2023 IL App (1st) 220742-U
SECOND DIVISION June 20, 2023
No. 1-22-0742
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT
DOREEN M. PRICE, individually and as ) Appeal from the Circuit Court of Independent Administrator of the Estate of John ) Cook County. F. Price, deceased, ) ) Plaintiff-Appellant, ) ) v. ) ) LUNAN ROBERTS, INC., individually and d/b/a ) Arby’s Restaurant and LUNAN CORPORATION, ) No. 18 L 7963 individually and d/b/a Arby’s Restaurant Group, ) ) Defendants-Appellees, ) ) and ) ) (Irvin Thomas, ) Honorable Melissa A. Durkin, Defendant). ) Judge Presiding.
JUSTICE HOWSE delivered the judgment of the court. Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s order granting summary judgment to the defendants. Plaintiff failed to produce any evidence that her claim falls within an exception to the exclusive remedy provision of the Workers’ Compensation Act (820 ILCS 305/1 et seq. (West 2020)). 1-22-0742
¶2 Plaintiff appeals under Illinois Supreme Court Rule 304(a) after the circuit court granted
summary judgment to these defendants. The circuit court held that plaintiff’s exclusive remedy
for the injury in this case was under the Workers’ Compensation Act, so defendants were entitled
to judgment as a matter of law on the common law causes of action plaintiff asserts here.
Plaintiff argues on appeal that the trial court improperly granted summary judgment in
defendants’ favor because a genuine issue of material fact exists about the applicability of the
Workers’ Compensation Act to her claims. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 On September 20, 2017, plaintiff’s decedent, John Price (“Price”), was working the night
shift at an Arby’s restaurant in Hickory Hills, Illinois. The Arby’s restaurant is owned and
operated by defendants Lunan Roberts, Inc. and Lunan Corporation. While Price was taking
orders over the intercom system, his co-worker, Irvin Thomas, was preparing the food orders.
Because they were working the late shift, Price and Thomas were the only two employees on
duty, as the dining room was closed and only the drive-thru was open. Price clocked in for his
shift at 9:57 pm. Thomas clocked in at 10:02 pm.
¶5 Surveillance video shows the two men working in the restaurant. Two minutes after
Thomas clocked in for his shift, at 10:04 pm, Price can be seen gesturing towards Thomas.
Thomas was in the process of putting a bun in an oven. The surveillance video does not include
any audio. After Price gestures towards Thomas, Thomas walks away from where he was
preparing food and exits the frame of the surveillance camera. Thomas returns into view of the
camera carrying a large kitchen knife. Thomas proceeded to grab Price and stab him several
times. Price briefly escapes from Thomas’s grasp and tries to get away from him. Thomas is able
to catch up to Price a few feet away and stab him again. Price is finally able to get away, and he
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exits the back door of the restaurant. Thomas exits through the same door shortly thereafter and
flees the scene. Price died as a result of his injuries, having suffered 27 separate stab wounds.
Thomas was arrested and was later charged with murder.
¶6 Plaintiff Doreen Price, John Price’s mother, filed this suit against defendants, the owners
and operators of the Arby’s restaurant where her son was killed. She alleges that defendants are
liable for her son’s death for negligent hiring, retention, and supervision of their employees,
among other things.
¶7 The record reveals that in 2016, a year prior to the stabbing in this case, Thomas
threatened two of his elderly relatives with a 9-inch kitchen knife. Thomas also verbally
threatened to kill the relatives on that occasion if they did not follow his commands. He was
convicted of assault and unlawful use of a knife. Thomas’s relatives secured an order of
protection against him after that incident.
¶8 Thomas and Price had worked together on the night shift for about 14 months. Their
supervisor, Joanne Bizub, testified in a deposition that, on one occasion, she arrived for her shift
and Price informed her that Thomas was not speaking to him. She arranged a sit-down meeting
with the two men. Bizub was unable to determine why Thomas was giving Price the silent
treatment. The dispute was settled to Bizub’s satisfaction, and she testified the issue was resolved
at that point. Thomas and Price continued working together after that issue and were “fine,”
according to Bizub. Bizub was not aware of any other incidents between Price and Thomas.
