Vroegh v. J & M Forklift
| Decision Date | 20 August 1993 |
| Docket Number | Nos. 1-91-4058,1-91-4059 and 1-91-4064,s. 1-91-4058 |
| Citation | 255 Ill.App.3d 155,626 N.E.2d 1046 |
| Parties | , 193 Ill.Dec. 495, Prod.Liab.Rep. (CCH) P 13,815 Adrian VROEGH, Special Administrator of the Estate of Douglas P. Maicach, Deceased, Plaintiff-Appellant, v. J & M FORKLIFT et al., Defendants (Petrolane Gas Services Ltd., Third-Party Plaintiffs-Appellants v. Worthington Industries, Inc., et al., Third-Party Defendants; ANR Freight System, Third-Party Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
Nicholas J. Motherway and Robert J. Napleton of Motherway & Glenn, P.C., Chicago, for plaintiff-appellant.
Barry L. Kroll, James R. Studnicka, Thomas H. Neukranz and Lloyd E. Williams, Jr. of Williams & Montgomery, Ltd., Chicago, for defendant/third party defendant-appellee.
Gerard B. Gallagher and Ira E. Sussman of Gallagher & Joslyn, Oakbrook Terrace, for third party plaintiff-appellant.
Gerald O. Sweeney and John T. Williams of Lord, Bissell & Brook, Chicago, and Thomas M. Taggart and Sandra J. Anderson of Vorys, Sater, Seymour and Pease, Columbus, OH, for defendant/third party plaintiff-appellant.
This case is another in a considerable number of cases involving the "fireman's rule" in Illinois, but it is the first case which questions the rule's effect on the right of contribution between tortfeasors.
On January 3, 1989, Douglas Maicach, a member of the South Holland Fire Department, was killed while he was fighting a fire involving a propane gas-powered forklift truck owned by the defendant, ANR Freight System, Inc. (ANR) at a freight terminal maintained by ANR. Adrian Vroegh, the administrator of the estate of Douglas Maicach, filed a multi-count wrongful death complaint against the defendants, Worthington Industries, Inc. (Worthington), the manufacturer of the propane tank; Petrolane Gas Services, Ltd. (Petrolane), the supplier of the propane tank; J & M Forklift (J & M), which performed repairs on the forklift and ANR. Worthington and Petrolane filed third-party complaints against ANR for contribution. ANR filed motions pursuant to section 2-615 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-615) to dismiss the wrongful death complaint against ANR and the third-party complaints of Worthington and Petrolane against ANR. The trial judge allowed all of ANR's motions to dismiss based on the "fireman's rule." In this appeal the plaintiff and the third-party plaintiffs maintain that the "fireman's rule" does not apply under the facts alleged in their complaints.
The plaintiff's complaint alleged that ANR, with a conscious disregard for the safety of others, made the decision to utilize a forklift truck which had been modified from a gas-powered to propane-powered energy source without any approval or consultation with the manufacturer of the truck although it knew that use of the forklift truck with "unapproved modifications of any energy source by untrained personnel was likely to cause injury to others." The forklift truck caught fire and South Holland firefighters, including Douglas Maicach, were summoned to the freight terminal. While Douglas Maicach was "in performance of his duties" and was "in proximity" to the forklift truck, the propane tank exploded; all or part of the tank struck Douglas Maicach and killed him. ANR makes no issue of the sufficiency of the complaint to allege acts of negligence on the part of ANR.
In Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, a fireman was killed when a staircase that he was climbing inside a burning building unexpectedly collapsed. Under the common law before Dini, a fireman was considered a licensee to whom a landowner owed no duty except to refrain from willful and wanton misconduct. The Dini court reviewed the trend of other jurisdictions which, in an attempt to ameliorate the harsh effects of the licensee status, raised the status of firefighters to invitees. Our supreme court chose to abandon the distinction between licensees and invitees but held that landowners owed firefighters a duty of reasonable care to keep their premises safe.
