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Takeisha Glasgow, Individually and On Behalf of Her Two Minor Children, Brandon F. and Allivan G v. Associated Banc-Corp and Associated Banc-Corp- Lindenhurst Branch

November 21, 2012

TAKEISHA GLASGOW, INDIVIDUALLY AND ON BEHALF OF HER TWO MINOR CHILDREN, BRANDON F. AND ALLIVAN G., PLAINTIFF-APPELLANT,
v.
ASSOCIATED BANC-CORP AND ASSOCIATED BANC-CORP- LINDENHURST BRANCH,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 10-L-1108 Honorable Margaret J. Mullen, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff, Takeisha Glasgow, appeals the trial court's dismissal, pursuant to section 2-619.1 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619.1 (West 2008)), of plaintiff's amended complaint against defendants, Associated Banc-Corp and Associated Banc-Corp-Lindenhurst Branch. Plaintiff contends that the trial court erred when it determined (1) that the Illinois Workers' Compensation Act (the Act) (820 ILCS 305/5(a) (West 2008)) constituted the exclusive remedy available; (2) that the pleaded facts failed to establish a cause of action against defendants; and (3) that the legislature did not intend to give immunity from suit for intentional inactions under the Act. We affirm.

¶ 2 On December 2, 2010, plaintiff filed a two-count complaint alleging injuries that arose during a bank robbery. On February 17, 2011, plaintiff filed an amended complaint additionally alleging that defendants' conduct was outrageous. Specifically, count I of plaintiff's amended complaint alleged that, on December 2, 2009, plaintiff was working as a bank teller at the Lindenhurst branch of Associated Banc-Corp (the Branch) with a female co-worker. Around 3 p.m., a cash truck delivered fresh currency to the Branch. Five minutes before the bank was scheduled to close for the evening, three or four masked robbers took over the bank. One robber struck plaintiff on the head, neck, and right shoulder. Plaintiff and her co-worker were ordered to give the robbers money from the cash drawers and the vault. Before leaving, the robbers ordered plaintiff to lie facedown on the floor. She was also ordered not to move and not to call police, under threat of additional harm. Plaintiff sustained "serious and permanent injuries of orthopedic, neurological, and psychiatric conditions of ill-being, and remains under treatment."

¶ 3 According to the amended complaint, the Branch was robbed twice previously, once in 2006 and again in 2008. Plaintiff had not been aware of the previous robberies and alleged that she would not have taken the teller position if she had been aware of the robberies. Plaintiff's complaint further alleged that, prior to the December 2, 2009, robbery, she and a co-worker advised their supervisor that the Branch (1) lacked a security guard; (2) lacked bulletproof glass and preventive windows that would deter bank robbers from climbing over the counter to attack tellers; (3) should not have "open cash drawers at teller stations"; (4) should not keep its vault open throughout the business day; and (5) should have a male teller present.

¶ 4 According to her amended complaint, defendants "knowingly, willfully, [and] purposely failed, with obvious intent and outrageous conduct, [to] provide adequate bank security to deter and/or prevent the December 2, 2009, bank robbery, because of the costs, and any other issues, all less important, than the lives and welfare, of its employees, customers, and law enforcement personnel, tracking the alleged perpetrators for their arrest."

¶ 5 Plaintiff's amended complaint also maintained that defendants knew or should have known prior to December 2, 2009, that the Branch could reasonably be expected to be robbed. Plaintiff's complaint alleged that the December 2, 2009, robbery was not accidental, but that, because of defendants' failure to implement increased security measures to deter robberies, there was a "direct invite" to rob. Plaintiff sought punitive damages against defendants for their "outrageous conduct" and to encourage defendants and other banks to implement proper minimum security measures to prevent robberies.

¶ 6 On December 10, 2009, plaintiff filed a workers' compensation case which, as of the date this appeal was filed, is still pending with the Illinois Workers' Compensation Commission. Defendants' workers' compensation carrier is currently providing workers' compensation benefits to plaintiff.

¶ 7 On April 28, 2011, defendants filed a section 2-619.1 motion to dismiss. On August 9, 2011, the trial court granted defendants' motion on section 2-619 grounds. On September 8, 2011, plaintiff filed a motion to vacate and for leave to file a second amended complaint. On November 15, 2011, the trial court denied the motion. Plaintiff timely appeals.

¶ 8 We address only count I of plaintiff's complaint. Plaintiff acknowledges that count II of her complaint, on behalf of her minor children, was correctly dismissed with prejudice and notes that no discussion or argument regarding count II is presented on appeal.

¶ 9 Plaintiff contends that the trial court erred when it granted defendants' motion to dismiss. Specifically, plaintiff argues that (1) the Act did not constitute the exclusive remedy under the present circumstances; (2) the pleaded facts established a cause of action against defendants; and (3) the legislature did not intend to give immunity from suit for intentional inactions under the Act. Defendants respond that, pursuant to the Act, plaintiff's sole remedy is her pending workers' compensation claim. See 820 ILCS 305/5(a) (West 2008).

¶ 10 We agree with defendants. Once an employee has collected compensation on the basis that his or her injuries were compensable under the Act, the employee cannot then allege that those injuries fall outside the Act's provisions. See Collier v. Wagner Castings Co., 81 Ill. 2d 229, 241 (1980). Accordingly, we conclude that, once plaintiff applied for and accepted workers' compensation benefits, she was barred from pursuing an intentional-tort action against defendants.

ΒΆ 11 Section 2-619.1 of the Code permits a defendant to file a combined motion to dismiss pursuant to sections 2-615 and 2-619 of the Code. 735 ILCS 5/2-615, 2-619, 2-619.1 (West 2008). A section 2-615 motion to dismiss "tests the legal sufficiency of the complaint," while a section 2-619 motion "admits the legal sufficiency of the complaint, but asserts an affirmative matter outside the complaint that defeats the cause of action." Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351, 361 (2009). Under either section of the Code, our standard of review is de novo. Id. Because the ...


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