{ "id": 3030595, "name": "GUILLERMO ROMO, Adm'r of the Estate of Francisco Romo, Deceased, Plaintiff-Appellant, v. ALLIN EXPRESS SERVICE, INC., et al., Defendants-Appellees", "name_abbreviation": "Romo v. Allin Express Service, Inc.", "decision_date": "1982-04-30", "docket_number": "No. 81-1994", "first_page": "363", "last_page": "366", "citations": [ { "type": "official", "cite": "106 Ill. App. 3d 363" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "354 N.E.2d 553", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 787", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2490868 ], "weight": 2, "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0787-01" ] }, { "cite": "423 N.E.2d 876", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "878" }, { "page": "878" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469643 ], "weight": 2, "pin_cites": [ { "page": "357" }, { "page": "357" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0352-01" ] }, { "cite": "396 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "527" }, { "page": "527" } ], "opinion_index": 0 }, { "cite": "77 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490227 ], "weight": 5, "pin_cites": [ { "page": "319" }, { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0313-01" ] }, { "cite": "402 N.E.2d 412", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 77", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3226178 ], "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0077-01" ] }, { "cite": "401 N.E.2d 1032", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 776", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3228162 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0776-01" ] } ], "analysis": { "cardinality": 477, "char_count": 8836, "ocr_confidence": 0.895, "pagerank": { "raw": 9.046786926266891e-08, "percentile": 0.5044548929300511 }, "sha256": "ee599ace4d092f48aa3ef9ef53286e3880c56e1dc3c5363d6dea682604389548", "simhash": "1:fffd147001e42fc7", "word_count": 1464 }, "last_updated": "2023-07-14T19:02:18.366242+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GUILLERMO ROMO, Adm\u2019r of the Estate of Francisco Romo, Deceased, Plaintiff-Appellant, v. ALLIN EXPRESS SERVICE, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE SULLIVAN\ndelivered the opinion of the court:\nThis appeal involves the propriety of an order dismissing plaintiff\u2019s action against certain defendants on the ground that it was barred by the provisions of section 5(a) of the Workers\u2019 Compensation Act (the Act) (Ill. Rev. Stat. 1979, ch. 48, par. 138.5(a)).\nIt appears that plaintiff\u2019s decedent, an employee of defendant Allin Express Service, Inc. (Allin), was operating one of its trucks in the course of his employment when the truck caught fire and decedent received burns resulting in his death. Plaintiff made application for and obtained benefits under the Act on the basis that the death of decedent arose out of and in the course of his employment.\nIn count I of his complaint, plaintiff asserted an action under the Illinois Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 1 et seq.) against Allin and the individual defendants, who as officers of Allin were co-employees of plaintiff, alleging they were negligent in the maintenance and use of the truck. Defendants then moved, under section 48 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 48), to dismiss count I on the ground that the action against them was barred by section 5(a) of the Act. Plaintiff responded by asserting that defendants were acting in a dual capacity as the employers of decedent and as owners of the truck he was driving, and that his wrongful death action was against them in their capacity as owners of the truck. After a hearing, the motion to dismiss was granted as to all defendants and this appeal followed.\nOpinion\nInitially, we note that, while plaintiff has appealed from the order dismissing all defendants, the only issue presented by him on appeal is \u201cwhether the employee can recover from the employer if his injuries resulted from a breach of a duty independent of the duty of an employer qua employer.\u201d Plaintiff makes no contention or argument that the case was improperly dismissed as to the individual defendants, and that issue not having been presented on appeal, it is waived (see Rome v. Commonwealth Edison Co. (1980), 81 Ill. App. 3d 776, 401 N.E.2d 1032), and the dismissal as to them will be affirmed. In any event, the action was properly dismissed as to the individual defendants, because it was based on the dual-capacity doctrine which is not applicable to co-employees. As stated in McCormick v. Caterpillar Tractor Co. (1980), 82 Ill. App. 3d 77, 80, 402 N.E.2d 412, 415:\n\u201cNo case has been called to our attention where statutory immunity of coemployees has been abrogated by the \u2018dual capacity doctrine.\u2019 One purpose of the Workmen\u2019s Compensation Act was to relieve employees of the possible financial burden arising from their negligently injuring coemployees [Citation]. We see no indication of intent in Smith [v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 396 N.E.2d 524] to deny this immunity merely because an employee might be serving an employer in a capacity different than that of another employee whom he might injure.