Mockbee v. Humphrey Manlift Company

ILLINOIS OFFICIAL REPORTS

Appellate Court

Mockbee v. Humphrey Manlift Co., 2012 IL App (1st) 093189

Appellate Court BRENDA MOCKBEE and MICHAEL MERLE MOCKBEE, Plaintiffs-

Caption Appellants and Cross-Appellees, v. HUMPHREY MANLIFT

COMPANY, INC., Defendant-Appellee (Harris Industries, Inc., and R.

Harris Electric, Inc., Defendants-Appellees and Cross-Appellants).

District & No. First District, Sixth Division

Docket Nos. 1-09-3189, 1-09-3578 cons.

Filed May 18, 2012

Held In an action for the injuries plaintiff suffered when she fell into a floor

(Note: This syllabus opening that was part of a manlift platform system at her employer’s

constitutes no part of plant, the trial court properly entered summary judgment for defendants,

the opinion of the court two companies retained by plaintiff’s employer to perform safety

but has been prepared inspections of the manlift platform system, since defendants were service

by the Reporter of organizations that provided safety services to plaintiff’s employer and, as

Decisions for the such, they were entitled to immunity from common law liability for

convenience of the injuries sustained by employees pursuant to section 5(a) of the Workers’

reader.)

Compensation Act.

Decision Under Appeal from the Circuit Court of Cook County, No. 03-L-9450; the Hon.

Review Mary Mulhern, Judge, presiding.

Judgment Affirmed.

Counsel on Joseph A. Power, Jr., Devon C. Bruce, and Brian Lacien, all of Power

Appeal Rogers & Smith, P.C., of Chicago, for appellants.

Mitchell H. Frazen, James R. Branit, and Claudia B. Diaz, all of

Litchfield Cavo LLP, of Chicago, for appellee Humphrey Manlift

Company.

Robert J. Franco, Christopher G. Buenik, and Christopher M. Cano, all

of Bollinger, Ruberry & Garvey, of Chicago, for appellees Harris

Industries, Inc., and R. Harris Electric, Inc.

Panel JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justices McBride and Palmer concurred in the judgment and opinion.

OPINION

¶1 Plaintiffs Brenda Mockbee and Michael Merle Mockbee brought a negligence action

against defendants Harris Industries and R. Harris Electric (collectively Harris) and

Humphrey Manlift Company after Ms. Mockbee was severely injured in 2002 when she fell

into a floor opening that was part of a manlift platform system at the Quaker Oats Company

plant in Danville, Illinois, where she worked. The plaintiffs ask this court to reverse the

circuit court’s grant of summary judgment to Harris and Humphrey. The plaintiffs contend

that contrary to the circuit court’s ruling, Harris and Humphrey, as safety inspectors of the

manlift platform system, each owed Ms. Mockbee a duty of care and breached that duty

when their respective inspections failed to note the need for a safety guardrail required by the

Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 (2006)), which issued a

violation to Quaker Oats based on the guardrail’s absence. We affirm the circuit court’s grant

of summary judgment to Harris and Humphrey, but on the ground that both are immune from

liability for injuries sustained by Quaker Oats employee Mockbee under section 5(a) of the

Workers’ Compensation Act (Compensation Act) (820 ILCS 305/5(a) (West 2010)), as

providers of safety services to the employer as raised in Harris’s cross-appeal.

¶2 BACKGROUND

¶3 On June 6, 2002, Brenda Mockbee suffered severe injuries when she fell into the first

floor opening of a manlift platform system at the Quaker Oats Company plant in Danville,

Illinois, where she worked as an ingredient handler. The severe injuries rendered Ms.

Mockbee a paraplegic. There was no guardrail at this floor opening of the manlift. At the

time of Ms. Mockbee’s accident, the Danville plant had three manlifts. The manlift in

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question was manufactured by Viola Elevator Company and installed at the Danville plant

in the late 1960s or early 1970s, which the plaintiffs have designated as the “southwest”

manlift, a designation we follow.

¶4 A manlift is a vertical conveyor belt used to move personnel from floor to floor. A motor

drives a continuous belt with step platforms and loop handholds between the floors. The

manlift system transports personnel in either direction, to higher or lower floors. At the

originating base of the manlift is an elevated platform from which an individual can either

mount the manlift to be transported to a higher floor (the upside) or dismount the manlift

from a higher floor (the downside). Use of the manlift was optional for all Quaker Oats

employees; stairs between the floors of the plant were nearby. Manlifts in Illinois are

regulated by OSHA (29 U.S.C. § 651 (2006)).

¶5 Since its installation, Quaker Oats changed the configuration of the southwest manlift at

least twice. When first installed, the southwest manlift ran from the first to the sixth floor.

Sometime before 1977, Quaker Oats shortened the manlift to run only between the third and

sixth floors of the plant. At the beginning of 1991, Quaker Oats took steps to return the

southwest manlift to its original run length, beginning on the first floor. Quaker Oats

requested a quote from Humphrey for the parts and materials necessary to accomplish this

reconfiguration. Quaker Oats also requested that Humphrey determine whether the southwest

manlift system required any repairs or maintenance.

¶6 On February 14, 1991, Humphrey employee John Favro conducted a visual inspection

of the southwest manlift as it operated at the time between the third and sixth floors. Favro

documented on a data sheet his measurements and observations of the manlift. He noted that

the mounting platform on the third floor had a height of 36 inches. He observed the presence

of guardrails on the upside of the southwest manlift at the bottom area; he also noted that the

“bottom area guarded” was “o.k.”

