{ "id": 140361, "name": "ILLINOIS INSTITUTE OF TECHNOLOGY RESEARCH INSTITUTE, Appellee and Cross-Appellant, v. THE INDUSTRIAL COMMISSION et al. (Catherine Kaufman, Widow, Appellant and Cross-Appellee)", "name_abbreviation": "Illinois Institute of Technology Research Institute v. Industrial Commission", "decision_date": "2000-05-15", "docket_number": "No. 1\u201499\u20141474WC", "first_page": "149", "last_page": "166", "citations": [ { "type": "official", "cite": "314 Ill. App. 3d 149" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "335 Ill. 322", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5789512 ], "weight": 2, "year": 1929, "pin_cites": [ { "page": "328-29", "parenthetical": "arbitrator properly allowed amendment to petition filed in name of foreign beneficiaries by attorney even though there was no evidence attorney had authority from beneficiaries to represent them where authority was later given and was found to relate back to original filing" }, { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/ill/335/0322-01" ] }, { "cite": "343 Ill. 73", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5254083 ], "year": 1931, "pin_cites": [ { "parenthetical": "fall from seat of loader" } ], "opinion_index": 0, "case_paths": [ "/ill/343/0073-01" ] }, { "cite": "24 Ill. 2d 368", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2800850 ], "year": 1962, "pin_cites": [ { "parenthetical": "fall near and into blades of machine" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/24/0368-01" ] }, { "cite": "34 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2877656 ], "year": 1966, "pin_cites": [ { "parenthetical": "fall on uneven floor or due to fumes in closed, unventilated room" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/34/0326-01" ] }, { "cite": "78 Ill. 2d 231", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3073291 ], "year": 1979, "pin_cites": [ { "parenthetical": "fall from forklift" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0231-01" ] }, { "cite": "59 Ill. 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App. 3d", "case_ids": [ 3366522 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "1043" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/1040-01" ] }, { "cite": "256 Ill. App. 3d 931", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5385276 ], "year": 1993, "pin_cites": [ { "page": "934" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0931-01" ] }, { "cite": "285 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295607 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "264" }, { "page": "264" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0262-01" ] }, { "cite": "121 F.3d 294", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 285185 ], "year": 1997, "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/f3d/121/0294-01" ] }, { "cite": "210 Ill. App. 3d 16", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2534916 ], "year": 1991, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0016-01" ] }, { "cite": "291 Ill. App. 3d 389", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 456142 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "392-93" }, { "page": "391-92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/291/0389-01" ] }, { "cite": "266 Ill. App. 3d 257", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887199 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "260" }, { "page": "261" }, { "page": "261" }, { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0257-01" ] }, { "cite": "246 Ill. App. 3d 226", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5386663 ], "year": 1993, "pin_cites": [ { "page": "230", "parenthetical": "declining to apply Rule 137 sanction to workers' compensation proceedings to assess penalties against claimant for frivolous appeal because section 19 provides for penalties in favor of claimant, not against; court found Act intentionally silent on issue" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0226-01" ] }, { "cite": "312 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411668 ], "year": 2000, "pin_cites": [ { "page": "273-74", "parenthetical": "applying Code and cases interpreting same, specifically section 2 - 616, to determine that amendment of application to name additional respondents after hearing before arbitrator was improper because it worked a prejudicial effect upon substantive rights of respondents" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0266-01" ] }, { "cite": "281 Ill. 218", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4902341 ], "year": 1917, "pin_cites": [ { "parenthetical": "interest provision applied because Act silent" } ], "opinion_index": 0, "case_paths": [ "/ill/281/0218-01" ] }, { "cite": "161 Ill. App. 3d 87", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467551 ], "year": 1987, "pin_cites": [ { "page": "91-93", "parenthetical": "applying interest provision of Code to workers' compensation proceeding, relying on McMurray v. Peabody Coal Co., 281 Ill. 218 (1917) (interest provision applied because Act silent" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0087-01" ] }, { "cite": "268 Ill. App. 3d 26", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381867 ], "year": 1994, "pin_cites": [ { "page": "29", "parenthetical": "applying statute of limitations found in section 13 - 205 of the Code to section 19(g) of the Act; stating that in the absence of a legislative intent to the contrary, court will apply Code provision where it is deemed necessary to facilitate purpose of the Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/0026-01" ] }, { "cite": "289 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351052 ], "year": 1997, "pin_cites": [ { "page": "450, 452", "parenthetical": "holding that claimant must seek relief under Rule 137 (134 Ill. 2d R. 137) against employer for employer's frivolous appeal because Commission had no power to make such an award since the Act contained no provision therefor" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0447-01" ] }, { "cite": "375 Ill. 107", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2536192 ], "year": 1940, "pin_cites": [ { "page": "113", "parenthetical": "declining to read civil Rule 4 (setting forth summons return day) into