Springfield School District No. 186 v. Industrial Comm'n
Annotate this Case
NO. 4-96-0823WC
IN THE APPELLATE COURT OF ILLINOIS
FOURTH DISTRICT
Industrial Commission Division
THE SPRINGFIELD SCHOOL DISTRICT NO. 186 ) Appeal from
Appellant, ) Circuit Court of
v. ) Sangamon County
THE INDUSTRIAL COMMISSION et al. ) No. 96MR008
(John M. DeAngelo, Appellee). )
) Honorable
) Donald M. Cadagin,
) Judge Presiding.
_________________________________________________________________
JUSTICE RARICK delivered the opinion of the court:
Claimant, John DeAngelo, sought benefits pursuant to
the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West
1994)) for injuries he allegedly sustained on April 8, 1994,
while in the employ of Springfield School District, employer.
The arbitrator found that claimant suffered a work-related
accident and awarded temporary total disability and medical
benefits. On review, the Industrial Commission (Commission)
affirmed the decision of the arbitrator and the circuit court of
Sangamon County confirmed the decision of the Commission.
Employer appeals, contending the finding of causal connection
between claimant's employment and his injury is against the
manifest weight of the evidence. Employer also questions whether
an employee who suffers an injury as a result of an unexplained
assault by a stray dog in a residential area presents a compensa-
ble claim as a matter of law.
Claimant began working for employer in 1981 as a
custodian. As a result of a back injury, claimant transferred to
the position of security guard for employer in 1985 and continued
in that capacity until the incident on April 8, 1994. As a
security guard, claimant was responsible for maintaining security
at an elementary school, three mobile classrooms and a service
center all sitting on the same property located in a predominant-
ly single-family residential area. His duties included checking
doors and windows and looking for unsafe conditions. On April 8
at approximately 4:40 a.m., claimant was in the process of making
his rounds when he encountered a dog near one of the mobile
classrooms. The dog growled, sniffed claimant and walked away.
Claimant continued walking around the classroom when the dog came
back, ran up to him and grabbed him by the pant cuff. The dog
then backed off and repeated his attack. Claimant kicked the dog
as hard as he could with his left foot and immediately felt pain
shooting up his left leg into his spine, neck and head and down
his right arm. Claimant noticed no bruising or swelling to his
other leg as a result of the dog attack but did experience some
redness around the ankle, which later disappeared. Claimant
testified the dog seized him but did not break the skin. Claim-
ant completed his rounds, left a note for his supervisor and went
home. Although claimant returned to work the following Monday,
he stated the pain never abated, forcing him to stop working
altogether on April 15. Claimant initially sought medical care
on April 12 from Dr. F. William Schroeder. Dr. Schroeder took
X rays and sent claimant to The Spine Center for evaluation. His
diagnosis was chronic low back pain without evidence of nerve
root compression. The doctor's records for the April 12 visit
contain no reference to any incident involving a dog; later
records, however, indicate claimant's injury was sustained on
April 8. Claimant was enrolled in a pain management program and
participated in physical and occupational therapy.
On June 7, 1994, claimant returned to his family physic-
ian, Dr. Bussing, for a physical examination. Dr. Bussing's report
indicated claimant's neurological examination was normal for both
arms and both legs. He also found no structural impairment to the
neck. He then referred claimant to a neurosurgeon, Dr. McIlhany.
Claimant saw Dr. McIlhany on June 21, 1994. Dr. McIlhany diagnosed
claimant's condition as neck pain of myofascial origin and
recommended continued therapy and exercise. At the time of the
arbitration hearing, claimant had not yet returned to work and was
still undergoing therapy.
Claimant's supervisor testified he met with claimant in
late March 1994 to explain to him his position as security guard
would be ending soon. He further advised him a custodian position
was available to which he could transfer. Claimant told the
supervisor he would have to check with his doctor to determine
whether or not he could perform custodial work. The supervisor
also testified he had never encountered any instances of security
guards having problems with dogs at the location claimant watched,
although there had been reports of such incidents at other
locations. A fellow security guard confirmed the fact he never had
encountered any dogs or wild animals while patrolling the same
grounds to which claimant had been assigned.
