{ "id": 522002, "name": "MALCOLM SCHUSSE, Plaintiff-Appellant, v. PACE SUBURBAN BUS DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, Defendant-Appellee", "name_abbreviation": "Schusse v. Pace Suburban Bus Division of the Regional Transportation Authority", "decision_date": "2002-08-09", "docket_number": "No. 1\u201400\u20143857", "first_page": "960", "last_page": "970", "citations": [ { "type": "official", "cite": "334 Ill. App. 3d 960" } ], "court": { "name_abbreviation": "Ill. 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PACE SUBURBAN BUS DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPlaintiff Malcolm Schusse appeals an order of the circuit court of Cook County dismissing his claim against defendant Pace Suburban Bus Division of the Regional Transportation Authority (Pace, RTA) for spoliation of evidence.\nThe record on appeal discloses the following facts. On December 30, 1989, plaintiff, an employee of defendant, was driving a Pace bus when the driver\u2019s seat collapsed, allegedly causing a spinal cord injury to plaintiff. That same day, plaintiff made a statement regarding his injury in a worker\u2019s compensation form and submitted the statement to Pace. On May 8, 1990, plaintiff applied for an adjustment of his claim before the Illinois Industrial Commission.\nDefendant replaced the suspension system for the driver\u2019s seat in the bus at issue in October 1990.\nOn October 23, 1991, plaintiff filed suit against the manufacturers of the bus and the driver\u2019s seat, alleging negligence, strict products liability and breach of warranty. Pace was not named as a defendant in the initial complaint. In August and October 1992, the initial defendants filed third-party complaints against Pace alleging negligence. In April 1995, one of the third-party complaints was amended to add a count alleging negligent spoliation of evidence.\nOn October 25, 1995, plaintiff amended his complaint to add Pace as a defendant, alleging negligent spoliation of evidence. Plaintiff voluntarily dismissed his complaint on February 21, 1997, and refiled the matter on November 26, 1997.\nPace moved to dismiss on the ground that the original and refiled actions against Pace were untimely under the applicable statute of limitations. Pace acknowledges that the record does not show whether this motion was denied or simply not ruled upon by the trial court.\nOn August 26, 2000, defendant filed a motion to dismiss pursuant to section 2 \u2014 619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619 (West 2000)), alleging that the suit was barred by exclusivity provisions found in section 5 of the Workers\u2019 Compensation Act (820 ILCS 305/5(a) (West 2000)). On October 13, 2000, following a hearing on the matter, the trial court granted the motion to dismiss. On October 26, 2000, the trial court entered an order finding that there was no just reason to delay enforcement or appeal of the dismissal order. Plaintiff filed a notice of appeal to this court on November 8, 2000.\nI\nThe issue on review is whether the trial court erred in dismissing plaintiff\u2019s claim against defendant Pace. A motion to dismiss based on section 2 \u2014 619 motion admits the legal sufficiency of the complaint and raises defects, defenses or other affirmative matter that appears on the face of the complaint or is established by external submissions that act to defeat the plaintiff\u2019s claim. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733, 736 (1999). Section 2 \u2014 619 enables the court to dismiss a complaint after considering issues of law or easily proved issues of fact. Yu v. Kobayashi, 281 Ill. App. 3d 489, 492, 667 N.E.2d 106, 108 (1996). For example, section 2 \u2014 619(a)(5) permits dismissal where \u201cthe action was not commenced within the time limited by law.\u201d 735 ILCS 5/2 \u2014 619(a)(5) (West 2000). Section 2 \u2014 619(a)(9) provides for dismissal where \u201cthe claim asserted against [a] defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim.\u201d 735 ILCS 5/2 \u2014 619(a)(9) (West 2000). The exclusivity provisions of section 5 of the Workers\u2019 Compensation Act (Act) have been considered as a basis for dismissal under section 2 \u2014 619(a)(9). See, e.g., Senesac v. Employer\u2019s Vocational Resources, Inc., 324 Ill. App. 3d 380, 385, 754 N.E.2d 363, 368 (2001).\nThe standard of review of a dismissal pursuant to section 2 \u2014 619 is de novo. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). This court can affirm a section 2 \u2014 619 dismissal on any grounds supported by the record, regardless of the trial court\u2019s reasons. Ko v. Eljer Industries, Inc., 287 Ill. App. 3d 35, 39, 678 N.E.2d 641, 644 (1997).