                                                                    SECOND DIVISION
                                                                    March 27, 2007




No. 1-06-2346

MARIA MARTINEZ, as Special Administrator of the             )       Appeal from the
Estate of Miguel Pena, Deceased,                            )       Circuit Court of
                                                            )       Cook County.
                Plaintiff-Appellant,                        )
                                                            )
       v.                                                   )
                                                            )
GUTMANN LEATHER, LLC,                                       )       Honorable
                                                            )       Donald J. Suriano,
                                                            )       Judge Presiding.
                Defendant-Appellee.                         )


       JUSTICE SOUTH delivered the opinion of the court:

       Plaintiff, Maria Martinez, as special administrator of the estate of Miguel Pena, appeals

from an order of the circuit court of Cook County which granted defendant Gutmann Leather,

LLC’s motion to dismiss her cause of action under section 2-619(a)(9) of the Code of Civil

Procedure (735 ILCS 5/2-619(a)(9) (West 2004)).

       The following facts are relevant and contained in the pleadings and supporting

documents: Miguel Pena was shot to death on July 2, 2004, shortly after he completed a 13-hour

shift at Gutmann Leather, where he was employed as a setting machine operator. He was

allegedly killed by a fellow employee, Ramon Hernandez, on property that was managed and

controlled by defendant. Hernandez was still "on the clock" at the time of the shooting, and only

defendant's employees or individuals invited onto the premises were permitted within the fenced

area where Pena was killed.
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        On August 16, 2005, plaintiff filed suit against defendant under the Wrongful Death Act

(740 ILCS 180/1 et seq. (West 2004)). She alleged in her first amended complaint that prior to

the shooting, defendant knew that Hernandez displayed violent tendencies, had pulled a knife on

a coworker, and threatened to kill Pena; despite that knowledge, defendant continued to employ

Hernandez, scheduled the two men to work overlapping shifts, and failed to take measures to

protect Pena. Plaintiff alleged that defendant's failure to take any protective action despite its

knowledge that Hernandez posed a substantial threat resulted in Pena's death.

        Plaintiff attached her affidavit in which she referred to Pena as her husband and attested

that she had lived with him prior to his death and had personal knowledge of the dispute between

him and Hernandez. Plaintiff attested that the relationship between the two men had been

deteriorating for a long time prior to the shooting and had grown into one of "extremely bitter

enmity." The men "hated each other," and from her observation, Hernandez was the "primary

precipitator of this enmity." For a year or so before the fatal shooting, Hernandez would come

over to the home she shared with Pena, and on some of these visits Pena would not be at home.

Hernandez would tell her that he was looking for Pena and threatened to cause him harm.

Plaintiff further attested, in relevant part:

                        "The week before [the murder] Miguel remained home

                from work for two or three days because Ramon had been

                threatening him and Miguel was extremely fearful that Ramon

                would attempt to cause harm to him. On the day [of his death]

                Miguel decided that he could no longer remain away from work


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               and despite his concern that Ramon would confront him and

               despite my attempts to keep him from going to work because I was

               afraid that he would be harmed he was determined to go back to

               work. The quarrel that Ramon had during this time with my

               husband was purely personal. It had nothing to do with Miguel

               Pena's employment at Gutmann Leather. I know this because I

               overheard several conversations between Ramon and Miguel where

               Ramon was threatening him. These quarrels and the threats related

               solely to the fact that Ramon did not like Miguel for personal

               reasons unrelated to work."

       Defendant moved to dismiss the first amended complaint under section 2-619(a)(9) of the

Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2004)) on the grounds that it was barred

by the exclusivity provision of the Workers' Compensation Act (Act) (820 ILCS 305/5(a) (West

2004)). The trial court agreed and dismissed the complaint with prejudice.

       The sole issue on appeal is whether the exclusivity provision of the Act barred plaintiff's

wrongful death action requiring the dismissal of her complaint. Plaintiff contends the dispute

between Pena and Hernandez arose from a personal dispute, and, therefore, her tort action was

not barred under section 5(a) of the Act. Defendant responds that the trial court properly

dismissed the complaint as there was a causal link between Pena's death and his employment

because in order for him to fulfill his duties at Gutmann Leather, he had to work with Hernandez.