In a workers' compensation proceeding, it is the function
of the Commission to determine the credibility of witnesses, to
weigh testimony and to decide the weight to be accorded the
evidence. Parro v. Industrial Comm'n, 167 Ill. 2d 385, 396, 657 N.E.2d 882, 887 (1995); Rambert v. Industrial Comm'n, 133 Ill. App.
3d 895, 902, 477 N.E.2d 1364, 1369 (1985). Only the Commission has
the responsibility to resolve conflicts in the testimony and to
draw reasonable inferences from the evidence. Rambert, 133 Ill.
App. 3d at 902, 477 N.E.2d at 1369. A court of review is not to
disregard permissible inferences merely because other inferences
might also be drawn from the same evidence. Holthaus v. Industrial
Comm'n, 127 Ill. App. 3d 732, 736, 469 N.E.2d 237, 239 (1984).
Given such principles, we must affirm the decision of the Commis-
sion as confirmed by the circuit court in this instance.
An injury may be said to arise out of one's employment
when, upon consideration of all of the circumstances, there is
apparent to the rational mind a causal connection between the
condition under which the work is performed and the resulting
injury. Holthaus, 127 Ill. App. 3d at 736, 469 N.E.2d at 239. See
also Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 548, 578 N.E.2d 921, 923 (1991); Math Igler's Casino, Inc. v.
Industrial Comm'n, 394 Ill. 330, 334, 68 N.E.2d 773, 775 (1946).
In addition, an injury may be said to arise out of the employment
if the conditions or nature of the employment increase employee's
risk of harm beyond that to which the general public is exposed.
Brady, 143 Ill. 2d at 548, 578 N.E.2d at 923; Kemp v. Industrial
Comm'n, 264 Ill. App. 3d 1108, 1110, 636 N.E.2d 1237, 1238 (1994).
Here the Commission concluded claimant was exposed to a risk
greater than that of the general public and that a stray dog is a
"natural" risk. While it is true the location to which claimant
was assigned had not experienced problems with stray dogs before,
other school grounds within the district had. More importantly,
claimant was at a location when and where the general public would
not and should not be located. The incident occurred at 4:40 in
the morning on school grounds at a time when claimant was to
protect the property against intruders. Claimant's confrontation
with the dog occurred while he was in the performance of his watch
duties, and his injuries accordingly resulted from protecting both
the school grounds and himself. His injuries therefore are
causally related to his employment, and, as a result, claimant is
entitled to compensation for them. See Holthaus, 127 Ill. App. 3d
at 736-37, 469 N.E.2d at 239-40.
For the aforementioned reasons, we affirm the decision of
the circuit court of Sangamon County confirming the decision of the
Industrial Commission awarding claimant benefits.
Affirmed.
HOLDRIDGE and COLWELL, JJ., concur.
RAKOWSKI, J., dissenting; McCULLOUGH, P.J., joins.
JUSTICE RAKOWSKI, dissenting:
To be compensable under the Act, an injury must "aris[e] out
of and in the course of the employment." 820 ILCS 305/2 (West 1996);
Parro, 167 Ill. 2d at 393, 657 N.E.2d at 885. "Both elements must co-
exist in order for an employee's injury to be found compensable" (Lee v.
Industrial Comm'n, 167 Ill. 2d 77, 80, 656 N.E.2d 1084, 1086 (1995)), and
claimant bears the burden of establishing both requirements (Castaneda
v. Industrial Comm'n, 97 Ill. 2d 338, 341, 454 N.E.2d 632, 634 (1983)).