¶7 On February 26, 1991, Favro sent Quaker Oats a report listing the results of his

inspection.

“This report will be furnished in two (2) parts. The first part will point out what is

required for your manlifts to comply with the current ANSI/ASME A 90.1–1985 Safety

Standard for Belt Manlifts. The second part will cover repairs, adjustments, etc., we

recommend.”

At the close of his report, Favro listed the parts and material, with corresponding prices,

Quaker Oats would need to extend the southwest manlift to the first floor of the plant. In his

deposition, Favro testified that Quaker Oats never responded to his report of February 26,

1991, because Quaker Oats was aware that Humphrey did not perform maintenance or repair

work on manlifts. Favro could not say whether any of the guardrails he identified in his

report as present at the time of his inspection were located where the plaintiffs claimed the

OSHA-required guardrail should have been placed. According to Favro, his inspection of the

southwest manlift on February 14, 1991, was Humphrey’s last contact with Quaker Oats

regarding the southwest manlift before Ms. Mockbee’s accident.

¶8 In late 1991 or early 1992, Quaker Oats used its own employees to extend the southwest

manlift to the first floor from the third floor. The modification included moving the mounting

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platform to the first floor. According to Quaker Oats employee Keith Schwartzkopf, the

upside guardrail was not present when he moved the mounting platform to the first floor at

the end of 1991. According to Schwartzkopf, the guardrails depicted in the photographs

taken shortly after Ms. Mockbee’s accident were not the same as those he moved from the

third floor. According to the record evidence, the legs on the platform were changed from

round pipe to square tubing after the extension of the southwest manlift to the first floor.

Through 2002, Quaker Oats employees performed weekly and monthly inspections of the

southwest manlift after it was extended to the first floor.

¶9 At the time of Ms. Mockbee’s accident in 2002, the southwest manlift provided access

to six floors of the plant, with the platform system located only on the first floor. The manlift

system necessarily involved two floor openings, one for the upside, the other for the

downside. The layout of the manlift platform system on the first floor required an individual

that dismounted the manlift to walk past the upside floor opening to reach the descending

stairs, which led to the door to exit the manlift system room. The elevated platform walkway

to the descending stairs was 36 inches wide.

¶ 10 The first-floor platform of the southwest manlift had three of its four sides of the

downside opening blocked. The descending manlift belt blocked one side, a wall blocked

another, and a guardrail blocked the third side. The remaining side was where personnel

dismounted the manlift. By contrast, the floor opening for the upside of the southwest manlift

had only two of its sides blocked. The ascending manlift belt blocked one side and a wall

blocked the other. One open side permitted personnel to mount the manlift; the other open

side abutted the platform walkway, which led to the descending stairs. Ms. Mockbee fell into

this unguarded opening of the upside of the southwest manlift.

¶ 11 The plaintiffs assert no purpose was served by leaving this side opening unguarded. In

fact, the policy at Quaker Oats directed personnel to mount the ascending manlifts only from

a position facing the belt; it did not allow side mounts. OSHA regulations also required this

side opening to have a guardrail. The platform system of the southwest manlift on the first

floor is the only upside opening without a guardrail adjacent to where the manlift is mounted.

The plaintiffs contend the unguarded opening exposed those dismounting to the risk of

falling into the upside floor opening, a risk that OSHA required be addressed by a guardrail.

¶ 12 Beginning in 1998 through May 2002, Quaker Oats hired Harris to inspect, maintain, and

repair the manlift platform systems at the Danville plant. Harris was paid approximately

$40,000 for its services under an oral agreement. Harris performed no less than an annual

inspection on the manlifts. In the six months before the accident, Harris, through its

employees, inspected the southwest manlift, or performed work on it, on at least two

occasions.

¶ 13 In his deposition, Scott Harris, the owner and manager of Harris Industries, stated Quaker

Oats requested that Harris perform an annual inspection and a weight test of the manlifts at

the Danville plant. In addition to periodic inspections, Harris also performed service calls.

Harris acknowledged that the services it provided included safety advice and

recommendations to Quaker Oats regarding the manlift. Harris had no authority to perform

safety work, unless expressly directed to do so by Quaker Oats. All of the inspection reports

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Harris generated referenced American Society of Mechanical Engineers (ASME) standards,

specifically ASME A 90.1–1985. Harris claims it never made any representations that it

would inspect the manlifts for OSHA compliance.

¶ 14 The five inspection reports Harris issued from March 23, 1998, to April 18, 2002, noted

two deficiencies: “(1) the platform could be guarded to prevent entry to pit; and, (2) there is

no reset at the bottom landing.” Harris claims Quaker Oats did not address these deficiencies

nor did it ever direct Harris to correct them. Harris acknowledged it never recommended a

guardrail be installed on the side opening of the first-floor platform of the southwest manlift

involved in Ms. Mockbee’s accident because it was Harris’s opinion that ASME A

90.1–1985 did not require a guardrail to protect the opening.

¶ 15 In addition to Harris, Quaker Oats hired various other contractors to perform safety

surveys of the manlift. One such contractor was Industrial Erectors, which performed safety

surveys on the southwest manlift on January 13, 1994, October 9, 1995, and March 12, 1997.

