Bercaw v. Domino's Pizza, Inc.

Appellate Court of Illinois, Second District · Torts

TortsWorkers' CompensationExclusive remedyEmployer intentional tortWorkers' Compensation Actexclusive remedynot accidentalspecific intent to injure

Facts

Shipman operated a Domino's franchise and employed Jason Bercaw as a deliveryman. Plaintiffs alleged Shipman knew pizza delivery workers faced increasing risks of robbery and murder, had access to safety materials, but intentionally failed to train Bercaw, warn him, refuse orders from known pay phones, or require safer delivery practices. Bercaw was sent to deliver an order placed by "Mr. Jones" from a known pay phone to a darkened residence next to a darkened lot in Aurora. While attempting the delivery, Bercaw was strangled by third persons.

Issue

Whether the Workers' Compensation Act's exclusive-remedy provision bars a suit against an employer when the employee was killed by third-party assailants during work and the plaintiffs allege the employer knew with substantial certainty that its conduct would result in the employee's injury. More specifically, whether the 'not accidental' exception requires substantial certainty of injury or specific intent to injure.

Rule

Under the Illinois Workers' Compensation Act, a common-law action against an employer is barred unless the employee proves one of the recognized exceptions, including that the injury was 'not accidental.' For purposes of that exception, an injury is 'not accidental' only when the employer specifically intended to injure the employee; allegations that the employer knew injury was substantially certain to occur are insufficient.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nina Ortega worked for Lakefront Courier Services in Chicago as a bicycle messenger. Her complaint alleges the company knew that requiring messengers to ride after midnight through a neighborhood with frequent armed robberies made serious injury virtually inevitable, yet it gave no safety training and sent her alone; she was then attacked by strangers while making a delivery.

If Nina sues her employer in tort and argues the injury was "not accidental" because the employer knew harm was substantially certain to occur, what is the strongest response under the governing rule?

Explanation. The majority rule is that the Workers' Compensation Act's exclusive-remedy bar is avoided under the "not accidental" exception only when the employer specifically intended to injure the employee. Allegations that the employer knowingly exposed the employee to a grave or even substantially certain risk are insufficient, including where the immediate harm was inflicted by third-party assailants.