2023 IL App (1st) 220484-U
SECOND DIVISION January 31, 2023
No. 1-22-0484
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
NELLY CABRERA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. ) v. ) No. 18 L 2553 ) WIREMASTERS, INC. d/b/a ) W/M DISPLAY GROUP, ) Honorable ) Preston Jones, Defendant-Appellee. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the judgment of the circuit court of Cook County granting defendant’s motion to dismiss plaintiff’s complaint for damages resulting from a workplace injury; plaintiff failed to raise a genuine dispute of fact as to whether plaintiff was a borrowed employee of the alleged borrowing employer such that the protections afforded the borrowing employer under the Workers’ Compensation Act would not apply, and plaintiff failed to raise a genuine dispute of material fact as to whether the borrowing employer’s willful and wanton conduct caused plaintiff’s injuries.
¶2 Plaintiff, Nelly Cabrera, filed a complaint against defendant, Wiremasters, Inc., doing
business as W/M Display Group (hereinafter “Wiremasters”), for damages resulting from
injuries she sustained at work while operating a “press brake” machine for Wiremasters. Total
Staffing Solutions, a temporary employment agency not a party to this appeal, employed plaintiff 1-22-0484
and referred plaintiff to work at Wiremasters. Wiremasters filed a motion to dismiss plaintiff’s
complaint. In the motion Wiremasters alleged (1) plaintiff was a borrowed employee of
Wiremasters and therefore the provisions of the Workers’ Compensation Act bar a civil lawsuit
by plaintiff against Wiremasters for her injuries and (2) the alleged acts that caused plaintiff’s
injury did not constitute willful and wanton conduct so as to exempt her lawsuit from the
provisions of the Workers’ Compensation Act. Following additional discovery after defendant
filed its motion and the parties fully briefed the issues, the circuit court of Cook County granted
defendant’s motion. Plaintiff timely appealed.
¶3 For the following reasons, we affirm.
¶4 BACKGROUND
¶5 Inasmuch as this appeal is from an order granting a motion to dismiss plaintiff’s
complaint the following facts are taken from plaintiff’s well-pled allegations.1 On October 9,
2017, plaintiff was working on a “press brake machine” on defendant’s property when plaintiff
was injured resulting in permanent disfigurement. Prior to that date, Total Staffing Solutions,
which is not a party to this appeal, had “hired [plaintiff] as a press operator whom [sic] did work
on a [press brake machine]” and “placed here [sic] in the custody and control of [defendant] to
work on the [press brake machine] amongst other machines.” Count I of plaintiff’s complaint
claimed negligence on the part of defendant and alleged that the press brake machine “had a
failed braking system,” among other allegations related to negligence, and that defendant knew
1 “In ruling on a section 2-619 motion to dismiss, a court must interpret the pleadings and supporting materials in the light most favorable to the nonmoving party. [Citation.] ‘[A] court must accept as true all well-pled facts in the plaintiff’s complaint and any reasonable inferences that arise from those facts.’ [Citation.]” Omega Demolition Corp. v. Illinois State Toll Highway Authority, 2022 IL App (1st) 210158, ¶ 39.
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or should have known the machine had been “maintained and/or repair [sic] and/or inspected in a
negligent manner.” Among other allegations of specific acts or omissions by defendant plaintiff
alleged defendant “[c]arelessly and negligently trained, instructed, and supervised its employees
in the operating of the [press brake machine.]” Count II of plaintiff’s complaint claimed willful
and wanton conduct on the part of defendant and again alleged that the press brake machine had
a failed braking system and that the machine “had been constructed and/or installed and/or
maintained and/or repair [sic] and/or inspected in a negligent manner.” Count II alleged
defendant “[k]nowingly and intentionally trained, instructed, and supervised its employees in the
operation” of the machine to disregard safety standards to increase production and knowingly
and intentionally failed in the repair and inspection of the machine and the training of its
employees regarding the machine. Plaintiff alleged that as a direct and proximate result of the
aforementioned she suffered injuries.
¶6 Counts III and IV of plaintiff’s complaint claim negligence and willful and wanton
conduct, respectively, by Total Staffing Solutions. Both Count III and Count IV contain an
allegation that Total Staffing Solutions “controlled the work, portions of the work, the
production and/or production output of [defendant] and [plaintiff.] Counts III and IV allege Total
Staffing Solutions was responsible for the maintenance of the machine and was negligent and
acted knowingly or intentionally in failing that responsibility and in training plaintiff. Both
counts also specifically allege that plaintiff’s injury was not accidental, and occurred as a result
of Total Staffing Solutions’s willful and wanton conduct. (Plaintiff’s complaint contains
numerous other counts not at issue in this appeal against several entities that are not parties to
this appeal, all of which relate to the injury caused by the press brake machine.)
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¶7 On May 27, 2021, defendant filed a motion to dismiss pursuant to section 2-619(a)(9) of
the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2020)) on the ground that at all
relevant times plaintiff was under the direct supervision and control of, and a borrowed
employee of Wiremasters, as evidenced by certain testimony by plaintiff in her deposition and
other record evidence. Defendant’s motion to dismiss alleged that because Wiremasters was
plaintiff’s borrowing employer plaintiff’s civil action is barred by the Workers’ Compensation
Act (Act) and that plaintiff has not alleged and cannot factually support a finding of any
exception to the exclusive remedy provision of the Act.