In the instant case, it is undisputed that claimant's injury
arose in the course of his employment. For the reasons that follow,
however, I respectfully suggest that on this record it is equally clear
that claimant was not exposed to risks beyond those to which the general
public is exposed and, thus, his injury did not arise out of his
employment.
" 'Arising out of' refers to the causal connection between the
employment and the injury. The causal connection is demonstrated if the
claimant establishes that the injury's origin lies in some risk related
to the employment. [Citations.] In addition, an injury may be said to
arise out of the employment if the conditions or nature of the employment
increases the employee's risk of harm beyond that to which the general
public is exposed." Brady, 143 Ill. 2d at 548, 578 N.E.2d at 923.
According to Professor Larson, employee risks fall into three
categories: employment risks, personal risks, and neutral risks.
Employment risks are those directly associated with employment, like
excavation cave-ins and machinery catching fingers or limbs. Personal
risks are those personal to the employee, like assaults by personal
enemies or diseases not connected with work. Although employment risks
are universally compensable, personal risks are universally noncompensa-
ble. Between these two areas lies the third: risks neither distinctly
employment related nor distinctly personal in character. Illustrative
of a neutral risk is where a man, hard at work in the middle of a factory
yard, is hit by a stray bullet from nowhere, stabbed by a lunatic, struck
by lightning, injured by a piece of tin blown from someone's roof, or bit
by a mad dog. 1 A. Larson, Law of Workmen's Compensation 7.30 (1996);
see also Fligelman v. City of Chicago, 275 Ill. App. 3d 1089, 1093, 657 N.E.2d 24, 26-27 (1995).
It is inescapable that the claimant was exposed to a neutral
risk. The majority opinion and the Commission's decision characterize
claimant's risk as a "natural risk." The opinion does not define
"natural risk" or explain how such a term applies to the instant case.
Nor is there any citation to authority. My own research has located four
cases that use the term "natural risk" in a workers' compensation
context; in all of these cases, however, "natural risk" is a term used
to describe risks that do not arise out of employment. County of Cook
v. Industrial Comm'n, 68 Ill. 2d 24, 368 N.E.2d 1292 (1977) (natural risk
of stroke); J.I. Case Co. v. Industrial Comm'n, 36 Ill. 2d 386, 223 N.E.2d 847 (1966) (natural risk of being struck by lightening); Illinois
Bell Telephone Co. v. Industrial Comm'n, 35 Ill. 2d 474, 220 N.E.2d 435
(1966) (natural risk of heart attack); Alzina Construction Co. v.
Industrial Comm'n, 309 Ill. 395, 141 N.E. 191 (1923) (natural risk of
being struck by lightening, discussing case from Montana).
In the instant case, a review of the evidence does not
disclose any prior dog attacks or problems with stray dogs at the Douglas
school. Testimony was elicited from three people: claimant, Vergil Jonas
(another security guard), and Anthony Kamnick (a security warehouse
supervisor). Claimant worked for the school district from 1981 until his
injury in 1994. During that period of time, he had never experienced any
problems with dogs at the school. Vergil Jonas was asked the following
questions and gave the following answers:
"Q. At any time when you worked as a securi-
ty guard [at] that location, did you ever encounter
any dogs roaming around the grounds?
A. No, I didn't.
Q. Did you ever encounter any wild animals
at all?
A. No, none whatsoever."
Anthony Kamnick stated on direct examination that he was not aware of any
security guard at this school having a problem with stray dogs. On
cross-examination, he was asked about dog problems at other locations
throughout the school district and stated:
"Q. Oh, I know at other locations, yes, we
have had a problem with a dog here and there.
Exactly where, I don't know."
The majority concludes from this evidence that it is reason-
able to infer that claimant was exposed to a risk beyond that to which
the ordinary public was exposed. In support of that conclusion, the
majority relies on the fact that the claimant was at a location when and
where the general public would not and should not be, that claimant's job
was to protect the school property against intruders, that the confronta-
tion with the dog occurred while he was performing his duties, and that
other undefined problems had occurred at other undefined locations. I
respectfully suggest that these are distinctions without a difference
and/or are not borne out by the record.
