{ "id": 2473822, "name": "PETER W. SEKORA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Du Page Honda et al., Appellees)", "name_abbreviation": "Sekora v. Industrial Commission", "decision_date": "1990-06-12", "docket_number": "No. 2\u201489\u20140759WC", "first_page": "584", "last_page": "591", "citations": [ { "type": "official", "cite": "198 Ill. App. 3d 584" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "135 N.E. 784", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "303 Ill. 540", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5004376 ], "opinion_index": 0, "case_paths": [ "/ill/303/0540-01" ] }, { "cite": "394 N.E.2d 1189", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "76 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984054 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0548-01" ] }, { "cite": "464 N.E.2d 1139", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 983", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3428413 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0983-01" ] }, { "cite": "412 N.E.2d 492", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476196 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0331-01" ] }, { "cite": "511 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "158 Ill. App. 3d 344", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3578508 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/158/0344-01" ] }, { "cite": "395 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5489971 ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0081-01" ] }, { "cite": "362 N.E.2d 325", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464913 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0361-01" ] }, { "cite": "307 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "56 Ill. 2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404985 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0272-01" ] } ], "analysis": { "cardinality": 686, "char_count": 14704, "ocr_confidence": 0.748, "pagerank": { "raw": 7.101541272146787e-08, "percentile": 0.42678356923511757 }, "sha256": "5517dffca07d6aca41ebe41362d7ab66815fc13d72360c2c535e56d9313f7627", "simhash": "1:7bcf99df067b6d18", "word_count": 2404 }, "last_updated": "2023-07-14T19:49:28.995518+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PETER W. SEKORA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Du Page Honda et al., Appellees)." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPetitioner, Peter W. Sekora, sought worker\u2019s compensation benefits after injuring his leg while working for respondent, Du Page Honda. An arbitrator awarded benefits. The Industrial Commission reversed, finding petitioner failed to prove he sustained accidental injuries arising out of and in the course of his employment. The trial court confirmed the Commission\u2019s decision. On appeal, petitioner contends the Commission\u2019s decision is wrong as a matter of law and is against the manifest weight of the evidence.\nPetitioner testified that on August 8, 1983, he worked part time for respondent as a salesman. At about 8:30 p.m., petitioner and other employees were performing the daily task of taking all vehicles displayed outside the building into the garage at the end of the night. Forty or fifty vehicles had been brought in when petitioner and David Yanke, another employee who petitioner stated was working that evening, drove two of the all terrain cycles (ATC) into the one-acre field next to the dealership building. These vehicles are three-wheeled motorcycles. Petitioner had also ridden \u201csome\u201d of the other vehicles in the field that night. After riding in the field for a short time, petitioner was returning to the building when he crashed and broke his leg in three places. Petitioner described the accident:\n\u201cWe started pulling motorcycles and vehicles and lawn mowers \u2014 everything that was outside \u2014 in, and we proceeded to pull things in. We went out and took a ride down in the field; and on the way back, I don\u2019t know exactly what it was, but something caused the vehicle to flip.\u201d\nPetitioner testified that it was not unusual to ride the vehicles in the field, either to attract customers, or to learn how to drive the new models so the salespeople could adequately demonstrate them to customers. Respondent provided the salespeople with no training program.\n\u201cNew items that they wanted to test drive if we had free moments, we would at that point in time \u2014 when bringing vehicles in, we would familiarize ourselves with new types of vehicles, how to operate them. So, we could show them to the customers \u2014 how they would work, how they function.\u201d\nPetitioner was not sure, but it was possible that the ATC he rode on the night of the accident was not a new model and that he had driven it into the building many times before. He was riding about 10 or 12 feet into the field.\nPetitioner testified further that another employee had been in an accident on an ATC the weekend before. Petitioner denied any knowledge of instructions given after that accident to no longer ride the vehicles, but instead to walk them into the garage at the end of the night.\nPetitioner testified that on August 22, 1983, he spoke on the telephone with an insurance company representative and gave his permission to tape the conversation. The tape revealed that petitioner admitted that he was not riding to attract customers on the night of the accident.\nDavid Rietz, a salesman for respondent, testified that he was in charge on the night of the accident. Yanke was not working that night, but had come in about 45 minutes before the accident. Rietz did not give petitioner permission to ride the vehicle. Rietz had pushed several vehicles in that night, but did not see the accident. The accident occurred about 1,200 feet back into the field.