¶9 John Doniek, the district manager for Lunan Corporation, testified in a deposition that he
knew about an incident where Thomas had shoved a garbage can into Price. Doniek testified that
Thomas’s conduct was a serious violation of employee rules. Doniek did not state whether he
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knew the reason for the assault, but he testified that the matter was handled and had been
resolved.
¶ 10 Defendants filed a motion to dismiss the case and later filed a motion for summary
judgment. Defendants argued in both their motions that they are not liable because plaintiff’s
exclusive remedy for this matter is under the Workers’ Compensation Act (820 ILCS 305/1 et
seq. (West 2020)). The trial court denied the motion to dismiss in order to allow plaintiff to take
discovery on facts that might relate to whether the exclusive remedy provision of the Workers’
Compensation Act would bar plaintiff’s claims. Following discovery, and on defendants’ motion,
the trial court granted summary judgment in defendants’ favor.
¶ 11 The Workers’ Compensation Act generally serves as the exclusive remedy for a person
who is injured during the course of employment. However, when the injury to an employee
results from a personal conflict between employees unrelated to their work, the Workers’
Compensation Act may not bar a civil suit by the employee seeking redress for the injury. See
Meerbrey v. Marshall Field & Co., 139 Ill. 2d 455, 463 (1990).
¶ 12 In order to avoid summary judgment, plaintiff attempted to show that there was a
question of material fact regarding whether the dispute was of a personal nature. During the
course of the criminal case against Thomas, no motive was conclusively established.
¶ 13 Joanne Bizub testified during her deposition that Price and Thomas frequently discussed
video games during their shift. She knew that Price gave Thomas rides home from work on
occasion. Bizub also knew that at some point during the time Price and Thomas worked on the
same shift together Price gave Thomas a portable videogame console, a PSP.
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¶ 14 A forensic examination of Price’s phone following the murder revealed text messages
with an unknown person that included a reference to Thomas. 1 The text messages appear to
indicate drug transactions between Price and the unknown person, and the messages indicate that
the unknown person may be involved in similar transactions with Thomas. The majority of the
messages provided were sent between Price and the unknown person five days before the
murder. The messages discuss arranging meetings and terms for an exchange such as “80” for “a
quarter.” The unknown person expresses a familiarity with both Price and Thomas and indicates
knowledge of the fact that the men work at Arby’s.
¶ 15 When Thomas was interviewed by police following the murder, the police asked him
what happened and he responded “sometimes I just get like that.” Thomas told the police that he
believed he was “ill, sick in the head.” Thomas went on to explain that there was an issue
between him and Price and “it was building up to it.” Thomas later indicated that Price “knows
what he did and needed to be dealt with.” Thomas stated that Price “tried to do something to me
and started yelling at me.” Thomas continued by explaining that Price “came and did this
before…acting like he was going to do something to somebody. I just got tired of it…and I’m
tired of him, I’m just tired of him.” Thomas stated that Price “just be yelling at [him], threatening
people and shit.”
¶ 16 Plaintiff argued in the trial court that there was evidence that the murder was the result of
a purely personal dispute between Price and Thomas and, therefore, not barred by the Workers’
Compensation Act. The trial court found that “[e]ven if there is some evidence of a personal
relationship between Price and Thomas outside of work, there is no competent evidence in the
record that the attack was motivated by a purely personal dispute.” The trial court held that
1 The trial court ruled that it would not consider the text message evidence when ruling upon the motion for summary judgment because plaintiff failed to lay a foundation for the evidence to be admitted.
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plaintiff’s sole remedy against defendants is under the Workers’ Compensation Act, and it
entered a judgment of no liability in favor of defendants. Plaintiff appeals. The case remains
ongoing in the circuit court against some defendants, but the case is before us pursuant to a
finding under Illinois Supreme Court Rule 304(a) that there was no just reason for delaying
enforcement or appeal of the order as it pertains to the Lunan defendants who secured a
judgment of no liability.