       This appeal comes to us following the trial court's decision to grant defendant's section


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2-619(a)(9) motion to dismiss. A section 2-619 motion is similar to a motion for summary

judgment and allows for the dismissal of a complaint on the basis of issues of law or easily

proven facts. Carroll v. Paddock, 199 Ill. 2d 16, 22 (2002). "Under section 2-619, the defendant

admits to all well-pled facts in the complaint, as well as any reasonable inferences which may be

drawn from those facts [citation], but asks the court to conclude that there is no set of facts which

would entitle the plaintiff to recover." Advocate Health & Hospitals Corp. v. Bank One, NA,

348 Ill. App. 3d 755, 759 (2004). We apply de novo review to the dismissal of a complaint under

section 2-619. Carroll, 199 Ill. 2d at 22.

       Section 5(a) of the Act provides, in relevant part:

                       "No common law or statutory right to recover damages

               from the employer, his insurer, his broker *** or the agents or

               employees of any of them 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 ***."

               820 ILCS 305/5(a) (West 2004).

       The claimant has the burden to establish that injuries arose out of and in the course of

employment in order to be compensable under the Act. Castaneda v. Industrial Comm'n, 97 Ill.

2d 338, 341 (1983). " 'While the phrase "in the course of employment" relates to the time, place

and circumstances of the injury, the phrase "arising out of the employment" refers to the requisite

causal connection between the injury and the employment.' " Technical Tape Corp. v. Industrial

Comm'n, 58 Ill. 2d 226, 230 (1974), quoting Associated Vendors, Inc. v. Industrial Comm'n, 45


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Ill. 2d 203, 205 (1970), quoting Christian v. Chicago & Illinois Midland Ry. Co., 412 Ill. 171,

174-75 (1952). " 'An injury may be said to arise out of the employment "when, upon

consideration of all the circumstances, there is apparent to the rational mind a causal connection

between the conditions under which the work is to be performed and the resulting injury." ' "

Castaneda, 97 Ill. 2d at 342, quoting Pazara v. Industrial Comm'n, 81 Ill. 2d 76, 83 (1980),

quoting Brewster Motor Co. v. Industrial Comm'n, 36 Ill. 2d 443, 449 (1967). "Where a physical

confrontation is purely personal in nature, the resulting injuries cannot be said to have arisen out

of the employment." Castaneda, 97 Ill. 2d at 342. A complaint should not be dismissed under

section 2-619 because it is barred under the exclusive remedy provision of the Act unless it

appears that no set of facts under the pleadings can be proved which would allow the plaintiff to

recover. Incandela v. Giannini, 250 Ill. App. 3d 23, 26 (1993). Where there are disputed issues

of fact, however, an evidentiary hearing must be conducted. Incandela, 250 Ill. App. 3d at 26.

       In Castaneda, relied upon by plaintiff, the claimant sought benefits under the Act for

injuries she sustained after she was involved in a physical altercation with two coworkers who

were sisters. Castaneda, 97 Ill. 2d at 339-40. The claimant had been talking to another coworker

and performing her customary work duties when one of the sisters told her to "shut up."

Castaneda, 97 Ill. 2d at 340. She refused and the woman slapped her in the face. Castaneda, 97

Ill. 2d at 340. The claimant threw a package of tablecloths at the woman, and the two began

fighting. Castaneda, 97 Ill. 2d at 340. Thereafter, the coworker and her sister, with whom the

claimant had previously quarreled, joined together and assaulted the claimant and stepped on her

finger, which resulted in a serious injury. Castaneda, 97 Ill. 2d at 340. The Industrial


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Commission found that neither account provided of the incident would sustain a finding that the

injuries arose out of and in the course of employment. Castaneda, 97 Ill. 2d at 340. The

Commission found that the claimant's own version established that her injuries arose from a

purely personal dispute and rejected her contention that it was connected to a dispute from the

previous day when one of the sisters allegedly altered her timecard. Castaneda, 97 Ill. 2d at 340-

41. The supreme court concluded that the Commission's findings that the claimant's injuries

resulted from a purely personal dispute precipitated by a verbal exchange that was unrelated to

the employer's work was not against the manifest weight of the evidence. Castaneda, 97 Ill. 2d at

342.

