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Alma Gutierrez Rodriguez, Special the Estate of Jose Rodriguez v. Frankie's Beef/Pasta and Catering

August 14, 2012


Appeal from the Administrator of Circuit Court of Cook County. No. 07 L 009546 The Honorable Jeffrey Lawrence, Judge Presiding.

The opinion of the court was delivered by: Justice Harris

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.


¶ 1 Plaintiff, Alma Gutierrez Rodriguez, appeals the order of the circuit court granting defendant Frankie's Beef/Pasta & Catering's (Frankie's) motion for summary judgment on plaintiff's negligence claim. On appeal, plaintiff contends (1) the exclusive remedy provision of the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 2006)) does not apply in a claim where the employer negligently hired and retained an employee; and (2) genuine issues of material fact exists as to whether the injury arose out of employment, precluding summary judgment. For the following reasons, we affirm.


¶ 3 The trial court granted summary judgment on September 22, 2011. Plaintiff filed a notice of appeal on October 21, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).


¶ 5 Plaintiff filed an amended complaint alleging negligence against defendant for retaining Edan Maya as an employee. Plaintiff's claim arose from an altercation between Edan Maya and plaintiff's decedent, Jose Rodriguez, in which Maya shot and killed Rodriguez. The record contains the affidavit of Vincent Santoro, the president and owner of Frankie's. In his affidavit, Santoro stated that on September 15, 2005, he observed an altercation between employees Carlos Flores, Rodriguez, and Maya. Santoro testified that he only observed an argument and personally did not see the parties engaged in a physical confrontation. He told the parties, "listen, I need you guys to work together here." Santoro dismissed Maya "and asked him to leave the premises." In his deposition, Santoro stated that he told Edan to "go home for the day" so he could "cool off." He explained that if Edan had stayed, "they would have kept on going all day. You know how these kids are. They get aggravated and then they kept going all day. *** I didn't want things to get worse, okay?" He informed Edan's brother, David, that Edan could return to work as scheduled at 11 a.m. the following day.

¶ 6 Santoro later learned that the altercation arose from the fact that he had given Flores the position of fry cook after Maya left for a two-month stay in Mexico. Santoro further stated that prior to the altercation he did not know tension existed between Rodriguez and Maya over the fry cook position. After speaking with other employees, Santoro decided to terminate Maya on September 16, 2005. However, he was unable to inform Maya of the termination before the shooting.

¶ 7 Santoro was interviewed by Officer David Seaquist. In the report, he told Seaquist that on the morning of September 16, 2005, he arrived at Frankie's and went into his office to complete paperwork. Several employees, including decedent Rodriguez, were already present to prepare Frankie's for opening. Santoro heard what he believed were fireworks inside the store and he left his office to investigate. He saw Edan Maya leaving the store with a gun in his right hand. Edan looked directly at him before running away. Santoro also saw Flores and Rodriguez bleeding and lying on the floor. He called 911. Santoro stated that Edan Maya was "let go" the day before for not getting along with other employees.

¶ 8 Robyn Veres stated in an affidavit that she was an employee of Frankie's at the time of the shooting. She was aware of an altercation between Flores, Rodriguez, and Maya that occurred on September 15, 2005. She also stated that she "was told the parties were arguing about something employment related as to the position of fry cook." She "personally never knew of this tension between the parties and never witnessed any prior altercations *** nor did [she] make Mr. Vincent Santoro aware of any problems" between Flores, Rodriguez, and Maya.

¶ 9 In a police report, Veres told Officer Seaquist that Edan Maya had taken some time off to go to his father's funeral in Mexico and that Maya had returned about four months ago. On September 16, 2005, she arrived for work. Other employees were also present, including Rodriguez and David Maya. At approximately 10:10 a.m., she heard two "booms" and looked on the video monitors. She saw Edan Maya running out the back door holding a small pistol in his right hand. She also saw Rodriguez collapse to the floor. She stated that on September 15, 2005, Edan Maya and Flores were involved in an altercation that "resulted in Maya being terminated."

¶ 10 David Seaquist stated in an affidavit that on September 16, 2005, he was an officer assigned to investigate a double homicide at Frankie's. In his investigation, he interviewed employee David Maya and generated a police report based on the interview. He further stated that the statements in the report reflect "a true and accurate account of the Interview." David Maya was the half-brother of Edan Maya. David informed Officer Seaquist that Rodriguez was "making fun of" Edan and told him that Flores was a better fry cook. David told Seaquist that Rodriguez "kept egging [Edan] Maya to fight [Flores] for taking his position." He stated that no one at Frankie's liked Edan. David said that Edan had left Frankie's for two months because his father had passed away, and while he was gone, Flores had taken over the position of fry cook. He further informed Seaquist that he had never before seen Edan with a gun.

ΒΆ 11 Defendant filed a motion for summary judgment arguing that plaintiff's claim is barred by section 5(a) of the Act, which provides an exclusive remedy for injuries arising from the course of employment. The trial court granted the ...

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