workers' compensation proceedings because matter of when writs of certiorari and scire facias are returnable is regulated by Act" } ], "opinion_index": 0, "case_paths": [ "/ill/375/0107-01" ] }, { "cite": "211 Ill. App. 3d 682", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2529225 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0682-01" ] }, { "cite": "126 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557370 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-2d/126/0150-01" ] } ], "analysis": { "cardinality": 1523, "char_count": 42154, "ocr_confidence": 0.77, "pagerank": { "raw": 1.8173436628776426e-07, "percentile": 0.7187231765249634 }, "sha256": "fed21e1e639602fd2c74dbd458b2a092024281b5b5228285c0755b1b5ca619b6", "simhash": "1:7527c9972b174e7a", "word_count": 6912 }, "last_updated": "2023-07-14T20:48:47.280070+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ILLINOIS INSTITUTE OF TECHNOLOGY RESEARCH INSTITUTE, Appellee and Cross-Appellant, v. THE INDUSTRIAL COMMISSION et al. (Catherine Kaufman, Widow, Appellant and Cross-Appellee)." ], "opinions": [ { "text": "JUSTICE RAKOWSKI\ndelivered the opinion of the court:\nThomas Kaufman (decedent) was killed by a stray bullet while working for Illinois Institute of Technology Research Institute (employer). His widow, Catherine Kaufman (claimant), filed an application for adjustment of claim for death benefits pursuant to the Workers\u2019 Compensation Act (the Act) (820 ILCS 305/1 et seq. (West 1998)). The arbitrator concluded that claimant failed to prove decedent\u2019s death arose out of his employment and denied benefits. The Industrial Commission (the Commission) affirmed but the circuit court reversed. On remand, the Commission followed the circuit court\u2019s decision and determined that claimant\u2019s decedent was subjected to a greater risk of injury than that to which the general public is exposed and, therefore, concluded that his death arose out of his employment. On administrative review, a different judge of the circuit court reversed, finding decedent was not subjected to an increased risk of injury. The principal question before this court is whether decedent was subjected to a greater risk of injury from stray bullets than that to which the general public is exposed. Because the building in which decedent worked bordered on a police district with a very high crime rate, the building was located directly across the street from a project where rival gangs were feuding, gunfire was an almost everyday occurrence, bullets had previously hit employer\u2019s building, and decedent sat in the lobby of the building fronted by floor-to-ceiling glass windows, we answer yes and, therefore, find decedent\u2019s death arose out of his employment. We also find that the arbitrator properly allowed claimant to correct her application for adjustment of claim under the doctrine of misnomer or, alternatively properly allowed her to amend the application under the doctrine of relation back. Therefore, the Commission had jurisdiction to consider the cause. Finally, we conclude that the proper legal standard for assessing risk is to compare claimant\u2019s risk to that of the general public, not to other individuals in the vicinity or area. Based on the above, we reinstate the Commission\u2019s decision on remand dated June 2, 1998.\nFACTS\nClaimant\u2019s decedent, a security guard for employer, was killed on November 9, 1989, by a stray bullet fired from across the street from his place of employment. He worked inside the. lobby at 10 West 35th Street, Chicago, fronted by floor-to-ceiling glass windows. He sat behind a desk and console approximately 20 feet from the windows where his torso and head were exposed. Decedent\u2019s duties included monitoring alarms in the building, manning the front desk, patrolling the empty office building, and safeguarding secret United States government documents. Decedent was not required to patrol outside the building and the building was not open to the public.\nAcross the street from employer\u2019s building, south of 35th Street, are the Stateway Gardens homes. Rival gang members had been attempting to take control of the building directly across from employer\u2019s building. As a result of this dispute, seven armed gang members began firing shots at a man in the playground. To avoid the gunfire, the man ran from the playground, toward employer\u2019s building. While running, he was struck by a bullet. He continued to run and when he was in front of employer\u2019s second revolving door, he fell to the ground. Apparently, his hand was on the door at the time he began to fall. He died shortly thereafter. One of the bullets fired by the gang pierced a window of employer\u2019s building, struck Thomas Kaufman, and killed him.\nDetective Edward Winstead of the Chicago police department testified on behalf of claimant. He was assigned to Area One Violent Crimes and explained that Stateway Gardens is located in the second district of Area One, and employer\u2019s building is located in the twenty-first district. He stated that since the project building was being fought over, activity in the area had increased and gunshots were heard daily. Winstead had been called to the area on prior occasions for purse snatchings and robberies, but not for shootings. He stated the crime rate south of 35th Street (project side) was very high, while the crime rate north of 35th Street (employer\u2019s side) was \u201cpretty low.\u201d\nWinstead investigated decedent\u2019s shooting. According to him, the bullet crossed the playground, the sidewalk on the south side of 35th Street, 35th Street, the sidewalk in front of employer\u2019s building, and then entered the window of employer\u2019s building. It traveled over 200 feet before striking decedent. Winstead further testified that anyone walking on the sidewalk on 35th Street, driving by in a car, waiting on the L platform, returning from the White Sox game, or visiting the day care center on the south side of the street, the McDonald\u2019s on 35th Street or the liquor store on State Street just south of 35th Street would have been in the path of the bullet. Further, any passing train would have been in its path.