In its report regarding its safety survey of March 12, 1997, Industrial Erectors noted “hand

railing should be added next to openings on each side of manlift by platform.”

¶ 16 Ms. Mockbee provided the following testimony at her deposition regarding the accident.

She took the southwest manlift down from the third floor to the first floor, where the

cafeteria was located, at the start of her 30-minute meal break. Ms. Mockbee dismounted the

downside of the manlift and began to walk on the platform in the direction of the descending

stairs to exit the manlift room. As she walked past the upside floor opening on the 36-inch-

wide platform, her right foot stepped off the walkway and fell into the unguarded opening.

Ms. Mockbee was well aware that this side of the upside opening of the manlift did not have

a guardrail. She described the opening to mount the lift, which faces the belt, as the “front.”

She was also aware that the unguarded side was never to be used to mount the manlift. She

testified she fell into the side of the upside floor opening and was injured when the ascending

step-platform of the manlift pinned her against the platform structure, crushing her

midsection. Ms. Mockbee did not know what caused her to miss the platform walkway and

step into the unguarded opening. She testified she did not intentionally fall into the opening,

nor did she trip; she was not in a hurry. She believes she was not distracted at the time her

right foot fell into the opening; nor was her view of the opening blocked in any way. At the

time of her fall, Ms. Mockbee was looking straight ahead in the direction of the platform

stairs and manlift-room door. Ms. Mockbee could not say whether she fell forward, sideways,

or backward into the unguarded opening. Ms. Mockbee has very little memory of what

occurred after she stepped into the unguarded opening. Ms. Mockbee had used the manlifts

on a fairly regular basis since the start of her employment with Quaker Oats in 2000, and felt

that the southwest manlift was safe. She acknowledged that Quaker Oats had provided

training on the proper method to mount and dismount the manlift and on the safe use of the

platform walkway. She was well aware that employees’ use of the manlift was optional.

¶ 17 Following the incident, Quaker Oats received an OSHA violation for not having a

guardrail on the southwest manlift platform side opening. Two OSHA sections address safety

requirements for manlifts. Section 68(b)(9)(i) provides:

“The floor opening at each landing shall be guarded on sides not used for entrance or exit

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by a wall, a railing and toeboard or by panels of wire mesh of suitable strength.” 29

C.F.R. § 1910.68(b)(9)(i) (2010).

Section 68(b)(10)(iv) provides:

“To guard against persons walking under a descending step, the area on the downside of

the manlift shall be guarded in accordance with subparagraph (8) of this paragraph. To

guard against a person getting between the mounting platform and an ascending step, the

area between the belt and platform shall be protected by a guardrail.” 29 C.F.R.

§ 1910.68(b)(10)(iv) (2010).

Quaker Oats paid the fine and modified the southwest manlift to comply with OSHA by

installing a guardrail at the side opening.

¶ 18 Roger Smith, manager of Quaker Oats’s health, safety and the environment division at

the time of the accident, was designated as Quaker Oats’s representative deponent under

Illinois Supreme Court Rule 206(a)(1) (eff. Dec. 1, 1999), as the individual most

knowledgeable about the manlift inspections and ASME A 90.1–1985 compliance, as well

as the physical characteristics of the southwest manlift. He acknowledged that he was

responsible for the inspection, maintenance, and repairs of the manlift platform system. He

contended that Quaker Oats expected that both Humphrey and Harris would inspect the

manlift platform system to ensure it was safe and complied with OSHA and ASME.

According to Smith, Quaker Oats relied on the inspections by Harris and Humphrey for that

purpose.

¶ 19 John Pravdica, the maintenance manager at Quaker Oats at the time of the accident,

testified at his deposition that it was Quaker Oats’s expectation that Harris would inspect the

manlift platform system to ensure its safety and its compliance with OSHA and ASME.

Pravdica conceded that before an outside company could perform any work at the Danville

plant, Quaker Oats would have to first approve and authorize that work. Pravdica testified

that he, Dan Bantz, and John Foreman would rely on the recommendations and advice of

Harris to determine the work Quaker Oats would authorize. Pravdica supervised Bantz and

Foreman.

¶ 20 Foreman was a manlift mechanic at the time of the accident and served as Harris’s

contact at Quaker Oats. He confirmed that he performed weekly and monthly inspections of

the manlift system at the Danville plant between 1993 and 2003. He was of the opinion that

neither OSHA nor ASME required additional guardrails on the southwest manlift.

Nevertheless, he opined that it was Harris’s job to inform Quaker Oats should the manlifts

be defective. His expectation was that Harris’s inspections of the manlift platform system

would assure the system’s compliance with OSHA and ASME. He contended Quaker Oats

relied on Harris’s inspections, supplemented by its own inspections.

¶ 21 The plaintiffs offered the opinions of three experts: John Costa, Frank Burg, and John

Frauenhoffer. All three experts opined that the southwest manlift platform system was

deficient in three ways: (1) it lacked a guardrail on the side opening of the upside at the

system platform on the first floor; (2) the absence of that guardrail violated OSHA and

rendered the system unsafe; and (3) the system should have been shut down until the

guardrail was installed. Costa, Burg, and Frauenhoffer all opined that within the industry, a

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safety inspection on a manlift would be done pursuant to OSHA and other applicable

standards. According to each, a reasonably careful inspection company would have inspected

the southwest manlift to ensure its compliance with OSHA. Costa and Burg asserted that a

safety inspection would also ensure compliance with ASME. All three experts concluded that

Humphrey and Harris were negligent in failing to inform Quaker Oats that the absence of a

guardrail on the side of the upside opening of the southwest manlift platform system violated

OSHA. Costa and Burg also opined that Harris was negligent in failing to inform Quaker

Oats that the southwest manlift, as it existed in 2002 without a guardrail on the side opening,

violated two provisions of ASME. ASME 4.5.2 provides:

“On those sides not used as a landing, the guardrails shall be extended to a minimum

height of 66 in. *** This minimum 66 in. *** high guardrail is intended to prevent

people alongside the manlift from being able to lean over the guardrails and into the floor

opening ***.”

