Cincinnati Ins. Co. v. City of Taylorville

• Citation: 818 F.2d 1345
• Decision Date: 12 May 1987
• Docket Number: No. 86-1730,86-1730
• Parties: CINCINNATI INSURANCE COMPANY, Plaintiff-Appellant, v. CITY OF TAYLORVILLE, et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1345

818 F.2d 1345

CINCINNATI INSURANCE COMPANY, Plaintiff-Appellant, v. CITY OF TAYLORVILLE, et al., Defendants-Appellees.

No. 86-1730.

United States Court of Appeals Seventh Circuit.

Argued Dec. 9, 1986.

Decided May 12, 1987.

Ronald H. Isroff, Ulmer-Laronge-Glickman-Curtis, Cleveland, Ohio, for plaintiff-appellant.

Karen L. Kendall, Heyl-Royster-Voelker-Allen, Peoria, Ill., for defendants-appellees.

Before CUDAHY and RIPPLE, Circuit Judges, and WILL, Senior District Judge. ^*

WILL, Senior District Judge.

This diversity case arose out of a fire that occurred on the night of February 20, 1979, at the Nashville North County Music Hall, Inc. ("Nashville North"). The music hall is located just outside the city limits of Taylorville, Illinois. For property located outside city limits, the Taylorville Fire Department operates on a subscription-only basis: one must subscribe to the Taylorville Fire Association in order to get fire protection. Nashville North's owner, William Mann, had not subscribed even though the fire association had solicited him to do so. As a result when the Taylorville Fire Department was first notified of the fire, it refused to respond.

Nashville North was insured by the Cincinnati Insurance Company, which reimbursed Mann $238,105.39 for the fire damage to the hall. Subsequently, the Cincinnati Insurance Company, as subrogee to the rights of Nashville North filed suit against four defendants: the City of Taylorville; the Taylorville Fire Association; ¹ Keith Evrley, the Chief of the Taylorville Fire Department; and Daniel Reese, the Mayor of the City of Taylorville (hereinafter collectively referred to as "the city"). The complaint contained three counts, all arising out of the city's failure to extinguish the fire in a timely manner. Count one alleged willful and wanton misconduct in failing to order fire fighting operations; count two alleged a violation of 42 U.S.C. Sec. 1983; and count three alleged ordinary negligence.

On May 1, 1984, the city filed a motion for summary judgment on all three counts of the complaint. On March 22, 1985, the district court granted the city's motion as to the Sec. 1983 claim. ² As to plaintiff's state law claims, the court ruled that a jury trial would be necessary to resolve disputed issues of fact relative to whether the city's actions on the night of the fire gave rise to a voluntarily assumed duty to extinguish the blaze. However, the district court granted partial summary judgment on the issue of whether certain Taylorville ordinances created any statutorily-defined duties to respond to fires outside the city limits.

The case was tried before a jury and on April 9, 1986, at the close of plaintiff's case, the district court granted the city's motion for a directed verdict on the ground that the city had assumed no duty to plaintiff to fight the fire at Nashville North before Mann became a member of the fire Association.

Plaintiff now appeals the district court's grant of partial summary judgment for the city on the issue whether Taylorville ordinances created a statutory duty on the part of the city to respond to fires outside city limits, and the district court's grant of a directed verdict in favor of the city on the issue whether the city voluntarily assumed a duty to fight the fire before Mann joined the association. We affirm.

I.

In June 1970, the City of Taylorville enacted Ordinance 1554 giving the Taylorville Fire Department authority to honor calls requesting the fire department to make a run outside the city limits whenever "in the opinion of the Fire Chief ..., the answering and responding to such calls will not render fire protection for the [city] inadequate." The city charged $300 for each run, plus $100 for each hour after the first hour spent on fighting the fire, the fee to be collected after the fire.

In 1977, after finding it difficult to collect these fees after-the-fact, the city approved a second ordinance, Ordinance 1818, designed to replace Ordinance 1554. This new ordinance established a "Fire Protection Association" to provide fire protection to property located outside the city limits. The ordinance required persons who wanted fire protection to join the association by submitting an application. The association would then assess its members an annual fee determined by a schedule contained in the ordinance. The ordinance also provided that fire protection would not be rendered to parties owning property located outside the city limits unless those individuals were members of the association. The new ordinance became effective on January 1, 1978.

