Marquart v. Toledo, Peoria & Western R. Co.

• Decision Date: 18 July 1975
• Docket Number: No. 74--145,74--145
• Court: United States Appellate Court of Illinois
• Parties: John MARQUART, Plaintiff-Appellee, v. TOLEDO, PEORIA & WESTERN RAILROAD COMPANY, a corporation, Defendant-Appellant.

Page 558

333 N.E.2d 558

30 Ill.App.3d 431

John MARQUART, Plaintiff-Appellee, v. TOLEDO, PEORIA & WESTERN RAILROAD COMPANY, a corporation,

Defendant-Appellant.

No. 74--145.

Appellate Court of Illinois, Third District.

July 18, 1975.

David B. Mueller, Cassidy, Cassidy, & Mueller, Peoria, for defendant-appellant.

Robert D. McKnelly, Watseka, for plaintiff-appellee.

STENGEL, Justice:

Plaintiff John Marquart, chief of the Kankakee Fire Department, brought this action to recover damages for personal injuries sustained in Crescent City, Illinois, while fighting fires which began when railroad cars containing liquified propane gas exploded and burned following the derailment of a train operated by defendant Toledo, Peoria & Western Railroad. The Circuit Court of Iroquois County denied defendant's motion for summary judgment, and defendant was granted leave to appeal pursuant to Supreme Court Rule 308 (Ill.Rev.Stat., ch. 110A, § 308).

The issue on review is 'whether a plaintiff who was injured by burns in the course of his employment fighting a fire and explosions as an official fireman has a legal right to recover damages for negligence or wilful and wanton misconduct on the part of the owner or occupier of the fired premises.' ¹ If not, then defendant is entitled to a judgment as matter of law, in accordance with the provisions for summary judgment contained in Ill.Rev.Stat. ch. 110, § 57.

The record shows that on June 21, 1970, sixteen railroad cars derailed as a train operated by defendant passed through Crescent City. Thirteen of the cars were tank cars containing LP gas, some of which immediately began to burn and explode.

As a result many buildings were damaged and numerous fires broke out in the city. As is customary in the case of a major public disaster, fire departments from surrounding communities responded to a call for help from Crescent City authorities, and plaintiff, as Kankakee fire chief, arrived and began directing and assisting firemen from Kankakee in fighting fires in the business district and evacuating endangered homes. Plaintiff was severely injured when a tank car exploded while he was on the street about 100 feet from the railroad right-of-way. At the time of the injury, plaintiff was seeking to arrange for the removal of the unexploded cars from the densely populated area.

Plaintiff's complaint contained an Amended Count III alleging defendant's negligence and an Amended Count IV alleging wilful and wanton misconduct. ² The particular acts alleged included failure to adequately inspect the cars, permitting a 'hot box' and fire to develop, failure to take prompt action to extinguish the fire, stopping the tank cars in a densely populated district, and permitting the burning train to remain in the city.

A similar suit arising out of the same disastrous events was filed by a volunteer fireman from Bradley. In Erickson v. Toledo, P. & W. Railroad, 21 Ill.App.3d 546, 315 N.E.2d 912 (1st Dist., 1974), the reviewing court, affirming dismissal of the complaint for failure to state a cause of action, stated that Illinois courts have adopted 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 . . ..' 315 N.E.2d at 914. The court then held:

'The allegations found in plaintiff's complaint relate to acts or omissions of defendants that allegedly either caused the derailment and subsequent fire or merely contributed to the fire's severity. We therefore find that the court below properly ruled that plaintiff did not plead a cause of action . . ..' 315 N.E.2d at 914.

Plaintiff seeks to distinguish the case at bar from Erickson because of the circumstances preceding the injury. In Erickson the plaintiff was injured by explosion of the tank car which he had been attempting to cool by directing a stream of water on it, and the court said, 'The direct cause of his injury was the explosion of a tank car containing propane gas, an eventuality that plaintiff was attempting to prevent at the time of his injury.' 315 N.E.2d at 914. However, we see no difference between the situation in Erickson and the one here where plaintiff was attempting to organize the removal of the burning cars to lessen the danger of damage and injuries from future explosions at the moment he was injured by a new explosion.

We thus conclude that the decision in Erickson is correct as applied to Amended Count III in the case before us, and that the trial court erred in denying defendant's motion for summary judgment as to the allegations of negligence. Also see Horcher v. Guerin, 94 Ill.App.2d 244, 236 N.E.2d 576 (2d Dist., 1968); Fancil v. Q.S.E. Foods, Inc., 60 Ill.2d 552, 328 N.E.2d 538 (1975).

However, Amended Count IV alleges wilful and wanton misconduct consisting of various acts and omissions of defendant that resulted in the fire and explosions, including defendant's failure to remove the burning cars from the densely populated areas. The facts alleged in this count are the same as those in Amended Count III with an additional assertion that defendant 'knew, or in the exercise of ordinary care should have known that such action would likely and probably cause injury and damage to the plaintiff and others.' Illinois courts have recognized that a fireman may recover where the injuries were caused by the wilful and wanton misconduct of the owner or occupant of premises where the fire occurred. Bandosz v. Daigger & Co., 255 Ill.App. 494 (1st Dist., 1930); Annot., 86 A.L.R.2d 1205, § 10(b). The recent decisions in cases where a fireman sought to recover for injuries received while fighting a fire have all been actions based on negligence, and do not purport to...