\nII\nPlaintiff argues that his negligent spoliation of evidence claim is not barred by section 5 of the Workers\u2019 Compensation Act, which provides in part as follows:\n\u201c(a) No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer 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, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury.\u201d 820 ILCS 305/5(a) (West 2000).\nSection 11 of the Act also states:\n\u201cThe compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of any employer *** for accidental injuries sustained by any employee arising out of and in the course of the employment according to the provisions of this Act ***.\u201d 820 ILCS 305/11 (West 2000).\nThe exclusive remedy provision of the Act \u201c \u2018is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.\u2019 \u201d Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462, 564 N.E.2d 1222, 1225 (1990), quoting 2A A. Larson, Workmen\u2019s Compensation \u00a7 65.11 (1988).\nOur supreme court has held that an action for negligent spoliation can be stated under existing negligence law. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 193, 652 N.E.2d 267, 270 (1995). Plaintiff notes that Boyd involved an insurer\u2019s loss of evidence in its investigation of the plaintiffs workers\u2019 compensation claim. Boyd, 166 Ill. 2d at 195, 652 N.E.2d at 271. However, Pace correctly notes that Boyd did not analyze whether such a claim might be barred by the exclusivity provisions of the Act.\nPace maintains that plaintiffs claim is barred under the above-cited Senesac case. In Senesac, the plaintiff employee injured his back while employed as an appliance repairman and was entitled to receive certain payments, including disability payments, from his employer pursuant to a workers\u2019 compensation insurance policy. Senesac, 324 Ill. App. 3d at 382, 754 N.E.2d at 365. The insurer arranged for another defendant to provide plaintiff with vocational rehabilitation and job placement services; the employee and his spouse claimed that the defendants failed to meet the standard for providers of job placement services, causing physical, mental and emotional harm to the plaintiff employee. Senesac, 324 Ill. App. 3d at 382, 754 N.E.2d at 366.\nThis court held that plaintiffs\u2019 claim of intentional infliction of emotional distress was not barred by the Act, as it was a claim of intentional tort, also noting that the defendants\u2019 allegedly intentional conduct was not related to either the plaintiff employee\u2019s return to work with his former employer or his continued employment with that employer. Senesac, 324 Ill. App. 3d at 391-92, 754 N.E.2d at 373. However, the Senesac court also affirmed the dismissal of plaintiffs\u2019 claims based on negligence or malpractice in defendants\u2019 administration of workers\u2019 compensation benefits, holding that those claims were within the scope of the Act and, thus, barred by the exclusivity provisions of the Act. Senesac, 324 Ill. App. 3d at 392, 754 N.E.2d at 373. Pace argues in its brief that Senesac holds that \u201cregardless of the nature of the subsequent injury, negligent acts do not rise to the level of intentional acts, and that employers are still entitled to protection for their negligent acts under the Exclusive Remedy provision.\u201d\nPace misreads Senesac. The Senesac court held \u201cthat plaintiffs\u2019 claims based on negligence or malpractice in defendants\u2019 administration of workers\u2019 compensation benefits *** are barred by the exclusivity provision of the Act. Such claims are within the scope of the Act, which *** covers \u2018accidental\u2019 injuries arising from the conditions of employment.\u201d (Emphasis added.) Senesac, 324 Ill. App. 3d at 392, 754 N.E.2d at 373. It was not solely the fact that the claims were based in negligence, but also that the claims arose from the conditions of employment, that caused them to be barred.\nIn Meerbrey, our supreme court stated that a plaintiff employee can escape the exclusivity provisions and bring a common-law action against the employer if the employee can prove any of the following: (1) the injury was not accidental; (2) the injury did not arise from his or her employment; (3) the injury was not received during the course of employment; or (4) the injury was not compensable under the Act. Meerbrey, 139 Ill. 2d at 463, 564 N.E.2d at 1226. It is the duty of this court to follow the decisions of our supreme court. E.g., Westshire Retirement & Healthcare Center v. Department of Public Aid, 276 Ill. App. 3d 514, 523, 658 N.E.2d 1286, 1293 (1995). Accordingly, we reject Pace\u2019s suggestion that Senesac \u201cclarified that all negligence claims are barred,\u201d as such an interpretation would be contrary to Meerbrey.