The parents of a deceased teen argue that their son’s former employer should be held liable for the negligent work it completed at a home in 2014, which they allege lead to the decedent’s electrocution in 2017.
Doug Elliott and Dawn Elliott, as independent co-administrators of the estate of Caleb Elliott, filed their complaint on Nov. 30, 2017, against Viola Sexton, Linda Johnson, Rebuilding Together Southwest Illinois, Liberty Worship Center, The Boeing Company, Employees Community Fund of Boeing St. Louis, J/B Industries Inc. and Viviano Heating & Air Conditioning Inc.
The plaintiffs allege home electrical and outlet maintenance was performed in 2014 at Sexton and Johnson’s Troy home by the defendant non-profit groups.
Then on Aug. 11, 2017, Caleb Elliott, 19, went to the home as an employee of Viviano. His duties required him to use and plug a J/B Industries Inc. vacuum pump DV-85-N into an outlet. Caleb Elliott was electrocuted after he plugged the vacuum pump into the outlet and began operating it. He died as a result of his injuries the same day.
Viviano filed a motion to dismiss counts XIII and XIV of the first amended complaint on June 5 through attorney Ian White of Cassidy & Mueller PC in Peoria.
Counts XIII and XIV allege negligence pursuant to the Illinois Survival Act and negligence pursuant to the Illinois Wrongful Death Act.
Viviano argues in its motion to dismiss that the Illinois Workers’ Compensation Act prohibits any representatives of an employee’s estate from bringing a common-law cause of action against the employer for the employee’s injuries.
The defendant argues that its “immunity also applies as to a wrongful-death action brought by nondependent parents and siblings of an employee, even though they were not entitled to recover compensation benefits under the Compensation Act.”
Because Caleb Elliot was an employee performing job duties when he was killed, Viviano argues that dismissal is appropriate.
The Elliotts responded to Viviano’s motion to dismiss on July 2 through attorney Robert Marcus of Kujawski Marcus LLC in O’Fallon.
They argue that Viviano’s motion to dismiss should be denied “because of the Dual Capacity Doctrine – Defendant Viviano is sued in its capacity as a contractor who performed negligent work at the same house in 2014, three years before the accident where Caleb was killed.”
The response states that Viviano failed to properly wire, connect or install electrical outlets and receptacles; failed to inspect the outlets to ensure they were safe for intended use; failed to inform and warn the property owners that the outlet and receptacle was improperly installed; failed to install a ground fault circuit interrupter, allowed the outlet to be installed with a false ground or reverse polarity; failed to protect the entire branch circuit with a ground fault circuit interrupter; and failed to properly install electrical or HVAC components or equipment.
Caleb Eliott was not an employee of Viviano in 2014.
“Accordingly, plaintiffs’ claims arise from Viviano’s separate and distinct acts of negligence and negligent conduct in 2014, and not by virtue of employer conduct in the August 11, 2017 accident,” the response states.
“An employer normally shielded from tort liability by the exclusive remedy principle may be liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer,” it continues.
In other words, the plaintiffs allege they are not suing Viviano as am employer, but as a contractor.
Madison County Circuit Court case number 17-L-1625