{
  "id": 3345380,
  "name": "JOHN W. SMITH, Plaintiff-Appellant, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Defendants-Appellees",
  "name_abbreviation": "Smith v. Metropolitan Sanitary District of Greater Chicago",
  "decision_date": "1978-06-01",
  "docket_number": "No. 76-170",
  "first_page": "103",
  "last_page": "108",
  "citations": [
    {
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      "cite": "61 Ill. App. 3d 103"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "reporter": "N.E.",
      "opinion_index": 0
    },
    {
      "cite": "360 Ill. 328",
      "category": "reporters:state",
      "reporter": "Ill.",
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      "case_paths": [
        "/ill/360/0328-01"
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    {
      "cite": "71 N.E.2d 643",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1935,
      "opinion_index": 0
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    {
      "cite": "396 Ill. 371",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2466172
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      "year": 1935,
      "opinion_index": 0,
      "case_paths": [
        "/ill/396/0371-01"
      ]
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  "last_updated": "2023-07-14T16:49:01.727672+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JOHN W. SMITH, Plaintiff-Appellant, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Defendants-Appellees."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE DIERINGER\ndelivered the opinion of the court:\nThis is an appeal from an order of the circuit court of Cook County granting a motion for summary judgment against the plaintiff, John Smith. The action was originally brought in the circuit court by John Smith as an employee of W.E. O\u2019Neil and S.J. Groves, a joint venture, for damages due to injuries suffered on the joint venture job site. The original complaint, which was later amended, named the Metropolitan Sanitary District of Greater Chicago, a corporation; Kamp, Dresser & McKee, a partnership, Boynton Engineering, Inc., a corporation; W.E. O\u2019Neil Construction Company, S.J. Groves & Sons Company, a corporation, and W.E. O\u2019Neil and S.J. Groves, a joint. venture, as defendants and proceeded on theories of negligence, products liability and violation of the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, pars. 60 through 69).\nThe joint venture, W.E. O\u2019Neil Construction Company and S.J. Groves & Sons Company, brought a motion for summary judgment on the basis the plaintiff was its employee at the time of the injuries and his exclusive remedy therefore was under the Illinois Workmen\u2019s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.5). The motion was granted.\nSubsequently, the defendant, W.E. O\u2019Neil Construction Company, brought a motion for summary judgment on the ground the common law and statutory cause of action was barred because the plaintiff was, at the time of the injuries, an employee of W.E. O\u2019Neil Construction Company within the meaning of the Illinois Workmen\u2019s Compensation Act, wherein his exclusive remedy for such injuries should lie. After being contested by the plaintiff the motion was granted. The plaintiff has taken this appeal from the summary judgment entered in favor of W.E. O\u2019Neil Construction Company.\nThe issue presented for review is whether John Smith was an employee of W.E. O\u2019Neil Construction Company at the time he suffered his injuries.\nOn October 19, 1971, W.E. O\u2019Neil Construction Company (hereinafter called \u201cO\u2019Neil\u201d) and S.J. Groves & Sons Company (hereinafter called \u201cGroves\u201d) entered into an \u201cAgreement for Joint Venture\u201d for the purpose of bidding on the Salt Creek Water Reclamation Plant Construction Project. The agreement specified if the parties were \u201cawarded said contract\u201d:\n\u201c[The] parties * * \u201c constitute themselves as Joint Venturers for the purpose of performing and completing the Construction Contract * \u201d * it being expressly understood \u201d \u201d \u201d that the parties are not making any permanent partnership agreement or permanent joint venture agreement \u201d \u201d * and nothing in this agreement shall be construed as a limitation of the powers or rights of any party hereto to carry on its separate business for its sole benefits\u201d \u201d \u201d.\u201d\nThe \u201cAgreement for Joint Venture\u201d also provided, inter alia, (1) each company would appoint certain representatives to act for it with regard to the joint venture, (2) separate books would be kept with respect to the joint venture, (3) separate bank accounts would be kept for \u201call joint venture funds,\u201d (4) each company would have a 50% interest with respect to \u201call moneys\u201d and \u201cany and all liabilities\u201d derived from the performance of the contract, and (5) the \u201cgeneral supervision and management\u201d of the Salt Creek Construction Project would be under the \u201ccharge and control of a Project Manager who shall be subject only to the control of O\u2019Neil and Groves and given such powers as they shall delegate to him.\u201d\nThe joint venture was awarded the Salt Creek Construction Project on November 4,1971. The joint venture thereafter obtained the approval of the Industrial Commission of Illinois to act as a self-insurer with regard to the Workmen\u2019s Compensation Act (Ill. Rev. Stat. 1973, ch. 48, par. 138.4).\nIn order to fulfill its obligations with regard to the Salt Creek Construction Project the joint venture proceeded to hire employees. The plaintiff, John Smith, was one of those hired. Smith\u2019s employment with the joint venture was not tied to or connected with any equipment leased to it by O\u2019Neil. It was the intention of the joint venture in engaging in this hiring process to fully staff itself with the requisite personnel on a permanent basis.\nAll persons hired by the joint venture were required to complete a hire slip form along with W-2 and W-4 forms.\nAfter being hired, John Smith was carried on the joint venture payroll and was not on any other payroll. The payroll checks he received clearly stated they were paid not by either company on its own behalf but by the joint venture. The joint venture had its own Federal income tax identification number for John Smith and all social security and withholding taxes were deducted on the joint venture payroll.