¶8 The record evidence Wiremasters relied on in support of its motion to dismiss plaintiff’s
complaint included plaintiff’s deposition testimony that Total Staffing was a temporary
employment agency that provided persons to work for other businesses and no one from Total
Staffing accompanied those persons to those businesses. Wiremasters employed plaintiff
pursuant to a contract between Wiremasters and Total Staffing. Total Staffing did not tell
plaintiff beforehand what work she would be doing at Wiremasters, did not train plaintiff how to
do her work at Wiremasters, and did not tell plaintiff how to do her work at Wiremasters once
plaintiff got there. Total Staffing did not tell plaintiff where or on what machine to work, what
work she would be doing, or what tools she would be using. After Total Staffing assigned
plaintiff to Wiremasters plaintiff never had to check in with Total Staffing, reported directly to
Wiremasters, and was supervised by a Wiremasters employee (Luis Morales). Plaintiff “clocked”
in and out of work with Wiremasters. Morales is the only person to instruct plaintiff, taking
plaintiff from one machine to the next telling plaintiff how the machine worked. Wiremasters
provided plaintiff with equipment (gloves) every day that plaintiff worked at Wiremasters.
Plaintiff testified that plaintiff could not say that Wiremasters treated plaintiff any differently
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than any other employee. A Wiremasters employee (Yolanda Quinones) also averred that no one
from Total Staffing supervised plaintiff’s work at Wiremasters.
¶9 Following full briefing by the parties and argument on the motion, the trial court found
that plaintiff was a borrowed employee of Wiremasters at the time of the incident, therefore
Wiremasters was entitled to protection from plaintiff’s complaint under the Act; and the court
found that Count II of plaintiff’s complaint alleging willful and wanton conduct was barred by
the exclusivity provision of the Act because plaintiff “failed to establish that her injuries were
not accidental and the result of willful and wanton conduct.” (Emphasis added.) On March 15,
2022, the trial court entered a written order granting Wiremasters’s motion to dismiss with
prejudice.
¶ 10 This appeal followed.
¶ 11 ANALYSIS
¶ 12 Section 2-619(a)(9) permits a defendant to file a motion for dismissal of the action on the
ground the claim is barred by affirmative matter defeating the claim. 735 ILCS 5/2-619(a)(9)
(West 2020). An “affirmative matter defeating the claim” includes the absence of disputed issues
of material fact such that the moving party is entitled to judgment as a matter of law. Arbogast v.
Chicago Cubs Baseball Club, LLC, 2021 IL App (1st) 210526, ¶ 16 (“The relevant question in
assessing whether dismissal is proper under section 2-619 is whether a genuine issue of material
fact exists that precludes dismissal or, in the absence of such an issue of fact, whether dismissal
is proper as a matter of law.”). In other words, “the motion will be granted if there exist no
disputed issues of [material] fact.” Ericksen v. Rush Presbyterian St. Luke's Medical Center, 289
Ill. App. 3d 159, 165 (1997). “If a cause of action is dismissed pursuant to a section 2-619
motion, the questions on appeal are (1) whether a genuine issue of material fact exists and (2)
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whether the defendant is entitled to a judgement as a matter of law. [Citation.]” (Internal
quotation marks omitted.) Zurich Insurance Co. v. Amcast Industrial Corp., 318 Ill. App. 3d 330,
333 (2000). “The standard of review *** is de novo.” Arbogast, 2021 IL App (1st) 210526, ¶ 16.
¶ 13 The dispositive “disputed issue of material fact” in this case is whether or not plaintiff
was a borrowed employee of defendant under the Act. This issue is dispositive because:
“The Act protects workers from accidental workplace injuries by imposing
resulting liability on their employers, regardless of fault. [Citation.] In exchange,
section 5(a) states as follows: ‘No common law or statutory right to recover
damages from the employer *** for injury or death sustained by any employee
while engaged in the line of his duty as such employee, other than the
compensation herein provided, is available to any employee who is covered by
the provisions of this Act.’ [Citations.] This immunity applies to loaning and
borrowing employers. [Citation.]” Morales v. Herrera, 2016 IL App (1st) 153540,
¶ 14.
¶ 14 Thus, if plaintiff was a borrowed employee of defendant, defendant is entitled to the
immunity provided by the Act. There is no real dispute in this case that if plaintiff was a
borrowed employee of defendant the judgment granting the motion to dismiss was proper unless
defendant is not immune from plaintiff’s civil suit under the Act because defendant’s willful and
wanton conduct caused the incident resulting in plaintiff’s injury. This court’s approach to
loaned and borrowed employees is well-established:
“Under Illinois’ loaned employee doctrine, an employee in the general
employment of one person may be loaned to another for the performance of
special work and become the employee of the person to whom he is loaned.
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[Citation.] Whether such a constructive transfer of employment occurs depends
on whether the borrowing employer has the right to direct and control the
employee with respect to the work performed and whether an employment
contract, express or implied, existed between the employee and the borrowing
employer. [Citation.]
The primary factor in determining a borrowed-employment relationship is
the right to control the manner and direction of the subject employee’s work.