\nClaimant also called Richard Hammer, decedent\u2019s co-employee. He had been a security guard for 17 years for employer. He testified he heard gunshots at least weekly. Further, he stated that sometimes he heard them daily. According to him, bullets had previously struck the upper floors of the building but none had entered the lobby. Hammer did not know how many bullets had hit the building nor how many he had found, stating he did not count them. When the gang first began shooting on the day of the incident, Hammer stated to decedent that \u201cthey were at it again.\u201d Hammer stated no murders had occurred in the building in the 17 years he had worked there.\nClaimant filed her application for adjustment of claim as \u201cCatherine Kaufman, on behalf of her husband Thomas Kaufman, deceased.\u201d At arbitration, employer orally asserted, for the first time, that the case was brought on behalf of a dead person (Thomas) and, therefore, the Commission lacked jurisdiction. Over employer\u2019s objection, claimant was allowed to amend the application to state \u201cCatherine Kaufman, widow.\u201d The arbitrator found the amendment proper as did each of the subsequent tribunals.\nSubstantively, the arbitrator found that claimant failed to prove decedent\u2019s death arose out of his employment because she failed to \u201cshow that Decedent\u2019s employment increased his risk of being shot over that of other persons in the neighborhood.\u201d The Commission adopted and affirmed. The circuit court (Judge Bonaguro) reversed. Judge Bonaguro first determined that the Commission applied an incorrect legal standard, comparing decedent\u2019s risk to others in the neighborhood rather than the general public. He held that, for this reason alone, the Commission\u2019s decision had to be reversed. He then concluded, as a matter of law, that \u201cthere is no doubt that, by being at his post, decedent\u2019s risk of being shot was greater than that of the general public. Any finding to the contrary would, as a matter of law, be against the manifest weight of the evidence.\u201d The circuit court remanded for proceedings consistent with its order. We dismissed employer\u2019s appeal based on lack of jurisdiction for want of a final order because of the remand to the Commission. Kaufman v. Industrial Comm\u2019n, No. 1 \u2014 96\u20141774WC (February 25, 1997) (unpublished order under Supreme Court Rule 23).\nOn remand, the Commission found that decedent was subjected to an increased risk and, therefore, his death arose out of his employment. On administrative review, however, the circuit court (Judge Lanigan) reversed. Judge Lanigan first concluded that the Commission did not lack jurisdiction based on a faulty application for adjustment of claim. She found that the relation back doctrine applied to cure any defect in claimant\u2019s application. She then found that employer had waived its statute of limitations defense for failure to properly raise it before the Commission, concluding that its mention in a footnote was insufficient. Substantively, Judge Lanigan found that the Commission, in its original decision, applied the proper legal standard (vicinity) and that Judge Bonaguro applied an incorrect standard (general public). Further, she found that differing inferences could be drawn from the facts and, therefore, Judge Bonaguro erred in deciding the case as a matter of law. Finally, she concluded that the Commission\u2019s original decision was not against the manifest weight of the evidence, finding that the bullet that struck decedent could have struck anyone in its path and, thus, the general public in that vicinity was subject to the same risk.\nANALYSIS\nI. JURISDICTION AND STATUTE OF LIMITATIONS\nOn appeal, employer contends the Commission lacked jurisdiction. Specifically, claimant\u2019s application named a dead person, who cannot be a party, and, therefore, the application was a nullity. Further, claimant failed to amend the application or file a claim on her own behalf within the applicable statute of limitations period. Thus, the application was barred. Employer also argues the relation back doctrine is not applicable to workers\u2019 compensation actions because the Act makes no such provision. Moreover, there is nothing to relate back to because claimant\u2019s original application was a nullity. Employer relies on Vaughn v. Speaker, 126 Ill. 2d 150 (1988), and Knowles v. Mid-West Automation Systems, Inc., 211 Ill. App. 3d 682 (1991).\nA. Application of Code of Civil Procedure\nEmployer contends that the doctrine of misnomer embodied in section 2 \u2014 401 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014 401 (West 1998)) and the doctrine of relation back embodied in section 2 \u2014 616 (735 ILCS 5/2 \u2014 616 (West 1998)) do not apply to workers\u2019 compensation proceedings because neither the Act nor Commission rules provide for such procedures.\nThe Code and supreme court rules generally do not apply to workers\u2019 compensation proceedings \u201cin so far as or to the extent that the procedure is regulated by *** the *** [A]ct.\u201d Elles v. Industrial Comm\u2019n, 375 Ill. 107, 113 (1940) (declining to read civil Rule 4 (setting forth summons return day) into workers\u2019 compensation proceedings because matter of when writs of certiorari and scire facias are returnable is regulated by Act). However, where the Act or Commission rules do not regulate a topic, civil provisions have been applied to workers\u2019 compensation actions. See Krantz v. Industrial Comm\u2019n, 289 Ill. App. 3d 447, 450, 452 (1997) (holding that claimant must seek relief under Rule 137 (134 Ill. 2d R. 137) against employer for employer\u2019s frivolous appeal because Commission had no power to make such an award since the Act contained no provision therefor); Blache v. Industrial Comm\u2019n, 268 Ill. App. 3d 26, 29 (1994) (applying statute of limitations found in section 13 \u2014 205 of the Code to section 19(g) of the Act; stating that in the absence of a legislative intent to the contrary, court will apply Code provision where it is deemed necessary to facilitate purpose of the Act); Bray v. Industrial Comm\u2019n, 161 Ill. App. 3d 87, 91-93 (1987) (applying interest provision of Code to workers\u2019 compensation proceeding, relying on McMurray v. Peabody Coal Co., 281 Ill. 218 (1917) (interest provision applied because Act silent); also holding that civil provision applicable even though Act amended to address interest because provisions cover different types of awards). See also Mora v. Industrial Comm\u2019n, 312 Ill. App. 3d 266, 273-74 (2000) (applying Code and cases interpreting same, specifically section 2 \u2014 616, to determine that amendment of application to name additional respondents after hearing before arbitrator was improper because it worked a prejudicial effect upon substantive rights of respondents). But see Lawlyes v. Industrial Comm\u2019n, 246 Ill. App. 3d 226, 230 (1993) (declining to apply Rule 137 sanction to workers\u2019 compensation proceedings to assess penalties against claimant for frivolous appeal because section 19 provides for penalties in favor of claimant, not against; court found Act intentionally silent on issue).