In the law of evidence, an inference is "a truth or proposi-
tion drawn from another which is supposed or admitted to be true. A
process of reasoning by which a fact or proposition sought to be
established is deduced as a logical consequence from other facts, or a
state of facts, already proved or admitted." Black's Law Dictionary 778
(6th ed. 1990). However, where the facts are not in dispute, as in the
instant case, "the question of whether an injury is caused by a risk
attributable to employment is not a factual inference [to be] drawn from
the other facts but is the legal conclusion to be determined by them."
Kemp, 264 Ill. App. 3d at 1111, 636 N.E.2d at 1239.
There is no evidence in the record to suggest dog attacks are
more likely to occur at the school as opposed to any other place. There
is no evidence to suggest that dogs are more frequently seen or around
at 4:40 a.m. or are more likely to attack at that time. Finally, the
record does not establish that claimant was attempting to remove the dog
from the school premises when he was attacked. Had this been the case,
I too would agree that claimant's injury arose out of his employment.
At no time, however, did claimant testify that the dog was damaging
school property or that he was attempting to remove the dog from the
premises. Rather, the evidence is clear that the dog attacked claimant
for no apparent reason as he was patrolling the premises. There are
simply no facts, and no inferences to be drawn from any facts, that
claimant's work as a security guard occasioned the dog's assault.
The evidence in this case establishes that the area in
question is primarily a residential neighborhood consisting of single-
family homes. It is impossible to draw a conclusion that somehow a
security guard simply walking in this area in the early morning hours of
a spring day had an increased risk of an attack by a stray dog over and
above the risk to the general population of Springfield. Although the
majority finds important the fact that other problems occurred here and
there, I suggest that such reliance is misplaced. The fact that stray
dogs may have presented some undefined problems at other undefined
locations is not a proper factual subject matter from which an inference
can be drawn. First, there is no evidence what the other problems were
or if they involved dog attacks on people. One can only speculate. Nor
is there any evidence as to when the other problems occurred, at what
time of day, or at what location. There is no evidence as to the
frequency of these "other problems." Could it be one occurrence, two
occurrences, three occurrences? Again, one can only speculate. Finally,
there is no evidence as to over what period of time these other problems
took place. I respectfully suggest that it is not reasonable to say that
a logical inference can be drawn to connect an undefined dog problem at
an unknown time and location to the specific instance of a singular stray
dog attack at 530 West Reynolds Street, Springfield, Illinois.
The only basis for allowing recovery under the facts of this
case would require a departure from the existing authority and adoption
of what has been termed the "positional risk doctrine. Under this
doctrine, an injury may be said to arise out of employment if the injury
would not have occurred but for the fact that the conditions or
obligations of the employment placed claimant in a position where he was
injured by a neutral force, i.e., meaning a force neither personal to the
claimant nor distinctly associated with the employment. A. Larson, The
Positional-Risk Doctrine in Worker's Compensation, 1973 Duke L.J. 761.
However, as our supreme court has stated in Brady, "[t]his court has
previously declined to adopt the positional risk doctrine, believing that
the doctrine would not be consistent with the requirements expressed by
the legislature in the Act. (See Campbell '66' Express, Inc. v.
Industrial Comm'n (1980), 83 Ill. 2d 353, 355-56[, 415 N.E.2d 1043,
1044]; Decatur-Macon County Fair Association v. Industrial Comm'n (1977),
69 Ill. 2d 262, 268[, 371 N.E.2d 597, 600].) For the reasons stated in
Campbell '66' Express and Decatur-Macon County Fair Association, we
continue to adhere to that view." Brady, 143 Ill. 2d at 552-53, 578 N.E.2d at 926.
For the reasons stated, I would reverse the judgment of the
circuit court of Sangamon County.
Justice McCullough joins in this dissent.