[Citations.] Other factors to be considered include the manner of hiring, the mode
of payment, the nature of the work, the manner of direction and supervision of
work, and the right to discharge. [Citations.] Additionally, the Illinois Supreme
Court recognizes the threshold inquiry whether the employee actually or
impliedly consented to work for the borrowing employer. [Citation.] Implied
consent exists where the employee is aware that the borrowing employer ‘is in
charge’ or generally controls the employee’s performance. The employee’s
acceptance of the borrowing employer’s direction shows his acquiescence to the
employment situation. [Citation.]” Crespo v. Weber Stephen Products Co., 275
Ill. App. 3d 638, 641 (1995) (citing, inter alia, A.J. Johnson Paving Co. v.
Industrial Comm’n, 82 Ill. 2d 341 (1980)).
¶ 15 On appeal, plaintiff argues plaintiff was not a borrowed employee of defendant and was
only employed by Total Staffing because (1) defendant did not have the right to control the
manner in which plaintiff performed the work; (2) Total Staffing issued plaintiff’s paychecks and
paid for plaintiff’s insurance, social security, and taxes; (3) Total Staffing had the right to
discharge plaintiff; and (4) the written contract between Total Staffing and defendant shows that
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plaintiff was an employee of Total Staffing and not defendant, plaintiff required no level of skill
to perform the work, and plaintiff’s length of service was short. “Whether a loaned employee
status exists is generally a question of fact, but it constitutes a question of law if the facts are
undisputed and capable of one inference.” Prodanic v. Grossinger City Autocorp, Inc., 2012 IL
App (1st) 110993, ¶ 15.
¶ 16 We must construe the evidence liberally in plaintiff’s favor. Brennan v. Kadner, 351 Ill.
App. 3d 963, 967 (2004). Doing so in this case reveals there is no genuine issue of material fact
and the evidence permits only one reasonable interpretation: plaintiff was defendant’s borrowed
employee. First, as to plaintiff’s argument defendant did not have the right to control the manner
in which plaintiff performed plaintiff’s work, plaintiff relies on the claims that defendant never
gave plaintiff any formal training on the machine plaintiff was injured on, never gave plaintiff a
safety manual or employee handbook, and defendant had no safety procedures in place for the
type of incident that injured plaintiff. Plaintiff also relies on a claim that Total Staffing set
plaintiff’s schedule.
¶ 17 We find there is no genuine dispute of material fact as to whether Total Staffing
controlled plaintiff’s work. The record evidence establishes that defendant controlled the manner
and direction of plaintiff’s work under tests for determining control found in our case law and
because plaintiff’s claim defendant never provided plaintiff with training on using the machine
plaintiff worked on is positively rebutted by the record. As to plaintiff’s training, plaintiff
testified Luis Morales, who was defendant’s direct employee and plaintiff’s supervisor at
Wiremasters, would “train me as I go,” “machine by machine depending on where I got
assigned.” Plaintiff agreed that all training plaintiff received while at Wiremasters came from
Morales, and Morales always trained plaintiff “just right there with a machine.” No one from
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Total Staffing told plaintiff what plaintiff was going to be doing or what machine plaintiff would
be working on any given day. If plaintiff needed to change machines on a shift Morales would
take plaintiff off one machine, put plaintiff on another machine, explain how the new machine
worked, and plaintiff would start working. No one else showed plaintiff how any of the machines
she worked on operated. Conversely, plaintiff testified Total Staffing did not provide plaintiff
any training of any kind to do the work at Wiremasters nor did Total Staffing give plaintiff any
training about their own “place or their own rules.” Plaintiff did not recall receiving a handbook
or safety book from Total Staffing.
¶ 18 Next, we note that defendant correctly cites Prodanic, 2012 IL App (1st) 110993, ¶ 16,
for the alleged factors to consider when determining control. In Prodanic, this court noted as
follows:
“Our supreme court has found that the following factors support a
determination that the borrowing employer had the right to control and direct the
manner in which the employee performed the work: (1) the employee worked the
same hours as the borrowing employer; (2) the employee received instruction
from the borrowing employer’s foreman and was assisted by the borrowing
employer’s employees; (3) the loaning employer’s supervisors were not present;
(4) the borrowing employer was permitted to tell the employee when to start and
stop working; and (5) the loaning employer relinquished control of its equipment
to the borrowing employer. Id. (citing A.J. Johnson Paving Co., 82 Ill. 2d at 349).
¶ 19 Plaintiff speculated that primarily defendant’s direct employees worked the first shift of
the day and that primarily Total Staffing employees worked the second and last shift of the day
but plaintiff could not say with certainty either that her assumptions were correct or that either
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shift belonged exclusively to either set of employees. We will hold this one factor in plaintiff’s
favor, but the remaining three factors identified by our supreme court weigh in favor of finding
that plaintiff was defendant’s borrowed employee.
¶ 20 Plaintiff received instruction from, and only from, Morales, defendant’s direct employee.
The testimony does not suggest that any of the employees at Wiremasters worked together in
their daily work. Total Staffing supervisors were not present at the work site. Defendant was
permitted to tell plaintiff when to start and stop working. Although plaintiff may have said Total
Staffing set her schedule, she clarified that Total Staffing would only ask whether plaintiff was
working that day but then plaintiff would work the shift defendant established, i.e., plaintiff’s
start and stop time. No equipment was involved in plaintiff’s work for defendant (other than a
pair of gloves Total Staffing gave plaintiff to use at Wiremasters on plaintiff’s first day which
could only be considered a relinquishment to Wiremasters). Plaintiff was asked whether her
supervisor while she worked was a Total Staffing employee or defendant’s employee and
plaintiff testified “I couldn’t tell the difference.” Other than her belief that defendant’s direct
employees received benefits, plaintiff testified she could not tell the difference between
defendant’s employees and Total Staffing hires. Based on the record evidence, under A.J.