\nApplying the standards set forth by our supreme court, plaintiff argues that the injury resulting from the alleged spoliation of evidence did not arise out of his employment and was not in the course of his employment. Initially, we address the nature of the alleged injury in this case. Although the measure of damages in a spoliation of evidence claim will be similar to that which could have been obtained in an underlying tort action, \u201cIllinois law makes it quite clear that the nature of and basis of liability for those damages [are] quite different.\u201d Fremont Casualty Insurance Co. v. Ace-Chicago Great Dane Corp., 317 Ill. App. 3d 67, 75, 739 N.E.2d 85, 91 (2000) (and cases cited therein). Pace\u2019s brief distinguishes Fremont on the ground that it involved the interpretation of the phrase \u201cbodily injury\u201d in a workers\u2019 compensation and employers liability insurance policy. However, in ruling that spoliation was not a \u201cbodily injury\u201d under the policy, the court rejected the argument that the damages the plaintiff sought were for the injury he suffered when he fell from the ladder. Fremont, 317 Ill. App. 3d at 75, 739 N.E.2d at 90. Thus, Fremont establishes that the two injuries are distinct. Indeed, in discussing Senesac, Pace correctly notes that the Senesac court was also faced with distinct injuries.\nAs it is currently undisputed that the spoliation was unintentional in this case, the crucial questions under Meerbrey are whether the subsequent, distinct injury: arises out of the employment, was suffered in the course of employment, or is compensable under the Act.\nInjuries \u201carising out of\u201d employment have been defined as those injuries originating in a risk created by a causal connection between the employment and the injury. Lee v. Industrial Comm\u2019n, 167 Ill. 2d 77, 80, 656 N.E.2d 1084, 1086 (1995). The required causal connection exists if the injury occurred while the employee was acting under the direction of the employer, if the injury occurred while the employee was performing an act reasonably incident to an assigned duty of employment, or if the injury occurred while the employee was acting pursuant to a statutory or common-law duty while performing duties for his employer. Lee, 167 Ill. 2d at 81, 656 N.E.2d at 1086. The causal connection is demonstrated where the injury\u2019s origin lies in some risk related to the employment. Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 548, 578 N.E.2d 921, 923 (1991). An injury also may be said to arise out of the employment if the conditions or nature of the employment increases the employee\u2019s risk of harm beyond that to which the general public is exposed. Brady, 143 Ill. 2d at 548, 578 N.E.2d at 923.\nIn contrast, \u201cin the course of employment\u201d refers to the time, place, and circumstances under which the injury is received. Brady, 143 Ill. 2d at 548, 578 N.E.2d at 923. An injury is received \u201cin the course of employment\u201d where it occurs within a period of employment, at a place where the worker may reasonably be in the performance of his duties, and while he is fulfilling those duties or engaged in something incidental thereto. Scheffler Greenhouses, Inc. v. Industrial Comm\u2019n, 66 Ill. 2d 361, 367, 362 N.E.2d 325, 327 (1977).\nPace contends that both elements are governed by a \u201cbut for\u201d test of causation. See, e.g., Lagerstrom v. Dupre, 185 Ill. App. 3d 1020, 1022, 542 N.E.2d 73, 74 (1989) (and cases cited therein). Lagerstrom and the cases upon which it relied involved malpractice in medical treatment required by the employer to investigate an employee\u2019s workers\u2019 compensation claim, to evaluate the employee\u2019s fitness to return to work, or for other work-related purposes. Such is not the case here. Indeed, the Senesac court rejected the overbroad application of a \u201cbut for\u201d causation test that Pace urges here. Senesac, 324 Ill. App. 3d at 391-92, 754 N.E.2d at 373. The Senesac court also distinguished Lagerstrom immediately after repeating that \u201cthe injury must arise out of the employment to fall under the Act.\u201d Senesac, 324 Ill. App. 3d at 391.\nPace has not shown how its preservation or spoliation of evidence in any way arises out of the plaintiff\u2019s employment. Pace has not shown that the spoliation occurred while the employee was acting under the direction of the employer, that the spoliation occurred while the employee was performing an act reasonably' incident to an assigned duty of employment, or that it occurred while the employee was acting pursuant to a statutory or common-law duty while performing duties for his employer. Pace has not shown that the origin of the spoliation lies in some risk related to the employment or increases the employee\u2019s risk of harm beyond that to which the general public is exposed, as Pace has not shown that the risk that it will lose or destroy evidence is greater when the plaintiff is an employee, as opposed to a passenger or other member of the public.