\nIn this case, neither the Act nor the Commission\u2019s rules address under what circumstances an application for adjustment of claim may be amended. While section 7020.20(e) does provide for amendment, it does not detail under what circumstances amendment may be had. 50 111. Adm. Code \u00a7 7020.20(e) (1999). It simply states that an application may be amended any time before a hearing on the merits of the claim. Nonetheless, the policy considerations underlying the Act\u2014 providing for summary and informal proceedings under which the legislature intended to avoid technical and cumbersome pleading rules to expedite matters (7 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 77A.10, at 15 \u2014 1 to 15 \u2014 3 (1999)) \u2014 would be facilitated by applying the misnomer and relation back provisions to the instant case. Claimant\u2019s error was a technicality and did not affect the substantive rights of employer. Further, there is no evidence the legislature sought to prohibit amendment of applications under such circumstances. We see no reason why such doctrines should not be applied in this case. Accordingly, we reject employer\u2019s contention that the doctrine of misnomer embodied in section 2 \u2014 401 and the doctrine of relation back embodied in section 2 \u2014 616 do not apply to the instant case. 735 ILCS 5/2 \u2014 401, 2 \u2014 616 (West 1998).\nB. Misnomer/Section 2 \u2014 401\n\u201cMisnomer is a mistake in name or the provision of an incorrect name to the person in accusation or pleading. [Citation.] It means nothing more than that a party is styled in other than his or her own name.\u201d Bristow v. Westmore Builders, Inc., 266 Ill. App. 3d 257, 260 (1994).\nMisnomer exists when actual notice of the suit is given to the real parties in interest but the complaint does not refer to a person by his or her correct name. Zito v. Gonzalez, 291 Ill. App. 3d 389, 392-93 (1997). Section 2 \u2014 401(b) provides:\n\u201cMisnomer of a party is not a ground for dismissal but the name of any party may be corrected at any time, before or after judgment, on motion, upon any terms and proof that the court requires.\u201d 735 ILCS 5/2 \u2014 101(b) (West 1998).\nAs the provision states, misnomer can be corrected at any time, even after the statute of limitations has run. Thompson v. Ware, 210 Ill. App. 3d 16, 18 (1991); Athmer v. C.E.I. Equipment Co., 121 F.3d 294, 295-96 (7th Cir. 1997).\nMisnomer must be distinguished from mistaken identity. Where misnomer occurs (plaintiff sues the right party under the wrong name), plaintiff can simply correct the mistake pursuant to section 2 \u2014 401. However, if mistaken identity occurs (plaintiff sues the wrong party), amendment must meet the requirements of the relation back provision, section 2 \u2014 616. Estate of Henry v. Folk, 285 Ill. App. 3d 262, 264 (1996); Borg v. Chicago Zoological Society, 256 Ill. App. 3d 931, 934 (1993). See also Zito, 291 Ill. App. 3d at 391-92. The question of whether misnomer or mistaken identity is involved depends on the intent of the parties, including the plaintiffs subjective belief; however, plaintiffs belief is not necessarily controlling. Henry, 285 Ill. App. 3d at 264.\nAlthough section 2 \u2014 401 clearly relates to either party, misnomer generally occurs with, and the vast majority of cases involve, defendants who have been improperly named. See Bristow, 266 Ill. App. 3d at 261. As Bristow stated, it is \u201crelatively unusual\u201d when plaintiff improperly identifies itself. 266 Ill. App. 3d at 261. However, the following cases are instructive. In Bristow, plaintiff filed suit in the name of a corporation rather than as a sole proprietor. The court rejected defendant\u2019s contention that the complaint was a nullity because the corporation was a nonexistent legal entity. Rather, it concluded that the case involved misnomer. All parties were fully aware of the identities of the actual litigants, an actual plaintiff existed, defendant was aware of the actual plaintiff because it made certain demands upon it, and defendant suffered no prejudice. Bris tow, 266 Ill. App. 3d at 262. Similarly, in Sjostrom v. McMurray, 47 Ill. App. 3d 1040 (1977), plaintiff filed suit in the name of a corporation rather than individually \u201cdoing business as.\u201d Again, the corporate entity was nonexistent. The court found this was a case of a misnamed plaintiff that was correctable under section 2 \u2014 401. Sjostrom, 47 Ill. App. 3d at 1043. In Calvert Distillers Co. v. Vesolowski, 14 Ill. App. 3d 634 (1973), plaintiff filed suit in the name of an entity that was not a legal entity. The court allowed correction as misnomer, finding there was an actual plaintiff, all parties were fully aware of the identities of the actual litigants, and all parties were aware of the issue in question in the case. Calvert Distillers Co., 14 Ill. App. 3d at 636. Finally, in Challenor v. Niles, 78 Ill. 78, 80 (1875), in a scire facias proceeding, the court stated that a writ issued in the name of the deceased was \u201cirregular\u201d but amendment was properly allowed to name the administrator of the estate of the deceased.\nThe instant case is akin to the above cases. The correct claimant is Catherine Kaufman as widow. The application, however, stated \u201cCatherine Kaufman, on behalf of her husband, Thomas Kaufman, deceased.