Johnson Paving Co. we find that the only reasonable inference from the evidence is that
defendant controlled the manner and direction of plaintiff’s work.
¶ 21 Plaintiff’s reliance on Palomar v. Metropolitan Sanitary District of Greater Chicago, 225
Ill. App. 3d 182 (1992), is misplaced. In Palomar, this court found a question of material fact
existed as to whether the plaintiff was a borrowed employee within the meaning of the Act.
Palomar, 225 Ill. App. 3d at 189. The Palomar court made its determination by weighing such
“factors as the matter of hiring, the mode of payment, the right to discharge, and the manner or
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direction of the services.” (Internal quotation marks omitted.) Palomar, 225 Ill. App. 3d at 189
(quoting Gundich v. Emerson-Comstock Co., 21 Ill. 2d 117, 123 (1960)). The Palomar court
found that in that case the parties disagreed with respect to the facts of the case and that
conflicting inferences could be drawn from the evidence. Id. at 190.
¶ 22 Plaintiff cites Palomar in support of the argument that Total Staffing controlled her work
because Total Staffing issued plaintiff’s paychecks and paid her taxes. The Palomar court noted
that the plaintiff in Palomar argued that the plaintiff was not the alleged borrowing employer’s
employee because the plaintiff “received his paychecks and W-2 forms from [the alleged loaning
employer]” while the defendant maintained that “although [the alleged loaning employer] paid
[the] plaintiff’s wages, and deducted [the] plaintiff’s taxes and social security *** it is clear ***
that [the alleged borrowing employer] was ultimately responsible for the payment of the same.”
We concede a similar argument in this case but we do not find it dispositive of the issue. The
Palomar court did not discuss these specific facts related to payment in concluding that a
genuine issue of material fact existed concerning the issue of whether the plaintiff was a
borrowed employee pursuant to the Act. See id. at 190. Regardless, the Palomar court
acknowledged that “[t]he primary test for determining the existence of a loaned employer-
employee relationship is whether or not the alleged loaned employee is subject to the control and
direction of the borrowing employer.” Id. at 189 (citing M & M Electric Co. v. The Industrial
Comm’n, 57 Ill. 2d 113, 116-17 (1974)). In this case, as demonstrated below the only reasonable
inference from the evidence is that plaintiff was subject to the control and direction of defendant.
¶ 23 First, as to plaintiff’s specific reliance on the fact Total Staffing issued plaintiff’s
paycheck and paid her taxes, that argument is not persuasive in light of the fact our supreme
court has “found it was irrelevant that the employee received his salary from the loaning
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employer, rather than the borrowing employer.” Prodanic, 2012 IL App (1st) 110993, ¶ 16
(citing A.J. Johnson Paving Co., 82 Ill. 2d at 349). In A.J. Johnson, our supreme court concluded
that an administrative finding that an employer-employee relationship existed was not against the
manifest weight of the evidence and the court primarily supported that finding by discussing the
borrowing employer’s “right to control the manner of the work performed.” See A.J. Johnson
Paving Co., 82 Ill. 2d at 349. In that context our supreme court found that “[t]he mere fact that
the employee does not receive his wages from the special employer will not defeat the finding of
a loaned-employee situation.” A. J. Johnson Paving Co., 82 Ill. 2d at 349.
¶ 24 We also note that in Palomar, the plaintiff testified the plaintiff’s work was supervised
and controlled solely by the alleged loaning employer and the plaintiff was only accountable to
the alleged loaning employer and its agents, while the alleged borrowing employer testified it
had the right to control the plaintiff’s work pursuant to the parties’ contract and that it did in fact
do so in part because the plaintiff received work from the defendant’s employees. Id. The
opinion in Palomar does not specify precisely what either the alleged loaning or alleged
borrowing employer told the employee.
¶ 25 In this case, we do not find the material facts to be in dispute or that conflicting
inferences may be drawn from the evidence. There is no genuine dispute that defendant’s
employee Morales was the only person to direct plaintiff on the use of the various machines. No
Total Staffing employees were present while plaintiff performed her work, therefore, plaintiff
could not be accountable to Total Staffing while she worked. There is also no dispute plaintiff
only received her work from Morales. Plaintiff testified Morales was the only person to tell
plaintiff what machine to work on and what machine to move to once plaintiff completed using a
particular machine for the day. See O’Loughlin v. ServiceMaster Co. Limited Partnership, 216
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Ill. App. 3d 27, 37 (1991) (examining “the ‘very nature’ of [the] plaintiff’s work” to determine
whether borrowing employer controlled the plaintiff’s work).
