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IDC Monograph Fourth Quarter 2010
THE IDC MONOGRAPH:
The Conflict of the Positional Risk Doctrine in Illinois:Its Rejection and Adoption
R. Mark CosiminiRusin Maciorowski & Friedman, Ltd.
Julie A. WebbCraig & Craig
Bruce E. WarrenEric S. Chavonec
Thomas, Mamer & Haughey, LLP
Brad A. ElwardHeyl, Royster, Voelker & Allen, PC
IDC Quarterly Vol. 20 No. 4
About the AuthorsThe Conflict of the Positional
Risk Doctrine in Illinois:Its Rejection and Adoption
An Introduction to the Positional Risk Doctrine
One of the basic tenets of the Illinois Workers Compen-sation Act is that compensation shall only be provided foraccidental injuries which arise out of and in the course of theemployment.1 An injury arising out of ones employmenthas been defined as one which has its origin in some risk soconnected with, or incidental to the employment so as to cre-ate a causal connection between the employment and the in-jury.2 The phrase in the course of for purposes of the Work-ers Compensation Act refers to the time, place, and circum-stances under which an accident occurred.3
One theory which challenges the basic tenets of the Actis the positional risk doctrine. The premise of the positionalrisk doctrine is that an injury is compensable if it would nothave happened but for the fact that the conditions or obliga-tions of employment place the employee in the position heor she is in when the injury occurs4 and is caused by a neutralforce or risk,5 act of God,6 or chance occurrence.7 Under thepositional risk doctrine, it is only necessary that an employeeswork brings him or her within the range of danger by requir-ing his or her presence in the locale where the peril strikes,even though any other person present would be injured, irre-spective of his or her employment.8
Some states have adopted the positional risk doctrinewhile others have rejected it.9 The courts in both Indiana andWisconsin have applied the positional risk doctrine and haveawarded benefits in cases where a claimant was murdered inthe workplace.10 In each case, the courts held the cause ofdeath was a neutral risk.11
The courts in Virginia have replaced the positional riskdoctrine with an actual risk test.12 In Marion CorrectionalTreatment Center v. Henderson, a security guard was awardedbenefits when he fell down some stairs from his observationtower. The Court of Appeals of Virginia held the claimantsemployment exposed him to a particular danger from whichhe was injured. As such, he was entitled to benefits becauseof the actual risk posed by his employment.
Similarly, the Arkansas Court of Appeals issued a deci-sion refusing to adopt the positional risk doctrine but insteadapplying an increased risk doctrine.13 In Weber v. All Ameri-can Arkansas Poly Corp., a claimant was denied benefits
Brad A. Elward is a partner in the Peoria office of Heyl,Royster, Voelker & Allen. He practices in the area of appel-late law, with a sub-concentration in workers compensa-tion appeals and asbestos-related appeals. He received hisundergraduate degree from the University of Illinois,Champaign-Urbana, in 1986 and his law degree from South-ern Illinois University School of Law in 1989. Mr. Elwardis a member of the Illinois Appellate Lawyers Association,the Illinois State, Peoria County, and American Bar Asso-ciations, and a member of the ISBA Workers Compensation Section Counsel.
R. Mark Cosimini is a partner in Rusin, Maciorowski &Friedmans Workers Compensation Department. He hasbeen with the firm since 1997 and is the managing partnerin the firms Champaign office. His practice is focused onrepresenting employers in Workers Compensation cases,and he also defends liability cases throughout central Illi-nois. Mark is currently serving as the co-chair of the Work-ers Compensation Committee for the IDC and has served on the WorkersCompensation Section Council for the ISBA. He has lectured at legal semi-nars and he frequently speaks with employers on issues relating to WorkersCompensation matters.
Bruce E. Warren is a partner in the Champaign law firmof Thomas, Mamer & Haughey, LLP, and concentrates hispractice in workers compensation and related civil litiga-tion, including subrogation and lien defense. He joinedThomas, Mamer & Haughey, LLP in 1991.
Eric S. Chovanec became an associate with Thomas,Mamer & Haughey, LLP in 2009. He concentrates his prac-tice in the areas of workers compensation and civil litiga-tion.
