dissenting:
The majority is forced to rely heavily upon a Missouri decision because there are no reported Illinois cases involving injury to an employee occurring when the building in which the employee works is struck by a motor vehicle. I would suggest that the absence of Illinois decisions is not due to the rarity of such accidents, but rather is due to the payment of workers’ compensation benefits for such injuries without dispute. Thus, the case of Thomas Brady is a most unusual one in Illinois.
I must dissent because the ultimate basis for the majority decision is that the ruling of the Illinois Industrial Commission is not contrary to the manifest weight of the evidence. I would reverse the judgment of the circuit court of Will County.
The majority admits that there are virtually no facts in dispute, and I am convinced that only one inference can be drawn from those facts: that the conditions of Brady’s employment exposed him to a greater risk than the general public, as was found by dissenting Commissioner Black. Hence, the decision of the Industrial Commission was contrary to law, and the manifest weight of the evidence is not an issue.
It is a well-established rule that where the undisputed facts are susceptible of but a single inference, then the issue becomes one of law, to be determined by the reviewing court. (Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm’n (1974), 56 Ill. 2d 272, 307 N.E.2d 118.) In the instant case, the two-person majority of the Commission wrongly relied upon the arbitrator’s position as fact finder to apply a manifest weight of the evidence standard.
The primary issue, as I see it, is whether more than one inference can be drawn from the facts of this case. The arbitrator concluded “that there is nothing in the evidence to show that the environment was such as to be an increased risk beyond that to which the general public is subjected.” The majority of the Commission accepted that conclusion, the circuit court confirmed it, and now the majority says that the inference drawn by the arbitrator is one permissible inference in this case and, hence, must be affirmed.
In the case before us, the evidence indicated that the building where Brady worked was made of corrugated metal and that the exterior walls were about one-eighth inch thick. The building was located 47 feet from the highway at a point where the descending grade of the curving roadway sloped 30 degrees downward toward the building, which was located some 21/2 feet below the highway elevation. The roadway was icy and slippery on the day of the accident and was heavily travelled, particularly by heavily loaded gravel trucks proceeding from a nearby quarry.
Furthermore, the evidence showed that Brady had to conduct his work at a drafting table in the corner of the building nearest the highway for at least eight hours each day, five days each week, all year, regardless of driving conditions or traffic. No member of the general public was so required. Only one conclusion can be drawn from that evidence: that Brady was exposed to a risk common to the general public to a greater degree than any other person, and hence, that the injury arose out of his employment.
The majority is wrong in saying that there was “evidence that the conditions of the claimant’s employment did not increase his risk of injury beyond that to which the general public in that vicinity was exposed.” (192 Ill. App. 3d at 12.) There was no such evidence, and, as I have shown, an inference to that effect cannot be drawn. Accordingly, there was no question of the manifest weight of the evidence. The decision of the Industrial Commission was erroneous as a matter of law.
Illinois cases have held that compensation should be awarded where the conditions of one’s employment enhance the risk of injury beyond the risk to the general public. In Material Services Corp., Division of General Dynamics v. Industrial Comm’n (1973), 53 Ill. 2d 429, 292 N.E.2d 367, an employee drowned when her car rolled down her employer’s sloping parking lot and into the Illinois Deep Waterway, a canal adjacent to the parking lot. No guardrails or other barriers separated the parking lot from the canal. The supreme court upheld an award of workers’ compensation death benefits in that case, finding that the employee’s death was traceable to the employment environment as a contributing proximate cause. Justice Underwood, speaking for the court, stated:
“With respect to the element of causation, it is also well settled that it is not incumbent upon the claimant to prove that the hazard to which he was exposed in the employment environment was the sole cause of injury. As we stated in City of Chicago v. Industrial Com. (1970), 45 Ill. 2d 350, 352[, 259 N.E.2d 5, 7,]
‘ “To come within the statute the employee must prove that some act or phase of the employment was a causative factor in the ensuing injury. He need not prove it was the sole causative factor nor even that it was the principal causative factor, but only that it was a causative factor in the resulting injury.” ’ ” (Emphasis in original.) 53 Ill. 2d at 434, 292 N.E.2d at 370.
In the case at bar, the arbitrator ruled that the proximity of the building to the highway, the location of the curve, and the descending grade of the roadway were not the cause of Brady’s injury. That is correct, of course. But certainly Brady’s presence that day in his place of employment standing at his work table was one of the causative factors. He could not choose the hours or the conditions of his work; he had to remain at risk eight hours each day.
In Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm’n (1974), 56 Ill. 2d 272, 307 N.E.2d 118, the claimant worked in a starch refinery where the building was very warm. The employer allowed the employees to sit in windows or on roofs during their breaks. When the claimant stepped onto the roof of a shed in an attempt to obtain some fresh air while he drank a can of pop during a break, the roof gave way beneath him. He fell to the ground below and suffered injuries. The supreme court ruled that the condition of the work premises was a causative factor of his injury and that the employment increased the claimant’s risk of exposure to injury. In Union Starch, plainly the heat inside the building and the condition of the roof were two environmental factors which contributed to the claimant’s injury.