IN THE APPELLATE COURT OF ILLINOIS
FOURTH DISTRICT
Industrial Commission Division
THE SPRINGFIELD SCHOOL DISTRICT NO. 186 ) Appeal from
Appellant, ) Circuit Court of
v. ) Sangamon County
THE INDUSTRIAL COMMISSION et al. ) No. 96MR008
(John M. DeAngelo, Appellee). )
) Honorable
) Donald M. Cadagin,
) Judge Presiding.
_________________________________________________________________
JUSTICE RARICK delivered the opinion of the court:
Claimant, John DeAngelo, sought benefits pursuant to
the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West
1994)) for injuries he allegedly sustained on April 8, 1994,
while in the employ of Springfield School District, employer.
The arbitrator found that claimant suffered a work-related
accident and awarded temporary total disability and medical
benefits. On review, the Industrial Commission (Commission)
affirmed the decision of the arbitrator and the circuit court of
Sangamon County confirmed the decision of the Commission.
Employer appeals, contending the finding of causal connection
between claimant's employment and his injury is against the
manifest weight of the evidence. Employer also questions whether
an employee who suffers an injury as a result of an unexplained
assault by a stray dog in a residential area presents a compensa-
ble claim as a matter of law.
Claimant began working for employer in 1981 as a
custodian. As a result of a back injury, claimant transferred to
the position of security guard for employer in 1985 and continued
in that capacity until the incident on April 8, 1994. As a
security guard, claimant was responsible for maintaining security
at an elementary school, three mobile classrooms and a service
center all sitting on the same property located in a predominant-
ly single-family residential area. His duties included checking
doors and windows and looking for unsafe conditions. On April 8
at approximately 4:40 a.m., claimant was in the process of making
his rounds when he encountered a dog near one of the mobile
classrooms. The dog growled, sniffed claimant and walked away.
Claimant continued walking around the classroom when the dog came
back, ran up to him and grabbed him by the pant cuff. The dog
then backed off and repeated his attack. Claimant kicked the dog
as hard as he could with his left foot and immediately felt pain
shooting up his left leg into his spine, neck and head and down
his right arm. Claimant noticed no bruising or swelling to his
other leg as a result of the dog attack but did experience some
redness around the ankle, which later disappeared. Claimant
testified the dog seized him but did not break the skin. Claim-
ant completed his rounds, left a note for his supervisor and went
home. Although claimant returned to work the following Monday,
he stated the pain never abated, forcing him to stop working
altogether on April 15. Claimant initially sought medical care
on April 12 from Dr. F. William Schroeder. Dr. Schroeder took
X rays and sent claimant to The Spine Center for evaluation. His
diagnosis was chronic low back pain without evidence of nerve
root compression. The doctor's records for the April 12 visit
contain no reference to any incident involving a dog; later
records, however, indicate claimant's injury was sustained on
April 8. Claimant was enrolled in a pain management program and
participated in physical and occupational therapy.
On June 7, 1994, claimant returned to his family physic-
ian, Dr. Bussing, for a physical examination. Dr. Bussing's report
indicated claimant's neurological examination was normal for both
arms and both legs. He also found no structural impairment to the
neck. He then referred claimant to a neurosurgeon, Dr. McIlhany.
Claimant saw Dr. McIlhany on June 21, 1994. Dr. McIlhany diagnosed
claimant's condition as neck pain of myofascial origin and
recommended continued therapy and exercise. At the time of the
arbitration hearing, claimant had not yet returned to work and was
still undergoing therapy.
Claimant's supervisor testified he met with claimant in
late March 1994 to explain to him his position as security guard
would be ending soon. He further advised him a custodian position
was available to which he could transfer. Claimant told the
supervisor he would have to check with his doctor to determine
whether or not he could perform custodial work. The supervisor
also testified he had never encountered any instances of security
guards having problems with dogs at the location claimant watched,
although there had been reports of such incidents at other
locations. A fellow security guard confirmed the fact he never had
encountered any dogs or wild animals while patrolling the same
grounds to which claimant had been assigned.
