{ "id": 4283996, "name": "RODNEY L. DANIELS, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee", "name_abbreviation": "Daniels v. Union Pacific Railroad", "decision_date": "2009-03-09", "docket_number": "No. 1-08-2010", "first_page": "850", "last_page": "862", "citations": [ { "type": "official", "cite": "388 Ill. App. 3d 850" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "224 U.S. 603", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3669222 ], "weight": 20, "year": 1912, "pin_cites": [ { "page": "606" }, { "page": "914" }, { "page": "589" }, { "page": "608" }, { "page": "914" }, { "page": "590" }, { "page": "606-08" }, { "page": "914" }, { "page": "589-90" }, { "page": "611-12" }, { "page": "916" }, { "page": "591" }, { "page": "422" }, { "page": "424-25" }, { "page": "612" }, { "page": "916" }, { "page": "591-92" } ], "opinion_index": 0, "case_paths": [ "/us/224/0603-01" ] }, { "cite": "315 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 374611 ], "weight": 10, "year": 1942, "pin_cites": [ { "page": "2" }, { "page": "576" }, { "page": "422" }, { "page": "2-3" }, { "page": "577" }, { "page": "7-8" }, { "page": "579" } ], "opinion_index": 0, "case_paths": [ "/us/315/0001-01" ] }, { "cite": "92 L. Ed. 242", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 5, "year": 1948, "pin_cites": [ { "page": "246" }, { "page": "244" }, { "page": "246" }, { "page": "246" } ], "opinion_index": 0 }, { "cite": "332 U.S. 625", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 364918 ], "weight": 10, "year": 1948, "pin_cites": [ { "page": "631" }, { "page": "298-99" }, { "page": "626-27" }, { "page": "296-97" }, { "page": "631" }, { "page": "298" }, { "page": "631" }, { "page": "298-99" } ], "opinion_index": 0, "case_paths": [ "/us/332/0625-01" ] }, { "cite": "45 U.S.C. \u00a755", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 4, "opinion_index": 0 }, { "cite": "220 F. 796", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6743625 ], "year": 1915, "pin_cites": [ { "page": "797", "parenthetical": "noting that \"[flor such a carrier to be able *** to exempt itself from liability *** would be in plain contravention of the explicit provision[s]\" of FELA" } ], "opinion_index": 0, "case_paths": [ "/f/220/0796-01" ] }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "pin_cites": [ { "page": "116-17" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] }, { "cite": "227 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705969 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "369" }, { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/227/0364-01" ] }, { "cite": "335 Ill. App. 3d 672", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637117 ], "year": 2003, "pin_cites": [ { "page": "685" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/0672-01" ] }, { "cite": "335 Ill. App. 3d 1171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 637079 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "1174" }, { "page": "1174" }, { "page": "1174" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/335/1171-01" ] }, { "cite": "142 F.3d 690", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 219405 ], "weight": 13, "year": 1998, "pin_cites": [ { "page": "692" }, { "page": "692" }, { "page": "692" }, { "page": "694" }, { "page": "695" }, { "page": "697" }, { "page": "700" }, { "page": "700-01" }, { "page": "701" }, { "page": "701" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/f3d/142/0690-01" ] }, { "cite": "104 F.3d 89", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7629851 ], "weight": 10, "year": 1997, "pin_cites": [ { "page": "91" }, { "page": "90" }, { "page": "91" }, { "page": "93" }, { "page": "92" }, { "page": "92-93" }, { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/f3d/104/0089-01" ] }, { "cite": "96 L. Ed. 398", "category": "reporters:federal", "reporter": "L. Ed.", "weight": 2, "year": 1952, "pin_cites": [ { "page": "403" }, { "page": "403" } ], "opinion_index": 0 }, { "cite": "342 U.S. 359", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 640731 ], "weight": 4, "year": 1952, "pin_cites": [ { "page": "361" }, { "page": "314" }, { "page": "362" }, { "page": "314", "parenthetical": "general policy of FELA is \"to give railroad employees a right to recover just compensation for injuries negligently inflicted by their employers\"" } ], "opinion_index": 0, "case_paths": [ "/us/342/0359-01" ] }, { "cite": "45 U.S.C. \u00a7\u00a751", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 1004, "char_count": 32443, "ocr_confidence": 0.786, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.3082058065933574 }, "sha256": "bb78d84cfd69d91223e711ea94259865c094016c827235265afa612af133a2fc", "simhash": "1:3ebe5e3cd548dd53", "word_count": 