\nSubsequent to the execution of the \u201cAgreement for Joint Venture,\u201d O\u2019Neil leased to the joint venture a Ford flatbed tractor and trailer. The truck was used to haul just about anything and was only one of six vehicles leased to the joint venture by O\u2019Neil.\nOn August 31,1973, John Smith had been working for the joint venture for approximately one year and four months, having been hired in April of 1972. On this day, at about 12 or 1 p.m., John Smith was washing out a concrete bucket used to pour either walls or columns for buildings. In order to accomplish this task John Smith had to stand on the side of the bucket, lean over the top and place the nozzle of a hose he was holding into the bucket.\nWhile John Smith was working on the bucket the head labor foreman, John Lukanich, ordered Clint Thurmond to drive the aforementioned truck down to the Thickener Building and give it to a Mr. Bill Verley to load the forms. The flatbed, at this time, was hooked up to the truck. As he parked the truck on a slight incline, Thurmond saw John Smith about 50 to 60 feet down the incline. Thurmond later stated to the county sheriff\u2019s police that in parking the truck he left the vehicle in gear with the emergency brake on.\nAfter parking, Thurmond went to tell Bill Verley the truck was in place, with regard to the forms which were to be loaded. Thurmond walked approximately two to three hundred feet south of the truck to where Bill Verley was standing. After informing Verley he had brought the truck, Thurmond turned around and noticed the truck was not where he had parked it. He thought of John Smith, ran in his direction and found the truck had rolled into and pinned Smith\u2019s legs against the concrete bucket. At the time the truck rolled into him Smith was looking into the bucket. He did not see the truck nor did he have any warning with regard to it. There was an earlier incident in which the same truck had begun to roll with its \u201cemergency brake pulled back as far as it would go\u201d but its driver had alertly jumped in and stopped it. It is undisputed at the time John Smith incurred his injuries the emergency brake was in need of adjustment. The plaintiff himself had made numerous complaints about the truck\u2019s defective nature including its emergency brake.\nAs a result of the truck smashing and pinning his legs, John Smith had to have both legs amputated and numerous skin graft operations. Smith filed an application for adjustment of his claim with the Industrial Commission of Illinois against the joint venture. He also filed suit against O\u2019Neil for leasing the defective truck to the joint venture. O\u2019Neil seeks to absolve itself from any and all liability by contending while Smith was an employee of the joint venture he was also its employee at the time he incurred his injuries, thereby concluding the present action against it is barred by means of the exclusive remedy provision of the Workmen\u2019s Compensation Act, section 5(a).\nThe exclusive remedy provision of the Workmen\u2019s Compensation Act provides, in pertinent part, as follows:\n\u201cNo common law or statutory right to recover damages from the employer * * * 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* * Ill. Rev. Stat. 1973, ch. 48, par. 138.5(a).\nA reading of the pleadings in the case at bar shows John Smith alleged in count II of his complaint, paragraph 5, he was not employed (at the time of the injury) by W.E. O\u2019Neil. The defendant O\u2019Neil\u2019s answer to this complaint stated, at page 5, \u201cDefendants admit the allegations of paragraph 5.\u201d\nThis admission indicates O\u2019Neil did not consider John Smith its employee and did not treat him as an employee. As far as O\u2019Neil was concerned the plaintiff was an employee of the joint venture.\nO\u2019Neil\u2019s admission, as well as the fact the O\u2019Neil-Groves joint venture was the independent and sole employer of John Smith, clearly establishes the joint venture was the employer of John Smith and O\u2019Neil was not. For these reasons the exclusive remedy provision of the Workmen\u2019s Compensation Act is not a bar to the plaintiff\u2019s complaint and O\u2019Neil\u2019s motion for summary judgment was erroneously granted.\nThe plaintiff has raised a separate issue for review asking, even if O\u2019Neil is found to be the plaintiff\u2019s employer, whether O\u2019Neil could be subject to suit in a dual capacity as lessor of the truck. We need not, however, decide this issue.\nWhere a judgment is reversed on one ground, other grounds of reversal assigned will not ordinarily be passed on, when the same questions, in all probability, will not arise on a retrial and subsequent appeal (see City of Chicago o. Callender (1947), 396 Ill. 371, 71 N.E.2d 643; Minnis v. Friend (1935), 360 Ill. 328, 196 N.E. 191).\nSince the plaintiff is unimpeded by the bar imposed by the exclusive remedy provision of the Workmen\u2019s Compensation Act the questions further concerning said Act need not be considered.\nFor the foregoing reasons the judgment of the circuit court of Cook County is hereby reversed and this cause is remanded to that court for further proceedings not inconsistent with the views expressed herein.\nReversed and remanded.\nJOHNSON, P. J., and ROMITI, J, concur.",
        "type": "majority",
        "author": "Mr. JUSTICE DIERINGER"
      }
    ],
    "attorneys": [
      "Cooney & Stenn, of Chicago (William J. Harte, of counsel), for appellant.",
      "Schaffenegger, Watson & Peterson, Ltd., of Chicago, for appellee W. E. O\u2019Neil Construction Company."
    ],
    "corrections": "",
    "head_matter": "JOHN W. SMITH, Plaintiff-Appellant, v. THE METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO et al., Defendants-Appellees.\nFirst District (4th Division)\nNo. 76-170\nOpinion filed June 1, 1978.\nCooney & Stenn, of Chicago (William J. Harte, of counsel), for appellant.\nSchaffenegger, Watson & Peterson, Ltd., of Chicago, for appellee W. E. O\u2019Neil Construction Company."
  },
  "file_name": "0103-01",
  "first_page_order": 125,
  "last_page_order": 130
}