Although Dini established a landowner's general duty to firefighters, the precise scope of that duty has been refined by subsequent case law. Later cases have held that a firefighter may recover from injuries resulting from causes independent of the fire, but may not recover for acts of negligence which caused the fire or brought the firefighter to the premises. A landowner, therefore, is insulated from liability under the "fireman's rule" when the injuries are causally related to the fire itself and the risks inevitably associated with fighting the fire. See Court v. Grzelinski (1978), 72 Ill.2d 141, 19 Ill.Dec. 617, 379 N.E.2d 281; Washington v. Atlantic Richfield Co. (1976), 66 Ill.2d 103, 5 Ill.Dec. 143, 361 N.E.2d 282; Young v. Toledo, Peoria & Western Railroad Co. (1977), 46 Ill.App.3d 167, 4 Ill.Dec. 715, 360 N.E.2d 978; Erickson v. Toledo, Peoria & Western Railroad (1974), 21 Ill.App.3d 546, 315 N.E.2d 912.
The supreme court has explained the public policy consideration for the rule:
Court, 72 Ill.2d at 147, 19 Ill.Dec. 617, 379 N.E.2d 281.
The "fireman's rule" has been interpreted to mean that a firefighter, who enters upon property to fight a fire, assumes the risk of being injured by causes related to the fire, but not those risks which are unrelated to the fire. (McShane v. Chicago Investment Corp. (1992), 235 Ill.App.3d 860, 176 Ill.Dec. 540, 601 N.E.2d 1238.) The rationale for the rule is based on the fact that firefighters receive specialized training to anticipate and encounter risks associated with fires; while a firefighter may be able to recover for unexpected or hidden dangers, he may not recover for injuries caused by dangers which his training and experience would lead him to reasonably anticipate. Court, 72 Ill.2d at 148, 19 Ill.Dec. 617, 379 N.E.2d 281.
In three cases, two firefighters and one policeman recovered for injuries. In Dini v. Naiditch (1960), 20 Ill.2d 406, 170 N.E.2d 881, the supreme court stated that the collapsed staircase, which was unaffected by the fire, had been defectively constructed. The court also noted that the storage room located near the staircase contained highly flammable products, including paint and benzene, the corridors were filled with trash and there were no fire doors. The court upheld a verdict for the plaintiff because the failure of the property owner to exercise reasonable care in the maintenance of the property resulted in the death of a firefighter who was in a place where he might reasonably be expected to be.
In Hedberg v. Mendino, (1991), 218 Ill.App.3d 1087, 161 Ill.Dec. 850, 579 N.E.2d 398, while responding to a call about a prowler on the premises, the plaintiff policeman was injured when he tripped on a depressed portion of a sidewalk leading to the premises. The appellate court reversed the dismissal of the plaintiff's complaint, finding that the plaintiff's injury arose from a cause independent of the reason that the officer was called to the premises. The court applied the "fireman's rule" and noted that firefighters are not allowed recovery for injuries sustained by risks that are associated with fighting a fire and are reasonably anticipated; but they do not assume risks that are "hidden from or unanticipated by firefighters." Hedberg, 218 Ill.App.3d at 1090, 161 Ill.Dec. 850, 579 N.E.2d 398.
In the third case in which the court found that the "fireman's rule" permitted recovery, Harris v. Chicago Housing Authority (1992), 235 Ill.App.3d 276, 176 Ill.Dec. 313, 601 N.E.2d 1011, when the firefighters attempted to connect the fire hoses to the water standpipes, there was no water pressure. The plaintiff alleged that due to the dysfunctional standpipes, the firefighters were unable to fight the fire with water and that a continuous build-up of heat and gases occurred which caused the explosion. In reversing dismissal of the complaint the appellate court said this:
"The key issue in the case before us is whether the explosion which injured plaintiff fireman was an inherent risk assumed by the plaintiff upon entering defendant's premises or whether it can be attributed to an independent act of negligence by defendant, such as failing to inspect and maintain operable standpipes in accordance with fire safety regulations.
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Explosions are not normally equated with a fire although they do occur. The additional element in this case is the lack of water, which is another force or agency which a fireman would reasonably expect to be available. No fireman would be expected to fight a fire without water. This is a plain and simple axiom. Because of the lack of water, certain gasses or fumes were put into the process of compression and resulted in expansion which engineered an explosion. This brings this case within the purview of Dini and perhaps expands the concept by introducing a force set into motion by defendant's negligence in failing to maintain operable standpipes." Harris, 235 Ill.App.3d at 279, 176 Ill.Dec. 313, 601 N.E.2d 1011.
However, in other fire-related...
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