Hall v. DeFalco

533 N.E.2d 448, 178 Ill. App. 3d 408, 127 Ill. Dec. 576, 1988 Ill. App. LEXIS 1850
CourtAppellate Court of Illinois
DecidedDecember 30, 1988
Docket87-2880
StatusPublished
Cited by23 cases

This text of 533 N.E.2d 448 (Hall v. DeFalco) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. DeFalco, 533 N.E.2d 448, 178 Ill. App. 3d 408, 127 Ill. Dec. 576, 1988 Ill. App. LEXIS 1850 (Ill. Ct. App. 1988).

Opinion

JUSTICE QUINLAN

delivered the opinion of the court:

Plaintiff, Henry Hall, appeals the dismissal of his personal injury claim, contending that the circuit court of Cook County abused its discretion in refusing to reconsider and vacate its dismissal order and in refusing to consider plaintiff’s counteraffidavit, which was filed after the dismissal order had been entered. We affirm.

The plaintiff, a passenger in the truck that the defendant was driving, sued the defendant, Frank DeFalco, for injuries that he sustained when the truck veered off the road and crashed into a building. The accident occurred on October 8, 1984. At the time of the accident, defendant was manager of a McDonald’s restaurant in Winnetka, Illinois. Plaintiff was also a McDonald’s employee. The truck veered off the road as defendant was driving plaintiff to an “L” station, after plaintiff had finished his work shift.

As a result of the accident, plaintiff filed a three-count complaint at law in the circuit court of Cook County. Count I alleged that the defendant was negligent in his operation of the truck and that plaintiff was injured as a direct and proximate result of defendant’s negligence. Count III alleged that defendant was wilful and wanton in his operation of the truck and that plaintiff was injured as a direct and proximate result of defendant’s wilful and wanton behavior. Count II was directed against Michael Bolling, the owner of the truck that defendant was driving. The trial court granted summary judgment in favor of Bolling on count II. Plaintiff does not appeal that decision.

Defendant filed a motion to dismiss counts I and III pursuant to section 2 — 619(a)(9) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) and section 5 of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.5(a)). Defendant argued that plaintiff was barred from bringing his action against defendant because plaintiff had received benefits for his injuries under the Workers’ Compensation Act, which provides an exclusive remedy to an employee covered under the Act. Defendant contended that his regular duties included driving McDonald’s employees to the local train station after their shift had ended and that plaintiff was injured while defendant was acting within the scope of his employment. Accordingly, defendant argued, under section 5 of the Workers’ Compensation Act, plaintiff was barred from bringing a common law action.

With his motion to dismiss, defendant filed his own affidavit. In his affidavit, defendant asserted that he was acting within the scope of his employment by transporting a McDonald’s employee to local public transportation when the accident giving rise to plaintiff’s injuries occurred. Transporting these employees was a regular part of defendant’s daily work duties, he stated, and this was done in furtherance of the interests of his employer, the McDonald’s Corporation. Furthermore, DeFalco said, the plaintiff here had, in fact, filed a workers’ compensation claim against the McDonald’s Corporation for the injuries that he sustained in this accident and had received compensation from the McDonald’s Corporation for his injuries.

Plaintiff filed a response to defendant’s motion to dismiss, arguing that applying for and receiving benefits under the Workers’ Compensation Act did not act as a bar to a common law action. Plaintiff did not, however, file any counteraffidavits in support of his response.

The circuit court granted defendant’s motion to dismiss, holding that plaintiff’s claim was barred by the exclusive remedy provisions of the Workers’ Compensation Act. In granting defendant’s motion, the court said that the question of whether an injury occurs within or outside the scope of employment becomes a question of law when the facts of the case are undisputed. In this case, the court noted that defendant’s affidavit said that the accident occurred while he was within the scope of employment and that plaintiff failed to counter this affidavit. Hence, the court ruled that in this case the question was one of law and held that DeFalco had acted within the scope of his employment.

Thereafter, plaintiff filed a motion to vacate the dismissal order. Along with his motion to vacate, plaintiff now filed his counteraffidavit, stating that he was not in the course of employment when the accident occurred. The court denied plaintiff’s motion to vacate and refused to consider his counteraffidavit. Plaintiff, as noted earlier, has now appealed to this court.

Plaintiff’s first argument on appeal is that the trial court abused its discretion when it refused to consider the counteraffidavit that he filed after his case was dismissed. Plaintiff contends that the court should have considered his counteraffidavit because the late filing of the affidavit was not an egregious error and because it would not prejudice the defendant to do so. Defendant, however, contends that the trial court did not err in refusing to consider the plaintiff’s affidavit since plaintiff’s failure to file his counteraffidavit was the result of a deliberate, strategic decision on his part.

The decision to allow a party to file an affidavit after the trial court has ruled on a section 2 — 619'motion to dismiss or on a motion for summary judgment is within the trial court’s discretion. (Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 1016, 525 N.E.2d 1127, 1130; City of Chicago v. Sievert Electric Co. (1985), 134 Ill. App. 3d 552, 555, 481 N.E.2d 1, 3.) The trial court’s refusal to allow a plaintiff to file additional affidavits does not constitute an abuse of discretion where the plaintiff has been given ample opportunity to prepare and file any affidavits or documents to support his opposition to the defendant’s motion. (Wells, 171 Ill. App. 3d at 1016, 525 N.E.2d at 1130.) The trial court in this case refused to consider the plaintiff’s counteraffidavit here, stating that the plaintiff had had ample opportunity to file a timely counteraffidavit and had simply chosen not to file one. In addition, the court observed that the plaintiff failed to give the court a reasonable explanation for his failure to file previously.

We find that the trial court did not abuse its discretion by refusing to consider plaintiff’s counteraffidavit. Plaintiff’s only explanation for not filing before the hearing on defendant’s motion to dismiss was that he did not feel a counteraffidavit was necessary at that time. Furthermore, plaintiff admits that the information contained in his affidavit was not newly discovered evidence or information that was previously unavailable to him. As defendant correctly notes, this was a strategic decision on plaintiff’s part. The mere fact that plaintiff’s strategy failed does not provide a sufficient explanation for allowing a late filing. Accordingly, we agree that no reasonable explanation was offered concerning why plaintiff’s affidavit could not be timely filed and find that the court acted within its discretion in refusing to consider plaintiff’s counteraffidavit.

Plaintiff asserts that Castro v. Chicago, Rock Island & Pacific R.R. Co. (1980), 81 Ill. App.

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Bluebook (online)
533 N.E.2d 448, 178 Ill. App. 3d 408, 127 Ill. Dec. 576, 1988 Ill. App. LEXIS 1850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-defalco-illappct-1988.