In a workers' compensation proceeding, it is the function
of the Commission to determine the credibility of witnesses, to
weigh testimony and to decide the weight to be accorded the
evidence. Parro v. Industrial Comm'n, 167 Ill. 2d 385, 396, 657 N.E.2d 882, 887 (1995); Rambert v. Industrial Comm'n, 133 Ill. App.
3d 895, 902, 477 N.E.2d 1364, 1369 (1985). Only the Commission has
the responsibility to resolve conflicts in the testimony and to
draw reasonable inferences from the evidence. Rambert, 133 Ill.
App. 3d at 902, 477 N.E.2d at 1369. A court of review is not to
disregard permissible inferences merely because other inferences
might also be drawn from the same evidence. Holthaus v. Industrial
Comm'n, 127 Ill. App. 3d 732, 736, 469 N.E.2d 237, 239 (1984).
Given such principles, we must affirm the decision of the Commis-
sion as confirmed by the circuit court in this instance.
An injury may be said to arise out of one's employment
when, upon consideration of all of the circumstances, there is
apparent to the rational mind a causal connection between the
condition under which the work is performed and the resulting
injury. Holthaus, 127 Ill. App. 3d at 736, 469 N.E.2d at 239. See
also Brady v. Louis Ruffolo & Sons Construction Co., 143 Ill. 2d 542, 548, 578 N.E.2d 921, 923 (1991); Math Igler's Casino, Inc. v.
Industrial Comm'n, 394 Ill. 330, 334, 68 N.E.2d 773, 775 (1946).
In addition, an injury may be said to arise out of the employment
if the conditions or nature of the employment increase employee's
risk of harm beyond that to which the general public is exposed.
Brady, 143 Ill. 2d at 548, 578 N.E.2d at 923; Kemp v. Industrial
Comm'n, 264 Ill. App. 3d 1108, 1110, 636 N.E.2d 1237, 1238 (1994).
Here the Commission concluded claimant was exposed to a risk
greater than that of the general public and that a stray dog is a
"natural" risk. While it is true the location to which claimant
was assigned had not experienced problems with stray dogs before,
other school grounds within the district had. More importantly,
claimant was at a location when and where the general public would
not and should not be located. The incident occurred at 4:40 in
the morning on school grounds at a time when claimant was to
protect the property against intruders. Claimant's confrontation
with the dog occurred while he was in the performance of his watch
duties, and his injuries accordingly resulted from protecting both
the school grounds and himself. His injuries therefore are
causally related to his employment, and, as a result, claimant is
entitled to compensation for them. See Holthaus, 127 Ill. App. 3d
at 736-37, 469 N.E.2d at 239-40.
For the aforementioned reasons, we affirm the decision of
the circuit court of Sangamon County confirming the decision of the
Industrial Commission awarding claimant benefits.
Affirmed.
HOLDRIDGE and COLWELL, JJ., concur.
RAKOWSKI, J., dissenting; McCULLOUGH, P.J., joins.
JUSTICE RAKOWSKI, dissenting:
To be compensable under the Act, an injury must "aris[e] out
of and in the course of the employment." 820 ILCS 305/2 (West 1996);
Parro, 167 Ill. 2d at 393, 657 N.E.2d at 885. "Both elements must co-
exist in order for an employee's injury to be found compensable" (Lee v.
Industrial Comm'n, 167 Ill. 2d 77, 80, 656 N.E.2d 1084, 1086 (1995)), and
claimant bears the burden of establishing both requirements (Castaneda
v. Industrial Comm'n, 97 Ill. 2d 338, 341, 454 N.E.2d 632, 634 (1983)).
