Randich v. PIRTANO CONST. CO., INC.

• Decision Date: 29 July 2003
• Docket Number: No. 2-02-0816.,2-02-0816.
• Citation: 281 Ill.Dec. 616,804 N.E.2d 581,346 Ill. App.3d 414
• Parties: Todd RANDICH, Plaintiff-Appellant, v. PIRTANO CONSTRUCTION COMPANY, INC., and Utility Constructors, Inc., Defendants-Appellees (Northern Illinois Gas Company, a/k/a NICOR, Defendant).
• Court: United States Appellate Court of Illinois

804 N.E.2d 581

346 Ill. App.3d 414

281 Ill.Dec. 616

Todd RANDICH, Plaintiff-Appellant, v. PIRTANO CONSTRUCTION COMPANY, INC., and Utility Constructors, Inc., Defendants-Appellees (Northern Illinois Gas Company, a/k/a NICOR, Defendant).

No. 2-02-0816.

Appellate Court of Illinois, Second District.

July 29, 2003.

Supplemental Opinion Upon Denial of Rehearing February 9, 2004.

John B. Schwartz, David J. Spira, John B. Schwartz & Associates, Chicago, for Todd Randich.

Glen E. Amundsen, Michael Resis, Mari Ann Novy, O'Hagan, Smith & Amundsen, LLC, Chicago, for Pirtano Construction Company, Inc., Utility Constructors, Inc.

Justice BOWMAN delivered the opinion of the court:

This appeal arises from the dismissal of the amended complaint filed by plaintiff, Todd Randich, against defendants, Pirtano Construction Company, Inc. (Pirtano) and Utility Constructors, Inc. (Utility), alleging negligence and willful and wanton misconduct. We affirm in part, reverse in part, and remand.

The trial court dismissed plaintiff's amended complaint under section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2000)). Accordingly, the well-pleaded facts from the amended complaint are accepted as true. Zimmerman v. Fasco Mills Co., 302 Ill.App.3d 308, 311, 235 Ill.Dec. 376, 704 N.E.2d 949 (1998). The following recitation of the facts is based on the pleadings and the trial court's order.

Defendants are construction contractors. On April 29, 1999, they were working for Western Cable Communications (Western) installing underground television cable along a public utility easement granted to Western at the Wespark housing subdivision in Romeoville. Defendants' employees laid the cable underground through the use of a directional boring machine. In the process of boring into the ground, defendants' employees punctured a natural gas main.

Northern Illinois Gas Company (NCOR) employees and members of the Lockport Fire Protection District (LFPD) were dispatched to the scene to contend with the gas leak and ensure safety. Plaintiff, an emergency medical technician (EMT), was one of the members of the LFPD sent to the scene.

Plaintiff was in the vicinity of the leaking gas when it was ignited by an unknown source within the housing development. A resulting explosion and fire completely destroyed two houses and damaged several others. More important, several NICOR employees and members of the LFPD were injured. Plaintiff was among the members of the LFPD who were injured in the explosion, sustaining "serious and permanent injuries."

On November 14, 2001, plaintiff filed his amended complaint alleging negligence and willful and wanton misconduct on the part of defendants. Specifically, plaintiff's negligence claim alleges that defendants failed to (1) investigate and ascertain the precise location of underground gas mains in the vicinity where they were operating the directional boring machine; (2) properly expose the gas main by hand digging before boring into the ground; and (3) arrange with NICOR in advance to turn off the gas prior to digging. Plaintiff's claim of willful and wanton misconduct basically sets forth the same factual allegations as the negligence claim, but adds that defendants acted with actual knowledge that a gas main was located within the utility easement where defendants were conducting their drilling activities.

In response, defendants filed a motion to dismiss under section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2000)). The court granted the motion and dismissed plaintiff's claims against defendants on the ground that the fireman's rule prohibited plaintiff's cause of action. Plaintiff also alleged negligence on the part of NICOR. However, NICOR was not a party to the motion to dismiss. Thus, the court dismissed only the claims against Pirtano and Utility and further found that there was no just reason to delay enforcement or appeal of the dismissal order. Thereafter, plaintiff filed a timely notice of appeal under Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)), which allows appeals from final judgments that do not dispose of the entire proceeding.

On appeal, plaintiff asserts that defendants cannot avail themselves of the fireman's rule because (1) the rule does not bar actions based on willful and wanton misconduct; (2) defendants are not considered owners or occupiers of Western's utility easement; (3) public policy and the development of the deliberate encounter doctrine abrogate the fireman's rule; and (4) the application of the rule violates plaintiff's equal protection rights.

As an initial matter, section 2-619(a)(9) allows involuntary dismissal where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2000). Accordingly, defendants admit the legal sufficiency of plaintiff's amended complaint but assert that the fireman's rule defeats plaintiff's claims. See Zimmerman, 302 Ill.App.3d at 311, 235 Ill.Dec. 376, 704 N.E.2d 949. Our standard of review of a section 2-619 dismissal is de novo. Zimmerman, 302 Ill.App.3d at 311, 235 Ill.Dec. 376, 704 N.E.2d 949.