\nRietz testified that about six months before the accident, William VanderBrook, respondent\u2019s president, had told the salespeople they could ride in the field if they wore helmets. However, four or five weeks before the accident the rule was changed because of several \u201cmishaps.\u201d Salespeople had been riding without helmets, there had been several accidents, and one employee had broken his wrist. Consequently, VanderBrook instructed the employees that they had to push the vehicles in. The only time they were to be driven in the field was to demonstrate for a customer. The only time the employees were to try out new products was when VanderBrook or the person in charge gave permission to do so.\nThomas Welter, respondent\u2019s service manager, testified that he telephoned petitioner at the hospital on August 9, 1983. \u201cHe stated that he shouldn\u2019t have been doing what he was doing.\u201d Welter examined petitioner\u2019s and Yanke\u2019s motorcycles after the accident. Petitioner\u2019s ATC sustained minor damage. Yanke\u2019s ATC had a bent rear axle.\nWilliam VanderBrook testified that he \u201cwas very strict with the fact they brought them directly into the building and did not horse play on them.\u201d Prior to May 8, 1983, employees could start the engines, but could not ride the vehicles unless they were demonstrating for a customer. Once or twice he gave permission for salespeople to ride in the field to attract customers. After May 8, 1983, when an employee broke his wrist while \u201chorsing around\u201d on an ATC, VanderBrook instructed all sales personnel that they could not even start the engines. While he did not recall \u201clooking [petitioner] in the eye\u201d personally and reciting the instruction, VanderBrook \u201cremember[ed] telling all the salespeople.\u201d He believed that petitioner was told along with all the salespeople. They had to roll the vehicles inside each night and take them directly to the shop.\nVanderBrook testified that there was no training program. The salespeople could review the owner\u2019s manuals \u201cand operating the vehicle is moving them inside and out of the building.\u201d After May 8, 1983, however, salespeople were not supposed to ride the vehicles to learn how to operate them. No one rode at all without his permission. VanderBrook acknowledged that in his absence it was possible \u201c[t]hey could do it on their own without permission. I haven\u2019t got 100 percent control over these people.\u201d However, he was not aware of any incidents where employees rode in the field without his permission between May 8,1983, and petitioner\u2019s August 3,1983, accident.\nIn rebuttal, petitioner testified that he was never instructed not to ride the vehicles. While he was told once to ride in the field to attract customers\u2019 attention, he did not recall whether that was before or after May 8, 1983.\nThe arbitrator awarded compensation, but the Commission reversed, finding that petitioner and Yanke \u201cwere engaged in horseplay and that petitioner deviated from the scope of his employment.\u201d The Commission found petitioner\u2019s statement that he was putting the vehicle away lacked credibility, in that the emergency room history stated he was trying to draw a crowd when the two cycles became tangled, throwing petitioner off the cycle. The Commission found Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm\u2019n (1974), 56 Ill. 2d 272, 307 N.E.2d 118, and Scheffler Greenhouses, Inc. v. Industrial Comm\u2019n (1977), 66 Ill. 2d 361, 362 N.E.2d 325, not applicable because riding the ATC was not an act of \u201cpersonal comfort.\u201d Moreover, in the present case, respondent had not acquiesced in the conduct.\nThe trial court confirmed the Commission\u2019s decision, finding it was not against the manifest weight of the evidence. The court found the matter presented a factual question and could not be decided as a matter of law. Petitioner maintains that a question of law is involved.\nIf undisputed facts permit more than one reasonable inference to be drawn therefrom, a question of fact exists, and the conclusion of the Commission will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (Chicago Extruded Metals v. Industrial Comm\u2019n (1979), 77 Ill. 2d 81, 395 N.E.2d 569.) More than one reasonable inference can be drawn from the facts presented here, especially in regard to whether petitioner was involved in conduct incidental to his work duties.\nA compensable injury must \u201carise out of\u201d and occur \u201cin the course of\u201d employment. An injury arises out of employment when a causal connection exists between the employment and the injury such that the injury has its origins in some risk incidental to the employment. (Curtis v. Industrial Comm\u2019n (1987), 158 Ill. App. 3d 344, 511 N.E.2d 866.) An injury occurs during the course of employment when the employee is injured within the time period of employment, at a place where the employee can reasonably be expected to be in the performance of his duties and while he is performing those duties or doing something incidental thereto. Eagle Discount Supermarket v. Industrial Comm\u2019n (1980), 82 Ill. 2d 331, 412 N.E.2d 492.\nThe injury here occurred during petitioner\u2019s work hours, but in the field, which was not a place where petitioner reasonably would be in the performance of his work as a salesman. Previously, employees had driven the vehicles in the field to capture the attention of potential customers passing by the property. The evidence shows petitioner was not attempting to attract customers just prior to closing.