In the instant case, it is undisputed that claimant's injury
arose in the course of his employment. For the reasons that follow,
however, I respectfully suggest that on this record it is equally clear
that claimant was not exposed to risks beyond those to which the general
public is exposed and, thus, his injury did not arise out of his
employment.
" 'Arising out of' refers to the causal connection between the
employment and the injury. The causal connection is demonstrated if the
claimant establishes that the injury's origin lies in some risk related
to the employment. [Citations.] In addition, an injury may be said to
arise out of the employment if the conditions or nature of the employment
increases the employee's risk of harm beyond that to which the general
public is exposed." Brady, 143 Ill. 2d at 548, 578 N.E.2d at 923.
According to Professor Larson, employee risks fall into three
categories: employment risks, personal risks, and neutral risks.
Employment risks are those directly associated with employment, like
excavation cave-ins and machinery catching fingers or limbs. Personal
risks are those personal to the employee, like assaults by personal
enemies or diseases not connected with work. Although employment risks
are universally compensable, personal risks are universally noncompensa-
ble. Between these two areas lies the third: risks neither distinctly
employment related nor distinctly personal in character. Illustrative
of a neutral risk is where a man, hard at work in the middle of a factory
yard, is hit by a stray bullet from nowhere, stabbed by a lunatic, struck
by lightning, injured by a piece of tin blown from someone's roof, or bit
by a mad dog. 1 A. Larson, Law of Workmen's Compensation 7.30 (1996);
see also Fligelman v. City of Chicago, 275 Ill. App. 3d 1089, 1093, 657 N.E.2d 24, 26-27 (1995).
It is inescapable that the claimant was exposed to a neutral
risk. The majority opinion and the Commission's decision characterize
claimant's risk as a "natural risk." The opinion does not define
"natural risk" or explain how such a term applies to the instant case.
Nor is there any citation to authority. My own research has located four
cases that use the term "natural risk" in a workers' compensation
context; in all of these cases, however, "natural risk" is a term used
to describe risks that do not arise out of employment. County of Cook
v. Industrial Comm'n, 68 Ill. 2d 24, 368 N.E.2d 1292 (1977) (natural risk
of stroke); J.I. Case Co. v. Industrial Comm'n, 36 Ill. 2d 386, 223 N.E.2d 847 (1966) (natural risk of being struck by lightening); Illinois
Bell Telephone Co. v. Industrial Comm'n, 35 Ill. 2d 474, 220 N.E.2d 435
(1966) (natural risk of heart attack); Alzina Construction Co. v.
Industrial Comm'n, 309 Ill. 395, 141 N.E. 191 (1923) (natural risk of
being struck by lightening, discussing case from Montana).
In the instant case, a review of the evidence does not
disclose any prior dog attacks or problems with stray dogs at the Douglas
school. Testimony was elicited from three people: claimant, Vergil Jonas
(another security guard), and Anthony Kamnick (a security warehouse
supervisor). Claimant worked for the school district from 1981 until his
injury in 1994. During that period of time, he had never experienced any
problems with dogs at the school. Vergil Jonas was asked the following
questions and gave the following answers:
"Q. At any time when you worked as a securi-
ty guard [at] that location, did you ever encounter
any dogs roaming around the grounds?
A. No, I didn't.
Q. Did you ever encounter any wild animals
at all?
A. No, none whatsoever."
Anthony Kamnick stated on direct examination that he was not aware of any
security guard at this school having a problem with stray dogs. On
cross-examination, he was asked about dog problems at other locations
throughout the school district and stated:
"Q. Oh, I know at other locations, yes, we
have had a problem with a dog here and there.
Exactly where, I don't know."
The majority concludes from this evidence that it is reason-
able to infer that claimant was exposed to a risk beyond that to which
the ordinary public was exposed. In support of that conclusion, the
majority relies on the fact that the claimant was at a location when and
where the general public would not and should not be, that claimant's job
was to protect the school property against intruders, that the confronta-
tion with the dog occurred while he was performing his duties, and that
other undefined problems had occurred at other undefined locations. I
respectfully suggest that these are distinctions without a difference
and/or are not borne out by the record.