ASME 4.6.4 provides:

“To guard against persons walking under a descending step, the area on the down-

side of the manlift shall be guarded in accordance with para. 4.5 [and] [t]o guard against

a person getting between the mounting platform and ascending step, the area on the up-

side of the manlift shall be guarded in accordance with para. 4.5 as well.”

¶ 22 Harris claimed that its inspection of the southwest manlift platform system confirmed the

system was in compliance with ASME, which it believed to be more stringent than OSHA.

¶ 23 Procedural History

¶ 24 In their fourth amended complaint, the plaintiffs alleged the OSHA violation supported

claims of negligence against Harris and Humphrey and that the unguarded opening of the

southwest manlift platform system was a proximate cause of the injuries sustained by Ms.

Mockbee. The safety guardrail on the side of the upside opening of the southwest manlift

platform system would have prevented Ms. Mockbee’s fall and resulting injuries. The

plaintiffs contended Harris and Humphrey were negligent in failing to inform Quaker Oats

of the need for a guardrail to comply with OSHA, which caused or contributed to Ms.

Mockbee’s injuries.

¶ 25 The circuit court denied Harris’s forum non conveniens motion to transfer venue from

Cook County to Vermilion County, where Danville is located.

¶ 26 On November 19, 2008, Humphrey filed a motion for summary judgment, arguing the

plaintiffs’ claims were time barred by section 13-214 of the Illinois Code of Civil Procedure

(735 ILCS 5/13-214(b) (West 2010)), sometimes referred to as the “construction statute of

repose,” and that it owed Ms. Mockbee no legal duty of care. On April 7, 2009, following

a hearing on the motion in February, the circuit court granted Humphrey’s motion based on

the absence of any legal duty of care on the part of Humphrey under the plaintiffs’ negligence

theory. The court found “nothing in the record to support Mockbee’s assertion that

Humphrey had a duty to inspect the manlift for OSHA compliance, nor is there any reference

to the record that Humphrey failed to perform its ANSI/ASME inspection competently.” The

court found the affidavit of the plaintiffs’ expert, Costa, insufficient to support the plaintiffs’

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claim that the floor opening violated ASME. The court rejected the plaintiffs’ contention that

Humphrey engaged in a voluntary undertaking regarding OSHA compliance. The court noted

that the only evidence on the configuration of the southwest manlift platform system at the

time of Humphrey’s inspection was Favro’s documented data sheet and deposition testimony

detailing his visual inspection of the manlift on February 14, 1991, which indicated

guardrails were in place at the upside and downside floor openings when the platform system

was located on the third floor. The court determined the case law cited by the plaintiffs, Ryan

v. Commonwealth Edison Co., 381 Ill. App. 3d 877 (2008), and MBA Enterprises, Inc. v.

Northern Illinois Gas Co., 307 Ill. App. 3d 285 (1999), inapposite on the issue of duty in the

instant case “because both cases involved defendants who had a continuing duty to

maintain.” For much the same reason that no duty of care existed from Humphrey to Ms.

Mockbee, the court rejected Humphrey’s claim of protection under the statute of repose

because Humphrey provided only standard products, which Quaker Oats used to extend the

southwest manlift to the first floor. The circuit court denied the plaintiffs’ motion to

reconsider its order granting summary judgment to Humphrey.

¶ 27 On April 21, 2009, Harris filed its motion for summary judgment, asserting three grounds

for judgment in its favor: (1) as a safety service organization, it was immune from liability

under section 5(a) of the Compensation Act; (2) it owed Ms. Mockbee no duty of care

because the dangerous condition was open and obvious and because the OSHA sections

governing manlifts did not give rise to a duty of care on the part of Harris; and (3) its acts or

omissions were not a proximate cause of Ms. Mockbee’s injuries. Following an August

hearing, the circuit court granted Harris’s motion on November 13, 2009, finding Harris

owed “no duty to Mockbee to cause Quaker Oats to install guardrails at the opening through

which Mockbee fell because the risk of falling into the unguarded opening was open and

obvious.” The court rejected the plaintiffs’ claim that an exception to the open and obvious

doctrine applied. The court ruled that even if Harris owed Ms. Mockbee a duty of care, Harris

was entitled to summary judgment as a matter of law on the issue of proximate cause because

no evidence of the cause of Ms. Mockbee’s fall was adduced. “Without such evidence, the

finder of fact would have to engage in speculation in order to conclude that her injuries were

proximately caused by the breach of duty by Harris, or any other parties sued in this matter

for that matter.” The court declined to reach Harris’s claim that it was entitled to immunity

under the Compensation Act.

¶ 28 The plaintiffs timely appeal the grants of summary judgment to Humphrey and Harris.

