell testified that the road was a public ...


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