The fireman's rule limits the extent to which firefighters or other public officers are allowed to recover for injuries incurred when, in an emergency, they enter upon an owner's or occupier's property in discharge of their duty. McShane v. Chicago Investment Corp., 235 Ill.App.3d 860, 864, 176 Ill.Dec. 540, 601 N.E.2d 1238 (1992). It provides that "an owner or occupier of land must exercise reasonable care to prevent injury to firemen that might result from a cause independent of the fire, but has no duty to prevent injury resulting from the fire itself." Vroegh v. J&M Forklift, 165 Ill.2d 523, 527, 209 Ill.Dec. 193, 651 N.E.2d 121 (1995). Thus, the rule limits a fireman's right to recover for injuries arising out of the fire itself. McShane, 235 Ill.App.3d at 865, 176 Ill. Dec. 540, 601 N.E.2d 1238.

The first issue in this case is whether the fireman's rule bars a cause of action based on willful and wanton misconduct. In Illinois, there is conflicting authority on this issue. Where a legal question has been the subject of decisions with varying results, we will carefully examine what has been said by courts on the subject. Scott v. Instant Parking, Inc., 105 Ill.App.2d 133, 135, 245 N.E.2d 124 (1969).

The fireman's rule is a creature of case law, and thus the pertinent case law must be analyzed to understand and properly apply the rule. Zimmerman, 302 Ill. App.3d at 312, 235 Ill.Dec. 376, 704 N.E.2d 949. Originally, the fireman's rule developed under the English common law during the existence of the feudal system of landownership. Dini v. Naiditch, 20 Ill.2d 406, 413, 170 N.E.2d 881 (1960). Under this system, a firefighter was labeled as a licensee to whom the owner or occupant owed no greater duty than to refrain from the infliction of willful or intentional injury. Dini, 20 Ill.2d at 413-14, 170 N.E.2d 881. In Illinois, the supreme court in Gibson v. Leonard, 143 Ill. 182, 189, 32 N.E. 182 (1892), adopted this English common-law rule.

Later, in Dini, our supreme court reshaped the fireman's rule to address what had been characterized as a barbaric formulation of the rule. Dini, 20 Ill.2d at 414,170 N.E.2d 881. In Dini, an inadequately constructed wooden staircase in the defendant's building collapsed and resulted in injury to several firefighters. Dini, 20 Ill.2d at 412,170 N.E.2d 881. Our supreme court rejected the commonlaw rule labeling firemen as licensees, finding it to be an illogical anachronism, originating in a vastly different social order, and pock-marked by judicial refinements. Dini20 Ill.2d at 416,170 N.E.2d 881. Instead, recognizing that firemen confer on landowners economic and other benefits that form a basis for imposing the common-law duty of reasonable care, the court held:

"[A]n action should lie against a landowner for failure to exercise reasonable care in the maintenance of his property resulting in the injury or death of a fireman rightfully on the premises, fighting the fire at a place where he might reasonably be expected to be." Dini 20 Ill.2d at 416-17, 170 N.E.2d 881.

Then, in Washington v. Atlantic Richfield Co., 66 Ill.2d 103, 5 Ill.Dec. 143, 361 N.E.2d 282 (1976), the supreme court refined the reasonable care standard set forth in Dini. In Washington, firemen were seriously injured in the process of extinguishing a car fire at a service station. Washington, 66 Ill.2d at 104, 5 Ill. Dec. 143, 361 N.E.2d 282. The court was faced with the issue of whether the "liability of a possessor of land for injuries to a fireman extends to acts of negligence which cause a fire." Washington, 66 Ill.2d at 105, 5 Ill.Dec. 143, 361 N.E.2d 282. In response, the court held that "while a landowner owes a duty of reasonable care to maintain his property so as to prevent injury occurring to a fireman from a cause independent of the fire he is not liable for negligence in causing the fire itself." Washington, 66 Ill.2d at 108, 5 Ill.Dec. 143, 361 N.E.2d 282. Thus, from Washington, the current form of Illinois's version of the fireman's rule was born. It permits a firefighter to recover for injuries that result from an act unrelated to the specific reason he was summoned to the scene, but not for negligent acts that caused the emergency. This then leads to the issue of whether a fireman can recover for willful and wanton misconduct that causes an emergency.

As stated above, under the common-law version of the fireman's rule, as adopted in Gibson, a plaintiff could recover for the infliction of willful or intentional injury. See Dini 20 Ill.2d at 416, 170 N.E.2d 881. In Bandosz v. Daigger & Co., 255 Ill. App. 494, 1930 WL 2980 (1930), the court affirmed a judgment in favor of an administratrix of an estate of a fireman killed when a building exploded as a proximate result of ...