In its cross-appeal, Harris contends the circuit court erred in denying its forum non

conveniens motion to transfer this case to Vermilion County; Harris also asserts it qualifies

as a service organization under the Compensation Act, which provides a separate basis to

affirm the circuit court’s grant of summary judgment. Humphrey joins in this latter argument.

¶ 29 ANALYSIS

¶ 30 The circuit court granted summary judgment to each of the defendants based, in part, on

a lack of duty owed to the plaintiffs arising from their safety inspections. The court declined

to reach Harris’s motion for dismissal based on its claim of immunity as a “service

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organization” under section 5(a) of the Compensation Act, which Harris raises in its cross-

appeal. Humphrey joins in Harris’s contention that statutory immunity applies, though

Humphrey concedes it did not raise this claim before the circuit court. “[U]nder Mockbee’s

proposition, Humphrey would be entitled to immunity as a ‘service organization’ under

Section 5(a) of the Workers’ Compensation Act.” While the plaintiffs challenge that each

defendant qualifies for immunity under section 5(a), the plaintiffs do not assert that the

statutory immunity claim is not properly before this court. See Murphy v. Rochford, 55 Ill.

App. 3d 695, 701 (1977) (“a reviewing court is not limited or confined to the precise reasons

given by the trial court in entering summary judgment”). Because of the dispositive nature

of this claim, we address first Harris’s cross-appeal that section 5(a) of the Compensation Act

defeats the plaintiffs’ common law right to seek recovery.

¶ 31 Harris asserts section 5(a) precludes the plaintiffs from recovering damages because three

statutory conditions exist: (1) it is a service organization (2) retained by the employer (3) to

provide safety service, advice, or give recommendations to Quaker Oats. While both

defendants now assert this immunity under section 5(a) of the Compensation Act and the

plaintiffs offer no distinction between the two, our discussion that follows names only

“Harris” for simplicity’s sake.

¶ 32 As Harris asserts, the plaintiffs’ only dispute is with Harris’s claim that it is “a ‘service

organization’ within the meaning of the [Compensation] Act.” The plaintiffs contend,

“Section 5(a)’s construction requires particular showings in order to gain immunity, and

Harris clearly has not met this burden.” According to the plaintiffs, “Harris’ claim that it is

a service organization is nothing more than a naked allegation unsupported by the evidence

or the law.” At the same time, the plaintiffs acknowledge that the plain language of the

statute does not define a “service organization.” They contend, however, that “the statute

does not grant immunity to all parties retained to provide safety service, advice or

recommendations.” The plaintiffs contend Harris is merely “one of the excluded entities that

simply provide safety service, advice or recommendations.” To include Harris as a “service

organization” entitled to statutory immunity under section 5(a) would extend “the language

of the Act beyond its plain meaning and take away [Ms. Mockbee’s] common-law right to

seek recovery from *** third parties.” The plaintiffs point to the absence of “pertinent

authority” offered by Harris.

¶ 33 As support for their position that Harris does not fall within the ambit of section 5(a), the

plaintiffs contend that the reach of the term “service organization” within the meaning of the

Compensation Act is limited. The plaintiffs offer that only a service organization “that was

in the position to provide safety inspections as part of a larger relationship with an employer

within the ambit of worker’s compensation *** [is] covered by the immunity under section

5(a).” The plaintiffs would exclude organizations like Harris that provide safety inspections

because “in addition [they] perform maintenance and repair.” Further, the plaintiffs argue

that Harris “has never made any payments toward Mockbee’s workers’ compensation

benefits nor did it have any relationship with the provider.” As the plaintiffs explain in their

brief, “Allowing a party who has paid nothing toward an injured employee’s workers’

compensation benefits to nevertheless invoke the [Compensation] Act’s immunity to escape

tort liability would be tantamount to allowing the party ‘to have its cake and eat it too.’ ” The

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plaintiffs broadly assert that only those organizations that have this nexus with “the

employer-employee relationship” are eligible for the Compensation Act’s exclusive remedy

provisions. Finally, the plaintiffs contend that the third parties intended to be covered by the

legislature under section 5(a) are those “parties that conduct gratuitous safety inspections as

incident to their workers’ compensation relationship with the employer.” (Emphasis in

original.) In support of their contention that more than the mere provision of a safety

inspection is required to invoke immunity under section 5(a), the plaintiffs point to cases

where “Illinois courts have imposed liability on entities that contract to provide service

inspection, and/or maintenance.” To support their position, the plaintiffs cite five cases:

Davlan v. Otis Elevator Co., 816 F.2d 287 (7th Cir. 1987); Sikora v. AFD Industries, Inc.,

319 F. Supp. 2d 872 (N.D. Ill. 2004); Jardine v. Rubloff, 73 Ill. 2d 31 (1978); Leavitt v.

Farwell Tower Ltd. Partnership, 252 Ill. App. 3d 260 (1993); and Stines v. Otis Elevator

Co., 104 Ill. App. 3d 608 (1982).

¶ 34 Section 5(a) of the Compensation Act

¶ 35 Questions of statutory interpretation are reviewed de novo. Taylor v. Pekin Insurance

Co., 231 Ill. 2d 390, 395 (2008). Our primary goal is to ascertain the true intent of the

legislature as expressed by the language of the statute. Id. When statutory language is plain

and unambiguous, we apply its meaning without looking to outside sources of interpretation.

Id. “[O]nly where the statutory language is unclear may a court look beyond it.” Denton v.