¶ 26 In O’Loughlin, the court cited M & M Electric Co., 57 Ill. 2d at 118, for the proposition
that because the borrower “could not control the manner of *** work, it had not become [a]
borrowing employer.” O’Loughlin, 216 Ill. App. 3d at 37 (citing M & M Electric, 57 Ill. 2d at
118). In O’Loughlin, the court found that the “very nature” of the plaintiff’s work did not give
the borrower control. Id. In this case, the very nature of the work plaintiff performed at
Wiremasters required defendant to control the manner in which plaintiff performed her work.
Unlike the employee in O’Loughlin plaintiff in this case could not complete her tasks if
defendant did not tell her exactly what to do and how to do it at each machine. Finally, in this
case, defendant is not relying solely on language in a contract but rather on the facts of what
actually occurred in support of its argument plaintiff was defendant’s borrowed employee.
Compare id.
¶ 27 In this case, considering the primacy of the right to control plaintiff’s work we find the
mere fact that plaintiff did not receive wages from defendant but from Total Staffing is not
enough to overcome the factor of control over plaintiff’s work and other facts and circumstances
based on which we find the only reasonable inference is that plaintiff was defendant’s borrowed
employee.
¶ 28 Turning to plaintiff’s argument plaintiff was not a borrowed employee because Total
Staffing had the right to discharge her, we note plaintiff admits defendant could ask that Total
Staffing not assign plaintiff to work for defendant but plaintiff argues that power is not the same
as the power to discharge. In support of that argument plaintiff relies on O’Loughlin, 216 Ill.
App. 3d at 27. In O’Loughlin, the court declined to find a borrowed employment relationship in
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part by rejecting the alleged borrowing employer’s argument that it controlled the employee’s
work because it had “effective, de facto” power to hire and discharge the plaintiff even though
the alleged loaning employer “retained formal power to hire and discharge” the employee.
O’Loughlin, 216 Ill. App. 3d at 37. The court found that the evidence established only that the
alleged borrowing employer had the authority to recommend the employee be discharged but
that recommendation was subject to the approval of the loaning employer. The court also noted
the borrowing employer had “never tested [this] ‘effective’ power by recommending that anyone
be terminated.” Id. The O’Loughlin court concluded that the employee could “point to neither a
clear grant nor any exercise of independent authority on their part to hire or discharge an
employee ***, whereas [the employee] had every reason to consider himself an employee of the
[alleged loaning employer] and not of [the] defendants.” O'Loughlin, 216 Ill. App. 3d at 40.
¶ 29 This case is distinguishable. Here, plaintiff does not have “every reason to consider
[themself] an employee of [Wiremasters.]” Plaintiff reported to defendant’s property to work.
Defendant told plaintiff what plaintiff’s shift would be. Defendant’s employee was the only
person to instruct plaintiff how to do their work. No one from Total Staffing was on site at
Wiremasters when plaintiff worked. Most pertinent, the evidence in this case is distinguishable
from O’Loughlin based on that court’s recitation of the evidence. In O’Loughlin, the court stated
the evidence was clearly that the alleged borrowing employer only “had the authority to
recommend *** that [the] plaintiff be discharged” and asserted no more than a “de facto power”
to discharge. See O’Loughlin, 216 Ill. App. 3d at 37. Plaintiff did testify that Total Staffing had
the ability to fire plaintiff and on appeal plaintiff argues that defendant’s employees only had the
authority to recommend her termination. Plaintiff’s basis for that assertion is the testimony of
first-shift supervisor Juan Delgado and Vice President of Operations Robert Cummins.
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¶ 30 In this case, however, Delgado’s and Cummins’s testimony implies joint responsibilities
regarding discharging a Total Staffing employee rather than the more limited power to
recommend discharge present in O’Loughlin. Delgado testified without qualification that he did
“have the ability to fire individuals.” Delgado also testified there was no difference between
employees defendant hired and Total Staffing employees. Shortly thereafter, Delgado was asked
the following questions and gave the following answers:
“Q. With respect to hiring and firing of the employees that came from
Total Staffing, did you have the ability as a Wiremasters supervisor to fire
employees that were hired by Total Staffing?
A. [over objection] Yes.
Q. You personally could terminate [plaintiff] *** without contacting Total
Staffing; is that correct?
A. [over objection] I could not fire her directly. I had to call the office and
let them know that we didn’t need her any longer and why we didn’t need her.
Q. So you as the supervisor at Wiremasters would not have been able to
terminate [plaintiff] without having speaking [sic] to Total Staffing; is that
correct?
A. [over objection] Yes. Any time you wanted to dismiss an employee that
came through an agency, you had to contact the agency. Otherwise, they would
send them back and then you would have to pay them.”
¶ 31 We find the only reasonable inference from Delgado’s testimony is that Total Staffing
would process defendant’s decision to terminate a Total Staffing employee by not returning the
employee to defendant’s work site and possibly (but not certainly) informing the employee in the
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first instance. In any event, there is no reasonable inference that Total Staffing had to approve the
discharge. The evidence implies the borrowing employer makes the decision whether or not they
want the employee back, communicates that decision to the loaning employer, and then the
loaning employer does not send the employee back. Nothing in Delgado’s testimony suggests a
right to approve defendant’s decision nor, more importantly, a right to refuse defendant’s
decision. Cf. id.
¶ 32 Similarly, Cummins was asked the following questions and gave the following answers:
“Q. With respect to terminating employees, like a general laborer who was
performing work on the press brake machine at issue, in terms of being able to
terminate, Wiremasters was not able to terminate those employees unilaterally; is
that correct?