5377 }, "last_updated": "2023-07-14T22:04:57.079883+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RODNEY L. DANIELS, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE ROBERT E. GORDON\ndelivered the opinion of the court:\nPlaintiff Rodney L. Daniels, age 57, filed a two-count complaint under the Federal Employers\u2019 Liability Act (FELA) (45 U.S.C. \u00a7\u00a751 through 60 (2000)), against his employer, defendant Union Pacific Railroad Company, seeking damages for permanent injuries to his back. Count I of plaintiffs complaint alleged that he injured his back on October 3, 2007, when \u201cthe high-rail wheels dropped on the work truck he was in and [he] was caused to be severely and permanently injured.\u201d Count II of plaintiffs complaint alleged that his back was permanently \u201cinjured when he was subjected to numerous repetitive traumas while repairing [defendant\u2019s railroad tracks\u201d during his employment with defendant from 1973 through 2007.\nThe trial court granted defendant\u2019s motion to dismiss plaintiffs complaint, with prejudice, pursuant to section 2 \u2014 619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619(a)(9) (West 2000)), based upon a release obtained by defendant as part of a settlement for a back injury plaintiff suffered in 1995. Plaintiff filed a motion for reconsideration, which was denied on June 23, 2008. Plaintiff appeals from that order.\nThe parties agree that because this case arises under FELA, federal law governs any substantive legal issues raised by this appeal. Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359, 361, 96 L. Ed. 398, 403, 72 S. Ct. 312, 314 (1952). The parties also agree that FELA, as interpreted by the United States Supreme Court, prohibits general releases of FELA claims. The question raised by this appeal is whether the specific language of the release signed by plaintiff in settlement of his 1995 injury bars the claims upon which this action is based.\nThe federal courts have diverged on the issue of whether FELA permits a release of only known injuries or conditions that exist at the time of the release, as the Court of Appeals for the Sixth Circuit first held in Babbitt v. Norfolk & Western Ry. Co., 104 F.3d 89 (6th Cir. 1997), or whether FELA also permits the release of known risks of future injuries or conditions, as the Court of Appeals for the Third Circuit first held in Wicker v. Consolidated R. Corp., 142 F.3d 690 (3d Cir. 1998). Under either interpretation, we find that under the circumstances of this appeal the subject release does not bar count I, does not bar plaintiffs claims for postrelease repetitive trauma, but does bar plaintiffs claims for prerelease repetitive trauma. Accordingly, we affirm in part, reverse in part, and remand to the trial court.\nBACKGROUND\nPlaintiff was born on September 16, 1951, and has worked most of his adult life for defendant. He began working for defendant as a laborer in December 1973 at the age of 22. In 1981, at the age of 30, he began working as a gang foreman.\nOn August 4, 1995, plaintiff suffered a back injury while working for defendant in Momence, Illinois. At the time of his injury, plaintiff was driving railroad spikes with a hydraulic \u201cspike driver.\u201d Specifically, plaintiffs injury occurred when he lifted the approximately 70-pound \u201cspike driver\u201d over the track rail and attempted to swing the device over to the opposite side of the rail. On the day of his injury, plaintiff filed an injury report with defendant\u2019s claims department. On August 7, 1995, plaintiff provided a recorded interview with Jim Crawford, a representative of defendant\u2019s claims department. Most of the facts with regard to plaintiffs August 1995 injury are taken from that interview, a transcript of which is contained in the record of this case.\nPlaintiff began experiencing lower-back aches which radiated throughout his left leg as a result of the August 1995 injury. He experienced sharp pains in the early mornings and had trouble getting out of bed. Plaintiff treated with his family physician, Dr. Francis O\u2019Brien, an internist of Rensselaer, Indiana, as a result of his injuries. Dr. O\u2019Brien diagnosed plaintiff with a lower-back sprain.\nPlaintiffs claim against defendant with regard to the August 1995 injury was settled in May 1997. The settlement agreement incorporated a document entitled \u201cRelease of All Claims.