Civil Service Comm’n, 176 Ill. 2d 144, 149 (1997). “This court has no power to restrict the

plain meaning of an unambiguous statute.” Mier v. Staley, 28 Ill. App. 3d 373, 384 (1975).

¶ 36 The Compensation Act “is designed to provide financial protection to workers for

accidental injuries arising out of and in the course of employment.” Meerbrey v. Marshall

Field & Co., 139 Ill. 2d 455, 462 (1990). In exchange for this financial protection paid for

by employers, the Compensation Act “prohibits common law suits by employees against the

employer. The exclusive remedy provision is part of the quid pro quo in which the sacrifices

and gains of employees and employers are to some extent put in balance, for, while the

employer assumes a new liability without fault, he is relieved of the prospect of large damage

verdicts.” (Internal quotation marks omitted.) Id. When Meerbrey was decided, section 5(a)

of the Compensation Act provided more limited immunity: “ ‘No common law *** right to

recover damages from the employer *** or the agents or employees of *** [the employer].’ ”

Id. at 462 (quoting Ill. Rev. Stat. 1987, ch. 48, ¶ 138.5(a)).

¶ 37 Section 5(a) of the Compensation Act was amended in 1969. Section 5(a) now provides:

“No common law or statutory right to recover damages from the employer, his insurer,

his broker, any service organization retained by the employer, his insurer or his broker

to provide safety service, advice or recommendations for the employer or the agents or

employees of any of them for any injury or death sustained by any employee while

engaged in the line of his duty as such employee ***.” (Emphasis added.) 820 ILCS

305/5(a) (West 2010).

¶ 38 There can be no dispute that the legislature added “insurer,” “broker,” “service

organization,” and “agents or employees of any of them,” to expand the class of personnel

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and entities entitled to immunity. The expansion was a legislative response to Nelson v.

Union Wire Rope Corp., 31 Ill. 2d 69, 71-72 (1964), in which our supreme court interpreted

the Florida workers’ compensation act to permit a common law action against an insurer of

the employer for “negligent performance of gratuitous safety inspections and safety

engineering service.” Justice House, in a short dissent in Nelson, observed: “Under the

stringent rule adopted by the majority no insurer will hereafter dare offer to perform, or

perform, limited inspection services for fear of incurring liability. Undoubtedly such services,

though limited, have contributed to the safety of workers and prevented economic loss.

Sound policy would seem to dictate that the kind of service rendered by this insurer should

be encouraged rather than discouraged.” Id. at 121 (House, J., dissenting). The Nelson court

did not address whether the Illinois Compensation Act would warrant an interpretation

similar to that of the Florida workers’ compensation act. But see Towns v. Kessler, 10 Ill.

App. 3d 356, 360 (1973) (observing that the Nelson decision was “very persuasive authority

for the point that Illinois would recognize a common law liability against a negligent insurer

providing safety services”). However, in 1974 the supreme court addressed squarely the

question left unanswered in Nelson regarding the Illinois Compensation Act. In Reid v.

Employers Mutual Liability Insurance Co., 59 Ill. 2d 194 (1974), an employee filed suit

against his “employer’s workmen’s compensation insurance carrier for alleged negligence

on the part of the insurance company in performing safety inspections of the printing press

on which he was injured during the course of his employment.” Id. “The gist of plaintiff’s

complaint was that in conducting safety inspections of the plant defendant knew or should

have known of the lack of adequate safety mechanisms on the press and that it carelessly and

negligently failed to detect and report the dangerous conditions to the employer.” Id. at 196.

The court set out the question before it: “The issue presented for our determination is

whether the foregoing provisions contemplate that an employer’s workmen’s compensation

carrier should be amenable to suit as a third-party tortfeasor for alleged negligence in

performing the type of safety inspections which occurred here.” Id. at 197. The accident

predated the amendment to section 5(a), otherwise the suit against the workmen’s

compensation carrier would have been barred under the 1969 amendment to section 5(a) of

the Compensation Act. “At the outset, we note that this question will not arise in cases

governed by a 1969 amendment to section 5(a) ***.” Id. The supreme court noted “that a

workmen’s compensation insurer is not included within the definition of the term ‘employer’

appearing in section 1(a) of the Act [citation] nor is the insurer expressly mentioned in

section[ ] 5(a) ***. However, this does not necessarily mean that *** an employee should

have a common-law right of action against the insurer for the type of safety inspections

which occurred here.” Id. at 199. Ultimately, the supreme court ruled the plaintiff’s cause of

action was statutorily barred. “[W]e construe section 5(a) of the Act in effect at the time of

the plaintiff’s injury as precluding an action by an employee against his employer’s

compensation insurer for the type of safety inspections conducted by defendant in this case.”

Id. at 200.

¶ 39 Four years after the amendment and consistent with Justice House’s dissent in Nelson and

the full court’s decision in Reid, this court noted the clear legislative purpose behind the 1969

amendment to section 5(a). “The apparent purpose of the amendment is to promote industrial

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safety inspections.” Mier, 28 Ill. App. 3d at 384 (citing Towns, 10 Ill. App. 3d 356). Mier

offers facts similar to the instant case.

¶ 40 In Mier, the plaintiff was injured at the defendant’s factory when she fell off a manlift.