¶ 17 ANALYSIS
¶ 18 Plaintiff appeals the circuit court’s summary judgment ruling arguing that the circuit
court erred when it entered a judgment in favor of defendants, finding plaintiff’s recovery is
barred by the Worker’s Compensation Act. The Workers’ Compensation Act establishes a
system for paying compensation to workers who are accidentally injured or killed in the course
of their employment. 820 ILCS 305/2, 5(a) (West 2020). An employee injured on the job
normally cannot sue his employer or coworkers, provided that the employee is entitled to receive
workers’ compensation benefits from the employer or its insurer. Ramsey v. Morrison, 175 Ill. 2d
218, 224 (1997). The Workers’ Compensation Act operates to make the benefits under the Act
the exclusive remedy for an employee who is injured while acting in the course and scope of his
employment. Fregeau v. Gillespie, 96 Ill. 2d 479, 484 (1983).
¶ 19 Under the Workers’ Compensation Act, the phrase “arising out of the employment”
refers to the causal connection between employment and the injury suffered. Rodriguez v.
Frankie’s Beef/Pasta & Catering, 2012 IL App (1st) 113155, ¶ 21. An injury arises from
employment when a causal connection exists between working conditions and the resulting
injury. Id.
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¶ 20 Fights between employees arising out of disputes concerning the employer’s work are
risks incidental to the employment, and resulting injuries are compensable under the Workers’
Compensation Act and bar recovery in civil suits against the employer. Franklin v. Industrial
Commission, 211 Ill. 2d 272, 279–80 (2004). However, where a physical confrontation between
two employees is purely personal in nature, the resulting injuries cannot be said to have arisen
out of the employment. Martinez v. Gutmann Leather, LLC, 372 Ill. App. 3d 99, 102 (2007)
(quoting Castaneda v. Industrial Commission, 97 Ill. 2d 338, 342 (1983)). Thus, “[e]ven though
a fight occurs on the employer’s premises, resulting injuries are not compensable [under the
Workers’ Compensation Act] if the underlying dispute is not connected with the work.” Id. at
104 (quoting Interstate United Corp. v. Industrial Commission, 65 Ill. 2d 434, 436 (1976)).
¶ 21 Summary judgment is appropriate when the pleadings, depositions, admissions and
affidavits, viewed in a light most favorable to the nonmovant, fail to establish that
a genuine issue of material fact exists, thereby entitling the moving party to judgment as a matter
of law. 735 ILCS 5/2-1005 (West 2020); Fox v. Seiden, 2016 IL App (1st) 141984, ¶ 12. If
disputes as to material facts exist or if reasonable minds may differ with respect to the inferences
drawn from the evidence, summary judgment may not be granted. Fox, 2016 IL App (1st)
141984, ¶ 12. We review the trial court’s decision to grant summary judgment de novo. Illinois
Tool Works Inc. v. Travelers Casualty & Surety Co., 2015 IL App (1st) 132350, ¶ 8.
¶ 22 A defendant may move for a “Celotex-type” motion for summary judgment by pointing
out to the court that there is an absence of evidence to support the non-movant party’s case.
Celotex Corp. v Catrett, 477 U.S. 317, 325 (1986). In that case, Celotex, the movant, could not
prove that its products were not the cause of the plaintiff’s injuries. Celotex was nevertheless
entitled to summary judgment because the plaintiff, who had the burden of proof, likewise could
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not produce any evidence that a Celotex product was involved. The court in Celotex held that the
defendant satisfies its initial burden of production when it “ ‘point[s] out’ the absence of
evidence supporting the plaintiff’s position.” Celotex, 477 U.S. at 325; see also Hutchcraft v.
Indep. Mech. Indus., Inc., 312 Ill. App. 3d 351, 355 (2000).
¶ 23 In moving for summary judgment here, defendants provided evidence that Price was
injured during the course of his employment and that his injury was otherwise compensable
under the Workers’ Compensation Act. At that point, the burden of production shifted to plaintiff
to supply some evidence that her claims fell within an exception to the exclusive remedy
provision of the Workers’ Compensation Act. Celotex, 477 U.S. at 325; Hutchcraft, 312 Ill. App.
3d at 355. In order to avoid the exclusive remedy generally imposed by the Workers’
Compensation Act, the burden was shifted to the plaintiff to present evidence that the injury did
not arise out of employment. Meerbrey, 139 Ill. 2d at 463. Defendants argue plaintiff has not
produced any evidence, besides speculation, that the fight between Price and Thomas was
personal and not connected to the work.