\nNor has Pace shown that the injury was suffered \u201cin the course of employment.\u201d Pace has not shown that the spoliation was related to plaintiffs performance of his work duties or any activity incidental to those duties. Pace has not shown that the spoliation occurred at a place where the worker may reasonably be in the performance of his duties, while he is fulfilling those duties or engaged in something incidental thereto.\nFinally, there is the question of whether the injury was compen-sable under the Act. Generally, only medical bills and temporary or permanent, partial or total disability is compensable under the Act. See 820 ILCS 305/8 (West 2000). \u201cThe employer shall also pay for treatment, instruction and training necessary for the physical, mental and vocational rehabilitation of the employee, including all maintenance costs and expenses incidental thereto.\u201d 820 ILCS 305/8 (West 2000). It is thus not surprising that the Act extends to malpractice in medical treatment required by the employer to investigate an employee\u2019s workers\u2019 compensation claim, to evaluate the employee\u2019s fitness to return to work, or for other work-related purposes. In contrast, the spoliation of evidence alleged in this case did not generate medical bills, require plaintiff to take time off from work, or seek work-related medical treatment.\nPace relies heavily on Chidichimo v. University of Chicago Press, 289 Ill. App. 3d 6, 681 N.E.2d 107 (1997) (Chidichimo II), and Chidichimo v. Industrial Comm\u2019n, 278 Ill. App. 3d 369, 662 N.E.2d 611 (1996) (Chidichimo I)- In those cases, plaintiffs husband, Martin Chidichimo, a linotype operator, suffered a heart attack and died during his lunch break. Plaintiff filed a workers\u2019 compensation claim against the employer. In December 1983 and February 1984, plaintiff served the employer with subpoenas for the production of records related to her husband\u2019s employment. The employer provided some of the requested documents but also responded that compliance with the subpoenas was not required because the Workers\u2019 Compensation Act did not contain a discovery provision. In March 1985, the employer deleted the rest of the requested records from its computer system, ostensibly as a routine matter when the records were two years old.\nThe arbitrator, the Industrial Commission, the circuit court, and the appellate court all held that plaintiff failed to show a causal link between her husband\u2019s employment and his heart attack, resulting in the denial of the Workers\u2019 Compensation Act claim. Chidichimo I, 278 Ill. App. 3d at 377-78, 662 N.E.2d at 617. However, while her appeal was pending in this court, plaintiff filed a civil action against the employer for intentional and negligent spoliation of evidence. Chidichimo II, 289 Ill. App. 3d at 9, 681 N.E.2d at 109. The trial court granted a section 2 \u2014 619 motion to dismiss, ruling that the action was barred by the exclusivity provisions of the Act. On appeal, this court, after noting that plaintiff had failed to show a causal link between her husband\u2019s employment and his heart attack in Chidichimo I, stated as follows:\n\u201cClearly, therefore, the \u2018injury was not compensable under the Act\u2019 (see Meerbrey, 139 Ill. 2d at 463, 564 N.E.2d at 1226), and plaintiffs action in this case is not barred by the exclusivity provision. For these reasons, the circuit court erred in basing the dismissal of plaintiffs action on section 5(a) of the Workers\u2019 Compensation Act.\u201d Chidichimo II, 289 Ill. App. 3d at 10, 681 N.E.2d at 109-10.\nNevertheless, this court ultimately affirmed the dismissal because the issue of spoliation of evidence had been addressed in Chidichimo I, collaterally estopping plaintiff from relitigating that question. Chidichimo II, 289 Ill. App. 3d at 10, 681 N.E.2d at 110.\nPace\u2019s reliance on Chidichimo II initially seems strange, as that decision holds that a spoliation of evidence claim is not barred by the exclusivity provisions of the Act. However, Pace seeks to rely on Chidi-chimo II because the focus of the analysis was on the heart attack, not the spoliation. Pace argues that the analysis here should be on the initial injury, rather than the spoliation. However, the existence of a rule that a spoliation claim is not covered by the Act where the initial injury is not covered by the Act does not require, as a matter of law or logic, a rule that a spoliation claim is covered by the Act where the initial injury is covered by the Act.