Id. at 376. She sued Self-Insurers Service, Inc. (S.I.S.), alleging that S.I.S. negligently

performed safety inspections, which proximately led to her injuries. Id. The plaintiff’s

complaint alleged “that S.I.S. is a safety service organization retained by the employer.” Id.

at 382. The circuit court dismissed the suit against S.I.S., holding the action was barred by

section 5(a) of the Compensation Act. Id. at 384. In support, the court noted the obvious: as

a safety service organization retained by the employer, “the statute clearly grants [S.I.S.]

immunity from common-law suit.” Id. at 382. On appeal, the plaintiff’s challenge was to the

constitutionality of the immunity extension. Id. She asserted the 1969 amendment was

“arbitrary and unreasonable” in extending immunity to anyone other than the employer,

employees, and the workers’ compensation carrier. Id. The plaintiff contended no distinction

should be made between safety organizations hired by the employer and those retained by

third parties. Id. at 383. In upholding the constitutionality of section 5(a) of the

Compensation Act, granting to the safety organization the same immunity employers enjoy,

the Mier court noted, “The legislature has chosen to encourage the use of experts by granting

to the safety organization the same immunity the employer has and there is a characteristic

distinguishing Self-Insurers Service, Inc., from safety organizations employed by others. A

grant of immunity to those safety services would extend to them an immunity their employer

does not possess. We find that this is a distinction upon which it is rational to make

classifications.” Id.

¶ 41 Harris argues that it, like S.I.S. in Mier, qualifies as a service organization entitled to

immunity under section 5(a) of the Compensation Act because of the services it was retained

to provide. As support for its position, Harris points out that it was retained by Quaker Oats

to perform safety inspections aimed at addressing worker safety. Harris notes it was not

under contract with Quaker Oats to perform continuing maintenance on the southwest

manlift. Harris was hired by Quaker Oats on a per-job basis and had no authority to perform

repairs or maintenance without the express authorization of Quaker Oats. Harris argues that

because Ms. Mockbee’s claim is for negligence in Harris’s performance of safety inspections

in which Harris failed to note the need for an additional guardrail at the platform level of the

southwest manlift, Harris clearly falls within the unambiguous language of section 5(a) of

the Compensation Act and the legislative intent behind the immunity granted to service

organizations hired by the employer to perform safety inspections. Harris argues it is

therefore entitled to immunity from the plaintiffs’ common law claims.

¶ 42 The plaintiffs concede that Harris was contracted by Quaker Oats “to perform inspection,

repair and maintenance work” on the southwest manlift. The plaintiffs correctly acknowledge

that “Harris is an inspection and maintenance company.” Nonetheless, the plaintiffs assert

not every organization that provides “safety service, advice or recommendations” qualifies

as a “service organization” under section 5(a). In effect, the plaintiffs argue that a “service

organization” entitled to the expanded immunity under section 5(a) is limited to

organizations that are related to the insurance industry, in particular, “Quaker’s workers’

compensation [carrier].” To emphasize this point, the plaintiffs argue, “A party must

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contribute to providing workers’ compensation benefits to receive the benefit of the Act’s

immunity.” To demonstrate Harris’s lack of relation to the insurance industry, the plaintiffs

assert: “Harris has never made any payments toward Mockbee’s workers’ compensation

benefits nor did it have any relationship with the provider. It provided no services in respect

to workers’ compensation, and thus, by the terms of the bargain, Harris should not be able

to escape tort liability.”

¶ 43 The limitations urged by the plaintiffs on the scope of section 5(a) are not unlike the

limitations written into workers’ compensation acts of other states. See Fla. Stat. Ann.

§ 440.11(3) (West 2004) (“An employer’s *** safety consultant shall not be liable as a third-

party tortfeasor to employees of the employer *** in carrying out the employer’s rights and

responsibilities *** by furnishing any *** safety service incidental to the workers’

compensation or employers’ liability coverage ***.”); Ala. Code § 25-5-53 (2004)

(“[I]mmunity from civil liability for all causes of action except those based upon willful

conduct shall also extend to the workers’ compensation insurance carrier of the employer

***. For the purpose of this section, a carrier *** shall include a company or a governmental

agency making a safety inspection on behalf of a self-insured employer ***.”); Mich. Comp.

Laws Ann. § 418.131(2) (West 2004) (“ ‘[E]mployer’ includes the employer’s insurer and

a service agent to a self-insured employer insofar as they furnish, or fail to furnish, safety

inspections *** incident to providing worker’s compensation insurance or incident to a self-

insured employer’s liability servicing contract.”). Cf. Conn. Gen. Stat. § 31-293 (upholding

common law actions against third parties: “When any injury for which compensation is

payable under the provisions of this chapter has been sustained under circumstances creating

in a person other than an employer *** a legal liability to pay damages for the injury, *** the

payment of compensation shall not affect the claim or right of action of the injured employee

against such person, but the injured employee may proceed at law against such person to

recover damages for the injury.”). Thus, if the set of service organizations granted immunity

by section 5(a) were as narrow as the plaintiffs urge before us, the Illinois legislature would

have used language consonant with the limitations employed by the legislatures of Florida,

Alabama, and Michigan. The Illinois legislature could also have expressly preserved an

employee’s right to file a common law action against a third-party service organization as

the Connecticut legislature did. The Illinois legislature did neither.