\u201d The document is one page in length, initialed by plaintiff four times, written in part in plaintiffs own handwriting, and signed by plaintiff at the bottom. The document states, in relevant part:\n\u201cFor the payment of Forty Seven Thousand Five Hundred Dollars ($47,500.00), received by me, I hereby release [defendant] *** and all other parties, from all claims and liability of every kind or nature, INCLUDING CLAIMS FOR INJURIES WHICH ARE UNKNOWN TO ME AT THE PRESENT TIME, arising out of an accident on or about the 4th day of August, 1995 at or near Mo-mence, Illinois, resulting in personal injury which I claim to be permanent in nature and I understand this release covers all future consequences of my accident and injuries and of all medical treatment I may hereafter receive.\nThe above payment is made and accepted in settlement of my claims, and is not an admission of fault or liability.\nThe payment of the above sum is the only consideration for this release. No promise of future employment, or other promises, have been made to me in connection with this settlement.\nI HAVE READ THE ABOVE, AND UNDERSTAND IT IS A FULL RELEASE OF ALL MY CLAIMS.\u201d\nPlaintiff continued to work as a gang foreman for defendant after his 1995 injury and the 1997 settlement of the claim made for the 1995 injury.\nAs noted, plaintiff filed the instant two-count complaint under FELA against defendant seeking damages for permanent injuries to his back. Count I of plaintiffs complaint alleged that he injured his back on October 3, 2007, when \u201cthe high-rail wheels dropped on the work truck he was in and [he] was caused to be severely and permanently injured.\u201d Count II of plaintiffs complaint alleged that his back was permanently \u201cinjured when he was subjected to numerous repetitive traumas while repairing defendant\u2019s railroad tracks\u201d during his employment with defendant from 1973 through 2007.\nAs noted, defendant filed a motion to dismiss plaintiff\u2019s FELA complaint pursuant to section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 2000)), based upon the above-referenced release obtained by defendant as part of the 1997 settlement. On April 23, 2008, the trial court granted defendant\u2019s motion to dismiss. The trial court\u2019s April 23, 2008, order states:\n\u201cThe [p]laintiff filed a FELA complaint against the defendant seeking damages for repetitive trauma injuries to his back while working as a track laborer for the defendant railroad. Count I seeks recovery for severe and permanent injuries to the [p]laintiff s back arising from an incident on October 3, 2007. Count II seeks recovery for numerous repetitive trauma[s] sustained throughout the [p]laintiff s employment from 1973 to 2007.\nThe defendant contends that the [p]laintiff filed a similar claim for back injuries stemming from an accident in August of 1995. When the matter was settled in May of 1997, the [p]laintiff signed a release. The defendant contends that the release, which states that it covers permanent personal injuries, all future consequences of the August 4, 1995 accident and all future medical treatment, bars the instant claims.\nThe [p]laintiff contends that while a release which addresses a claim for a specific injury is valid under FELA, however, a release which attempts to extinguish potential future claims from unknown injuries are [sic] not valid. The [pjlaintiff points out that the release does not set forth a particular injury and does not specify that it is for a \u2018back\u2019 injury. It was a general release that purported to release all claims and liability of every kind including for injuries unknown to the [pjlaintiff. Thus, this release is unenforceable under FELA. However, the [pjlaintiff argues that even if the release here was enforceable, it does not bar the instant claims. The only disputed claim at the time that the release was executed was a lower back injury and thus, the release only related to that injury and could not exempt the current claims which are different.\nThe [cjourt has read the motion, response and reply, as well as, all of the supporting materials tendered herewith.\n[ORDER:]\nA release signed for consideration in settlement of a controversy for a specific injury is valid under FELA. The subject release, which is clear, unambiguous and not overly broad, arose in the settlement of the [pjlaintiffis 1995 claim for permanent back injuries. The instant claim is also for permanent back injuries. The injuries at issue in both the release and the instant claim are the same and the release contemplated the risks of future back injuries. Accordingly, the instant release is valid under FELA and applicable to bar the instant action.\nBased on the foregoing, [djefendant\u2019s 2 \u2014 619(a)(9) [mjotion to [djismiss the [pjlaintiffis [cjomplaint is granted, with prejudice.