\nMoreover, while Chidichimo II is correct to the extent that it holds that the spoliation claim was not compensable under the Act, we do not believe that this conclusion follows only from the lack of a causal link. If an accidental injury is compensable merely because it arose out of and in the course of employment, then the fourth prong of the Meerbrey test is superfluous. This court will not interpret Meerbrey in such a way that the fourth prong becomes meaningless. Toothman v. Hardee\u2019s Food Systems, Inc., 304 Ill. App. 3d 521, 534, 710 N.E.2d 880, 889 (1999).\nIn sum, the injury in this case did not arise from the plaintiffs employment, was not received during the course of employment and was not compensable under the Act. Accordingly, the trial court erred in dismissing the claim as barred under the exclusivity provisions of the Act.\nIll\nPace argues in the alternative that the claim was properly dismissed as untimely. Pace admits that the trial court\u2019s disposition of this issue is \u201cunclear.\u201d However, this court may affirm the judgment of the trial court for any reason properly appearing in the record.\nThe limitations period for the commencement of a negligence action for spoliation of evidence is not otherwise provided for by statute and is, therefore, governed by the five-year limitations period set forth in section 13 \u2014 205 of the Code (735 ILCS 5/13 \u2014 205 (West 1994)). Common v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939, 951, 704 N.E.2d 731, 740 (1998). As the damages suffered by the plaintiff in a spoliation case arise from the destruction of evidence, the cause of action may accrue on the date that the evidence is destroyed. See Gammon, 301 Ill. App. 3d at 950-51, 704 N.E.2d at 739-40. However, Pace allows that the \u201cdiscovery rule\u201d may apply in this case. \u201cThe effect of the discovery rule is to postpone the starting of the period of limitations until the injured party knows or should have known of his injury.\u201d Knox College v. Celotex Corp., 88 Ill. 2d 407, 414, 430 N.E.2d 976, 979 (1981).\n\u20228 Pace argues that the discovery rule does not apply when an injured party has a reasonable period of time remaining in the limitations period, as measured from the time of the breach or act causing injury, within which to file a complaint (the \u201creasonable time\u201d rule). Pace relies on Clark v. Western Union Telegraph Co., 141 Ill. App. 3d 174, 490 N.E.2d 26 (1986), and Dolce v. Gamberdino, 60 Ill. App. 3d 124, 376 N.E.2d 273 (1978), which applied a \u201creasonable time\u201d rule. Our supreme court, however, rejected the \u201creasonable time\u201d rule in Hermitage Corp. v. Contractors Adjustment Co., 166 Ill. 2d 72, 83-84, 651 N.E.2d 1132, 1138 (1995). Accordingly, this court is precluded from applying it in this case.\nIn this case, Pace discarded the seat at issue on October 18, 1990. The earliest date upon which plaintiff should have known that Pace had discarded the seat was in April 1995, when a third-party complaint against Pace alleged spoliation of evidence. Applying the discovery rule, plaintiff had until April 2000 to file his spoliation claim against Pace. Plaintiff filed his spoliation claim on October 25, 1995. Thus, plaintiffs spoliation claim was timely filed.\nFor all of the aforementioned reasons, the judgment of the circuit court of Cook County is reversed and remanded for further proceedings.\nReversed and remanded.\nGREIMAN and QUINN, JJ., concur.\nPace also discusses Pinkerman v. Eagle Food Stores, Inc., 98 Ill. App. 2d 165, 240 N.E.2d 130 (1968) (abstract of op.), even calling it \u201cparticularly enlightening.\u201d The improper citation of abstract opinions and Rule 23 (166 Ill. 2d R. 23) orders as precedent consistently has been condemned by courts of review. Cochran v. Great Atlantic & Pacific Tea Co., 203 Ill. App. 3d 935, 937, 561 N.E.2d 229, 230 (1990). A judicial opinion must be read as applicable only to the facts involved and is authority only for what is actually decided. E.g., Bergin v. Board of Trustees of the Teachers\u2019 Retirement System, 31 Ill. 2d 566, 574, 202 N.E.2d 489, 494 (1964). Accordingly, an abstract cannot be relied upon as precedent.", "type": "majority", "author": "PRESIDING JUSTICE CAMPBELL" } ], "attorneys": [], "corrections": "", "head_matter": "MALCOLM SCHUSSE, Plaintiff-Appellant, v. PACE SUBURBAN BUS DIVISION OF THE REGIONAL TRANSPORTATION AUTHORITY, Defendant-Appellee.\nFirst District (5th Division)\nNo. 1 \u2014 00\u20143857\nOpinion filed August 9, 2002.\nRehearing denied December 6, 2002." }, "file_name": "0960-01", "first_page_order": 978, "last_page_order": 988 }