Another case where the work environment enhanced the risk of exposure to injury was Holthaus v. Industrial Comm’n (1984), 127 Ill. App. 3d 732, 469 N.E.2d 237, where a city employee who was preparing the municipal swimming pool for public use was attacked and shot by an escaped convict while she was working alone at the pool. We reversed the denial of an award by the Industrial Commission and concluded that the claimant had established that the site at which she was required to work created an enhanced risk of criminal assault greater than the risk to the general public. Acknowledging that the desperate escapee might have happened upon a member of the general public at that location, as he did a short time after shooting the claimant, we stated:
“However, the facts remain that the general public was neither required to be there nor had reason to be there, and [claimant’s] employment caused her to be there at various times and frequently alone.” (127 Ill. App. 3d at 736, 469 N.E.2d at 705.)
Applying the same reasoning to the instant case, the general public was not required to be in the building where Brady was working, nor had reason to be there for eight hours on a day when highway travel was hazardous and gravel trucks were travelling in close proximity to the front of the building.
Still another case reached the same result. In County of Cook v. Industrial Comm’n (1988), 165 Ill. App. 3d 1005, 520 N.E.2d 896, a county court employee was eating lunch in her car in the parking lot provided for employees, as was customary, when she was assaulted and stabbed by a man demanding money. We ruled that the claimant’s injury did arise out of her employment and that, where an employee is likely to encounter persons who are liable to attack, the injury may arise out of the employment. Claimant’s work environment particularly subjected her to the hazards of being attacked since there was considerable activity in the felony court rooms that day. Having no place to eat lunch except in her car also enhanced her exposure to attack beyond that of the general public. We said, “Eating in the car required her to remain in the lot for a longer period than the time a member of the public would remain in the lot.” (165 Ill. App. 3d at 1010, 520 N.E.2d at 900.) Thus, the increased length of time the employee was exposed to the risk of attack was the basis for a finding that the employee was subjected to a greater risk than the general public. The same is true in the case before us. The increased amount of time Brady spent exposed to the hazards of working in a thin-walled building at an unprotected location next to a heavily travelled highway subjected him to a greater risk than the general public.
This general principle was recently affirmed by the Illinois Supreme Court in Caterpillar Tractor Co. v. Industrial Comm’n (1989), 129 Ill. 2d 52, 58, where the court said:
“If an employee is exposed to a risk common to the general public to a greater degree than other persons, the accidental injury is also said to arise out of his employment.”
As indicated above, the only reasonable inference from the evidence in this case is that Brady was exposed to the risk of injury to a greater degree than other persons. That plainly requires a finding that his injury arose out of his employment.
Illinois, of course, has never adopted “the positional-risk theory,” which would compensate an employee for any injury which occurs while he is at his place of employment regardless of whether the conditions or nature of employment increased the risk of injury beyond that to which the general public was exposed. Campbell “66” Express, Inc., v. Industrial Comm’n (1980), 83 Ill. 2d 353, 415 N.E.2d 1043.
However, in cases involving “travelling employees,” the courts have frequently held that the injuries arose out of the employment. For example, in Campbell “66” Express, a travelling employee, a truck driver, injured by a tornado was held to have been subjected to risks of injury beyond that to which the general public was exposed because he had to drive regardless of the weather. In C.A. Dunham Co. v. Industrial Comm’n (1959), 16 Ill. 2d 102, 156 N.E.2d 560, the death of an employee caused by the felonious mid-air explosion of the airplane he was travelling in was held to have arisen out of his employment. In Dunham the court said:
“In our judgment, under the tenor and scope of the case law reviewed herein, where the street becomes the milieu of the employee’s work, he is exposed to all street hazards to a greater degree than the general public. ***
From this review of the relevant authorities, it is evident that for an accident to ‘arise out of’ the employment it is no longer necessary that it originate in a risk peculiar to the employment ***,” (Emphasis jn original.) 16 Ill. 2d at 111-12, 156 N.E.2d at 565.
By my view, it is illogical to deny compensation to Brady, an employee injured in a truck accident while working on his employer’s premises, when employees who have sustained an accidental injury while traveling in connection with their work have frequently been awarded compensation for injuries resulting from traffic accidents, tornadoes, and mid-air explosions.
The majority has apparently ignored the guiding principal for interpreting the Workers’ Compensation Act: The Act should be liberally construed to accomplish its purpose and objects. (Peoria County Belwood Nursing Home v. Industrial Comm’n (1987), 115 Ill. 2d 524, 505 N.E.2d 1026.) Accepting the Commission’s narrow construction of “arising out of” in the case at bar does not accomplish the purpose and object of the statute. I agree with the result suggested by the amicus curiae brief of the Attorney General and would reverse the circuit court of Will County and the Industrial Commission, and I would grant Brady an award.
WOODWARD, J., joins in the dissent.