\nPetitioner also argues he was riding the ATC to learn how to operate it and that \u201cit was during this learning activity\u201d that the accident occurred. The Commission could find, based on petitioner\u2019s own testimony, that he was not test-driving a new piece of equipment in order to better his knowledge of a new model and thus better serve the customer\u2019s needs and consequently benefit respondent. Petitioner did not even know whether the ATC he was driving was or was not a new model. Petitioner testified it was possible that it was not a new model, but may have been a vehicle he had ridden many times. Thus, the Commission was entitled to discount petitioner\u2019s explanation that he was learning how to operate \u201cnew types of vehicles\u201d when the accident occurred.\nThe Commission could also question petitioner\u2019s purpose in riding the motorcycles on the basis that Yanke was not working that night. While petitioner testified that Yanke was on duty, Eietz testified Yanke was not working. Thus, the Commission could find that the two men were engaged in horseplay, not working or trying to gain knowledge of the vehicles\u2019 operation. In addition, petitioner testified he did not know what happened to cause the vehicle to flip. The condition of the two motorcycles, however, indicated that both the vehicles were involved in the accident, possibly becoming entangled. This, too, can indicate the two men were engaged in horseplay.\nThe third possible reason for riding the ATC would be just to bring it into the garage at the end of the day. However, petitioner\u2019s testimony makes it clear he detoured by taking \u201ca run up into the field\u201d before bringing the vehicle inside. Moreover, while petitioner testified he was 10 or 12 feet into the field and only 20 feet from the garage, Rietz testified petitioner was 1,200 feet into the field when the ambulance arrived. Again, this could indicate petitioner was not in the process of bringing the ATC into the building when he crashed.\nPetitioner contends, however, that respondent acquiesced in the custom of employees riding the vehicles in the field. Self-benefit-ting activities by the employee to which the employer acquiesces, or for which the employer allows the use of its property, have been held to be within the course of employment. (Bradway v. Industrial Comm\u2019n (1984), 124 Ill. App. 3d 983, 464 N.E.2d 1139.) Thus, if an employee voluntarily and in an unexpected manner exposes himself to a risk outside any reasonable exercise of his duties, a resulting injury will not be within the course of employment unless the employer had knowledge of or acquiesced in such unreasonable conduct. (Yost v. Industrial Comm\u2019n (1979), 76 Ill. 2d 548, 394 N.E.2d 1189; Curtis v. Industrial Comm\u2019n (1987), 158 Ill. App. 3d 344, 511 N.E.2d 866.) VanderBrook and Rietz testified that no employee was allowed to ride in the field without permission. The Commission was entitled to find that testimony credible.\nWe conclude that the Commission could reasonably infer from the facts before it that petitioner acted without authorization by riding motorcycles in the field with Yanke in such a way as to result in the accidental injuries, and exposed himself to the risk of such injuries for which the Act will not provide compensation.\nSignificantly, even if permission to ride the vehicles had not been retracted in its entirety, prior to May 8, 1983, permission was limited to the one or two times the employees were asked to attract customers\u2019 attention and the times employees were demonstrating a vehicle for a customer. Neither of those situations was present here.\nThus, any permission previously given did not encompass the activities which resulted in petitioner\u2019s injuries. Moreover, the Commission could find VanderBrook\u2019s testimony, that all salespeople had been instructed to not even turn on engines and to roll the vehicles inside, was communicated to petitioner along with the rest of the staff.\nPetitioner\u2019s reliance on Scheffler Greenhouses, Inc. v. Industrial Comm\u2019n (affirmed award of compensation where employer authorized and invited greenhouse workers to use pool as relief from hot, humid work environment) and Union Starch v. Industrial Comm\u2019n (affirmed award of compensation where employer acquiesced in employees\u2019 15-year custom of using rooftop for work breaks for fresh air) is misplaced. This case does not involve petitioner\u2019s personal comfort. See, e.g., Curtis v. Industrial Comm\u2019n (1987), 158 Ill. App. 3d 344, 511 N.E.2d 866.\nPetitioner\u2019s reliance on Chicago, Wilmington & Franklin Coal Co. v. Industrial Comm\u2019n (1922), 303 Ill. 540, 135 N.E. 784, is also unpersuasive. In that case, \u201ctrappers\u201d gained experience and training as drivers by occasionally driving, even though the trappers should not have been permitted to drive. The employer in that case knew the rule prohibiting trappers from driving was not observed, and in fact at times it paid the trappers extra for their driving. No such acquiescence has been shown by petitioner in the present case.\nWe hold the inferences which the Commission drew from the evidence were reasonable and not against the manifest weight of the evidence. We will not disturb its decision denying benefits to petitioner.\nFor the foregoing reasons, the judgment of the circuit court of Du Page County, confirming the decision of the Industrial Commission, is affirmed.\nJudgment affirmed.\nBARRY, P.J., and WOODWARD, McCULLOUGH, and LEWIS, JJ., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Richard E. Aleksy, of Zaborsky & Aleksy, of Chicago, for appellant.", "Industrial Commission of Illinois and Paul L. Leeds, both of Chicago, for appellee." ], "corrections": "", "head_matter": "PETER W. SEKORA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (Du Page Honda et al., Appellees).\nSecond District (Industrial Commission Division)\nNo. 2\u201489\u20140759WC\nOpinion filed June 12, 1990.\nRichard E. Aleksy, of Zaborsky & Aleksy, of Chicago, for appellant.\nIndustrial Commission of Illinois and Paul L. Leeds, both of Chicago, for appellee." }, "file_name": "0584-01", "first_page_order": 606, "last_page_order": 613 }