A. You mean—what do you mean by unilaterally?
Q. What I mean is that if you were to have a reason to terminate an
employee that came over from Total Staffing, you would have to communicate
that to Total Staffing who would then actually fire the employee; is that correct?
A. Yes. The only time I would terminate someone, which I never had to
do on the spot, was a safety issue, they were doing something unsafe and I didn’t
want them on the property anymore, then I would basically tell them to go home,
and then I would call the staffing agency and say I don’t want them back again.
Q. Got it. But in terms of actually discontinuing any employment or work
being done by that individual at Wiremasters, that’s something that Total Staffing
would have to discharge them from. Would you agree?
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A. Correct. I would call them and say I no longer want this employee
here.”
¶ 33 As with Delgado’s testimony, nothing in Cummins’s testimony gives rise to a reasonable
inference that defendant’s decision to have a Total Staffing employee not return to Wiremasters
was subject to Total Solutions’s approval (which necessarily implies Total Solution’s power to
disapprove). We find the only reasonable inference is that defendant made the actual decision to
terminate, not subject to any approval. (“I would call them and say I no longer want this
employee here.” (Emphasis added.)) Defendant then communicated that decision to Total
Staffing, who then would not, as a matter of necessity, return that employee to defendant’s work
site. Furthermore, Cummins testified unequivocally to an authority to terminate a Total Staffing
employee for safety issues. Telling and supportive of our conclusion is that even when an
employee was removed for a safety violation, Cummins testified defendant had the authority to
do so instantly and “unilaterally” and defendant would still “call the staffing agency and say I
don’t want them back again.” This similarity in process suggests the authority is the same for
safety violations and discharge for other reasons: defendant makes the decision, communicates
that decision to Total Staffing, and Total Staffing does not return the employee to defendant’s
work site. (Although not necessary to our holding, we can infer that the reason for this process is
so that Total Staffing can find the employee a new placement rather than leading the employee to
believe Total Staffing would not continue to place them at all.) But see M & M Electric, 57 Ill.
2d at 119 (citing Densby v. Bartlett, 318 Ill. 616, 620-621 (1925)) (“While there are undoubtedly
areas of behavior which would justify Northwestern’s removal of an M & M electrician from the
plant, for instance, flagrant safety violations, this power does not amount to the power to
discharge.”)).
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¶ 34 In sum, plaintiff’s reliance on O’Loughlin is misplaced because the case is legally and
factually distinguishable. Legally, defendant in this case can “point to *** a clear grant *** of
independent authority on [defendant’s] part to hire or discharge an employee.” Cf. O’Loughlin,
216 Ill. App. 3d at 40. Factually, plaintiff did not have “every reason to consider [themselves] an
employee of the [alleged loaning employer] and not of defendant’s.” (Emphasis added.) Cf. id.
We find the only reasonable inference is that plaintiff was defendant’s borrowed employee.
¶ 35 Next, plaintiff argues no express or implied contract existed between plaintiff and
defendant. Plaintiff did not sign any agreements and plaintiff argues that no implied contract
existed because plaintiff was not aware of the contract between Total Staffing and defendant.
Plaintiff also testified to her belief that Total Staffing employed her based, in part, on the fact
plaintiff did not receive benefits from defendant while defendant’s employees did receive
benefits.
¶ 36 “Our supreme court has stated that the inquiry required to determine whether a loaned-
employee status exists is twofold: (1) whether the borrowing employer had the right to control
and direct the manner in which the employee performed the work; and (2) whether a contract of
hire existed between the borrowing employer and the employee. Prodanic, 2012 IL App (1st)
110993, ¶ 15 (citing A.J. Johnson Paving Co., 82 Ill. 2d at 348). The contract may be express or
implied, and “to establish such a contract there must be at least an implied acquiescence by the
employee in the relationship.” A.J. Johnson Paving Co., 82 Ill. 2d at 350 (citing McHugh-
Brighton v. Industrial Comm’n, 42 Ill. 2d 52 (1969)).
“[A] n individual may be the general employee of one employer and the
loaned employee of another, but he must consent to the new relationship.
[Citation.] Implied consent exists where the employee knows that the borrowing
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employer generally controls or is in charge of the employee’s performance.
[Citation.] Furthermore, the employee’s acceptance of the borrowing employer’s
direction demonstrates the employee’s acquiescence to the employment
relationship. [Citation.]” Prodanic, 2012 IL App (1st) 110993, ¶ 15 (citing A.J.
Johnson Paving Co., 82 Ill. 2d at 348).
¶ 37 We find that pursuant to A.J. Johnson Paving Co., the only reasonable inference that can
be drawn from the evidence in this case is that plaintiff acquiesced to a loaning-borrowing
employer relationship. Our supreme court has held that acquiescence can be established by the
fact the employee was aware of the borrowing employer and complied with the borrowing
employer’s instructions with regard to starting, stopping, and break times; instructions on what to
do; and other incidental directions as to the performance of the work. A.J. Johnson Paving Co.,
82 Ill. 2d at 350 (citing 1C A. Larson, Workmen’s Compensation sec. 48.10, at 8-331 to 8-332
(1980)). In those circumstances, the court found that a finding of a borrowing employer
relationship was not against the manifest weight of the evidence. Id. In this case, the facts are
undisputed that plaintiff knew Total Staffing hired her to be sent to work elsewhere, plaintiff
worked defendant’s schedule and complied with Wiremasters’s start, stop, and break times.