In the law of evidence, an inference is "a truth or proposi-
tion drawn from another which is supposed or admitted to be true. A
process of reasoning by which a fact or proposition sought to be
established is deduced as a logical consequence from other facts, or a
state of facts, already proved or admitted." Black's Law Dictionary 778
(6th ed. 1990). However, where the facts are not in dispute, as in the
instant case, "the question of whether an injury is caused by a risk
attributable to employment is not a factual inference [to be] drawn from
the other facts but is the legal conclusion to be determined by them."
Kemp, 264 Ill. App. 3d at 1111, 636 N.E.2d at 1239.
There is no evidence in the record to suggest dog attacks are
more likely to occur at the school as opposed to any other place. There
is no evidence to suggest that dogs are more frequently seen or around
at 4:40 a.m. or are more likely to attack at that time. Finally, the
record does not establish that claimant was attempting to remove the dog
from the school premises when he was attacked. Had this been the case,
I too would agree that claimant's injury arose out of his employment.
At no time, however, did claimant testify that the dog was damaging
school property or that he was attempting to remove the dog from the
premises. Rather, the evidence is clear that the dog attacked claimant
for no apparent reason as he was patrolling the premises. There are
simply no facts, and no inferences to be drawn from any facts, that
claimant's work as a security guard occasioned the dog's assault.
The evidence in this case establishes that the area in
question is primarily a residential neighborhood consisting of single-
family homes. It is impossible to draw a conclusion that somehow a
security guard simply walking in this area in the early morning hours of
a spring day had an increased risk of an attack by a stray dog over and
above the risk to the general population of Springfield. Although the
majority finds important the fact that other problems occurred here and
there, I suggest that such reliance is misplaced. The fact that stray
dogs may have presented some undefined problems at other undefined
locations is not a proper factual subject matter from which an inference
can be drawn. First, there is no evidence what the other problems were
or if they involved dog attacks on people. One can only speculate. Nor
is there any evidence as to when the other problems occurred, at what
time of day, or at what location. There is no evidence as to the
frequency of these "other problems." Could it be one occurrence, two
occurrences, three occurrences? Again, one can only speculate. Finally,
there is no evidence as to over what period of time these other problems
took place. I respectfully suggest that it is not reasonable to say that
a logical inference can be drawn to connect an undefined dog problem at
an unknown time and location to the specific instance of a singular stray
dog attack at 530 West Reynolds Street, Springfield, Illinois.
The only basis for allowing recovery under the facts of this
case would require a departure from the existing authority and adoption
of what has been termed the "positional risk doctrine. Under this
doctrine, an injury may be said to arise out of employment if the injury
would not have occurred but for the fact that the conditions or
obligations of the employment placed claimant in a position where he was
injured by a neutral force, i.e., meaning a force neither personal to the
claimant nor distinctly associated with the employment. A. Larson, The
Positional-Risk Doctrine in Worker's Compensation, 1973 Duke L.J. 761.
However, as our supreme court has stated in Brady, "[t]his court has
previously declined to adopt the positional risk doctrine, believing that
the doctrine would not be consistent with the requirements expressed by
the legislature in the Act. (See Campbell '66' Express, Inc. v.
Industrial Comm'n (1980), 83 Ill. 2d 353, 355-56[, 415 N.E.2d 1043,
1044]; Decatur-Macon County Fair Association v. Industrial Comm'n (1977),
69 Ill. 2d 262, 268[, 371 N.E.2d 597, 600].) For the reasons stated in
Campbell '66' Express and Decatur-Macon County Fair Association, we
continue to adhere to that view." Brady, 143 Ill. 2d at 552-53, 578 N.E.2d at 926.
For the reasons stated, I would reverse the judgment of the
circuit court of Sangamon County.
Justice McCullough joins in this dissent.
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