                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




           Rodriguez v. Frankie’s Beef/Pasta & Catering, 2012 IL App (1st) 113155




Appellate Court            ALMA GUTIERREZ RODRIGUEZ, Special Administrator of the Estate
Caption                    of Jose Rodriguez, Plaintiff-Appellant, v. FRANKIE’S BEEF/PASTA
                           AND CATERING, a Corporation, Defendant-Appellee.



District & No.             First District, Second Division
                           Docket No. 1-11-3155


Filed                      August 14, 2012


Held                       The exclusive remedy provision of the Workers’ Compensation Act
(Note: This syllabus       barred plaintiff’s action alleging that the employer of plaintiff’s decedent
constitutes no part of     was negligent in hiring and retaining the employee who shot decedent in
the opinion of the court   an altercation over job assignments.
but has been prepared
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 07-L-009546; the
Review                     Hon. Jeffrey Lawrence, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Radtke & Nusbaum, of Chicago (Carl Nusbaum and Michael J. Radtke,
Appeal                     of counsel), for appellant.

                           Law Offices of Craig F. Miller, of Oak Lawn (Craig F. Miller, of
                           counsel), for appellee.


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



                                             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.

¶2                                          JURISDICTION
¶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).

¶4                                        BACKGROUND
¶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

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       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.


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¶ 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 motion on September 22, 2011. Plaintiff
       filed this timely appeal.

¶ 12                                         ANALYSIS
¶ 13       Summary judgment is proper where the pleadings, depositions, and admissions on file,
       along with any affidavits, show no genuine issue of material fact exists and the moving party
       is entitled to judgment as a matter of law. A.B.A.T.E. of Illinois, Inc. v. Quinn, 2011 IL
       110611, ¶ 22. We review the trial court’s grant of summary judgment de novo. Millenium
       Park Joint Venture, LLC v. Houlihan, 241 Ill. 2d 281, 309 (2010).
¶ 14       In support of its motion for summary judgment, defendant attached the affidavits of
       Santoro, Officer Seaquist, and Veres, as well as police reports prepared by Seaquist
       summarizing his interviews with witnesses. Generally, statements contained in police reports
       are considered inadmissible hearsay. People v. Shinohara, 375 Ill. App. 3d 85, 113 (2007).
       Evidence not admissible at trial cannot be used to support or oppose a motion for summary
       judgment. Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 394 Ill.
       App. 3d 105, 108 (2009). However, no objection was made to the admission of the police
       reports. Hearsay evidence admitted without objection is considered and given its natural
       probative effect. People v. Akis, 63 Ill. 2d 296, 299 (1976).
¶ 15       Plaintiff first contends that the trial court erred in granting summary judgment on the
       basis that the Act provides an exclusive remedy for Rodriguez’s injury. Section 5(a) of the
       Act states:
           “(a) No common law or statutory right to recover damages from the employer *** for
           injury or death sustained by any employee while engaged in the line of his duty as such
           employee, other than the compensation herein provided, is available to any employee
           who is covered by the provisions of this Act, *** or any one otherwise entitled to recover
           damages for such injury.” 820 ILCS 305/5(a) (West 2006).
       Section 11 of the Act states:
           “The compensation herein provided, together with the provisions of this Act, shall be the
           measure of the responsibility of any employer *** for accidental injuries sustained by any
           employee arising out of and in the course of the employment according to the provisions
           of this Act ***.” 820 ILCS 305/11 (West 2006).
¶ 16       In Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462 (1990), our supreme court
       observed that the purpose of the Act is “to provide financial protections to workers for
       accidental injuries arising out of and in the course of employment,” and in return for
       imposing liability without fault on the employer, the Act “prohibits common law suits by
       employees against the employer.” It reasoned that “[t]he exclusive remedy provision ‘is part
       of the quid pro quo in which the sacrifices and gains of employees and employers are to
       some extent put in balance.’ [Citation.]” Id. Accordingly, the Act prohibits employees from
       bringing a common law cause of action against an employer unless the employee can show
       that the injury (1) was not accidental; (2) did not arise from his employment; (3) was not

