WCLA MCLE Circuit City Stores: The Great Vending Machine Rescue; Personal Comfort or Good Samaritan Richard D. Hannigan for Petitioner Thursday September 10, :00 noon to 1:00 pm James R. Thompson Center Auditorium, Chicago, IL 1 hour general MCLE credit

Issue Petitioner was injured when he tried to help a co-worker dislodge a product from a vending machine. Is that an accidental injury “arising out of and in the course of the employment”?

Workers’ Compensation Act Section 2 of the WCA (820 ILCS 305/2): “accidental injuries sustained by himself or any employee, arising out of and in the course of the employment according to the provisions of this Act…” Arising out of: “origin or cause of the accident;” “causal connection;” “risk connected with or incidental to the employment” In the course of: “time, place and circumstances;” “period of employment ;” “place where the worker may reasonably be;” “in performance of duties or something incidental thereto”

Personal Comfort Larson: “Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment, unless the extent of the departure is so great that an intent to abandon the job temporarily may be inferred…”; “unusual and unreasonable” “Eating, drinking, sleeping, resting, washing, smoking, seeking fresh air,” & restroom usage

Personal Comfort Illinois Cases Union Starch, 56 Ill2d 272 (1974): Compensable; Petitioner falls off roof while getting fresh air and relief from heat Chicago Extruded Metals, 77 Ill2d 81 (1979): Compensable; Petitioner injured swatting roach while showering after work Segler, 81 Ill2d 125 (1980): Not compensable; Petitioner using mold oven to heat his lunch Eagle Discount, 82 Ill2d 331 (1980): Compensable; Petitioner injured playing frisbee in parking lot on lunch break Ill. Consol. Tel., 314 Ill.App.3d 347 (2000): Compensable; Petitioner falls down stairs using restroom Saunders, 189 Ill2d 623 (2000): Not compensable; personal comfort meets violation of safety rule; prohibited riding on forklift to get lunch

Personal Comfort Commission Cases Landendorf v. Superior Ambulance, 07IWCC0425: Not compensable; Petitioner returning his motorcycle to home garage Ranson v. WalMart, 07IWCC0705: Not compensable; Petitioner struck her head on dispenser in bathroom Hagerud v. North American Lighting, 08IWCC1272: Compensable; Petitioner falls in parking lot after re- entering workplace to use bathroom and get candy bar Heaton v. Burton Placement, 09IWCC0003: Not compensable; Crossing legs and swiveling in chair is not covered by personal comfort doctrine Tobolski v. Metal-Matic, 09IWCC0012: Compensable; Petitioner injured when glass on vending machine breaks

Good Samaritan Larson: “Any emergency or rescue activity is within the course of the employment if the employer has an interest in the rescue…,” including property and aid to co-employee even if matter is personal as long as deviation from employment is “insubstantial”

Good Samaritan Illinois Cases Ace Pest Control, 32 Ill2d 386 (1965): Compensable; Truck driver killed by car while at side of road helping unrelated driver in distress Metropolitan Water Reclamation District, 272 Ill.App.3d (1995): Compensable; Petitioner lock master saves drowning victim Johnson, 278 Ill.App.3d 59 (1996): Compensable; Petitioner secretary rescues child on pleasure yacht

Good Samaritan Commission Cases Morrison v. BBK, 04IWCC0759: Not compensable; off-work cook participates in rescue of hysterical minor patron Marti v. Bond County, 06IWCC0304: Compensable; off-work bus driver injured while running to report diesel spill Dempsey v. Sheriff of Cook County, 08IWCC1324: Compensable; On-duty cashier going to restroom helps unrelated person lying on the floor

Clinton Dwyer v. Circuit City Stores 05WC DA 3/6/2005 Petitioner 21 yo installation worker Co-worker asks for help to get stuck item from vending machine next to break room Petitioner “body checked” machine and fractured right hip requiring surgery Store director testified that she knew of problems with the machine, knew that employees used it and that Petitioner did not receive reprimand for violation of rule by shaking machine

Arbitration Decision 05WC Arbitrator Andros in Woodstock Tried 6/8/06 and decision entered 9/22/06 Medical $60K; TTD 12 3/7 weeks (as stipulated); 35% loss right leg “The true issue is whether the personal comfort doctrine applies…” Cites Eagle Discount and Ill. Cons. Tel. “It is the finding of the Arbitrator that the action of the Petitioner was not so outrageous or unusual in that people, who encounter vending machines that hang up the desired product, jostle the machine to get the product.”

Commission Decision 07IWCC1483 November 14, 2007 Commissioners DeMunno & Gore affirm and adopt Commissioner Basurto dissents: “The personal comfort doctrine is intended for the petitioner's personal comfort. In this instance, the petitioner was not on break, nor was he purchasing an item from the vending machine. He was helping a coworker retrieve chips from the machine. It was not his personal comfort. Therefore, in order to find this compensable, the personal comfort doctrine must be extended to encompass the personal comfort of third parties. Assuming, that one makes that leap, his actions were unreasonable and unforeseeable.”

Circuit Court Decision 07 MR 360 July 10, 2008 Circuit Court of McHenry County, Honorable Maureen P. McIntyre, presiding Commission decision “set aside, reversed and dismissed” “In the course of” contrary to the manifest weight: “personal comfort” does not apply to co- workers “Arising out of” contrary to manifest weight(?): no increased risk; chose to hit/check the machine

Appellate Court Decision Circuit City Stores v. IWCC 391 Ill.App.3d 913, 909 N.E.2d 983, 330 Ill.Dec. 961 July 14, 2009 (modified and rehearing denied) Justices Holdridge, McCullough, Hoffman, Hudson and Donovan Circuit Court reversed and Commission decision reinstated Personal comfort addresses only the “in the course of” element “The Commission's finding that Dwyer's injury arose out of his employment is not contrary to law. Regarding the manifest weight of the evidence, there is no question that Circuit City provided the vending machine for use by its employees. …Under these circumstances, a rational trier of fact could have found that the injury originated in a risk incidental to his employment—thus creating the requisite causal connection. Accordingly, the Commission's finding on this matter is not against the manifest weight of the evidence.”

Appellate Court Decision “As for the ‘in the course of’ requirement, the Commission found that Dwyer's injury qualified under the personal comfort doctrine. That finding is contrary to law. By its own terms, the personal comfort doctrine applies to employees who sustain injuries while seeking their own personal comfort (Jessica Hubner in the instant case, not Dwyer). The doctrine has never been applied, and does not apply, to injuries sustained by an employee while assisting a coworker who is seeking personal comfort. We need not belabor this point because a separate doctrine, the so-called ‘good Samaritan doctrine,’ is applicable instead.” “In light of this evidence, it was reasonably foreseeable that an employee might ask a coworker for assistance to dislodge a product from the machine. It was also reasonably foreseeable that the coworker would come to the aid of a fellow employee. The remaining question, then, is whether Dwyer's manner of rendering aid crossed the line of foreseeability and thus took him outside the scope of his employment.”