Furthermore, this court has held that:
“An employee’s consent to the requisite contract of hire with the
borrowing employer may be implied in the context of employment by a temporary
employment agency. [Citation.] Indeed, courts have repeatedly held that a
plaintiff’s acceptance of an assignment from a temporary employment agency and
awareness that he or she worked for the borrowing employer through the
temporary employment agency amounted to implied consent to the borrowed-
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employee relationship.” Torrijos v. International Paper Co., 2021 IL App (2d)
191150, ¶ 68.
¶ 38 In this case plaintiff accepted defendant’s instruction as to what machine to work on, how
much work to complete (based on the amount of raw material provided to plaintiff at each
machine), and how to operate the machine. Moreover, plaintiff testified that through Total
Staffing, plaintiff completed employment paperwork with defendant, Total Staffing instructed
plaintiff to report to defendant’s work site, plaintiff accepted this assignment, and plaintiff
performed work for and at the direction of defendant. See id.
¶ 39 As in Torrijos, we find that “plaintiff impliedly consented to the borrowed-employee
relationship.” Id. See also 820 ILCS 305/1(a)(4) (West 2020) (“An employer whose business or
enterprise or a substantial part thereof consists of hiring, procuring or furnishing employees to or
for other employers operating under and subject to the provisions of this Act for the performance
of the work of such other employers and who pays such employees their salary or wages
notwithstanding that they are doing the work of such other employers shall be deemed a loaning
employer within the meaning and provisions of this Section.”); but see Chaney ex rel. Chaney v.
Yetter Manufacturing Co., 315 Ill. App. 3d 823, 828 (2000) (declining to adopt sole reliance on
statute and proceeding to examine the traditional factors that define the loaned-employee and
borrowing-employer relationship).
¶ 40 We also find that Emma v. Norris, 130 Ill. App. 2d 653 (1970), on which plaintiff relies
for the proposition that plaintiff did not acquiesce to an employment relationship with defendant
because she was unaware of the written agreement between Total Staffing and defendant, to be
inapposite. First, the evidence amply supports and we have found the existence of an implied
contract of employment, therefore, the written agreement is irrelevant. See A.J. Johnson Paving
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Co., 82 Ill. 2d at 350 (finding no merit to argument arbitrator erred in “excluding evidence of an
agreement between the employers with respect to liability under the Act”). Second, this court has
recognized that:
“[T]he agreement between [the defendant] and [the temporary
employment agency] has no bearing on [the] plaintiffs’ implied contract for hire
with [the defendant]. [Citation.] The loaned employee concept depends on a
contract of hire ‘between the employee and the special employer, not the details
of the contract between the two employers.’ [Citations.]” (Internal quotation
marks omitted.) Torrijos, 2021 IL App (2d) 191150, ¶ 74.
Finally, the Emma court found that the evidence gave rise to conflicting inferences
bearing on the issue of consent presenting a question of fact. Emma, 130 Ill. App. 3d at
658. We do not find the evidence conflicting in this case.
¶ 41 Based on the Act, this court’s holdings in Torrijos, and the elements our supreme court
articulated in A.J. Paving Co., the only reasonable inference is that plaintiff acquiesced to an
implied employment contract with defendant and that a borrowed employee relationship existed
between plaintiff and defendant. Neither the level of skill required to work for defendant nor
plaintiff’s short tenure are sufficient to overcome the conclusion that plaintiff was defendant’s
borrowed employee. The material facts are not in dispute and the disputed facts are inapposite.
Viewing the evidence in a light most favorable to plaintiff, the only reasonable inference from
the evidence is that Total Staffing was a loaning employer and Wiremasters was a borrowing
employer under the Act. Therefore, defendant is entitled to the limitations on liability provided
under the Act; unless, defendant’s conduct was willful and wanton, and plaintiff argues that it
was.
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¶ 42 Mere negligence does not remove an employer from the scope of the protections of the
Act. McKernin Exhibits, Inc. v. Industrial Comm'n, 361 Ill. App. 3d 666, 671 (2005). “In order to
remove the claimant from the protection of the Act, his actions must have been committed
intentionally, with knowledge that they were likely to result in serious injury, or with a wanton
disregard of the probable consequences.” Id. A plaintiff may also escape the limitation on
employer liability afforded by the Act by proving “either that the injury (1) was not accidental,
(2) did not arise from his or her employment, (3) was not received during the course of
employment or (4) was noncompensable under the Act.” Collier v. Wagner Castings Co., 81 Ill.
2d 229, 237 (1980). Plaintiff argues defendant’s conduct was willful and wanton and not
“accidental” within the meaning of the Act. Plaintiff asserts additional depositions will support a
finding of willful and wanton conduct by defendant. As to defendant’s alleged willful and
wanton conduct, plaintiff argues evidence of willful and wanton conduct is that (1) defendant
required employees to meet a quota working on the machines, (2) there had been prior
complaints about the machine that injured plaintiff, (3) a maintenance technician had to receive
instruction on how to adjust the machine that injured plaintiff, (4) defendant did not properly
maintain the machine, and (5) defendant lacked a training system and had no procedures in place
and was otherwise unprepared for the type of accident that injured plaintiff.
