Sekora v. Industrial Commission

556 N.E.2d 285, 198 Ill. App. 3d 584, 144 Ill. Dec. 818, 1990 Ill. App. LEXIS 854
CourtAppellate Court of Illinois
DecidedJune 12, 1990
Docket2-89-0759WC
StatusPublished
Cited by5 cases

This text of 556 N.E.2d 285 (Sekora v. Industrial Commission) 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
Sekora v. Industrial Commission, 556 N.E.2d 285, 198 Ill. App. 3d 584, 144 Ill. Dec. 818, 1990 Ill. App. LEXIS 854 (Ill. Ct. App. 1990).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Peter W. Sekora, sought worker’s compensation benefits after injuring his leg while working for respondent, Du Page Honda. An arbitrator awarded benefits. The Industrial Commission reversed, finding petitioner failed to prove he sustained accidental injuries arising out of and in the course of his employment. The trial court confirmed the Commission’s decision. On appeal, petitioner contends the Commission’s decision is wrong as a matter of law and is against the manifest weight of the evidence.

Petitioner testified that on August 8, 1983, he worked part time for respondent as a salesman. At about 8:30 p.m., petitioner and other employees were performing the daily task of taking all vehicles displayed outside the building into the garage at the end of the night. Forty or fifty vehicles had been brought in when petitioner and David Yanke, another employee who petitioner stated was working that evening, drove two of the all terrain cycles (ATC) into the one-acre field next to the dealership building. These vehicles are three-wheeled motorcycles. Petitioner had also ridden “some” of the other vehicles in the field that night. After riding in the field for a short time, petitioner was returning to the building when he crashed and broke his leg in three places. Petitioner described the accident:

“We started pulling motorcycles and vehicles and lawn mowers — everything that was outside — in, and we proceeded to pull things in. We went out and took a ride down in the field; and on the way back, I don’t know exactly what it was, but something caused the vehicle to flip.”

Petitioner testified that it was not unusual to ride the vehicles in the field, either to attract customers, or to learn how to drive the new models so the salespeople could adequately demonstrate them to customers. Respondent provided the salespeople with no training program.

“New items that they wanted to test drive if we had free moments, we would at that point in time — when bringing vehicles in, we would familiarize ourselves with new types of vehicles, how to operate them. So, we could show them to the customers — how they would work, how they function.”

Petitioner was not sure, but it was possible that the ATC he rode on the night of the accident was not a new model and that he had driven it into the building many times before. He was riding about 10 or 12 feet into the field.

Petitioner testified further that another employee had been in an accident on an ATC the weekend before. Petitioner denied any knowledge of instructions given after that accident to no longer ride the vehicles, but instead to walk them into the garage at the end of the night.

Petitioner testified that on August 22, 1983, he spoke on the telephone with an insurance company representative and gave his permission to tape the conversation. The tape revealed that petitioner admitted that he was not riding to attract customers on the night of the accident.

David Rietz, a salesman for respondent, testified that he was in charge on the night of the accident. Yanke was not working that night, but had come in about 45 minutes before the accident. Rietz did not give petitioner permission to ride the vehicle. Rietz had pushed several vehicles in that night, but did not see the accident. The accident occurred about 1,200 feet back into the field.

Rietz testified that about six months before the accident, William VanderBrook, respondent’s president, had told the salespeople they could ride in the field if they wore helmets. However, four or five weeks before the accident the rule was changed because of several “mishaps.” Salespeople had been riding without helmets, there had been several accidents, and one employee had broken his wrist. Consequently, VanderBrook instructed the employees that they had to push the vehicles in. The only time they were to be driven in the field was to demonstrate for a customer. The only time the employees were to try out new products was when VanderBrook or the person in charge gave permission to do so.

Thomas Welter, respondent’s service manager, testified that he telephoned petitioner at the hospital on August 9, 1983. “He stated that he shouldn’t have been doing what he was doing.” Welter examined petitioner’s and Yanke’s motorcycles after the accident. Petitioner’s ATC sustained minor damage. Yanke’s ATC had a bent rear axle.

William VanderBrook testified that he “was very strict with the fact they brought them directly into the building and did not horse play on them.” Prior to May 8, 1983, employees could start the engines, but could not ride the vehicles unless they were demonstrating for a customer. Once or twice he gave permission for salespeople to ride in the field to attract customers. After May 8, 1983, when an employee broke his wrist while “horsing around” on an ATC, VanderBrook instructed all sales personnel that they could not even start the engines. While he did not recall “looking [petitioner] in the eye” personally and reciting the instruction, VanderBrook “remember[ed] telling all the salespeople.” He believed that petitioner was told along with all the salespeople. They had to roll the vehicles inside each night and take them directly to the shop.

VanderBrook testified that there was no training program. The salespeople could review the owner’s manuals “and operating the vehicle is moving them inside and out of the building.” After May 8, 1983, however, salespeople were not supposed to ride the vehicles to learn how to operate them. No one rode at all without his permission. VanderBrook acknowledged that in his absence it was possible “[t]hey could do it on their own without permission. I haven’t got 100 percent control over these people.” However, he was not aware of any incidents where employees rode in the field without his permission between May 8,1983, and petitioner’s August 3,1983, accident.

In rebuttal, petitioner testified that he was never instructed not to ride the vehicles. While he was told once to ride in the field to attract customers’ attention, he did not recall whether that was before or after May 8, 1983.

The arbitrator awarded compensation, but the Commission reversed, finding that petitioner and Yanke “were engaged in horseplay and that petitioner deviated from the scope of his employment.” The Commission found petitioner’s statement that he was putting the vehicle away lacked credibility, in that the emergency room history stated he was trying to draw a crowd when the two cycles became tangled, throwing petitioner off the cycle. The Commission found Union Starch, Division of Miles Laboratories, Inc. v. Industrial Comm’n (1974), 56 Ill. 2d 272, 307 N.E.2d 118, and Scheffler Greenhouses, Inc. v. Industrial Comm’n (1977), 66 Ill. 2d 361, 362 N.E.2d 325, not applicable because riding the ATC was not an act of “personal comfort.” Moreover, in the present case, respondent had not acquiesced in the conduct.

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Bluebook (online)
556 N.E.2d 285, 198 Ill. App. 3d 584, 144 Ill. Dec. 818, 1990 Ill. App. LEXIS 854, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sekora-v-industrial-commission-illappct-1990.