                            No. 3--05-0280
                         filed July 14, 2006

                                IN THE

                     APPELLATE COURT OF ILLINOIS

                           THIRD DISTRICT

                              A.D., 2006


BARBARA BEHRENS and KIRK        )    Appeal from the Circuit Court
BEHRENS,                        )    of the 13th Judicial Circuit,
                                )    La Salle County, Illinois
     Plaintiffs-Appellants,     )
                                )
             v.                 )    No.    02--L--36
                                )
HARRAH'S ILLINOIS               )

CORPORATION, d/b/a Harrah's     )
Joliet Casino,                  )
                                )    Honorable Robert L. Carter,
     Defendant-Appellee.        )    Judge, Presiding.


PRESIDING JUSTICE SCHMIDT delivered the opinion of the court:



     Plaintiffs, Barbara and Kirk Behrens, sued Harrah's Joliet

Casino (Harrah's) to recover damages for catastrophic injuries

which resulted from an automobile accident.     The circuit court of

La Salle County granted defendant's motion to dismiss plaintiffs'

complaint.    Plaintiffs appeal, claiming the dismissal of their

complaint was erroneous.    We affirm.

                              BACKGROUND

     As the circuit court dismissed plaintiffs' amended complaint

pursuant to section 2--615 of the Illinois Code of Civil
Procedure (the Code) (735 ILCS 5/2--615 (West 2004)), the

following facts, which we take as true for purposes of our

decision, are taken from the amended complaint.     Barbara Behrens

was a salaried employee of Harrah's.     In the early morning hours

of October 19, 1998, Barbara was traveling to her residence in

Streator, Illinois, when she was involved in a single-car

accident.

     Barbara had worked overtime for several days preceding
October 19, 1998.     On the night of October 18, and during the

early morning hours of October 19, 1998, she again worked

overtime.   Defendant Harrah's had a new employment policy that

was transmitted to the employees via a memorandum.     That

memorandum indicated that all employees and managers in Barbara's

department would work overtime in the event that other employees

failed to show up for work or were ill.     As a result of this

policy, Barbara worked 13 hours for the October 16, 1998,

workday, 13 hours for the October 17, 1998, workday, and 122

hours for the October 18, 1998, workday.

     Plaintiffs' complaint alleges that as a result of working

overtime, Barbara became fatigued while driving her vehicle home

from work, fell asleep at the wheel, and drove her vehicle into a

ditch.   The vehicle flipped end-over-end and stopped once it hit

an electrical pole.



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     Plaintiffs allege that Harrah's was guilty of negligence

for: (1) failing to monitor the physical condition of its

employees prior to having the employees leave work; (2)

overworking the salaried employees in an attempt to cut costs,

thereby causing the salaried employees to be overly exhausted

while working and traveling to and from work; and (3) failing to

properly staff Barbara's department so that salaried employees

did not have to work excessive overtime.   Plaintiffs' further
allege that defendant's negligence was the proximate cause of

Barbara's accident and injuries.

     Harrah's filed a motion to dismiss plaintiffs' amended

complaint pursuant to sections 2--615 and 2--619 of the Code.

735 ILCS 5/2--615, 2--619 (West 2004).   Defendant claimed that

the plaintiffs failed to state a legally recognized cause of

action, as Illinois law does not recognize a duty by employers to

safeguard employees in their travel to and from work while they

are outside the course of their employment.   Defendant noted that

plaintiffs did not plead that Barbara was in the course of her

employment at the time of the accident and, therefore, alleged

that dismissal was proper.   The trial court agreed and dismissed

plaintiffs' amended complaint with prejudice.   Plaintiffs appeal.

                             ANALYSIS

     We review the granting of a section 2--615 motion to dismiss

de novo.   Neade v. Portes, 193 Ill. 2d 433, 739 N.E.2d 496

                                   3
(2000).    A section 2--615 motion should not be granted unless it

clearly appears that no set of facts could ever be proved that

would entitle the plaintiffs to recover.    Ostendorf v.

International Harvester Co., 89 Ill. 2d 273, 433 N.E.2d 253

(1982).    In ruling on such a motion, the court may consider only

those facts apparent from the face of the pleadings, matters of

which the court can take judicial notice, and judicial admissions

in the record.    Mt. Zion State Bank & Trust v. Consolidated
Communications, Inc., 169 Ill. 2d 110, 660 N.E.2d 863 (1995).       On

review of an order granting a section 2--615 motion, all well-

pled facts and all reasonable inferences from them are taken as

true.    First National Bank of Decatur v. Mutual Trust Life

Insurance Co., 122 Ill. 2d 116, 522 N.E.2d 70 (1988).

       To properly plead an action based in negligence, plaintiff

must allege facts sufficient to establish that defendant owed a

duty of care to plaintiff, that defendant breached that duty, and

that the breach was the proximate cause of plaintiff's injuries.

 Mt. Zion State Bank & Trust, 169 Ill. 2d at 116.    Whether a duty

of care exists is a question of law, which must be resolved by

the court.    O'Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 561

N.E.2d 18 (1990).   "If no duty exists, it is axiomatic that no

recovery can occur."    Mt. Zion State Bank & Trust, 169 Ill. 2d at

116.