\u201d She named herself, the correct party, in the wrong capacity. She stated she was Thomas\u2019 wife and he was deceased. From this description, it is beyond question that she was Thomas\u2019 widow. To be sure, employer was aware of claimant\u2019s existence, her actual identity, and her capacity. Further, employer was fully aware of the nature of the suit. Employer knew from the application decedent was killed while working. Employer is presumed to be aware of the laws to which it is subject and, pursuant to section 8(b), Catherine possessed a claim for death benefits. 820 ILCS 305/8(b) (West 1998). We do not believe employer can reasonably argue it was not aware of the nature of the claim or that the true capacity of the claim was Catherine\u2019s claim for benefits as a result of her husband\u2019s death.\nThe cases relied upon by employer are distinguishable. In Vaughn v. Speaker, 126 Ill. 2d 150 (1988), suit was filed against a deceased individual, not on behalf of one. In Knowles v. Mid-West Automation Systems, Inc., 211 Ill. App. 3d 682 (1991), suit was filed in the name of the deceased employee only, without reference to another plaintiff or any other capacity.\nBased on the foregoing, we conclude that this case involves misnomer and, accordingly, the arbitrator properly allowed claimant to correct the application at the time of arbitration pursuant to section 2 \u2014 401.\nC. Amendment/Section 2 \u2014 616\nAssuming, arguendo, that claimant\u2019s error was not misnomer, we nonetheless conclude that amendment would be proper under section 2 \u2014 616, and claimant\u2019s amended application would relate back to the original application.\nSection 2 \u2014 616 provides for amendment of complaints. In pertinent part, it states:\n\u201cThe cause of action *** set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted *** in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery ***, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action *** set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.\u201d 735 ILCS 5/2\u2014 616(b) (West 1998).\nThe purpose of this provision is to ensure fairness to the litigants rather than to unduly enhance technical rules of common law pleading. Halberstadt v. Harris Trust & Savings Bank, 55 Ill. 2d 121, 124-25 (1973); Wilfong v. W.A. Schickedanz Agency, Inc., 85 Ill. App. 3d 333, 339 (1980). The provision is to be liberally construed to allow a decision on the merits rather than dismissal on technicalities (Dever v. Simmons, 292 Ill. App. 3d 70, 79 (1997)), where the \u201cpleading defect *** does not impair the defendants\u2019 ability to defend the claim asserted.\u201d Hardimon v. Carle Clinic Ass\u2019n, 212 Ill. App. 3d 117, 122 (1995). The decision to allow an amendment is within the sound discretion of the trial court and amendment should be allowed unless the opposing party would be prejudiced. Lake County Grading Co. of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 452, 460 (1995).\nWith regard to plaintiffs, relation back has been allowed where a suit was filed by an administrator on behalf of a deceased individual but the administrator had not yet been appointed or the appointment was somehow defective. See Hardimon, 272 Ill. App. 3d 117; Marcus v. Art Nissen & Son, Inc., 224 Ill. App. 3d 464, 466 (1991) (and cases cited therein). See also American Car & Foundry Co. v. Industrial Comm\u2019n, 335 Ill. 322, 328-29 (1929) (arbitrator properly allowed amendment to petition filed in name of foreign beneficiaries by attorney even though there was no evidence attorney had authority from beneficiaries to represent them where authority was later given and was found to relate back to original filing).\nThe court in Marcus set forth persuasive reasons for allowing relation back in the instant case. First, it rejected the contention that naming a deceased individual is always a nullity.\n\u201cWe have no quarrel with the proposition that a lawsuit must have a plaintiff and a defendant and that both must be in existence for the lawsuit to proceed. The sole question before us is whether the trial court should have allowed the filing and relation back of an amended complaint which would have substituted the administrator, a living person, as the party-plaintiff in this lawsuit. As previously discussed, nothing in the language of section 2 \u2014 616 would prevent such a result. To the extent that the cases cited by the defendants contain language indicating that a complaint filed in the name of a deceased plaintiff is a nullity for purposes of applying the relation back doctrine, we disagree with those cases.\u201d Marcus, 224 Ill. App. 3d at 469.\nSecond, the Marcus court believed a valid distinction existed between naming a deceased individual as a defendant and naming a deceased individual as a plaintiff. Third, it stated that relation back and amendment are proper when the following elements are satisfied: \u201c \u2018the original complaint furnished to the defendant all the information necessary for him to prepare a defense to the claim subsequently asserted in the amended complaint.\u2019 \u201d Marcus, 224 Ill. App. 3d at 467, quoting Joyce v. Wilner, 156 Ill. App. 3d 702, 706 (1987). Finally, Marcus noted that the decision in Vaughn v. Speaker, 126 Ill. 2d 150 (1988), rested on the fact defendants lacked notice of the suit, which is an essential element in applying the relation back doctrine, prior to the running of the statute of limitations. Vaughn, however, did not base its holding on the proposition that complaints against deceased individuals are a nullity for purposes of the relation back doctrine.\nIn the instant case, employer clearly received notice of claimant\u2019s claim prior to the statute of limitations expiring \u2014 the application for adjustment of claimant was filed on September 10, 1992. The statute of limitations ran on November 19, 1992. Claimant\u2019s husband was dead and employer knew this. Again, employer is presumed to be aware of workers\u2019 compensation laws and to know claimant was seeking death benefits. Further, the date of the accident and how it occurred were all in the application and within employer\u2019s knowledge. Accordingly, employer had all the information necessary to apprise it of the nature of the claim, the bases for the claim, and to defend the claim.