Illinois: Injured Employee’s “Dual Capacity/Dual Persona” Claim Against Corporate Officers of Employer Fails

In a recent decision by the Appellate Court of Illinois, Second District, Hilgart v. 210 Mittel Drive Partnership, 2012 Ill. App. LEXIS 850 (Oct. 17, 2012), the court held that an injured employee could not prevail against a partnership that owned her employer’s premises, or the individual partners of that partnership, since they were corporate officers of her employer and, therefore, entitled to immunity under the exclusive remedy provisions of the state’s Workers’ Compensation Act.

Hilgart fell on the outdoor stairs leading to a parking lot while leaving her corporate employer’s premises. At the time of her injury, a majority of the corporate employer was owned by Mittel, a partnership. Leturno and Lisowski were individual partners of Mittel, shareholders of the corporate employer, and president and vice president of the corporate employer, respectively. Mittel also owned the employment premises, leasing it to the corporate employer. A clause in the lease required the corporate employer to maintain the building in good repair.

Hilgart filed a negligence action against Mittel, Leturno and Lisowski (“ML&L”), among others. The trial court granted summary judgment to ML& L. Among her claims on appeal was Hilgart’s contention that she could sue ML&L pursuant to the dual capacity doctrine.

The appellate court noted that under the dual capacity or dual persona doctrine, one who is protected by the exclusive-remedy provision of the Act may become liable in tort if he operates in a second capacity that creates obligations independent of those imposed upon him as an employer. In such cases, a plaintiff must establish that: (1) the second capacity generates obligations unrelated to those flowing from the first, that of the employer; and (2) the employer was acting as a distinct legal persona of the employer. The court added that a plaintiff cannot satisfy the elements of the test when the defendant’s duties are so intertwined that his conduct in the second role does not generate any obligations that are unrelated to the duties flowing from his first role as the employer or agent of the employer.

The court went on to say that Hilgart could not establish liability under the dual capacity doctrine, that Leturno’s and Lisowski’s duties as members of the partnership (Mittel) that leased the premises to Hilgart’s employer were related to their duties as president and vice president of that employer. As officers of Hilgart’s employer, it was their duty to furnish Hilgart with a safe place to work, a duty related to the common-law duty of a landowner to provide safe premises.

The court concluded, therefore, that the dual capacity or dual persona doctrine did not apply to Leturno and Lisowski and the immunity provision of section 5(a) of the Act did apply. Thus, the trial court properly granted summary judgment in favor of Leturno and Lisowski.