¶ 44 The Illinois legislature clearly intended to extend the immunity granted to an employer

under the Compensation Act beyond the insurer of the employer for a common law action

for the “negligent performance of gratuitous safety inspections and safety engineering

service,” as our supreme court concluded the Florida workers’ compensation act permitted

an employee to file (Nelson, 31 Ill. 2d at 71-72), when in 1969 the Illinois legislature

amended section 5(a). In fact, the supreme court’s decision in Reid upheld immunity to the

employer’s compensation carrier before the effective date of the 1969 amendment to section

5(a). Reid, 59 Ill. 2d at 200 (“we construe section 5(a) of the Act in effect at the time of the

plaintiff’s injury as precluding an action by an employee against his employer’s

compensation insurer for the type of safety inspections conducted by defendant in this case”).

In Reid, the supreme court also made clear that certain common law actions by employees

against third parties would be barred by the 1969 amendment to section 5(a). Reid, 59 Ill. 2d

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at 197 (“At the outset, we note that this question will not arise in cases governed by a 1969

amendment to section 5(a) ***.”). The legislature in the 1969 amendment to section 5(a)

extended immunity to “any service organization retained by the employer *** to provide

safety service, advice or recommendations for the employer.” (Emphasis added.) 820 ILCS

305/5(a) (West 2010).

¶ 45 The plaintiffs’ only argument that the plain meaning of section 5(a) does not apply to

Harris is their claim that Harris is not a “service organization.” What the plaintiffs fail to

address, however, is why the term “service organization” should not be given its plain

meaning, within the context of section 5(a), when the legislature did not define the term in

the Compensation Act. See Landis v. Marc Realty, L.L.C., 235 Ill. 2d 1, 16 (2009)

(“Undefined statutory terms must be given their ordinary and popularly understood

meanings.”). Under the plain meaning of section 5(a), a qualifying service organization is any

organization that provides “safety service, advice or recommendations for the employer.” 820

ILCS 305/5(a) (West 2010). The plaintiffs’ arguments that Harris should be not covered by

section 5(a) because it did not contribute to the workers’ compensation coverage for Ms.

Mockbee, or it is not sufficiently tied to the employer-employee relationship, or, in addition

to safety inspections, it “performed maintenance and repair,” or it was compensated for the

services it provided, all miss the mark. If the legislature meant to restrict the application of

“service organization” as the plaintiffs urge before us, it could have expressly imposed any

or all of those restrictions in its amendment to section 5(a) as the legislatures of Florida,

Alabama, and Michigan appear to have done. The plaintiffs’ position is supported by nothing

more than policy arguments against giving the term “service organization” its plain meaning

of an organization that provides a safety inspection service to an employer. It is not the role

of this court to superimpose policy-based restrictions on the scope of section 5(a), given its

plain and unambiguous language. “This court has no power to restrict the plain meaning of

an unambiguous statute.” Mier, 28 Ill. App. 3d at 384. Only the legislature may restrict the

scope of the immunity granted by section 5(a).

¶ 46 The necessary showing to qualify a service organization for statutory immunity under

section 5(a), the organization must “provide safety service, advice or recommendations for

the employer.” 820 ILCS 305/5(a) (West 2010). The plaintiffs do not dispute that Harris and

Humphrey provided safety service, advice, and recommendations to Quaker Oats. In fact,

Ms. Mockbee’s theory of recovery against Harris and Humphrey is that each was negligent

in providing the qualifying service, advice, and recommendations.

¶ 47 We find no room for ambiguity in section 5(a) of the Compensation Act to permit Ms.

Mockbee’s common law right of action against either defendant. Unlike the supreme court

in Reid, where it construed the term “employer” in section 5(a) of the Compensation Act to

include an employer’s compensation insurer (Reid, 59 Ill. 2d at 200), there is no need to

construe the unambiguous language added to section 5(a) in 1969; its language is plain

enough. Nor do the cases cited by the plaintiffs, in support of their position that liability

should apply to Harris as expressed by their contention that “Illinois courts have imposed

liability on entities that contract to provide service inspection, and/or maintenance,” offer any

guidance to a conclusion contrary to that which we reach. The five cases cited–Davlan, 816

F.2d 287; Sikora, 319 F. Supp. 2d 872; Jardine, 73 Ill. 2d 31; Leavitt, 252 Ill. App. 3d 260;

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and Stines, 104 Ill. App. 3d 608–are inapposite as none involves section 5(a) of the

Compensation Act.

¶ 48 We find no basis to exclude Harris from the plain and simple meaning of “service

organization,” as the plaintiffs urge. Both Harris and Humphrey plainly qualify as service

organizations under section 5(a). It necessarily follows that Ms. Mockbee has no common

law right to recover damages from either Harris or Humphrey for the injuries she sustained

as an employee of Quaker Oats. 820 ILCS 305/5(a) (West 2010). We affirm the circuit

court’s grant of summary judgment to Harris and Humphrey.

¶ 49 Motion to Transfer Venue

¶ 50 We do not review the circuit court’s ruling on Harris’s forum non conveniens motion as

Harris asks that we reach that issue only if we reverse the circuit court’s grant of summary

judgment in its favor.

¶ 51 CONCLUSION

¶ 52 The circuit court properly granted summary judgment to Harris and Humphrey. As a

matter of statutory interpretation, Harris and Humphrey are service organizations retained

by Quaker Oats, Ms. Mockbee’s employer, to perform safety inspections and as such are

immune from liability for common law causes of action by a Quaker Oats employee under

section 5(a) of the Compensation Act.

¶ 53 Affirmed.

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