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 coexist 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 noncompensable. 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 lightning); 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 light’ning, 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 security 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 reasonable 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 confrontation 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 proposition 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..
McCULLOUGH, J., joins in this dissent.