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       received in the course of his employment; or (4) was not compensable under the Act. Collier
       v. Wagner Castings Co., 81 Ill. 2d 229, 237 (1980). The parties do not dispute that Rodriguez
       received his injuries in the course of his employment at Frankie’s. We therefore determine
       whether plaintiff has proved any of the remaining factors.
¶ 17       In Meerbrey, our supreme court defined “accidental” as a term that describes “ ‘anything
       that happens without design or an event which is unforseen by the person to whom it
       happens.’ ” (Internal quotation marks omitted.) Meerbrey, 139 Ill. 2d at 463 (quoting
       Pathfinder Co. v. Industrial Comm’n, 62 Ill. 2d 556, 563 (1976)). Thus, an “accidental”
       injury in the employment context includes “injuries inflicted intentionally upon an employee
       by a co-employee *** since such injuries are unexpected and unforeseeable from the injured
       employee’s point of view. [Citation.] Such injuries are also accidental from the employer’s
       point of view, at least where the employer did not direct or expressly authorize the co-
       employee to commit the assault.” Id. See also Richardson v. County of Cook, 250 Ill. App.
       3d 544, 549 (1993) (claim based on intentional torts committed by co-employees barred by
       the exclusivity provision of the Act because the injuries were unexpected and unforseen by
       the plaintiff and not authorized by the employer).
¶ 18       In the case at bar, plaintiff’s decedent Rodriguez had an altercation with Edan Maya on
       the day before the shooting. The next day, Maya returned to Frankie’s while Rodriguez was
       working and shot him. There is no reason to believe that Rodriguez expected the shooting
       to occur; in fact, he reported for work the day after the altercation. Nor is there any indication
       that Santoro directed or expressly authorized Maya’s actions. Instead, Santoro stated that he
       was unaware of any tensions between the parties before the altercation. Since Rodriguez’s
       injury is considered “accidental” under the Act, plaintiff’s sole remedy against defendant is
       under the Act.
¶ 19       Plaintiff disagrees, arguing that the element of forseeability in determining whether an
       injury is accidental should be a consideration from the employer’s perspective as well. She
       contends the shooting was not accidental because on the day of the altercation Santoro
       believed that Edan Maya posed a threat of serious harm to others. Santoro sent Maya home
       to “cool off” and planned to terminate his employment the following day. Plaintiff contends
       that Santoro had a duty to protect Rodriguez from imminent harm, and it cannot be Illinois
       policy that the Act negates this duty.
¶ 20       First, there is no indication that Santoro believed Edan Maya posed a serious threat of
       harm to others. Immediately after the altercation, Santoro sent Maya home to cool off but
       thought he would return the following day to report for work. The most important
       consideration for Santoro was for his employees to get along so they could work together.
       Also, plaintiff cites no cases to support her position. The cases plaintiff does cite, Petersen
       v. U.S. Reduction Co., 267 Ill. App. 3d 775 (1994), MacDonald v. Hinton, 361 Ill. App. 3d
       378 (2005), Johnson v. Mers, 279 Ill. App. 3d 372 (1996), and Carter v. Skokie Valley
       Detective Agency, Ltd., 256 Ill. App. 3d 77 (1993), do not involve the Worker’s
       Compensation Act. Illinois law is clear that unless an employer has committed or expressly
       authorized a co-employee to commit an intentional tort against an employee, the Act
       prohibits common law actions seeking damages for such torts. See Collier, 81 Ill. 2d at 239;
       Meerbrey, 139 Ill. 2d at 466; Richardson, 250 Ill. App. 3d at 548. Since plaintiff cannot

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       recover common law damages against defendant for the shooting by Maya, it follows that she
       cannot bring a claim against defendant for negligently hiring/retaining Maya based on the
       shooting. We decline plaintiff’s invitation to create a new exception to the Act’s exclusivity
       provision.
¶ 21        Plaintiff also contends that a question of fact exists as to whether the altercation leading
       to the shooting arose out of employment or was a purely personal dispute. In the Act, the
       phrase “arising out of the employment” refers to the causal connection between employment
       and the injury suffered. (Internal quotation marks omitted.) Martinez v. Gutmann Leather,
       LLC, 372 Ill. App. 3d 99, 101 (2007). An injury arises from employment when a causal
       connection exists between working conditions and the resulting injury. Castaneda v.
       Industrial Comm’n, 97 Ill. 2d 338, 342 (1983). It must be apparent that employment
       increased the risk of injury, and that the employee would not have been subject to the same
       attack if he had encountered the offender for the first time upon the street. Huddleston v.
       Industrial Comm’n, 27 Ill. 2d 446, 448 (1963).
¶ 22        All of the witnesses testified that the altercation at Frankie’s between Rodriguez and
       Edan Maya involved Flores taking over the position of fry cook from Maya and taunts that
       Flores was the better fry cook. If Rodriguez had not been employed at Frankie’s, it is unlikely
       he would have been involved in the altercation with Maya or subsequently shot by Maya.
       Plaintiff contends that the dispute was purely personal because David Maya told Officer
       Seaquist that no one at Frankie’s liked Edan. However, a purely personal dispute is one
       where the verbal exchange is “completely unrelated to the employer’s work.” Castaneda, 97
       Ill. 2d at 342. David Maya consistently stated that the altercation involved who was the better
       fry cook and that Rodriguez “kept egging [Edan] Maya to fight [Flores] for taking his
       position.” Nothing contained in the record indicates the altercation resulted from anything
       other than the fry cook dispute.
¶ 23        Plaintiff also argues that Rodriguez’s injuries were not compensable under the Act
       because he was the aggressor in the altercation. “[W]here the party seeking compensation
       was the aggressor, the party’s acts are not within the scope of employment and are not
       compensable.” Franklin v. Industrial Comm’n, 341 Ill. App. 3d 128, 135 (2003). This
       particular issue was not brought before the trial court below and thus plaintiff has waived this
       claim upon review. Meerbrey, 139 Ill. 2d at 467. Nonetheless, the law generally defines
       “ ‘initial aggressor’ ” in the context of the Act as “the employee who makes the first physical
       contact.” Franklin, 341 Ill. App. 3d at 135. Although it is arguable whether Rodriguez started
       the taunts, no one stated that he observed the parties exchange physical blows prior to the
       shooting. Therefore this exception does not apply and the trial court properly granted
       summary judgment in favor of defendant.
¶ 24        For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 25       Affirmed.




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