\u201d\nPlaintiff filed a motion for reconsideration of the trial court\u2019s order, which was denied on June 23, 2008. The trial court\u2019s June 23, 2008, order states:\n\u201cThe [pjlaintiff filed a FELA complaint against the [djefendant seeking damages for repetitive trauma injuries to his back while working as a track laborer for the [djefendant railroad. Count I sought recovery for severe and permanent injuries to the [pjlain-tiffis back arising from an incident on October 3, 2007. Count II sought recovery for numerous repetitive trauma[s] sustained throughout the [pjlaintiffis employment from 1973 to 2007. The [djefendant filed a [mjotion to [djismiss contending that the [pjlaintiff filed a similar claim for back injuries stemming from an accident in August of 1995, which was settled in May of 1997, and thereafter the [pjlaintiff signed a release. The [djefendant contended that the release, which states that it covers permanent personal injuries, all future consequences of the August 4, 1995 accident and all future medical treatment, bars the instant claims.\nOn April 23, 2008, the [cjourt entered its *** [ojrder granting the [djefendant\u2019s motion, finding that the release barred the instant claim. The [pjlaintiff now seeks reconsideration of that ruling. The [pjlaintiff argues that the release was not valid under FELA. The [pjlaintiff maintains that at least there is a question of fact as to whether there was a new injury in 2007.\nThe [cjourt has read the motion, a response and reply having been deemed unnecessary, as well as, all of the supporting materials tendered therewith.\n[ORDER:]\nThe [p]laintiff merely re-argues the same position he set forth in regard to the underlying motion. As the [c]ourt previously stated, a release signed for consideration in settlement of a controversy for a specific injury is valid under FELA and the subject release, which is clear, unambiguous and not overly broad, arose in the settlement of the [p]laintiff\u2019s 1995 claim for permanent back injuries. The instant claim is also for permanent back injuries, thus, the injuries at issue in both the release and the instant claim are the same and the release contemplated the risks of future back injuries. Accordingly, the instant release is valid under FELA and applicable to bar the instant action and the April 23, 2008 ruling stands.\nBased on the foregoing, [pjlaintiffis [mjotion for [reconsideration is denied.\u201d\nAs noted, this appeal follows the trial court\u2019s denial of plaintiffs motion for reconsideration.\nANALYSIS\nAs noted, the trial court in the case at bar granted defendant\u2019s motion to dismiss plaintiffs complaint pursuant to section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 2000)). Section 2 \u2014 619(a)(9) allows for dismissal where the claim asserted is barred by affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2 \u2014 619(a)(9) (West 2000). \u201cThe phrase \u2018affirmative matter\u2019 encompasses any defense other than a negation of the essential allegations of the plaintiff\u2019s cause of action.\u201d Travis v. American Manufacturers Mutual Insurance Co., 335 Ill. App. 3d 1171, 1174 (2002). \u201cSuch a motion admits the legal sufficiency of the plaintiffs complaint but interposes some affirmative matter that prevents the lawsuit from going forward.\u201d Travis, 335 Ill. App. 3d at 1174. In a section 2 \u2014 619 motion to dismiss, the defendant bears the burden of proving the affirmative defense. Luise, Inc. v. Village of Skokie, 335 Ill. App. 3d 672, 685 (2003). When reviewing a section 2 \u2014 619 motion to dismiss, this court \u201c \u2018must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether the dismissal is proper as a matter of law.\u2019 \u201d Czarobski v. Lata, 227 Ill. 2d 364, 369 (2008), quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17 (1993). \u201cOn appeal from a ruling on a section 2 \u2014 619(a)(9) motion, the standard of review is de novo.\u201d Travis, 335 Ill. App. 3d at 1174.\nOn appeal, plaintiff argues that the trial court erred by granting defendant\u2019s motion to dismiss his complaint pursuant to section 2 \u2014 619(a)(9) of the Code because the 1997 release did not bar the complaint in the instant case. Specifically, plaintiff argues that the release could not be used to immunize defendant from liability for work injuries plaintiff suffered after the signing of the release.\nDefendant counters that the trial court properly granted its motion to dismiss because the 1997 release obtained as part of the settlement for plaintiff\u2019s 1995 back injury contemplated the injuries for which plaintiff now seeks damages.