dissenting:
I do not agree that claimant Jerry Wolland’s injuries are placed beyond the pale of compensability by the fact that they occurred outside the city limits and outside the strict scope of his duties as a policeman. I would find that his accident was work related, as it was caused by the gun which the terms of his employment clearly required him to wear at all times.
An employee’s injury, in order to be compensable under our Workmen’s Compensation Act (Ill. Rev. Stat. 1977, ch. 48, par. 138.2), must arise both “out of” and “in the course of’ his employment. (See, e.g., Scheffler Greenhouses, Inc. v. Industrial Com. (1977), 66 Ill. 2d 361, 367.) It is not clear from the majority opinion which of these two requisites it found unmet. An injury “arises out of’ one’s employment if its origin is in some risk connected with or incident to the employment, so that there is a causal connection between the employment and the accidental injury.’ ” (66 Ill. 2d 361, 366, quoting Jewel Companies, Inc. v. Industrial Com. (1974), 57 Ill. 2d 38, 40.) The injury arises “in the course of” the employment if it occurs during the time of the employment, at a place where the worker may reasonably be expected to be in the performance of his duties, and while he is fulfilling those duties or is engaged in something incidental thereto (Scheffler Greenhouses, Inc. v. Industrial Com. (1977), 66 Ill. 2d 361, 367; Wise v. Industrial Com. (1973), 54 Ill. 2d 138, 142); but this test is fulfilled even in cases where the worker is not actually working but has been placed somehow by the employer in a position where the employee might “reasonably be expected [to] encounter and undertake” the hazard which caused the injury. (Scheffler Greenhouses, Inc. v. Industrial Com. (1977), 66 Ill. 2d 361, 369.) In Scheffler, a case cited by the majority, a greenhouse employee, who was injured while sitting on a gutter overhanging another person’s swimming pool while on her lunch break, established only that the employer permitted use of the pool on hot afternoons and that few lounging places around the pool other than the gutter were available or provided; the court ruled that that was all she was required to show. In Union Starch v. Industrial Com. (1974), 56 Ill. 2d 272, this court held that, where the worker showed that it was customary for employees to climb onto the employer’s roofs for fresh air during the workday, the worker was entitled to recover under the Workmen’s Compensation Act for injuries sustained while on the roof even though the employer never knew he was there and never acquiesced in the use of the particular roof from which the claimant fell.
From the facts as they appear in the record, Officer Wolland’s injury clearly arose “out of’ his employment. The causal chain could not be simpler. Peoria’s rules manual for police essentially placed all of its policemen, including Wolland, on 24-hour call, certain hours of which were specified as on-duty hours. The manual required, in specific terms, that each officer “go armed at all times” in aid of the 24-hour call, and the uncontroverted testimony was to the effect that a verbal agreement abating this duty for time spent outside the city limits was left out of the manual. Claimant was entitled to assume that the omission meant that he had to remain armed within the city limits or without. Wolland was so armed when he arrived at the home of Officer Koenig (35 feet outside the Peoria city limits), and he suffered his injury, through no fault of his own, when his gun went off as he was trying to either clean it or remove it from its holster. No intervening event broke the causal chain. But for the employment, no gun would have been worn; but for the gun, no injury would have occurred.
Similarly, it is not possible, on these facts, to maintain that the officer had not been placed in a position where he might “reasonably be expected [to] encounter” the danger that his gun might go off by accident while he was not on call but was nonetheless wearing it. The Peoria rules manual for police contemplated that Peoria policemen would wear their guns on duty or off, wherever they might be. A consequence of that requirement is that one would expect that it would be necessary periodically to remove the gun for cleaning or to allow its wearer to sleep, if nothing else. Surely the guns have to be taken off at some time. As long as the Peoria officers were acting reasonably, and there is no evidence Wolland was not acting reasonably in handling his gun when he took it off, it is not too much to expect that when their guns go off, they not go off smoking. The majority admits that Wolland’s case for compensation would be strong had he been on duty when the accident occurred. But to limit compensation to gunshot wounds suffered by on-duty employees would ignore the actual and foreseeable extent of the hazard that is created when the continued carrying of a gun is made a condition of the employment.
The majority cites a number of cases, most of them from other States, in which policemen lost workers’ compensation suits for injuries sustained on the job. In all of these cases the injury sustained by the claimant was outside the scope of the risk created by the employment, so that it was possible to say that the accident was not “in the course of’ the employment. In Siens v. Industrial Com. (1981), 84 Ill. 2d 361, the Illinois case relied on most heavily by the majority, the claimant was the town’s only policeman as well as its maintenance man. He was accidentally shot by his own shotgun while preparing to go hunting and, as he claimed, to repair a broken water main. None of the townspeople seemed to know where he was going. There was no regulation requiring him to carry a shotgun even while he was acting as the village marshal. He thus carried the gun by choice. The court properly found that his injury was not work related, especially as the only “work” he could possibly have been doing when he was injured was in his capacity as maintenance man rather than as marshal. With one exception, none of the out-of-State cases cited by the majority as denying compensation involved gunshot wounds. They involved injuries to police officers on the public streets while on their way to work: the denials were based, as the majority notes, on the “going-and-coming rule,” which is predicated on the idea that an injury cannot meaningfully “arise from” an employment if it derives from a danger “ ‘ “common to all mankind, or to which the public at large is exposed” ’ ” (Mayor of Baltimore v. Jakelski (1980), 45 Md. App. 7, 9, 410 A.2d 1116, 1118). By contrast, guns are carried on the person by only a few people, primarily policemen; thus the “going-and-coming rule” has no application to the instant case. Interestingly, the only case mentioned by the majority opinion or the litigants whose facts are similar enough to those of the instant case to permit easy comparison is King v. City of Clinton (Mo. App. 1961), 343 S.W.2d 185, in which plaintiff’s service revolver discharged and injured him while he was leaving his home to go to work. The court held the injury compensable on the theory that a revolver is an ■ abnormally dangerous instrument whose potential for causing harm is readily apparent; it noted that, as in this case, the policeman was required to have a gun immediately accessible at all times. I suggest the majority should have relied on King as precedent and rejected Siens, which provides only the most superficial factual similarity to this case.
What makes this case distinctive is not that the injuries occurred a few feet outside the Peoria city limits or while the officer was off duty and relaxing, but that they eventuated from a risk that was caused by the employment and was contemplated as being a continuing part of the work. By wearing his gun in his holster while at the backyard barbe que, claimant was doing something which people do not normally do, and which he probably would not have been doing had it not been for the police rules manual. Instead, he was serving his master in his off-duty capacity: he was doing what he was supposed to be doing, in the place where he was supposed to be, with the purposes of the master in mind. The injury would have been compensable had he been on duty, as there would then be no doubt that the master would be answerable for the servant’s harm. (Loyola University v. Industrial Com. (1951), 408 Ill. 139, 144.) I see no basis for treating this case differently.
JUSTICE WARD joins in this dissent.