       In Huddleston v. Industrial Comm'n, 27 Ill. 2d 446, 448 (1963), the claimant had an

argument with a coworker about who should be allowed to park his privately owned car along a

public curb in front of the employer's business. A couple of months later, the coworker

attempted to reargue the issue at a jobsite after the claimant instructed him about some work he

should do. Huddleston, 27 Ill. 2d at 448. The claimant was injured after he refused to reargue the

issue and was physically assaulted by the coworker. Huddleston, 27 Ill. 2d at 448. The supreme

court affirmed the Industrial Commission's finding that the Workers' Compensation Act did not

cover the injury he sustained because the assault arose from a purely personal dispute with no

relationship to the employer's work. Huddleston, 27 Ill. 2d at 448. The supreme court concluded

that "[a]lthough the attack occurred at the place of employment, under the circumstances it is

apparent that the employment did not increase the risk, or cause the altercation, but the claimant

would have been exposed to the same abuse had he met [the coworker] upon the street."


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Huddleston, 27 Ill. 2d at 448.

       In Interstate United Corp. v. Industrial Comm'n, 65 Ill. 2d 434 (1976), the claimant was

employed as a captain in the dining room of a hotel, and there had been animosity between

himself and another captain at the restaurant. Interstate United Corp., 65 Ill. 2d at 435. The

coworker accused the claimant and other employees of breaking the antenna off his car.

Interstate United Corp., 65 Ill. 2d at 435. On another occasion, the coworker had threatened the

claimant at a customer's table and accused him of "running the dining room." Interstate United

Corp., 65 Ill. 2d at 435. A few days later, the coworker became angry at the claimant in the

employee's locker room and pulled a gun and fired several shots at the floor, one of which

ricocheted and hit the claimant in the foot which produced the injury for which he sought

compensation. Interstate United Corp., 65 Ill. 2d at 435. The Industrial Commission affirmed an

arbitrator's award of workmen's compensation for the injuries the claimant sustained. Interstate

United Corp., 65 Ill. 2d at 435. The supreme court affirmed the circuit court's reversal after

concluding that the manifest weight of the evidence was clearly contrary to the Commission's

finding that the injury was work-related. Interstate United Corp., 65 Ill. 2d at 436.

       Turning to the case at hand, we find the trial court erred in concluding there was no set of

facts which would allow plaintiff to recover. Plaintiff attested that she lived with Pena prior to

his death and had personal knowledge of the quarrel between him and Hernandez. She attested

that the relationship had been deteriorating for some time and had nothing to do with Pena's

employment at Gutmann Leather. She further attested that over a period of at least a year prior to

the incident, Hernandez had come to her home looking for Pena and threatened to cause him


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harm. We note that at the hearing on defendant's motion to dismiss, plaintiff represented that

Hernandez could not be deposed by the parties because his criminal case was still pending.

       Based upon the guidance from our supreme court in the above cases, and viewing the

pleadings in the light most favorable to plaintiff, we find it cannot be said, as a matter of law, that

the dispute which ended in Pena's death arose out of and in the course of his employment at

Gutmann Leather. As our supreme court has explained, "[e]ven though a fight occurs on the

employee's premises, resulting injuries are not compensable if the underlying dispute is not

connected with the work." Interstate United Corp., 65 Ill. 2d at 436. Accordingly, we reverse the

circuit court's order dismissing plaintiff's first amended complaint and remand for further

proceedings consistent with this opinion.

       Reversed and remanded.

       WOLFSON, P.J., and HALL, J., concur.




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