\nAs noted, federal law governs substantive issues in cases brought under FELA. 45 U.S.C. \u00a751 provides that the purpose of the Act is to hold a negligent employer liable for injuries suffered by an employee. Babbitt v. Norfolk & Western Ry. Co., 104 F.3d 89, 91 (6th Cir. 1997). Section 51 states:\n\u201cEvery common carrier by railroad while engaging in [interstate] commerce *** shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce *** due to its negligence.\u201d\nIn addition, section 55 of FELA explicitly states that any contract attempting to exempt a carrier from liability created by FELA is void. Section 55 of FELA provides:\n\u201cAny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.\u201d\nHence, the purpose of FELA, as stated in sections 51 and 55, is to require negligent railroads to assume liability for injuries to employees in the course of their employment. Babbitt, 104 F.3d at 91-92 (citing Dice, 342 U.S. at 362, 96 L. Ed. at 403, 72 S. Ct. at 314 (general policy of FELA is \u201cto give railroad employees a right to recover just compensation for injuries negligently inflicted by their employers\u201d), and Taylor v. Wells Fargo & Co., 220 F. 796, 797 (5th Cir. 1915) (noting that \u201c[flor such a carrier to be able *** to exempt itself from liability *** would be in plain contravention of the explicit provision[s]\u201d of FELA)).\n45 U.S.C. \u00a755 is not limitless, however. The United States Supreme Court has held that a release of FELA claims can have the same effect as any other release, in that it may constitute a settlement or compromise, rather than an attempt to escape liability. Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 631, 92 L. Ed. 242, 246, 68 S. Ct. 296, 298-99 (1948).\nThe question of what constitutes a permissible settlement/ compromise of a FELA claim versus an impermissible exemption has led to a divergence in the federal courts. Specifically, the federal courts have diverged on the issue of whether FELA permits releases for known injuries or conditions that exist at the time of the release, as the Sixth Circuit first held in Babbitt, 104 F.3d 89, or whether FELA also permits the release of known risks of future injuries or conditions, as the Third Circuit first held in Wicker, 142 F.3d 690.\nIn Babbitt, the court determined whether the release language in an early retirement agreement prevented a FELA action based upon the plaintiffs subsequent claim of hearing loss. Babbitt, 104 F.3d at 90. The agreement sought to release the railroad defendant from \u201call claims, known and unknown, for which the company may ever be held liable.\u201d Babbitt, 104 F.3d at 91. The court determined that such a release was contrary to section 55 and reversed the district court\u2019s finding of summary judgment in the defendant\u2019s favor. Babbitt, 104 F.3d at 93. In its analysis, the court considered three United States Supreme Court cases that involved releases and subsequent FELA claims: Callen v. Pennsylvania R.R. Co., 332 U.S. 625, 92 L. Ed. 242, 68 S. Ct. 296 (1948); Philadelphia, Baltimore & Washington R.R. Co. v. Schubert, 224 U.S. 603, 56 L. Ed. 911, 32 S. Ct. 589 (1912); and Duncan v. Thompson, 315 U.S. 1, 86 L. Ed. 575, 62 S. Ct. 422 (1942).\nIn Callen, the plaintiff sued for injuries he sustained in a railroad accident after he signed a general release agreement that waived any claim for injuries he sustained in the accident in exchange for a cash payment. Callen, 332 U.S. at 626-27, 92 L. Ed. at 244, 68 S. Ct. at 296-97. The Court upheld the validity of the release because it was \u201cnot a device to exempt from liability but [was] a means of compromising a claimed liability.\u201d Callen, 332 U.S. at 631, 92 L. Ed. at 246, 68 S. Ct. at 298. The Court recognized that section 55 is not violated by a release that settles a \u201ccontroversy\u201d with regard to the employer\u2019s liability and the extent of that liability for a particular accident or exposure. Callen, 332 U.S. at 631, 92 L. Ed. at 246, 68 S. Ct. at 298-99.\nIn Schubert, the plaintiff contributed a portion of his salary to a \u201crelief fund\u201d until he was injured on the job. Schubert, 224 U.S. at 606, 56 L. Ed. at 914, 32 S. Ct. at 589. He received benefits from the fund, but then filed a FELA claim for damages. Schubert, 224 U.S. at 608, 56 L. Ed. at 914, 32 S. Ct. at 590. The railroad argued that the plaintiffs claims were barred because he agreed, as a member of the relief fund, that if he collected from the fund, he would release all personal injury claims against the railroad. Schubert, 224 U.S. at 606-08, 56 L. Ed. at 914, 32 S. Ct. at 589-90. The Supreme Court ruled that the release did not preclude the plaintiff\u2019s claim for damages because the purpose of the general release was to provide immunity to the railroad for any injury resulting in collection from the relief fund, in direct violation of section 55. Schubert, 224 U.S. at 611-12, 56 L. Ed. at 916, 32 S. Ct. at 591.