Martin v. Lion Uniform Co.

• Decision Date: 01 February 1989
• Docket Number: No. 88-37,88-37
• Citation: 536 N.E.2d 736,180 Ill.App.3d 955,129 Ill.Dec. 686
• Parties: , 129 Ill.Dec. 686 George MARTIN, Plaintiff, v. LION UNIFORM COMPANY, et al., Defendants (Lion Uniform Company, Third Party Plaintiff-Appellee; City of Chicago, et al., Third Party Defendants-Appellants; Krasny & Company, Inc., Third Party Plaintiff-Appellee).
• Court: United States Appellate Court of Illinois

Page 736

536 N.E.2d 736

180 Ill.App.3d 955, 129 Ill.Dec. 686

George MARTIN, Plaintiff, v. LION UNIFORM COMPANY, et al., Defendants (Lion Uniform

Company, Third Party Plaintiff-Appellee; City of Chicago,

et al., Third Party Defendants-Appellants; Krasny &

Company, Inc., Third Party Plaintiff-Appellee).

No. 88-37.

Appellate Court of Illinois,

First District, Third Division.

Feb. 1, 1989.

Rehearing Denied April 17, 1989.

Judson H. Miner, Corp. Counsel, Ruth M. Moscovitch, Chief Asst. Corp. Counsel, L. Anita Richardson, Asst. Corp. Counsel, Chicago, for third party defendants-appellants.

Rooks, Pitts and Poust, Chicago (Ian M. Sherman and Clifford E. Berman, of counsel), for third party plaintiff-appellee.

Justice McNAMARA delivered the opinion of the court:

Plaintiff George H. Martin, a Chicago fireman, filed an action seeking damages for personal injuries suffered as a result of fighting a fire. Plaintiff alleged negligence as to defendant Krasny & Company, Inc., which owned and managed the building, and alleged strict products liability and negligence as to defendant Lion Uniform Company, which designed, manufactured and sold the protective clothing which plaintiff wore. (Defendants Kane Uniform Company and Janesville Apparel Company are not parties to this appeal.) Lion and Krasny filed third-party complaints for contribution against third-party defendants, the City of Chicago and the Chicago Fire Department. The trial court denied the city's motion to dismiss and found that the city was not immune from an action for contribution. On its own motion, the trial court certified the following question of law: "May a contribution action pursuant to the Illinois Contribution Act be maintained against a local public entity where provisions of the Local Governmental and Governmental Employees Tort Immunity Act may bar a direct action against the local public entity?" The city's application for leave to appeal was granted pursuant to Supreme Court Rule 308(a).

We are concerned here with the third-party action filed on March 1, 1984 by Lion Uniform and the third-party action filed on October 18, 1985 by Krasny, seeking contribution under Ill.Rev.Stat.1985, ch. 70, par. 302(a) in the event they should be held liable to plaintiff. The contribution action alleged that in its undertaking to provide fire services the city failed to exercise ordinary care to plaintiff in several material respects. The city moved to dismiss the amended third-party complaints, asserting nonliability under section 2-201 (public employees are not liable for injuries arising from discretionary decisions regarding the training and equipping of firefighters), and sections 5-102 and 5-103 (governmental entities are not liable for injuries occurring in providing firefighting services or in maintaining and operating firefighting equipment) of the Local Governmental and Governmental Employees Tort Immunity Act. Ill.Rev.Stat.1985, ch. 85, pars. 2-201, 5-102 and 5-103.

On October 1, 1987, the trial court denied the city's motion to dismiss. The court relied on Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382 (State employee's direct action against the State/employer barred by Worker's Compensation Act; however, defendant may bring third-party negligence action for contribution against the State/employer), and Stephens v. McBride (1983), 97 Ill.2d 515, 74 Ill.Dec. 24, 455 N.E.2d 54 (plaintiff's direct action against city barred after he failed to give statutory notice of claim to city; however, plaintiff's failure to comply with notice requirement does not bar defendant from bringing contribution action against city). The court concluded that the city's immunity from a direct suit by plaintiff did not extend to immunity from contribution actions.

The issue before us is whether a municipality which might contribute to an individual's injuries related to fire protection services is thereby "liable in tort" for purposes of an action for contribution brought by the defendant in a suit filed by the injured individual. Defendants seek contribution from the city under the Illinois Contribution Among Joint Tortfeasors Act. (Ill.Rev.Stat.1985, ch. 70, pars. 301 through 305.) A right of contribution may exist if the State is "subject to liability in tort" in this action. Par. 302(a).