\u201d\nAs to his action against Allin, plaintiff maintains that the facts come within the dual-capacity doctrine, concerning which it was said by the supreme court in McCormick v. Caterpillar Tractor Co. (1981), 85 Ill. 2d 352, 357, 423 N.E.2d 876, 878, that:\n\u201cIn relatively recent years an exception to the exclusive-remedy provision of the Workmen\u2019s Compensation Act has developed under what has come to be called the dual-capacity doctrine. Professor Larson, in his treatise on Workmen\u2019s Compensation Laws states: \u2018Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.\u2019 (2A A. Larson, Workmen\u2019s Compensation sec. 72.80, at 14 \u2014 114 (1976);) The doctrine of dual capacity was applied by this court in Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313.\u201d\nAs further stated in McCormick:\n\u201cThe decisive test to determine if the dual-capacity doctrine is invocable is not whether the second function or capacity of the employer is different and separate from the first. Rather, the test is whether the employer\u2019s conduct in the second role or capacity has generated obligations that are unrelated to those flowing from the company\u2019s or individual\u2019s first role as an employer. If the obligations are related, the doctrine is not applicable.\u201d 85 Ill. 2d 352, 357, 423 N.E.2d 876, 878.\nPlaintiff contends here that the dual-capacity doctrine is applicable because, in addition to its role as employer, Allin was also the owner of the truck driven by decedent and, in this capacity, plaintiff maintains \u2014 relying on Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 396 N.E.2d 524 \u2014 that Allin does not have section 5(a) immunity. In Smith, plaintiff was an employee of a joint venture who sued one of its members (defendant) who leased to the joint venture a defective truck which allegedly caused plaintiff\u2019s injuries. The court, in applying the dual-capacity doctrine, found that in his role as lessor of the truck, defendant did not have section 5(a) immunity, reasoning that an employer who acts in the second capacity as a lessor of a truck would incur obligations unrelated to those flowing from his role as an employer in that \u201c[a] lessor of a defective vehicle is held to the same strict liability standards as a manufacturer or seller.\u201d 77 Ill. 2d 313, 319, 396 N.E.2d 524, 527.\nHere, plaintiff has pointed to no such unrelated obligation incurred by an employer who is the owner of a truck furnished to an employee to be used in the course of employment, and we are aware of none. It is significant that in Smith, the court also said \u201c[t]he allegedly defective truck which caused plaintiff\u2019s injuries was not a tool furnished by defendant as a member of the joint venture [plaintiff\u2019s employer], but was equipment leased to the joint venture under the express terms of the joint-venture agreement.\u201d (77 Ill. 2d 313, 319, 396 N.E.2d 524, 527.) We believe that the Smith court used the word \u201ctool\u201d in the sense of something furnished an employee for the performance of his work, which implies that the dual-capacity doctrine is not applicable where an employee is injured by a tool or other object provided by his employer.\nIn that regard, we note that in Rosales v. Verson Allsteel Tress Co. (1976), 41 Ill. App. 3d 787, 354 N.E.2d 553, plaintiff sustained an injury while operating the punch press of his employer, and after receiving Workmen\u2019s Compensation benefits, he brought a common law action against his employer on the basis of its alleged dual capacity of a \u201cquasi-manufacturer\u201d because it had modified the safety control of the press. The court stated:\n\u201cTo sustain the doctrine of dual capacity here would circumvent the exclusive remedy provision of the Workmen\u2019s Compensation Act, because all employers would then occupy a dual capacity upon the furnishing of tools to their employees. Such a result would repudiate the long line of Illinois Supreme Court cases holding the Workmen\u2019s Compensation Act to be the exclusive remedy against the employer for work-related injuries and would nullify the legislative scheme for compensating work-related injuries.\u201d (41 Ill. App. 3d 787, 790, 354 N.E.2d 553, 556.)\nHere, the truck, whose defective condition allegedly brought about the death of decedent, was furnished by Allin for use by decedent in performing the duties of his employment. Thus, the dual-capacity doctrine does not apply, and the trial court properly dismissed the action against Allin because it was barred by section 5(a) of the Workers\u2019 Compensation Act.\nFor the reasons stated, the judgment is affirmed.\nAffirmed.\nLORENZ and WILSON, JJ., concur.\nSection 5(a) provides in part: \u201cNo common law or statutory right to recover damages from the employer, his insurer, \u00b0 0 0 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 to any employee who is covered by the provisions of this Act, 0 6\nCounts II and III, directed against defendant Ford Motor Co., remain pending in the trial court and are not involved in this appeal.", "type": "majority", "author": "PRESIDING JUSTICE SULLIVAN" } ], "attorneys": [ "William C. Starke, of Chicago (Larry Saska, of counsel), for appellant.", "Van Duzer, Gershon, Jordan & Petersen, of Chicago (John B. Van Duzer and Horace W. Jordan, of counsel), for appellees." ], "corrections": "", "head_matter": "GUILLERMO ROMO, Adm\u2019r of the Estate of Francisco Romo, Deceased, Plaintiff-Appellant, v. ALLIN EXPRESS SERVICE, INC., et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 81-1994\nOpinion filed April 30,1982.\nWilliam C. Starke, of Chicago (Larry Saska, of counsel), for appellant.\nVan Duzer, Gershon, Jordan & Petersen, of Chicago (John B. Van Duzer and Horace W. Jordan, of counsel), for appellees." }, "file_name": "0363-01", "first_page_order": 385, "last_page_order": 388 }