¶ 43 Taking plaintiff’s assertions as true, the alleged “facts” on which plaintiff relies fall short
of alleging willful and wanton conduct sufficient to remove defendant from the protection of the
Act. This court has stated as follows:
“An injury is accidental within the meaning of the Act when it is traceable
to a definite time, place, and cause, and occurs in the course of the employment
unexpectedly and without affirmative act or design of the employee. [Citation.] In
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the context of the Act, to show that an injury is not accidental, the employee must
establish that his employer or co-employee acted deliberately and with specific
intent to injure the employee. [Citations.] The *** court [has] quoted Professor
Larson's treatise on workers’ compensation law as follows:
Even if the alleged conduct goes beyond aggravated
negligence, and includes such elements of knowingly permitting a
hazardous work condition to exist, knowingly ordering a claimant
to perform an extremely dangerous job, willfully failing to furnish
a safe place to work, or even willfully and unlawfully violating a
safety statute, this still falls short of the kind of actual intention to
injure that robs the injury of accidental character. [Citations.]”
(Internal quotation marks omitted.) Garland v. Morgan Stanley &
Co., Inc., 2013 IL App (1st) 112121, ¶ 29.
¶ 44 Further, the Garland court rejected the plaintiff’s request to modify this standard. This
court reiterated:
“This argument is unpersuasive where the case law is clear that, for an
employee seeking to bypass the exclusive remedy of the Act, the employee must
show that the employer specifically intended to injure the plaintiff. See, e.g.,
Copass [v. Illinois Power Co.], 211 Ill. App. 3d [205,] 214 [(1991)] (‘an
employee alleging an intentional tort against his employer or co-employee must
allege that the defendant acted deliberately with specific intent to injure the
employee’); Mayfield v. ACME Barrel Co., 258 Ill. App. 3d 32, 35 (1994)
(‘Whether an injury is accidental for the purposes of applying the Act is
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dependent upon the object of the employer’s intention. It is only when the
employer acts with [the] specific intent to injure the employee that the resultant
injury is stripped of its accidental character.’); Bercaw v. Domino’s Pizza, Inc.,
258 Ill. App. 3d 211, 218 (1994) (agreeing with the Copass court ‘that the
“specific intent to injure” test is in keeping with the basic purposes of the Act’);
Limanowski [Ashland Oil Co., Inc.], 275 Ill. App. 3d [115,] 120 [(1995)]
(employee seeking to recover against employer must prove, by a preponderance
of the evidence, that the employer specifically intended to injure the plaintiff).”
Garland, 2013 IL App (1st) 112121, ¶ 30.
¶ 45 We reject plaintiff’s argument that plaintiff’s injury was not caused by an “accident.”
Once again, “[a]n accident is anything that happens without design or an event unforeseen by the
person to whom it happened. Within the meaning of the Act, an injury is accidental when it is
traceable to a definite time, place, and cause and occurs in the course of employment without
affirmative act or design of the employee.” Elliott v. Industrial Comm'n of Illinois, 303 Ill. App.
3d 185, 188 (1999) (citing International Harvester Co. v. Industrial Comm'n, 56 Ill. 2d 84, 88–
89 (1973)). Plaintiff’s testimony establishes that this event was unforeseen and without
affirmative act or design by plaintiff. Plaintiff testified that plaintiff did not see the accident
occurring until it was too late and that plaintiff had never seen anything like the occurrence
happen before.
¶ 46 As for plaintiff’s implied request for more time to complete depositions in an effort to
obtain evidence of willful and wanton conduct, we reject any such request. First, plaintiff does
not direct this court to a Rule 191(b) affidavit. Kensington’s Wine Auctioneers & Brokers, Inc. v.
John Hart Fine Wine, Ltd., 392 Ill. App. 3d 1, 11 (2009) (“Supreme Court Rule 191(b) (145 Ill.
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2d R. 191(b)) sets forth the procedure to be followed when a party believes that additional
discovery is needed to properly respond to a section 2-619 motion to dismiss.”) Nor does
plaintiff allege what plaintiff believes any witnesses might testify to as well as the reason for that
belief. Kensington's Wine Auctioneers & Brokers, Inc., 392 Ill. App. 3d at 12 (“Laks’s affidavit
is thus facially defective because it fails to allege what she believes each of the defendants might
testify to, as well as the reasons for her beliefs. Accordingly, the trial court did not err in granting
defendants’ motion to dismiss despite the presence of Laks’s Rule 191(b) affidavit.”)
¶ 47 Second, the evidence on file overwhelming establishes that plaintiff cannot show that
defendant intended to injure plaintiff. See Garland, 2013 IL App (1st) 112121, ¶ 30. We find,
considering the evidence in a light most favorable to plaintiff and accepting plaintiff’s claims as
true, the injury "was, at most, a terribly unfortunate accident caused by negligence.” Id. (We note
we are not making a finding that defendant was negligent; only that defendant’s conduct did not
rise to the level of willful and wanton conduct to remove defendant from the protection of the
Act.) We find that “plaintiff failed to show defendant[], or anyone for that matter, acted
deliberately with the specific intent to injure.” Id. Accordingly, dismissal pursuant to section 2-
619 was proper.
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 50 Affirmed.
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