\nIn Duncan, the plaintiff was injured after he fell from a locomotive. Duncan, 315 U.S. at 2, 86 L. Ed. at 576, 62 S. Ct. at 422. When plaintiff continued to suffer from his injuries, his employer paid $600 toward his living expenses in exchange for his agreement to \u201cendeavor, in good faith, to adjust and settle any claim *** \u2018for injuries\u2019 *** without resorting to litigation.\u201d Duncan, 315 U.S. at 2-3, 86 L. Ed. at 577, 32 S. Ct. at 422. As the Babbitt court summarized, the United States Supreme Court ruled that the release did not bar the plaintiffs later FELA claim because \u201c[t]he money that was exchanged was earmarked for living expenses, not settlement purposes, and the promise that was procured was given in exchange for a promise not to sue.\u201d Babbitt, 104 F.3d at 92, citing Duncan, 315 U.S. at 7-8, 86 L. Ed. at 579, 32 S. Ct. at 424-25. The Babbitt court observed that, unlike Callen, in which the railroad and employee entered into an agreement to settle the railroad\u2019s liability for the plaintiffs specific injuries, Duncan and Schubert involved general releases that \u201cgranted general immunity to the railroad, as opposed to addressing a specific instance of disputed liability.\u201d Babbitt, 104 F.3d at 92-93. The Babbitt court further explained:\n\u201cConsequently, where there exists a dispute between an employer and employee with respect to a FELA claim, the parties may release their specific claims as part of an out-of-court settlement without contravening the Act. However, where the release was not executed as part of a specific settlement of FELA claims, 45 U.S.C. \u00a755 precludes the employer from claiming the release as a bar to liability. Schubert, 224 U.S. at 612[, 56 L. Ed. at 916], 32 S. Ct. at 591-92. To be valid, a release must reflect a bargained-for settlement of a known claim for a specific injury, as contrasted with an attempt to extinguish potential future claims the employee might have arising from injuries known or unknown by him.\u201d Babbitt, 104 F.3d at 93.\nIn Wicker, the court considered the enforceability of a release that had been part of a compromise between the railroad defendant and each of five plaintiffs in subsequent FELA actions brought by the plaintiffs. Wicker, 142 F.3d at 692. Each plaintiff signed a release agreement that purported to \u201csettle all claims for all injuries past and future.\u201d Wicker, 142 F.3d at 692. Subsequent to the signing of the release, the plaintiffs \u201csuffered injuries as a result of exposure to toxic chemicals\u201d at one of the railroad\u2019s plants. Wicker, 142 F.3d at 692. The plaintiffs filed FELA complaints and alleged that the releases were unenforceable because they violated 45 U.S.C. \u00a755. Wicker, 142 F.3d at 694. In response, the railroad argued that the releases clearly settled all past and future claims and that, regardless, each plaintiff suffered symptoms of chemical-related injuries before signing the releases and therefore was \u201con notice of a potential health problem at that time.\u201d Wicker, 142 F.3d at 695.\nAfter reviewing the history of FELA, the Wicker court considered Callen, Duncan, and Schubert and concluded:\n\u201cThe language [of Callen] is clear. Releases are not per se invalid under FELA. Although the Court did not explain what will qualify as a \u2018compromis[e] [of] a claimed liability\u2019 it did say that parties may settle \u2018[w]here controversies exist as to whether there is liability, and if so for how much.\u2019 The explicit requirement is that a controversy must exist.\u201d Wicker, 142 F.3d at 697.\nThe Wicker court then considered the Babbitt case and noted the advantage of predictability that a bright-line test like the Babbitt court established would provide. Wicker, 142 F.3d at 700. The Wicker court rejected Babbitt\u2019s rule, however, noting that the parties to a claim might specifically comprehend future risks and potential liabilities and make them subject to a settlement. Wicker, 142 F.3d at 700-01. Instead, the Wicker court allowed a release that covered a known risk under FELA even if the specific injury were not known at the time of the release. Wicker, 142 F.3d at 701. The court noted that an evaluation of the parties\u2019 intent at the time of the execution of a release is an essential element in the inquiry of the release\u2019s enforceability. Wicker, 142 F.3d at 701.