News

September 01, 2008

Ramona Kolacki sustained injury to her head when kicked by a horse at her employment with Silvercrest Veterinary Services, Limited.  Randall Verink is the sole owner of Silvercrest and works for Silvercrest as a veterinarian.  Randall and his wife, co-defendant Laura Verink, owned property in Will County where their home and horse facility are located.  Ramona Kolacki worked for Silvercrest at the horse facility doing general upkeep and maintenance.

On November 25, 2005, Ramona was working at the facility cleaning out stalls.  Laura requested Ramona to get a horse ready for a prospective buyer.  While performing these duties, she was kicked in the head causing significant injuries.

Initially, Ramona filed a workers’ compensation claim against Silvercrest.  While the claim was pending, she brought a civil action against Laura and Randall as defendants, alleging a violation of the Animal Control Act and negligence based on premises liability.

The defendants moved to dismiss the complaint because of the exclusive remedy provisions of the Workers’ Compensation Act.  Ramona contended that under the dual-capacity doctrine the defendants were not entitled to the protection of the Act because at the time of the injury they were acting as a separate and distinct capacity as owners of the property where Silvercrest boarded, trained and sold horses.

The theory behind the dual-capacity defense is that the ultimate wrongdoer should pay for the loss.  A plaintiff alleging dual capacity has the burden to show that the defendant actually operated in a separate capacity which was distinct from his first capacity as the plaintiff’s employer.

The court dismissed the case stating that the plaintiff had failed in her burden to show that the dual-capacity doctrine permitted the plaintiff to sue the owner defendants because it was clear that only one business was being conducted on the premises, that being the business of Silvercrest.

The court noted that property ownership alone did not give rise to a separate and distinct capacity for purposes of dual-capacity doctrine.  It reviewed similar cases where it had been held that the dual-capacity doctrine did not apply:

1. When the partnership defendant owned a construction business that employed plaintiff, even though partner defendant also owned the property where the construction work was being done;
2. An individual defendant who was manager of a corporate owned restaurant business even though defendant owned the property;
3. An individual defendant who was president and CEO of a grain business even though the defendant originally owned the property where the grain business was located and where plaintiff’s injury occurred;
4. Individual defendants who were employees of a company-owned fertilizer business that employed plaintiff even though the individuals owned the property where the business was located;
5. Individual defendant who was agent of a construction business that employed plaintiff even though the defendant was beneficial owner of the property where the construction work was being done; and
6. Individual defendants who were owners of a corporate-owned concrete business that employed plaintiff even though individual defendants were the beneficial owners of the property.

The court stated:

An employer, as part of his business, will almost always own or occupy premises, and maintain them as an integral part of conducting his business.  If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to a shambles.

Editor’s Note:

In effect, the court went beyond the actual individual or corporate status as the employer merely happened to have an ownership requiring him to maintain the location where the business was being conducted.

Romana Kolacki v. Laura Verink, et al No. 3-07-0325, decided August 8, 2008

Frank J. Wiedner, Editor Wiedner & McAuliffe, Ltd One North Franklin, #1900 Chicago, IL 60606 (312) 855-1105