Defendants initially point to language indicating that the intent of the Contribution Act is "to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege." (Doyle v. Rhodes (1984), 101 Ill.2d 1, 9, 77 Ill.Dec. 759, 461 N.E.2d 382). This court has previously explained, in distinguishing cases relying on this broad statement, that where contribution is sought from the State, different considerations arise. Stephens v. Cozadd (1987), 159 Ill.App.3d 452, 111 Ill.Dec. 423, 512 N.E.2d 812; Welch v. Stocks (1987), 152 Ill.App.3d 1, 105 Ill.Dec. 73, 503 N.E.2d 1079.

It has long been established in Illinois that a municipality owes no duty under the common law to any individual for failure to provide a governmental service such as fire protection. (Huey v. Town of Cicero (1968), 41 Ill.2d 361, 243 N.E.2d 214; Fessler v. R.E.J., Inc. (1987), 161 Ill.App.3d 290, 112 Ill.Dec. 852, 514 N.E.2d 515.) Similarly, the municipality is relieved of liability for injuries to persons resulting from the negligence of officers or employees connected with the maintenance and operation of its fire department. Roumbos v City of Chicago (1928), 332 Ill. 70, 163 N.E. 361, citing Wilcox v. City of Chicago (1883), 107 Ill. 334. See also Stubblefield v. Chicago (1971), 48 Ill.2d 267, 269 N.E.2d 504 (city immune from liability where bystander injured when struck by firehose after fireman lost control of hose while fighting fire).

The Illinois rule of nonliability follows the general rule in most jurisdictions that a municipality usually cannot be held liable in damages for negligence in connection with firefighting. (E. McQuillin, 18 The Law of Municipal Corporations §§ 53.52, 53.82 (3d Ed.1984).) "Thus, in those jurisdictions where the doctrine of governmental immunity was held applicable, the courts have been practically uniform in holding that the government entity was immune from liability for injury or damage resulting from negligent acts of omission or commission in connection with the maintenance and operation of a fire department." (56 Am.Jr.2d Municipal Tort Liability § 265 at 228, citing Wilcox v. Chicago.) The rule of nonliability rests upon the reasoning that the power conferred upon the municipality to establish a department for the protection of the property of its citizens from fire is of a public or governmental nature. E. McQuillin, 18 The Law of Municipal Corporations § 53.82 at 479 (3rd ed. 1984); 57 Am.Jr.2d Municipal Tort Liability § 265, and § 266 (listing numerous other public policy reasons supporting this rule).

In Illinois, the sound public policy underlying the nonliability rule relates to the tremendous burden which the municipality would bear.

"If liable for negligence in this case the city must be held liable for every neglect of that [fire] department, and every employee connected with it when acting within the line of duty. It would subject the city to the opinions of witnesses and jurors whether sufficient dispatch was used in reaching the fire after the alarm was given; whether the employees had used the requisite skill for its extinguishment; whether a sufficient force had been provided to secure safety; whether the city had provided proper engines and other appliances to answer the demands of the hazards of fire in the city; and many other things might be named that would form the subject of legal controversy. To permit recoveries to be had for all such and other acts would virtually render the city an insurer of every person's property within the limits of its jurisdiction. It would assuredly become too burthensome to be borne by the people of any large city, where loss by fire is annually counted by the hundreds of thousands, if not by the millions. * * * To allow recoveries for the negligence of the fire department would almost certainly subject property holders to as great, if not greater, burthens than are suffered from the damages from fire. Sound public policy would forbid it, if it was not prohibited by authority." Roumbos v. City of Chicago, 332 Ill. 70, 81, 163 N.E. 361, quoting Wilcox v. City of Chicago, 107 Ill. 334, 339.

Significantly, this common law rule of nonliability may only be altered by statute. (See generally 57 Am.Jr.2d Municipal Tort Liability § 60.) In the area of firefighting services, except for "negligence by reason of the condition of a motor vehicle while it is traveling on public ways" (Ill.Rev.Stat.1985, ch. 85, par. 5-103(a)), the Illinois legislature has not created a new duty in derogation of the common law. Quite the contrary, the common law rule of no duty and the resulting nonliability of a municipality for failing to, or negligently, providing fire protection service was codified in Illinois. (Ill.Rev.Stat.1985, ch. 85, pars. 5-101 to 5-104.) This was done as part of the Local Government and Governmental Employees Tort Immunity Act, which also reinstated certain common law sovereign immunity defenses (see, e.g., § 2-111) following the abrogation of sovereign immunity in Molitor v. Kaneland Community Unit Dist. No. 302 (1959), 18 Ill.2d 11, 163 N.E.2d 89, cert. denied (1960), 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900.

The statute provides, consistent with the original rationale for the common law rule of no duty/no liability quoted above, that the local public entity is not liable for failure to provide fire protection service; failure to suppress a fire; failure to maintain sufficient personnel, equipment or fire protection facilities; or for any condition of fire protection or fire fighting equipment or...