¶ 24 Plaintiff argues that there was no ongoing work dispute between Price and Thomas at the
time of the murder. Instead, she argues that there is significant evidence of a personal
relationship between Price and Thomas that was outside of and independent of their work
activities. To show the potential personal nature of the dispute, plaintiff points to the facts that:
(1) Price and Thomas spent time together outside of work when Price would drive Thomas
home; (2) a mutual interest in videogames that included Price giving Thomas a portable game
console; and (3) some kind of transactions being conducted with another party as evidenced by
the text message evidence.
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¶ 25 Plaintiff posits that Price giving Thomas a game console worth hundreds of dollars
indicates a relationship of some depth. Plaintiff opines that it is possible the game console was
given to satisfy a debt, and she attempts to link the giving of the game console with the text
messages that seem to indicate drug transactions occurring. Plaintiff contends that, if the parties’
relationship included dealings with drugs, it is possible that the relationship could have gone sour
and generated a motive for the murder. Plaintiff argues that such a scenario is a more plausible
explanation for the violence exhibited than an argument over something from their employment,
like a sandwich, would be.
¶ 26 While plaintiff’s hypotheses have some appeal, she cannot point to any evidence in the
record to support the theories. There is no evidence that Price gave Thomas the game console for
satisfaction of a debt. There is, in fact, no evidence regarding the reason Price gave the console
to Thomas. Any reasoning that plaintiff can offer about the significance or relevance of the game
console is purely speculation. Speculation is insufficient to overcome a motion for summary
judgment. Kasper v. McGill Management Inc., 2019 IL App (1st) 181204, ¶ 23. Plaintiff opines
that her theory about the motive is more plausible than the theories about the motive being work
related. But an argument that one piece of speculation is more plausible than another piece of
speculation cannot substitute to satisfy plaintiff’s burden to supply some evidence to create a
genuine issue of material fact. There are simply no facts in the record that the murder was the
result of any personal dispute between Price and Thomas. To reach the conclusion plaintiff urges
us to reach, we would have to engage in speculation that is not supported by record evidence.
¶ 27 Plaintiff herself testified that she did not know of any personal disputes between Thomas
and her son. During the investigation into the murder, no concrete motive for Thomas’s actions
was ever revealed. Plaintiff conceded in her deposition that she did not know why Thomas killed
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her son. Likewise, on appeal, plaintiff concedes that the motive for the murder has never been
discovered. She acknowledges that the murder “certainly could have been the result of repeated
or constant or brewing disputes between Thomas and Price that arose exclusively from work.”
Bizub, had no knowledge of either a personal dispute or a work-related dispute between Thomas
and Price. Bizub was surprised that the murder happened based on her experiences with the two
men.
¶ 28 The fact that Price and Thomas had some degree of a personal relationship does not mean
that the incident was caused by a purely personal dispute. The trial court correctly recognized
that “[e]ven if there is some evidence of a personal relationship between Price and Thomas
outside of work, there is no competent evidence in the record that the attack was motivated by a
purely personal dispute.” Plaintiff lays out the evidence of Thomas and Price’s personal
relationship and speculates that the attack must have been based on something in that
relationship rather than their fast-food work, but her conjecture is not backed by any record
evidence and cannot serve to defeat the motion for summary judgment. See Outboard Marine
Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 132 (1992) (“unsupported conclusions,
opinions, or speculation are insufficient to raise a genuine issue of material fact.”).
¶ 29 As for the text messages discussing apparent drug transactions, the text messages
contained in the report plaintiff provided do not evidence any dispute between Price and
Thomas. The messages are between Price and an unknown person and they merely mention
Thomas. The messages do not indicate any kind of transactional relationship between Price and
Thomas, nor do they shed any light on the possible reason for Thomas’s actions. The same can
be said about the police’s search of Thomas’s home in which the police recovered a small
amount of cannabis and paraphernalia. None of these facts speak to a possible motive for the
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murder or a dispute between Price and Thomas, and plaintiff’s attempt to reach to such a
conclusion requires several significant speculative jumps which the court cannot make in
reviewing a summary judgment ruling. Despite a criminal investigation and significant discovery
in this case, no evidence of a personal dispute or a motive for the murder has been uncovered.
