The Appellate Court Held That Security Guard, Who Was Killed By Stray Bullet Fired At Stranger Running Past Defendant’s Building, Was Entitled To Benefits

The Appellate Court held that arbitrator properly allowed claimant, who originally filed her Application for Adjustment of Claim “on behalf of decedent, to correct her application for adjustment of claim the doctrine of misnomer or alternatively, properly allowed her to amend the application under the doctrine of relation back, despite the fact that decedent had no legal claim and claimant amended the application after the statute of limitations had expired to show claimant as a survivor. Next, the court held that the proper legal standard for assessing risk was to compare claimant’s risk to that of the general public, not to other individuals in the vicinity or area. Lastly, the court affirmed the Commission’s remand decision that decedent’s death, due to a stray bullet fired at a stranger running past defendant’s building arose out of his employment.

Decedent, a security guard, was killed while sitting behind the lobby security desk in defendant’s building when a bullet struck him in the forehead. The police officer who investigated the incident testified that the stray bullet that killed decedent was fired from across the street at a man running past defendant’s building. The man’s body was found ten feet in front of the door of defendant’s building. The police officer further testified that in the district where defendant’s building was located, the total number of murders that were committed place it in the upper third of all police districts in the City of Chicago. A security officer working with decedent at the time of the incident testified that he heard gunshots at least once a week and sometimes on a daily basis while at work.

The arbitrator found that claimant failed to prove an accident arising out of and in the course of decedent’s employment. In a decision reported, the Commission affirmed. The Circuit Court of Cook County reversed and remanded to the Commission. On remand, the Commission, held that decedent was subjected to a greater risk of injury than that to which the general public was exposed and therefore, his death arose out of his employment. In a decision reported a different judge of the Circuit Court reversed, finding decedent was not subjected to an increased risk of injury.

The Appellate Court 1st District reversed the Circuit Court and reinstated the Commission’s decision on remand. The court held, first, that the arbitrator properly allowed claimant, who originally filed her Application for Adjustment of Claim “on behalf of” decedent, to correct Application for Adjustment of Claim under the doctrine of misnomer or alternatively, properly allowed her to amend the Application under the doctrine of relation back, despite the fact that decedent had no legal claim and claimant amended the Application after the statute of limitations had expired to show claimant as a survivor. In applying the misnomer statute the court noted that claimant named herself, the correct party, in the wrong capacity. It was beyond question that she was decedent’s widow. Defendant was aware of claimant’s existence, her actual identity and capacity. Further, defendant was fully aware of the nature of the suit. As for the doctrine of relation back, the court found that the claim in the

amended application grew our of the same transaction and occurrence as that presented in original application.

Next, the court held that the proper legal standard for assessing risk was to compare claimant’s risk to that of the general public, not to other individuals in the vicinity or area. While the court noted that the Illinois Supreme Court in Brady v. Louis Ruffolo & Sons Construction Co. made the statement that the risk claimant was subjected to was no greater “than that to which other persons along the same route were exposed to, when the Brady court set forth the standard of law it was required to apply, it stated employees must be exposed to a risk “beyond that to which the general public was exposed.”

Lastly, the court affirmed the Commission’s remand decision that decedent’s death arose out of his employment. The court reasoned that the building in which decedent worked bordered on a police district with a very high crime rate, the building was located directly across the street from a project where rival gangs were feuding, gunfire was an almost everyday occurrence, bullets had previously hit defendant’s building and decedent sat in the lobby of the building fronted by floor-to-ceiling glass windows. Decedent’s exposure to, including being struck by a stray bullet, by virtue of the conditions of his employment were not the same as that to which the general public was commonly exposed.