\nPer the foregoing, it is clear that the United States Supreme Court, the Babbitt court, and the Wicker court all require that a release be pursuant to a \u201ccontroversy\u201d with regard to the employer\u2019s liability and the extent of that liability for a particular accident or exposure. Accordingly, releases under FELA must relate to specific claims. Even under the more expansive holding of Wicker, which permits releases of known risks, releases must address a specific instance of disputed liability. In other words, any intention to prevent a claim unrelated to the one compromised would be void under 45 U.S.C. \u00a755.\nWe now apply the foregoing to the case at bar. In arriving at our determination of whether the specific language of the release signed by plaintiff in settlement of his 1995 injury covers the claims upon which this action is based, we will consider each of the two counts contained in plaintiffs instant complaint separately.\nAs noted, plaintiff suffered a back injury while working for defendant on August 4, 1995. Plaintiff settled his claim against defendant with regard to the August 1995 injury in May 1997. The settlement agreement incorporated a document entitled a \u201cRelease of All Claims,\u201d which was initialed by plaintiff four times, written in part in plaintiffs own handwriting, and signed by plaintiff. The 1997 release states, in relevant part:\n\u201cI hereby release [defendant] *** from all claims and liability of every kind or nature, INCLUDING CLAIMS FOR INJURIES WHICH ARE UNKNOWN TO ME AT THE PRESENT TIME, arising out of an accident on or about the 4th day of August, 1995 at or near Momence, Illinois, *** and I understand this release covers all future consequences of my accident and injuries and of all medical treatment I may hereafter receive.\u201d\nAs noted, count I of plaintiffs complaint in the case at bar sought damages for permanent injuries plaintiff suffered to his back on October 3, 2007, when \u201cthe high-rail wheels dropped on the work truck he was in and [he] was caused to be severely and permanently injured.\u201d Count II of plaintiffs complaint sought damages for permanent injuries to his back because \u201che was subjected to numerous repetitive traumas while repairing [defendant's railroad tracks\u201d during his employment with defendant from 1973 through 2007.\nWe find that the trial court erred by granting defendant\u2019s motion to dismiss with regard to count I of plaintiffs complaint on the basis that the 1997 release barred plaintiffs claim for injuries allegedly suffered on October 3, 2007. As noted above, a release, to bar a subsequent FELA claim, must relate to a specific instance of disputed liability. As the alleged October 3, 2007, work-related accident occurred approximately 10 years after the 1997 release, the release could not have addressed plaintiffs alleged 2007 work injury.\nFurthermore, the 1997 release could not bar count I of plaintiffs complaint even under Wicker\u2019s more expansive rule, permitting releases of known risks. As the Wicker court noted, an evaluation of the parties\u2019 intent at the time of the execution of a release is as essential element in the inquiry of a release\u2019s enforceability. Wicker, 142 F.3d at 701. The parties to this appeal could not have intended that the 1997 release bar an action for injuries plaintiff suffered in 2007, as a contemplation of the 2007 injury was an impossibility at the time of the signing of the 1997 release.\nThe trial court placed great emphasis on the fact that the release pertained to back injuries the plaintiff claimed to be permanent in nature, and the fact that plaintiffs FELA complaint also sought damages for permanent back injuries. However, the alleged 2007 injury and the 1995 injury are separate and distinct events, and the release obtained pursuant to settlement of the 1995 injury could not properly bar an action for the 2007 injury, which was unknown at the time of the signing of the release.\nFurthermore, the trial court erred by dismissing count I of plaintiff\u2019s complaint because it had insufficient factual information before it to make the determination that plaintiffs injuries due to the 1995 work-related accident and plaintiffs alleged injuries due to the 2007 accident were identical; therefore, the trial court erred by finding that the 1997 release could be interposed to preclude count I of plaintiff\u2019s FELA complaint based upon that finding. As noted, defendant moved to dismiss plaintiffs complaint pursuant to section 2 \u2014 619(a)(9) of the Code (735 ILCS 5/2 \u2014 619(a)(9) (West 2000)). The procedural posture of this case prior to the trial court\u2019s dismissal rendered it impossible for the trial court to determine that the 1995 and 2007 injuries were identical. No evidentiary hearing had been had and no evidence introduced, by way of medical testimony or otherwise, from which the trial court could have made the finding that the injuries were identical. Therefore, the trial court\u2019s finding that the 1997 release barred plaintiff\u2019s FELA claim for injuries suffered in 2007 must be reversed.