Find Legal Information

FIFTH DIVISION

AUGUST 9, 2002

No. 1-00-3857

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff Malcolm Schusse appeals an order of the circuit court of Cook Countydismissing his claim against defendant Pace Suburban Bus Division of the RegionalTransportation Authority (Pace, RTA) for spoilation of evidence.

The record on appeal discloses the following facts. On December 30, 1989, plaintiff, anemployee of defendant, was driving a Pace bus when the driver's seat collapsed, allegedlycausing a spinal cord injury to plaintiff. That same day, plaintiff made a statement regarding hisinjury in a worker's 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.

Defendant replaced the suspension system for the driver's seat in the bus at issue inOctober 1990.

On October 23, 1991, plaintiff filed suit against the manufacturers of the bus and thedriver's seat, alleging negligence, strict products liability and breach of warranty. Pace was notnamed as a defendant in the initial complaint. In August and October 1992, the initial defendantsfiled third-party complaints against Pace alleging negligence. In April 1995, one of the third-party complaints was amended to add a count alleging negligent spoilation of evidence.

On October 25, 1995, plaintiff amended his complaint to add Pace as a defendant,alleging negligent spoilation of evidence. Plaintiff voluntarily dismissed his complaint onFebruary 21, 1997, and refiled the matter on November 26, 1997.

Pace moved to dismiss on the ground that the original and refiled actions against Pacewere untimely under the applicable statute of limitations. Pace acknowledges that the recorddoes not show whether this motion was denied or simply not ruled upon by the trial court.

On August 26, 2000, defendant filed a motion to dismiss pursuant to section 2-619 of theIllinois Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 2000)), alleging that the suitwas barred by exclusivity provisions found in section 5 of the Workers' Compensation Act (820ILCS 305/5(a) (West 2000)). On October 13, 2000, following a hearing on the matter, the trialcourt granted the motion to dismiss. On October 26, 2000, the trial court entered an orderfinding 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.

The issue on review is whether the trial court erred in dismissing plaintiff's claim againstdefendant Pace. A motion to dismiss based on section 2-619 motion admits the legal sufficiencyof the complaint and raises defects, defenses or other affirmative matter which appear on the faceof the complaint or are established by external submissions which act to defeat the plaintiff'sclaim. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733, 736(1999). Section 2-619 enables the court to dismiss a complaint after considering issues of law oreasily proved issues of fact. Yu v. Kobayashi, 281 Ill. App. 3d 489, 492, 667 N.E.2d 106, 108(1996). For example, section 2-619(a)(5) permits dismissal where "the action was notcommenced within the time limited by law." (735 ILCS 5/2-619(a)(5) (West 2000)) Section2-619(a)(9) provides for dismissal where "the claim asserted against [a] defendant is barred byother affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS5/2-619(a)(9) (West 2000). The exclusivity provisions of section 5 of the Workers'Compensation Act (Act) have been considered as a basis for dismissal under section 2-619(a)(9). See, e.g., Senesac v. Employer's Vocational Resources, Inc., 324 Ill. App. 3d 380, 385, 754N.E.2d 363, 368 (2001).

The standard of review of a dismissal pursuant to section 2-619 is de novo. Kedzie &103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116, 619 N.E.2d 732, 735 (1993). Thiscourt can affirm a section 2-619 dismissal on any grounds supported by the record, regardless ofthe trial court's reasons. Ko v. Eljer Industries, Inc., 287 Ill. App. 3d 35, 39, 678 N.E.2d 641, 644(1997).

Plaintiff argues that his negligent spoilation of evidence claim is not barred by section 5of the Workers' Compensation Act, which provides in part as follows:

"(a) No common law or statutory right to recover damagesfrom the employer, his insurer, his broker, any service organizationretained by the employer, his insurer or his broker to provide safetyservice, advice or recommendations for the employer or the agentsor employees of any of them for injury or death sustained by anyemployee while engaged in the line of his duty as such employee,other than the compensation herein provided, is available to anyemployee who is covered by the provisions of this Act, to any onewholly or partially dependent upon him, the legal representatives ofhis estate, or any one otherwise entitled to recover damages forsuch injury." 820 ILCS 305/5(a) (West 2000).

Section 11 of the Act also states:

"The compensation herein provided, together with the provisions of this Act, shall be the measure of the responsibility of anyemployer * * * for accidental injuries sustained by any employeearising out of and in the course of the employment according to theprovisions of this Act ***." 820 ILCS 305/11 (West 2000).

The exclusive remedy provision of the Act "'is part of the quid pro quo in which the sacrificesand gains of employees and employers are to some extent put in balance, for, while the employerassumes a new liability without fault, he is relieved of the prospect of large damage verdicts.'" Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 462, 564 N.E.2d 1222, 1225 (1990), quoting2A A. Larson, Workmen's Compensation