dissenting:
I would find that the claimant’s injuries arose out of and in the course of his employment. I therefore respectfully dissent. Injuries incurred by traveling employees during recreation are compensable as long as the recreational activity and the employee’s conduct were both reasonable and foreseeable. Bagcraft Corp. v. Industrial Comm’n, 302 Ill. App. 2d at 338.
Here, the majority found that the manner in which the claimant used the ATV was neither reasonable nor foreseeable. After reviewing the record, I would conclude that the opposite conclusion is clearly apparent. As to the foreseeability that the claimant would ride an ATV in the mannner in which he did, the record established that: (1) the claimant learned to ride an ATV only on a prior trip to the employer’s estate; (2) the claimant had ridden an ATV on the employer’s estate on several occasions prior to the date of the accident; (3) the claimant had never worn a helmet on those previous occasions; (4) on the occasion of the claimant’s accident, as on previous occasions, the employer had provided an ATV for the claimant’s use; and (5) the claimant intended to use the ATV on the employer’s 5,000-acre estate at the time of the accident, although the accident apparently occurred on a public road adjacent to the employer’s property. Clearly, the employer knew or should have known that the claimant would engage in ATV riding while at Granot Loma.
I also disagree with the majority’s conclusion that the speed of the claimant’s ATV combined with his lack of a helmet and unfamiliarity with the landscape rendered his conduct unreasonable. Given that the employer provided the claimant with the use of an ATV on land known to be unfamiliar to the claimant, and given that employer did not require the claimant to use a helmet, it is clearly reasonable to expect that the claimant would use the ATV without a helmet and in unfamiliar territory. Additionally, unlike the claimant in Hebrank v. Parsons, Brinckerhoff, Hall & McDonald, 88 N.J. Super. 406, 212 A.2d 579 (1965), who may have sought relaxation by driving and drinking alcohol, there exists no statute or other safety regulation requiring that a helmet be worn while operating an ATV
Thus, contrary to the majority, I would find that neither the claimant’s lack of a helmet nor his unfamiliarity with the landscape is evidence that the claimant’s use of the ATV was unreasonable. As to the Commission’s finding that the claimant’s speed was excessive, the majority correctly notes that excessive speed alone does not disqualify a claimant from coverage under the Act. See Stembridge Builders, Inc. v. Industrial Comm’n, 263 Ill. App. 3d 878 (1994).
It has long been recognized that one of the objectives of the Act was to do away with the defenses of contributory negligence or assumed risk. Stembridge Builders, 263 Ill. App. 3d at 880. I am concerned that the majority’s holding in this matter, focusing on the reasonableness of the manner in which the claimant operated the ATV needlessly introduces the concept of contributory negligence into the determination of compensability for traveling employees.
As I believe that, under the circumstances herein, it is clearly apparent that the manner in which the claimant used the employer’s ATV was both foreseeable and reasonable, I would reverse the decision of the Commission and the circuit court. I dissent on that basis.
RARICK, J., joins in this dissent.