\nAdditionally, the Act itself does not prescribe the specific form an application for adjustment of claim must take. However, the requirements for an application are clearly less strict than those requirements for suits filed at law. See Valier Coal Co. v. Industrial Comm\u2019n, 329 Ill. 139, 147 (1928) (\u201cThe Workmen\u2019s Compensation [A]ct does not prescribe in specific terms any particular form of application for adjustment of claim. *** It is only essential to a proper statement of claim for compensation for the applicant to state formally the time, place, manner, and character of the accident, so that the employer will be advised of the nature of the claim and can properly prepare his defense\u201d). Accord Corn Products Refining Co. v. Industrial Comm\u2019n, 402 Ill. 250 (1949); Chicago Park District v. Industrial Comm\u2019n, 372 Ill. 428 (1939); Lewis v. Industrial Comm\u2019n, 357 Ill. 309 (1934). See also Matwiczuk v. American Car & Foundry Co., 189 Mich. 449, 451, 155 N.W 412, 412 (1915) (\u201cThe essential function to be performed by the notice of the claim for injury under [the workers\u2019 compensation] law is to bring home to the employer, at some time within six months after the accident, knowledge of the fact that a claim for compensation therefor is being asserted\u201d), quoted in American Car & Foundry Co., 335 Ill. at 328. Thus, workers\u2019 compensation proceedings are less formal than civil proceedings and amendments to applications are commonly allowed. See Caterpillar Tractor Co. v. Industrial Comm\u2019n, 215 Ill. App. 3d 229, 238-39 (1991) (and cases cited therein). See generally 7 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7\u00a7 77A.00, 77A.10, 77A.41, 77A.42, 77A.43 (1999).\nAs noted above, defendant had all the information available to research, investigate, and defend the claim filed by claimant. Allowing claimant to amend her application did not alter the facts that formed the basis of her claim. Employer had notice of the claim and, in fact, had been defending it for several years. See Hardimon, 272 111. App. 3d at 122. Accordingly, the arbitrator properly allowed claimant to amend her application for adjustment of claim. Further, because the claim in the amended application grew out of the same transaction and occurrence as that presented in the original application, the amended application related back to the original. Thus, the statute of limitations period was not violated and the Commission had jurisdiction over the matter.\nII. WAIVER OF STATUTE OF LIMITATIONS\nBased on our resolution above, we need not address employer\u2019s argument that it did not waive the statute of limitations defense since it raised the issue before the Commission and circuit court by including it in a footnote in its response briefs.\nIII. LEGAL STANDARD FOR ASSESSING RISK\nBoth claimant and employer contest the proper legal standard for assessing the risk decedent was exposed to. Claimant contends the proper standard is the general public not the same area or vicinity \u2014 in other words, claimant must be exposed to a risk to a greater degree than the general public. Employer contends the risk of exposure is compared to other individuals in the area. It relies on Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542 (1991). According to employer, the \u201cgeneral population of the City\u201d makes no sense because it would lead to a per se rule of compensation for all employees in high crime areas.\nProfessor Larson states that the object of the comparison is \u201cto isolate and identify the distinctive characteristics of [claimant\u2019s] employment.\u201d 1 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 5.04(2), at 5 \u2014 18 (1999), cited in Caterpillar Tractor Co. v. Industrial Comm\u2019n, 129 Ill. 2d 52, 62 (1989). Accordingly, \u201cthe comparison should be made with a broad cross section of the public.\u201d 1 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 5.04(2), at 5 \u2014 18 (1999), cited in Caterpillar Tractor Co., 129 Ill. 2d at 62. Illinois cases cite to the general public, not to a locality, neighborhood, or area. See Brady, 143 Ill. 2d 542; Caterpillar Tractor Co., 129 Ill. 2d at 58-59; Campbell \u201c66\u201d Express, Inc. v. Industrial Comm\u2019n, 83 Ill. 2d 353, 355-57 (1980); Eisenberg v. Industrial Comm\u2019n, 65 Ill. 2d 232, 234 (1976); American Freight Forwarding Corp. v. Industrial Comm\u2019n, 31 Ill. 2d 293, 295 (1964); Scott v. Industrial Comm\u2019n, 374 Ill. 225, 230 (1940); Springfield School District No. 186 v. Industrial Comm\u2019n, 293 Ill. App. 3d 226, 229 (1997); Fligelman v. City of Chicago, 275 Ill. App. 3d 1089, 1092, 1094 (1995); Metropolitan Water Reclamation District v. Industrial Comm\u2019n, 272 Ill. App. 3d 732, 736 (1995); Pryor v. Industrial Comm\u2019n, 266 Ill. App. 3d 497, 499 (1994); Kemp v. Industrial Comm\u2019n, 264 Ill. App. 3d 1108, 1109, 1111 (1994); Cassens Transport Co. v. Industrial Comm\u2019n, 262 Ill. App. 3d 324, 331 (1994); Heath v. Industrial Comm\u2019n, 256 Ill. App. 3d 1008, 1013, 1015 (1993); Hammel v. Industrial Comm\u2019n, 253 Ill. App. 3d 900, 902-03 (1993); Rush-Presbyterian-St. Luke\u2019s Medical Center v. Industrial Comm\u2019n, 258 Ill. App. 3d 768, 772 (1994); Komatsu Dresser Co. v. Industrial Comm\u2019n, 235 Ill. App. 3d 779, 787-88 (1992); Best Foods v. Industrial Comm\u2019n, 231 Ill. App. 3d 1066, 1069 (1992); County of Cook v. Industrial Comm\u2019n, 165 Ill. App. 3d 1005, 1009-10 (1988); Holthaus v. Industrial Comm\u2019n, 127 Ill. App. 3d 732, 736-37 (1984). See also C.A. Dunham Co. v. Industrial Comm\u2019n, 16 Ill. 2d 102, 104-05 (1959) (\u201c[w]hile it was originally stated that [the] risk [of injury] must be peculiar to the work, and not connected with the neighborhood, the concept was expanded so that even if the general public is also exposed to the risk, if the employee, by reason of his employment, is exposed to such risk to a greater degree, the accident is said to arise out of his employment\u201d).