On at least two occasions after the city enacted the new ordinance, Keith Evrley, the Chief of the Taylorville Fire Department, personally visited the Nashville North County Music Hall to drop off an application. On the second visit, Evrley talked with William Mann, Nashville North's owner, about joining the fire association. At that meeting, Mann told Evrley that he would show the membership application to his lawyer and get back to him; Mann never showed the application to his lawyer, never got back to Evrley, and never returned the application.

During the late evening of February 20, 1979, an unknown individual reported to the Taylorville Fire Department dispatcher that a fire had broken out at Nashville North. Because Nashville North was outside the city limits and had not joined the association, the dispatcher did not have the fire department respond, a proper action under department policy. The dispatcher, however, did notify Evrley, who immediately went to the scene. William Mann and Mayor Daniel Reese were also informed. Reese, under the mistaken belief that Mann was a member of the association, apparently told the dispatcher at that time that "the [fire department] better put out that fire."

When Mann arrived at Nashville North, the fire apparently was still quite small. Upon encountering Evrley, Mann was told that the fire department was prohibited from responding to the fire under Ordinance 1818 because Mann was not a member of the association. Mann testified that he asked Evrley at that time to let him join but that Evrley refused to let him do so. In addition to seeing Evrley and Mann, a number of witnesses also testified to seeing a fire truck at the scene and other Taylorville Fire Department employees.

About this time, Reese called Evrley, who was still at the scene, on a radio phone. Evrley informed Reese that Mann was not a member of the fire association, and Reese agreed with Evrley that the city was prohibited from responding to the fire. Subsequently, Reese and Mann's attorney, Frank Schweitzer spoke by phone. They agreed to meet immediately at the fire station. Also present at that meeting were Mann and Evrley. There is some dispute as to what was said at the meeting. However, all agree that Mann was permitted to join the association, that Evrley made up the application which Mann signed, and that Mann paid a $100 fee. Upon completion of the application procedure, Evrley ordered the fire department to extinguish the fire, which it did. According to the fire department log, the department responded to the fire at 1:25 a.m. By this time, however, the fire had done considerable damage to the music hall.

II.

A.

We first consider the appropriateness of the district court's directing a verdict in favor of the city on the issue whether the city had assumed a voluntary duty to fight the fire at a point before Mann became a fire association member.

In diversity cases, this court applies the state standard of review to the trial court's decision to grant or deny a directed verdict. Davis v. FMC Corp., 771 F.2d 224, 229 (7th Cir.1985); Gonzalez v. Volvo of America Corp., 752 F.2d 295, 301 (7th Cir.1985). In Illinois "verdicts ought to be directed ... only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern Railroad Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14 (1967). This formulation does not require a complete absence of evidence supporting the side against whom the verdict is directed; however, there must be a substantial factual dispute before a jury trial is required. Id. at 504-05, 229 N.E.2d at 504. Because we agree with the district court that the plaintiff failed to prove an essential element of its negligence case--the existence of a duty owed by the city to the plaintiff--we conclude that the district court properly directed a verdict in favor of the city on the assumption of duty issue.

B.

Under Illinois law, the determination of any question of duty--that is, whether the law imposed upon a defendant the obligation to protect the plaintiff against the consequences which occurred--is normally a question of law to be determined by the trial court. Barnes v. Washington, 56 Ill.2d 22, 305 N.E.2d 535 (1973); Clinton v. Commonwealth Edison Co., 36 Ill.App.3d 1064, 344 N.E.2d 509 (1976). Under certain circumstances, however, the duty question can be a question of fact. A jury question exists only when: (1) the facts giving rise to the duty are disputed; and (2) the facts as alleged by plaintiff could support imposing such a duty. If, however, the facts as alleged by the plaintiff, as a matter of law, could not support finding such a duty, then the duty question is to be decided by the court even if the facts giving rise to the alleged duty are disputed.

Plaintiff acknowledges that under Illinois law municipalities are not liable for failing to supply police or fire protection. Huey v. Town of Cicero, 41 Ill.2d 361, 243 N.E.2d 214 (1968). However, plaintiff points out that Illinois recognizes the so-called "good Samaritan rule" whereby one "who attempts to do anything, even gratuitously for another [is required] to exercise care and skill in what he has...