       Plaintiffs ask this court to find that Harrah's owed a duty

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to Barbara Behrens to ensure that she was sufficiently able to

drive herself home after her shift.       In support of their request,

plaintiffs catalog numerous statutes enacted by the Illinois

legislature to protect workers.       See 820 ILCS 105/4a(1), (2)E

(West 2004); 820 ILCS 140/2 (West 2004); 820 ILCS 145/1 et seq.

(West 2004);   820 ILCS 305/1 et seq. (West 2004).      However, none

of these statutes impose a duty upon an employer to ensure that

an employee, who is off the clock and not in the course of his or
her employment, drives home safely.       Plaintiffs contend that,

given the overwhelming amount of legislation enacted to protect

workers in this state,   it was reasonably foreseeable that

requiring an employee to work as many hours as Harrah's required

Barbara to work could result in sleep deprivation and lead to an

automobile accident.   Therefore, plaintiffs argue that this court

should find that Harrah's owed such a duty to Barbara.

     Barbara argues that she was required to work overtime as a

salaried employee so that Harrah's could avoid paying overtime to

hourly employees for the same work and, therefore, Harrah's

should be responsible for her accident.       This argument has no

merit.   Whether Barbara was being paid overtime for the hours she

worked had no proximate-cause relationship to her level of

fatigue and, therefore, the accident.

     When considering whether a duty exists in a particular case,

a court must weigh the foreseeability of the injury, the

                                  5
likelihood of the injury, the magnitude of the burden of guarding

against the injury, and the consequences of placing that burden

on the defendant.   Gouge v. Central Illinois Public Service Co.,

144 Ill. 2d 535, 582 N.E.2d 108 (1991); Kirk v. Michael Reese

Hospital & Medical Center, 117 Ill. 2d 507, 513 N.E.2d 387

(1987).

     The first two factors do little to support plaintiff's

position.   Even assuming the foreseeability-of-the-injury factor
weighs in favor of imposing a duty on the defendant,

"foreseeability alone provides an inadequate foundation upon

which to base the existence of a legal duty."   Ward v. K mart,

136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990), citing Kirk v.

Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525,

513 N.E.2d 387, 396 (1987).   An employer should be able to

presume that the person in the best position to avoid driving

while excessively fatigued, the employee, will either ask for a

ride from someone or pull off the roadway and rest if necessary.



     The final two factors set forth by the supreme court, the

magnitude of the burden of guarding against an injury and the

consequences of placing that burden on the defendant, weigh

heavily against imposing a duty on an employer to ensure that its

off-duty employees drive home safely and sufficiently rested.

Before finding that a duty exists, a court must take into account

                                 6
the public policy and social requirements of the time and

community.   O'Hara v. Holy Cross Hospital, 137 Ill. 2d 332, 561

N.E.2d 18 (1990).



     The burden plaintiffs request us to place on an employer

would be enormous.   Would this duty be violated if the employee

started the shift tired due to no fault of the employer?    Or,

would this duty only be violated if it is a policy of the
employer that causes the injured party to lose sleep?   If the

latter is the case, would the duty be violated if the employee

were to lay awake at night considering job-related duties and

became tired, or would it only apply if the employee was tired

due to the employee's presence at work for a certain amount of

time?   Undoubtedly, individual employees are in the best position

to determine whether they are sufficiently rested to drive home

safely.   An employer is in a much inferior position when it comes

to making this determination.   Many people routinely work 12-hour

"shifts," including lawyers, police officers, construction

workers, doctors, and nurses, to name a few.   As a matter of law,

there is nothing unreasonable, by itself, about scheduling 12-

hour "shifts."   Even those working eight-hour "shifts" can become

fatigued while at work, sometimes because of the nature of the

work and other times because of reasons beyond the control of the

employer, such as lack of adequate rest when not working, stress

                                 7
from family or social relationships, and the list goes on.

Moreover, even if an employer did determine that an employee was

too tired to drive home after the employee's shift, we are aware

of no authority that would allow an employer to stop the employee

from leaving the work place and driving home.   Once the

employee's workday has ended, the employer's ability to control

physical conditions surrounding the employee is nonexistent.

Faced with such a legal duty, would employers refuse to hire
those with commutes of more than a few minutes, or even those not

within walking distance of the place of employment?   We believe

that placing this burden on employers would be poor social policy

that is likely to have an onerous impact, not only on employers,

but also on the workforce.

     After considering the four factors that the supreme court

tells us to consider in determining whether a duty exists, we

hold that no duty existed requiring the employer to assure that

an employee could drive home safely after working overtime.

     Barbara's next contention is that "she must have a right to

sue."   Failure to recognize her negligence action, she maintains,

infringes upon her constitutional right to bring a lawsuit

against someone.   Barbara submits that this right is given to her

and all wronged parties by article I, section 12 of the Illinois

Constitution of 1970 which states:

               "Every person shall find a certain remedy

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          in the laws for all injuries and wrongs which

          he receives to his person, privacy, property or

          reputation.   He shall obtain justice by law,

          freely, completely, and promptly."   Ill. Const.