Julie A. Webb, Partner in the Mt. Vernon office of Craig& Craig, began her career at Craig & Craig in August1996. Since that time she has practiced in the general ar-eas of litigation with emphasis on medical negligence,personal injury defense, dram shop liability and premisesliability. Ms. Webbs fields of practice also include work-ers compensation and occupational diseases at both thefederal and state levels. Ms. Webb also handles occupational disease claimsbefore the United States Department of Labor. Ms. Webb graduated from theSouthern Illinois University at Carbondale School of Law in 1996 and wasadmitted to practice in Illinois that same year. While in law school, Ms. Webbwas the Survey Editor for the SIU Law Journal. Since graduating from lawschool, Ms. Webb has been a coach for the Law Schools annual MediationTraining. Ms. Webb has also been active in appellate practice throughout hercareer.
IDC Monograph Fourth Quarter 2010
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when she went into premature labor allegedly due to stressassociated with money being stolen from her purse at work.The Court held that Arkansas had not adopted the positionalrisk doctrine, and it applied an increased risk analysis. TheCourt held the claimant was not exposed to an increased riskof theft because of her employment setting, and it thereforedenied benefits.
culiar to his employment, or that it is increased as a conse-quence of the work.17
In rendering its decision, the court stated that under thepositional risk doctrine, an injury may be said to arise out ofthe employment if the injury would not have occurred butfor the fact that the conditions or obligations of the employ-ment placed the claimant in the position where he was in-jured by a neutral force.18 The court noted it has previouslydeclined to adopt the positional risk doctrine believing thatthe doctrine would not be consistent with the requirementsexpressed by the Legislature in the Act.19
In Brady, the Illinois Supreme Court expressly rejectedthe positional risk doctrine holding the doctrine is inconsis-tent with the requirement that a claimants injury must ariseout of his employment. However, there are several catego-ries of cases in which the Supreme Courts edict has beencircumvented or possibly ignored. The types of cases includeinjuries on parking lots,20 injuries sustained by travelingemployees,21 and injuries sustained as a result of unexplainedor idiopathic falls.22
From the defense perspective, it is frustrating to watchthe courts erode the foundation of the Workers Compensa-tion law by carving out exceptions which allow claimants toobtain benefits without having to prove the primary compo-nents of a work-related injury. The remainder of this Mono-graph more fully examines these categories of cases and howthey relate to the positional risk doctrine.
Parking Lot Injuries
One situation where the courts seem to have created anexception to the supreme courts rejection of the positionalrisk doctrine is when an employee sustains an injury in aparking lot provided by the employer. Courts have generallyfound that parking lots owned, controlled, maintained or re-quired by the employer to be used by employees are exten-sions of the work place and injuries occurring in those park-ing lots are in the course of employment. If the accidentalinjury is the result of a hazardous condition on the parkinglot or exposes the employee to a greater degree of risk thanthat to which the general public is exposed, the courts gener-ally find that the injury arises out of the employment and iscompensable under the Workers Compensation Act. So whatconstitutes a hazardous condition or creates a greater degreeof risk in a parking lot than that to which the general publicwould be exposed? In this section we will look at how the
The premise of the positional riskdoctrine is that an injury iscompensable if it would not havehappened but for the fact that theconditions or obligations ofemployment place the employee inthe position he or she is in when theinjury occurs and is caused by aneutral force or risk, act of God,or chance occurrence.
The Illinois Supreme Court has expressly rejected thepositional risk doctrine.14 In Brady v. Louis Ruffolo & Sons,the claimant was injured when a truck crashed into the build-ing where he was working. The parties and the court agreedthe claimant sustained injuries in the course of his employ-ment. Consequently, the sole issue presented to the supremecourt was whether the injuries arose out of the employ-ment.
In its analysis, the court noted that an injury may be com-pensable under the Act even though the precipitating causeof the accident originated in some unusual external force.15However, the court also noted the mere fact that a claimantwas present at the place of an injury because of his employ-ment duties will not by itself suffice to establish that the in-jury arose out of the employment.16 Furthermore, a claimantmust demonstrate that his risk of the injury sustained is pe-
IDC Quarterly Vol. 20 No. 4
courts have explained the compensability of parking lot in-juries without adopting the positional risk doctrine.
In Caterpillar Tractor Co. v. Industrial Commn,23 theemployee exited the building after work in