¶ 30 Plaintiff argues that “one of the deepest flaws in the Trial Court’s judgment” is that
“other than the mere fact that Thomas and Price were at Arby’s when the attack occurred there is
not a single shred of evidence in this record that a work-related dispute between them motivated
Thomas’s assault.” Plaintiff’s statement is accurate. However, the legal conclusion she draws
from the statement is not. While there is no evidence that the dispute was work related, there is
similarly no evidence that the dispute was personal, and plaintiff had the burden of producing
evidence the dispute was personal. Plaintiff relies purely on speculation to try to create an issue
of fact on the character of the dispute. Plaintiff does not point to any actual evidence of a
personal dispute between Price and Thomas that existed at the time of the attack or served as
motivation for the attack.
¶ 31 Here, plaintiff did not meet the burden that was shifted onto her because she failed to
produce any evidence that the injury arose from a personal dispute. After a summary judgment
movant meets the initial burden of proof and production, the non-movant must present a factual
basis that would arguably entitle her to a judgment in order to survive the motion. Robidoux v.
Oliphant, 201 Ill. 2d 324, 335 (2002).
¶ 32 Plaintiff argues that the very nature of the attack belies the notion that the dispute was
work related. Plaintiff points to the timing of the attack and its brutality. Thomas attacked Price
at 10:04 pm, just two minutes after clocking in to work. Plaintiff suggests that the two minutes
together was not enough time for a work-related dispute to erupt. She contends that it is
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reasonable to infer from the timing of the attack that the motivation came from something that
occurred prior to their shift that day. Plaintiff also points out that Price suffered 27 stab wounds
which were so severe that he bled to death within minutes. Price was stabbed in the head, face,
neck, thigh, and both his left and right shoulders and hands. Plaintiff contends that it is
inconceivable to imagine what sort of work-related dispute between two fast food workers could
lead to such sustained and vicious violence. Based on the circumstances, plaintiff argues it can
be inferred that the violence was the result of something personal between the men.
¶ 33 Both parties discuss our decision in Frankie’s Beef/Pasta, 2012 IL App (1st) 113155 and
its application to this case. In Frankie’s, an employee, Edan Maya, left work for several weeks to
attend a funeral in Mexico. When Maya returned, he was informed that a co-worker was
receiving a promotion rather than him. The promotion became a source of tension between the
two employees that later resulted in an altercation. The manager of the restaurant sent Maya
home for the day to cool off. The next day, Maya returned to the restaurant and shot and killed
the employee with whom he had an altercation the day before. The deceased employee’s special
administrator filed suit against the restaurant for negligent hiring and retention of its employees.
The circuit court granted summary judgment in favor of the restaurant, and the plaintiff appealed.
We affirmed.
¶ 34 In Frankie’s, we explained that the dispute arose out of employment because “[a]ll of the
witnesses testified that the altercation at Frankie’s between [the decedent] and Edan Maya
involved [the decedent] taking over the position of fry cook from Maya and taunts that [the
decedent] was the better fry cook.” Id. at ¶ 22. We explained that, if the decedent had not been
employed at Frankie’s, it is unlikely he would have been involved in the altercation with Maya
or subsequently shot by Maya. Id. We explained that “a purely personal dispute” is one where
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the conflict is “completely unrelated to the employer’s work.” Id. (citing Castaneda, 97 Ill. 2d at
342). In Frankie’s, nothing in the record indicated that the altercation resulted from anything
other than the dispute over the decedent’s promotion—a work-related motive covered by the
Workers’ Compensation Act. Id.
¶ 35 Frankie’s is helpful to the issues in this case but also not directly in line with the situation
presented here. In Frankie’s, there was clear evidence that there was a work-related dispute that
motivated the shooting. Id. In this case, there is no clear evidence that a work-related dispute
motivated the shooting, however, there is similarly no evidence that a personal dispute motivated
the shooting. Similar to Frankie’s though, the plaintiff here supplied no evidence that the dispute
was unrelated to the employer’s work and, at trial, would invite a factfinder to speculate on the
nature of the dispute. Therefore, the trial court correctly granted judgment in defendants’ favor.
¶ 36 CONCLUSION
¶ 37 Accordingly, we affirm.
¶ 38 Affirmed.