J.S. Masonry, Inc. v. Industrial Commission, No. 1-06-0717

The main issue involved the alleged violation of a safety rule. The claimant, a mason, admittedly violated a safety rule in failing to close a railing on a scaffold. Later, when he lost his balance and fell against the railing, it opened, and the petitioner fell four meters, injuring himself. Relying on Saunders v. Industrial Commn, 189 Ill. 2d 623, 727 N.E.2d 247 (2000), the employer argued that the injury did not arise out of his employment due to the safety rule violation. The court, affirming the award of benefits from all lower levels, distinguished Saunders, which involved a worker who rode on forklift forks for purely personal convenience and not in furtherance of any work duties. Here, there was no dispute that the petitioner was engaged in activities for the benefit of the employer (i.e., erecting a wall) when he lost his balance.

Comparing the present case with Chadwick v. Industrial Commn, 179 Ill. App. 3d 715, 534 N.E.2d 1000 (1989), the court found no conflict in the law. Summarizing, the court stated that any injury that occurs while an employee is performing duties for which he was hired arises out of the employment, without regard to the fact that the employee knowingly violated a safety rule. In Saunders, the employee was not engaged in any authorized work activity when the safety rule violation occurred. Perhaps the following language from the opinion says it the best:

In Republic Iron & Steel Co. v. Industrial Comm’n, 302 Ill. 401, 134 N.E. 754 (1922), the supreme court set forth the proposition which governs cases in which an employee violates a rule and is injured.

The rule is, that where the violation of a rule or order of the employer takes the employee entirely out of the sphere of his employment and he is injured while violating such rule or order it cannot be then said that the accident arose out of the employment, and in such a case no compensation can be recovered. If, however, in violating such a rule or order the employee does not put himself out of the sphere of his employment, so that it may be said he is not acting in the course of it, he is only guilty of negligence in violating such rule or order and recovery is not thereby barred. *** [I]t does not matter in the slightest degree how many orders the employee disobeys or how bad his conduct may have been if he was still acting in the sphere of his employment and in the course of it the accident arose out of it. Republic, 302 Ill. 2d at 406.

This case was originally decided in favor of the defense at arbitration under the safety-rule violation theory. However, the ultimate result here seems to shift the emphasis from whether it is the violation itself that takes the claimant outside the scope of employment to whether the claimant was already engaged in activities outside the scope and then the violation occurred. Although this apparent shift is supported by the cases cited above, it does indicate a change in practice for how rule violations will be handled in future cases. The bottom line is that rule violations will provide a defense only in even more rare instances than in the past. The court seems to indicate that as long as some aspect of the activity was performed for the benefit of the employer, the rule violation will be irrelevant. Therefore, this defense should only be considered after very careful analysis in light of this holding.