Cook County Record

Tuesday, August 20, 2019

Split appeals panel: Worker waited too long to sue contractor that installed switch for machine that injured his hand

State Court

By Dan Churney | Jul 22, 2019


Illinois First District Appellate Court

CHICAGO -- A divided Illinois appeals court has ruled a man injured in a Chicago area workplace accident dawdled too long before suing the contractor who installed allegedly faulty machinery. However, the dissenting justice said the majority "penalized" the worker by unreasonably expecting him to have immediately known the contractor had done the installation.

The July 16 ruling was written by Justice Mary Anne Mason, with concurrence from presiding justice Terrence Lavin of Illinois' First District Appellate Court. The ruling was filed as an unpublished order under Supreme Court Rule 23, which means it cannot not be cited as precedent except in the circumstances allowed by the rule. Justice Michael Hyman dissented. The ruling favored electrical contractor Althoff Industries of suburban Crystal Lake in a lawsuit brought against it by Miguel Suarez.

Suarez was employed by Weber Flavors, a food supply company in suburban Wheeling. On July 13, 2015, court documents said, he was doing maintenance on a fudge mixer, when another worker in another room, from which Suarez could not be seen, turned on the mixer. As a result, the suit alleges, Suarez suffered injuries to his right hand, including the loss of several fingers. He hired a lawyer, started receiving workers' compensation and returned to work in June 2016.


Illinois First District Appellate Justice Michael Hyman | Illinoiscourts.gov

 As months passed, Suarez learned details as to how the accident occurred, but he claimed it wasn't until September 2017 he discovered, by happenstance, that the mixer's switch had been put in place by Althoff. Suarez reached out to another lawyer and filed suit Oct. 20, 2017 in Cook County Circuit Court, alleging Althoff negligently installed the switch in a spot from which a person activating the switch could not see the fudge mixer.

Althoff argued Suarez sued after the two-year statute of limitations expired. Cook County Circuit Judge Patricia O'Brien Sheahan agreed and threw out the suit. Suarez appealed, contending the clock should have begun ticking, not when he was injured, but when he learned in September 2017 of Althoff's involvement. 

Mason upheld Sheahan, determining Suarez should have quickly established Althoff's link to the mixer.

"Suarez retained a lawyer who pursued a workers' compensation claim promptly following the injury," Mason wrote. "We find it highly likely [that] Suarez’s lawyer would have inquired and been advised as to how the machine happened to be turned on while Suarez was working on it. The nature of the occurrence — an industrial machine turning on while a worker has his hands in the machine — strongly suggests wrongful conduct. 

"The most rudimentary investigation would have revealed that the machine was turned on by means of a switch located away from the machine and operated by a person who could not see the machine or Suarez, which would have, in turn, prompted further inquiry."

In addition, Suarez had a number of indications by October 2016, at the latest, that pointed to Althoff, according to Mason. As examples, Suarez acknowledged he knew the switch was moved after his injury to a place where the mixer was in the line-of-sight, and the Occupational Health and Safety Administration had removed the mixer during its investigation.

"Armed with that knowledge, a reasonable person would have inquired as to how the power switch was initially placed in another room, who was responsible for its location there, and who moved it after the accident," Mason said.

In dissent, Hyman argued Suarez would have been in the dark for at least one year as to whether Althoff could be involved.

"The activation of the mixer — was obvious," he wrote. "But a possible wrongful cause committed by anyone other than his employer was something Suarez could not have known until he returned to work. At issue is not what Suarez’s previous attorney might have or even should have done; even assuming the attorney did inquire, he or she would presumably discover the location of the switch but Althoff’s role in its installation would not be apparent. 

''[This] decision penalizes a factory worker for not realizing on the day he was injured that anyone other than his employer could have been responsible for placing the mixer’s on-off switch in another room."

Suarez was represented by Cohn & Cohn of Chicago, and Althoff has been defended by Kennedy & Associates of Chicago.

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Organizations in this Story

Althoff Industries Circuit Court of Cook County Cohn & Cohn Illinois First District Appellate Court Kennedy and Associates, P.C.

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