\nThe trial court also erred by finding that plaintiffs claim for injuries due to repetitive trauma after the signing of the 1997 release was precluded; however, the trial court correctly found that the repetitive trauma suffered prior to the release was precluded. As noted, the 1997 release states, in relevant part:\n\u201cI hereby release [defendant] *** from all claims and liability of every kind or nature, INCLUDING CLAIMS FOR INJURIES WHICH ARE UNKNOWN TO ME AT THE PRESENT TIME, arising out of an accident on or about the 4th day of August, 1995 at or near Momence, Illinois, *** and I understand this release covers all future consequences of my accident and injuries and of all medical treatment I may hereafter receive.\u201d\nAs noted, count II of plaintiff\u2019s FELA complaint alleged that plaintiffs back was permanently \u201cinjured when he was subjected to *** repetitive trauma[ ] while repairing [defendant's railroad tracks\u201d during his employment with defendant from 1973 through 2007. Accordingly, count II of plaintiffs complaint admits that plaintiff suffered the alleged repetitive trauma prior to the signing of the 1997 release. As such, the injuries caused by repetitive trauma prior to the signing of the release were known injuries at the time of the signing. Under either Babbitt or Wicker, a release of known injuries is permissible under FELA. However, as noted, the record in this case is devoid of any facts to indicate what job task plaintiff performed in a repetitive manner to cause plaintiffs alleged injuries as a result of repetitive trauma over the course of his employment with defendant. Further, nothing in the record before us establishes that the postrelease repetitive trauma caused the same injuries for which plaintiff released defendant in 1997. The question of whether the postrelease repetitive trauma caused the same injuries for which plaintiff released defendant in 1997 is a factual issue, which could not be determined upon defendant\u2019s section 2 \u2014 619(a)(9) motion to dismiss. Czarobski, 227 Ill. 2d at 369. Due to the insufficiency of the record before us and the procedural posture of this case prior to the trial court\u2019s granting of defendant\u2019s motion to dismiss, we, unlike the trial court, are unable to reach the conclusion that the injuries plaintiff suffered due to postrelease repetitive trauma are the same for which plaintiff released defendant in 1997. Accordingly, we affirm the trial court\u2019s finding with regard to plaintiff\u2019s claims for prerelease repetitive trauma injuries, but reverse with regard to the trial court\u2019s finding that plaintiffs postrelease repetitive trauma injuries are precluded by the 1997 release.\nCONCLUSION\nFor the foregoing reasons, the trial court\u2019s order finding that count I of plaintiff\u2019s FELA complaint is precluded by the 1997 release is reversed. We also reverse the trial court\u2019s finding with regard to plaintiff\u2019s postrelease repetitive trauma injuries, but affirm with regard to the trial court\u2019s finding that plaintiffs prerelease repetitive trauma injuries are precluded by the 1997 release.\nAffirmed in part and reversed in part; cause remanded.\nWOLFSON and GARCIA, JJ., concur.\nAt the outset, we note that the record in this case is devoid of any facts indicating what job task plaintiff performed in a repetitive nature which caused plaintiffs alleged injuries as a result of repetitive trjauma over the span of his employment with defendant railroad.", "type": "majority", "author": "PRESIDING JUSTICE ROBERT E. GORDON" } ], "attorneys": [ "Law Offices of William B. Kohn, of Chicago (William B. Kohn, of counsel), and Pratt & Tobin, P.C. (Gregory M. Tobin, of counsel), and Schmieder Law Firm, LLC (Christie R. Schmieder, of counsel), both of East Alton, for appellant.", "Union Pacific Railroad Company, of Chicago (Connie S. Roseberry, of counsel), for appellee." ], "corrections": "", "head_matter": "RODNEY L. DANIELS, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, Defendant-Appellee.\nFirst District (1st Division)\nNo. 1 \u2014 08\u20142010\nOpinion filed March 9, 2009.\nLaw Offices of William B. Kohn, of Chicago (William B. Kohn, of counsel), and Pratt & Tobin, P.C. (Gregory M. Tobin, of counsel), and Schmieder Law Firm, LLC (Christie R. Schmieder, of counsel), both of East Alton, for appellant.\nUnion Pacific Railroad Company, of Chicago (Connie S. Roseberry, of counsel), for appellee." }, "file_name": "0850-01", "first_page_order": 866, "last_page_order": 878 }