dissenting:
I respectfully dissent from the majority holding affirming the Industrial Commission’s award. I would hold that claimant’s injury did not arise out of his employment.
The majority cites Jewel Cos. v. Industrial Comm’n (1974), 57 Ill. 2d 38, for the general rule that an injury which occurs while going to and from work on the employer’s premises is compensable. This broad statement ignores the widely varying circumstances under which such a compensable injury might occur.
Not all parking lot accidental injuries are compensable. (Peel v. Industrial Comm’n (1977), 66 Ill. 2d 257.) Although an employee’s presence in the employer’s parking lot may satisfy the “in the course of” requirement, such a location fails, by itself, to satisfy the second requirement that claimant show the injury arose out of his employment. (Rogers v. Industrial Comm’n (1980), 83 Ill. 2d 221.) Thus, claimant must show that the injury resulted from a hazard or risk connected with or incidental to the employment situation. (Archer Daniels Midland Co. v. Industrial Comm’n (1982), 91 Ill. 2d 210; Eisenberg v. Industrial Comm’n (1976), 65 Ill. 2d 232.) Compensation has been awarded where claimant proves that, by reason of his employment, he was subject to a hazard to which the general public was not exposed, or to which he was exposed peculiarly and to a greater degree than the public. McField v. Lincoln Hotel (1962), 35 Ill. App. 2d 340.
In the present case, claimant walked across a sidewalk, stepped on the low, rounded curb, and then stepped down with his foot half on the blacktop and half on the “little slope.” He explained that “the blacktop sits up just a little bit above where the slope is itself.” Nothing indicates that he encountered anything other than a normal sidewalk and curb area. Claimant’s accident and injury typify that suffered by any member of the general public who steps off a curb and twists his ankle. While every member of the general public may not cross this particular curb, the law makes no such requirement.
Absolutely nothing here reveals even the smallest connection between the employment and the accident. I disagree with the majority that it was reasonable for the Commission to infer that “the cause of claimant’s injury was the existence of the slope and that the injuries were directly related to his employment.” (170 Ill. App. 3d at 152.) I do not believe the Act imposes upon employers the duty to measure the inappreciable differences in the heights of apparently commonplace curbs, and depths of commonplace drainage slopes, to determine whether they are in fact commonplace. Moreover, the mere fact that the curb leads to the employee parking lot provided by the employer, standing alone, merits no weight under these circumstances.
I must reject the majority’s questionable assertion that “since claimant was required to step off the curb to reach his vehicle, and there is no such requirement of the general public [citation], claimant was subjected to a risk not required of the general public.” (170 Ill. App. 3d at 152.) The present case offers no single fact, or combination of facts, connecting the cause of the fall to the employment. The record reveals no evidence of weather conditions, hazardous ground conditions, or employment duties which placed claimant in a position where he was subject to a risk of falling greater than the risk faced by any member of the general public who was walking across a street. I conclude that claimant shares the general public’s exposure to this hazard, i.e., a curb with or without a “little slope.” The majority’s suggestion that only employees and not the public were required to step off this curb or that “all such similarly designed curbs could be deemed defective” (170 Ill. App. 3d at 152) seems farfetched and is sheer conjecture.
I believe the majority errs in relying on Chicago Tribune Co. v. Industrial Comm’n (1985), 136 Ill. App. 3d 260. The majority reasons that, based on Chicago Tribune, “there was sufficient evidence establishing both that claimant’s injuries resulted from a defect in the employer’s premises and that the claimant’s injuries were directly related to the duties of his employment.” (170 Ill. App. 3d at 151.) I find no mention in the facts here of any evidence of the existence or nature of any “defect.” In contrast, the evidence in Chicago Tribune permitted a reasonable inference that snow, ice and water had collected on that particular lobby floor. There was no reference to typical lobby floors in public buildings. Most significantly, the court narrowed the employment-related hazard to that particular lobby, which it found the Commission could infer was wet and therefore in a dangerous or defective condition. No such dangerous condition could be inferred here. The majority cannot narrow its focus to this particular curb because there was no evidence distinguishing it from any other curb.
A reviewing court must examine the record and determine whether the evidence supports the Commission’s finding. If the evidence fails to support its finding, the court has a duty to set aside the award. County of Cook v. Industrial Comm’n (1977), 68 Ill. 2d 24.
I would hold that the Commission’s decision is against the manifest weight of the evidence because claimant’s accidental injury did not arise out of the employment with his employer.
McCULLOUGH, J., joins in this dissent.