\nWhile we note that at some point Brady made the statement that the risk claimant was subjected to was no greater \u201cthan that to which other persons along the same route were exposed to\u201d (Brady, 143 Ill. 2d at 551), when the Brady court set forth the standard of law it was required to apply, it stated employees must be exposed to a risk \u201cbeyond that to which the general public is exposed.\u201d (Emphasis added.) Brady, 143 Ill. 2d at 548. By way of example, Professor Larson clearly illustrates this principle \u2014 \u201c[o]ne could with equal logic say that a person employed as a lion-tamer was exposed to no greater risk of attack by lions than anyone else who happened to be in the cage.\u201d 1 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 5.04(2), at 5 \u2014 21 (1999).\nBased on the foregoing, the clear rule in Illinois is that claimant\u2019s risk is to be compared to the general public.\nIV PROPRIETY OF ORIGINAL COMMISSION DECISION\nIn order for claimant to recover, she must demonstrate that decedent\u2019s injuries arose out of and in the course of his employment. \u201cIn the course of\u201d refers to time, place, and circumstances of the injury. Orsini v. Industrial Comm\u2019n, 117 Ill. 2d 38, 44 (1987). For an injury to arise out of the employment, \u201cthe risk of injury must be a risk peculiar to the work or a risk to which the employee is exposed to a greater degree than the general public by reason of his employment.\u201d (Emphasis added.) Orsini, 117 Ill. 2d at 45. See also Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 550 (1991); Illinois Bell Telephone Co. v. Industrial Comm\u2019n, 131 Ill. 2d 478, 483 (1989); Pryor v. Industrial Comm\u2019n, 266 Ill. App. 3d 497, 499 (1994). There is no dispute decedent was in the course of his employment at the time of his death. However, claimant must still demonstrate that decedent\u2019s death \u201chad its origins in some risk incidental to the employment.\u201d Rush-Presbyterian-St. Luke\u2019s Medical Center v. Industrial Comm\u2019n, 258 Ill. App. 3d 768, 772 (1994).\nThere are three categories of risk an employee may be exposed to: (1) risks distinctly associated with the employment; (2) risks personal to the employee; and (3) neutral risks which have no particular employment or personal characteristics. Employment risks include the obvious kinds of industrial injuries and occupational diseases and are universally compensated. Personal risks include nonoccupational diseases, injuries caused by personal infirmities such as a trick knee, and injuries caused by personal enemies and are generally noncompensable. Neutral risks include stray bullets, dog bites, lunatic attacks, lightning strikes, bombing, and hurricanes. Compensation for neutral risks depends upon whether claimant was exposed to a risk of injury to an extent greater than to which the general public is exposed.\nAgain, the risk of being struck by a stray bullet is a neutral risk or, more particularly, a street risk. 1 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation Law \u00a7 4.03, at 4 \u2014 2, \u00a7 6.05, at 6 \u2014 7 (1999). A street risk is any hazard or source of danger, including traffic perils, falls, dogs, and bullets, encountered on the street that is not distinctive to a particular employment or person. 1 A. Larson & L. Larson, Larson\u2019s Workers\u2019 Compensation Law ch. 6, at 6 \u2014 1 to 6 \u2014 9 (1999). The street-risk rule has been extended to cover inside structures if it is a place where the source of the risk could be expected to exist. See C.A. Dunham Co. v. Industrial Comm\u2019n, 16 Ill. 2d 102 (1959) (business traveler\u2019s death in an explosion and crash of commercial plane).\nWhether an injury caused by a neutral risk arises out of employment is dependent upon whether claimant was exposed to a risk to a greater degree than the general public. Brady, 143 Ill. 2d 542. It is not enough that the employment placed claimant in a particular place at a particular time. This is known as positional risk and Illinois has expressly and repeatedly rejected this doctrine. Brady, 143 Ill. 2d at 552; Campbell \u201c66\u201d Express, Inc. v. Industrial Comm\u2019n, 83 Ill. 2d 353, 355-56 (1980); Springfield School District No. 186 v. Industrial Comm\u2019n, 293 Ill. App. 3d 226, 233 (1997) (Rakowski, J., dissenting); Fligelman v. City of Chicago, 275 Ill. App. 3d 1089, 1094 (1995).\nSeveral Illinois cases have addressed recovery for stray bullet strikes. In Scott v. Industrial Comm\u2019n, 374 Ill. 225 (1940), claimant was accidentally shot by a police officer hired to protect employer\u2019s premises during a strike. Claimant\u2019s injuries were found to have arisen out of his employment because of the increased industrial violence, which created a hazard not common to the general public. Because \u201cindustrial violence [was] occurring in the neighborhood *** there was a special hazard at that particular time, peculiar to the employees working on the premises ***. This hazard was not common to the public generally ***.\u201d Scott, 374 Ill. at 230.\nConversely, in Heath v. Industrial Comm\u2019n, 256 Ill. App. 3d 1008 (1993), plaintiff was a stock clerk who was shot by an unknown assailant after the store\u2019s closing. The Commission determined that the injuries did not arise out of claimant\u2019s employment. We affirmed, stating that the question was not whether the facts established that claimant\u2019s work environment increased his risk but whether this was the only reasonable inference. We found it was not. There was no evidence the store was located in a risky environment. There was no evidence that showed the neighborhood was dangerous or the location lent itself to criminal activity. There was also no evidence that, because the store was closed, there was an increased risk of attack. Finally, claimant could not identify the attacker. Although two other employees were in the store, neither was injured and no money or goods were taken. Thus, there was no evidence that the attack was work related as opposed to a personal dispute.