Erickson v. Toledo, P. & W. R. R.

• Decision Date: 12 July 1974
• Docket Number: No. 59675,59675
• Citation: 315 N.E.2d 912,21 Ill.App.3d 546
• Court: United States Appellate Court of Illinois
• Parties: Carl ERICKSON, Plaintiff-Appellant, v. TOLEDO, PEORIA & WESTERN RAILROAD, and Burlington Northern, Inc., Defendants-Appellees.

Page 912

315 N.E.2d 912

21 Ill.App.3d 546

Carl ERICKSON, Plaintiff-Appellant, v. TOLEDO, PEORIA & WESTERN RAILROAD, and Burlington Northern Inc., Defendants-Appellees.

No. 59675.

Appellate Court of Illinois, First District, Fifth Division.

July 12, 1974.

John Bernard Cashion and Paul F. Davidson, Chicago, for plaintiff-appellant.

Lord, Bissell & Brook, Chicago (Richard E. Mueller, Cornelius P. Callahan and John J. Berwanger, Chicago, of counsel), for defendant-appellee Toledo, Peoria & Western Railroad.

Barry N. Gutterman, Chicago, for defendant-appellee Burlington Northern, Inc.

DRUCKER, Justice:

This is an action by plaintiff, a volunteer fireman, to recover damages for personal injuries he suffered while fighting a fire that occurred after the derailment of a train operated by defendant Toledo, Peoria & Western Railroad. The alleged cause of the derailment was a malfunction in the friction bearing of a railroad car owned by defendant Burlington Northern, Inc. The court below granted defendants' motions to dismiss the complaint for failure to state a cause of action, and plaintiff appeals. ^* He contends that a fireman who has been injured while fighting a fire has a cause of action against a defendant whose negligence caused the blaze.

Plaintiff's complaint alleged that he was a member of the volunteer fire department of the Village of Bradley. On June 21, 1970, pursuant to his duties as a member of the fire department, he was summoned to a fire at the site of the derailment. Included in the derailed train's complement of cars were 12 tankers containing liquified propane gas. The heat from the fire caused the pressure inside these cars to build up, giving rise to the danger of explosion. Plaintiff's assignment was to assist in setting up a device to direct a stream of water onto one of the cars. It was standard procedure in fighting fires of this nature to attempt to cool down the cars so that they would not explode. After setting up the hoses, plaintiff retreated to a distance of one city block from the fire. Despite these efforts, one of the tank cars exploded, injuring plaintiff.

Opinion

It is plaintiff's basic contention that the negligent creating of a fire hazard imposes liability upon defendants for the injuries he received in the performance of his duties.

Traditionally a landowner has been absolved from liability for injuries suffered by a fireman while the fireman was acting within the scope of his duties. (See e.g. Gibson v. Leonard, 143 Ill. 182, 32 N.E. 182; Lunt v. Post Printing and Publishing Co., 48 Colo. 316, 110 P. 203; Woodruff v. Bowen, 136 Ind. 431, 34 N.E. 1113; 3 Cooley on Torts (4th ed.) p. 198.) Most jurisdictions, however, have abandoned this rather harsh rule. Rather, while recognizing 'that it is the fireman's business to deal with * * * dangerous situations, (and therefore) he cannot complain of negligence in the creation of the very occasion for his engagement,' they have held that liability will lie where negligent conduct creates 'undue risks of injury beyond those inevitably involved in fire fighting.' (Krauth v. Geller, 31 N.J. 270, 273--274, 157 A.2d 129, 131. See also Giorgi v. Pacific Gas and Electric Company, 266 Cal.App.2d 355, 72 Cal.Rptr. 119; Scott v. EL. Yeager Construction Co., 12 Cal.App.3d 1190, 91 Cal.Rptr. 232; Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky.App.); Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148; Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491; Spencer v. B.P. John Furniture, 255 Or. 359, 467 P.2d 429.) Thus, for example, in Meiers a fireman was allowed to recover for injuries suffered when he stepped into a coal pit while fighting a fire on the defendant's land. The specific act of negligence giving rise to the fireman's cause of action was the failure of the defendant to adequately illuminate the hole.

In Dini v. Naiditch, 20 Ill.2d 406, 170 N.E.2d 881, the Illinois Supreme Court specifically adopted the principle enunciated in Meiers and, under the facts and circumstances before it, found the defendants liable. In Dini a fireman, while fighting a fire, was injured when an inadequately constructed wooden stairway collapsed. In addition, it was noted that the defendants 'failed to provide fire doors or fire extinguishers, permitted the accumulation of trash and litter in the corridors, and had benzene stored in close proximity' to the stairway. (Dini at 20 Ill.2d 417, 170 N.E.2d at 886.) The court's holding that the defendants were liable for the injuries suffered by those fighting the fire seems to be predicated upon a combination of factors, i.e. the defendant's negligent upkeep of the premises in flagrant violation of certain safety ordinances which might have caused the blaze and the collapse of the Inherently defective stairway. Thus it is clear that the court did not hold, as plaintiff has asserted, that the sole basis of liability was the negligent creation of a fire hazard.

The adoption by Illinois courts of the majority rule that an injured fireman may not recover from one whose sole connection to the injury is that his negligence caused the fire is more fully illustrated by two appellate court decisions subsequent to Dini. (Netherton v. Arends, 81 Ill.App.2d 391, 225 N.E.2d 143; Horcher v....