          1970, art. I, '12.

     Plaintiffs acknowledge that the remedy and justice provision

of the state constitution does not mandate the creation of a

cause of action where one did not exist.   See Stephens v. Trinity
Medical Center, 292 Ill. App. 3d 165, 685 N.E.2d 403 (1997).

Nevertheless, plaintiffs cite this provision and request that we

use it as authority to create a new cause of action here.    We

decline to do so.

     Our supreme court has repeatedly held that the remedy and

justice provision of the Illinois Constitution of 1970 is merely

an expression of a philosophy and not a mandate that a certain

remedy be provided in any specific form.    Segers v. Industrial

Comm'n, 191 Ill. 2d 421, 732 N.E.2d 488 (2000); DeLuna v. St.

Elizabeth's Hospital, 147 Ill. 2d 57, 588 N.E.2d 1139 (1992);

Sullivan v. Midlothian Park District, 51 Ill. 2d 274, 281 N.E.2d

659 (1972).   The provision was "not meant to have a substantive

effect on Illinois law."   Huter v. Ekman, 137 Ill. App. 3d 733,

735, 44 N.E.2d 1224, 1226 (1985).    Even if article I, section 12,

were a mandate, to avoid an absurd construction the phrase "all



                                 9
injuries and wrongs" must be read in the conjunctive.    Read in

the disjunctive, it would seem to give a constitutional right to

recover damages for every "injury," regardless of the cause, and

for every "wrong," even in the absence of damages proximately

resulting from the wrong.   Read in the conjunctive, it must be an

injury and a wrong.   We have already held that the employer

breached no duty and, therefore, there was no "wrong."    Article

I, section 12, of the Illinois Constitution of 1970 does not

require that the plaintiffs be allowed to bring a common law

cause of action against Harrah's.

      Plaintiffs' final contention is that had Barbara injured

someone else on her drive home, that injured party "would have

had a cause of action for negligence against Harrah's."

Therefore, plaintiffs contend that denying them the right to also

bring an action for negligence against Harrah's violates their

constitutional guarantees of "equal protection under the law for

all."   See U.S. Const., amend. XIV, '1; Ill. Const. 1970, art. I,

'2.   This argument is without merit for a number of reasons.

      To support their contention that a third party injured

during Barbara's drive home could have successfully maintained an

action against Harrah's, plaintiffs cite to an Oregon Court of

Appeals case (Faverty v. McDonald's Restaurants of Oregon, Inc.,

133 Or. App. 514, 892 P.2d 703 (1995)) and an unreported case



                                10
from the United States District Court from the Eastern District

of Pennsylvania (Lesser v. Nordstrom, Inc., No. 96--8121, No. 97-

-6070 (E.D. Penn. August 13, 1998)).      We, of course, are not

bound to follow decisions by federal courts other than the United

States Supreme Court (People v. Qualls, 233 Ill. App. 3d 394, 599

N.E.2d 141 (1992)) or decisions by courts of any state other than

Illinois.   Kroger Co. v. Department of Revenue, 284 Ill. App. 3d

473, 673 N.E.2d 710 (1996).    We believe the dissent in Faverty is
better reasoned.    The 5 to 4 decision of the Oregon appellate

court stands alone as an aberration in negligence law.

     Recently, in Brewster v. Rush-Presbyterian-St. Luke's

Medical Center, 361 Ill. App. 3d 32, 836 N.E.2d 635 (2005), the

First District Appellate Court upheld the dismissal of an injured

third party's complaint against the employer of a driver

suffering from an alleged employment-related sleep deprivation.

Brewster, 361 Ill. App. 3d at 37.      In Brewster, a first-year

medical resident was driving home following a 36-hour work shift

when she fell asleep behind the wheel and struck a car driven by

the plaintiff.     Brewster, 361 Ill. App. 3d at 35.   The plaintiff

in Brewster sued the hospital for which the resident worked,

claiming that it was negligent in that it knew or should have

known that the resident was sleep deprived when she left the

hospital.   Brewster, 361 Ill. App. 3d at 35.     The circuit court

granted the employer hospital's section 2--615 motion to dismiss

                                  11
and the appellate court affirmed, holding that employer hospitals

are not liable to third parties for the conduct of off-duty,

employee resident physicians who are required to work excessive

hours.   Brewster, 361 Ill. App. 3d at 37.

     Even without Brewster, plaintiffs' argument that a fatigued

driver and the driver struck by a fatigued driver are similarly

situated fails.    As we pointed out earlier, the fatigued driver

is in the best position to know of his/her fatigue and to stay
off the roadway.   The person struck by the fatigued driver is, on

the other hand, by definition, the victim of the negligence of

one who chooses to drive despite being too tired to do so safely.

                             CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of La Salle County is affirmed.

     Affirmed.

     McDADE and SLATER, JJ., concur.




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