\nThe focus then in the instant case is whether the conditions or environment of decedent\u2019s employment increased his risk of being struck by a stray bullet over that of the general public. Again, if the only basis for finding that decedent sustained injuries was the fact that his employment placed him in the position where he was struck by a bullet at that time (\u201cbut for\u201d), then the injuries would not arise out of his employment. This would be the classic positional risk situation. However, if the injury occurred not just because of where decedent was, at that particular time, but was coupled with some factor that increased the risk of being struck by a stray bullet, then the injury is said to arise out of his employment.\nClaimant contends the facts are undisputed and the inferences to be made from the facts lead to only one conclusion: decedent was exposed to a risk greater than the general public. Employer contends, however, that virtually every fact is disputed. Moreover, it contends that different inferences can be drawn from the facts. Therefore, employer contends the Commission\u2019s original decision is not against the manifest weight of the evidence, stating that Brady controls.\nThe question of whether an injury arises out of employment is generally a question of fact for the Commission and we will not disturb its determination unless it is against the manifest weight of the evidence. \u201c \u2018The manifest weight of the evidence is that which is \u201cthe clearly evident, plain and indisputable weight of the evidence.\u201d [Citations.] In order for a finding to be contrary to the manifest weight of the evidence, an opposite conclusion must be clearly apparent. [Citation.]\u2019 \u201d Drogos v. Village of Bensenville, 100 Ill. App. 3d 48, 54 (1981), quoting In re Application of County Collector, 59 Ill. App. 3d 494, 499 (1978). However, \u201c[w]here the facts are undisputed *** and are susceptible to but a single inference, the question of whether an injury arose out of and in the course of employment becomes a question of law.\u201d Kemp v. Industrial Comm\u2019n, 264 Ill. App. 3d 1108, 1110 (1994).\nContrary to employer\u2019s position, the essential facts of the case are not in dispute. Moreover, for the following reasons, we conclude that the only reasonable inference to be drawn is that decedent was exposed to a stray bullet risk to a greater degree than that to which the general public is exposed. The evidence demonstrates that employer\u2019s building was located across the street from a project where rival gangs were feuding for control of a building. There was testimony that gunshots were heard daily and that activity had recently increased in the area. When the gunfire began, decedent\u2019s coworker stated to decedent that \u201cthey were at it again.\u201d Moreover, bullets had previously struck and entered employer\u2019s building and had been found inside. The lobby where decedent sat was fronted by floor-to-ceiling windows. Decedent sat 20 feet from these windows. Although he was behind a console and desk, decedent\u2019s upper body was exposed. The crime rate in the area south of 35th Street was \u201cvery high.\u201d The district was tied with another district for the highest number of murders in 1989 \u2014 both had 75 of the total of 742. Thus, out of 25 police districts, two districts had 20.22% of the murders. Further, the second district was the highest district in number of aggravated assaults with a total of 3,646. Finally, it held the second highest numbers for robberies and criminal sexual assaults. While the district north of 35th Street may generally have had less crime (34 murders and 1,146 aggravated assaults), it cannot be ignored that employer\u2019s building is directly on the dividing line. There is no magical shield down the center of 35th Street. According to Detective Winstead, the area south of 35th Street was the most dangerous beat in the most dangerous police district of the City of Chicago. Moreover, this already dangerous environment was heightened even more as a result of the gang turf war over Stateway Gardens. Decedent\u2019s exposure was not simply a matter of positional risk. Clearly, the risks decedent was exposed to, including being struck by a stray bullet, by virtue of the conditions of his employment are not the same that the general public is commonly exposed to.\nCONCLUSION\nBased on the foregoing, we find that the Commission had jurisdiction over this cause. We affirm Judge Lanigan\u2019s decision on the issues of jurisdiction, misnomer, and relation back. We reverse her decision on the applicable legal standard with regard to risk assessment, with regard to her finding that differing inferences can be drawn from the evidence, and with regard to her finding that the Commission\u2019s original decision was not against the manifest weight of the evidence. We affirm Judge Bonaguro\u2019s decision in its entirety. Accordingly, we reinstate the Commission\u2019s remand decision of June 2, 1998.\nJudgment affirmed in part; reversed in part; award reinstated.\nMcCULLOUGH, P.J., and COLWELL, HOLDRIDGE, and RARICK, JJ., concur.\nA personal risk may be compensable, however, where conditions of the employment increase the risk of injury. See, e.g., Sears, Roebuck & Co. v. Industrial Comm\u2019n, 78 Ill. 2d 231 (1979) (fall from forklift); Rysdon Products Co. v. Industrial Comm\u2019n, 34 Ill. 2d 326 (1966) (fall on uneven floor or due to fumes in closed, unventilated room); Siete v. Industrial Comm\u2019n, 24 Ill. 2d 368 (1962) (fall near and into blades of machine); Van Watermeullen v. Industrial Comm\u2019n, 343 Ill. 73 (1931) (fall from seat of loader).", "type": "majority", "author": "JUSTICE RAKOWSKI" } ], "attorneys": [ "John P. Scanlon, of Martin J. Healy & Associates, of Chicago, for appellant.", "Matthew B. Schiff, Bridget A. Neuson, and Linda C. Kramer, all of Schiff & Hulbert, of Chicago, for appellee." ], "corrections": "", "head_matter": "ILLINOIS INSTITUTE OF TECHNOLOGY RESEARCH INSTITUTE, Appellee and Cross-Appellant, v. THE INDUSTRIAL COMMISSION et al. (Catherine Kaufman, Widow, Appellant and Cross-Appellee).\nFirst District (Industrial Commission Division)\nNo. 1\u201499\u20141474WC\nOpinion filed May 15, 2000.\n\u2014 Rehearing denied June 26, 2000.\nJohn P. Scanlon, of Martin J. Healy & Associates, of Chicago, for appellant.\nMatthew B. Schiff, Bridget A. Neuson, and Linda C. Kramer, all of Schiff & Hulbert, of Chicago, for appellee." }, "file_name": "0149-01", "first_page_order": 167, "last_page_order": 184 }