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Dini v. Naiditch





APPEAL from the Superior Court of Cook County; the Hon. Judges THOMAS E. KLUCZYNSKI, and JOHN J. LUPE, presiding.


Rehearing denied November 30, 1960.

This a combined appeal by plaintiff Elizabeth Dini from a summary judgment dismissing her action for loss of consortium, and by plaintiff Gino Dini and plaintiff Lillian M. Duller, as administratrix of the estate of Edward J. Duller, from a judgment notwithstanding the verdicts entered in their actions for the injury and death of city firemen, allegedly caused by defendants' negligence and statutory violations in the maintenance of their premises. The superior court of Cook County set aside jury verdicts awarding damages of $235,000 for personal injuries sustained by fireman Gino Dini, and $20,000 for the wrongful death of fire captain Edward Duller, on the ground that there was no legal basis for liability.

Our jurisdiction to review the cause on this direct appeal having been determined on motion, we must now consider the two major issues presented by this appeal: First, whether landowners and operators are liable to city firemen for the negligent maintenance of their premises in violation of certain fire ordinances; and secondly, whether a wife is entitled to damages for loss of consortium due to the negligent injury of her husband.

The operative facts discernible from the controverted testimony are that since 1946 defendants Albert and Rae Naiditch have been the owners of a four-story brick building erected in 1896 at the intersection of Milwaukee Avenue and North Green Street in Chicago. Each floor contained about 6,000 square feet of space. Most of the ground floor was occupied by Naiditch for selling store and restaurant fixtures; the basement was used for storage for that business and for the boiler; and the second, third and fourth floors of the building were operated as the Green Mill Hotel. There were 27 rooms, most of which were single, on each of the three hotel floors, and five or six rooms on each floor had kitchens. These premises were occupied by some 84 persons. Access to the three hotel floors from the vestibule of the Green Street entrance was by means of a wooden stairway, approximately six feet wide, supported by stringers that were nailed to the walls rather than recessed.

Adjacent to the stairway landing on the second floor was an office maintained by defendant Kenneth Oda and Thomas Sato, who, as lessees of Naiditch since 1951, operated the hotel as partners at the time of the fire. Next to that office, and some 17 or 20 feet from the stairwell was a storage room in which, according to the uncontroverted testimony, paint and benzene was kept, including a four or five gallon aluminum can of benzene at the time of the fire. There was also testimony that there were numerous paint cans, brushes and rags in the office, despite a provision in the lease that no naphtha, benzene or other enumerated flammable products were to be kept on the premises without the written permission of Naiditch.

The record respecting the condition of the premises prior to and at the time of the fire is extensive. Apparently there was no compliance with the lease provision that the lessee would spend an average of $1,500 annually for maintenance and improvement of the premises and give Naiditch monthly itemizations of such expenditures. Naiditch had his attorney write to Oda and Sato demanding that repairs be made, and later filed a lawsuit, which culminated with $1,500 put in escrow for repairs. Neither Naiditch nor Oda, however, admitted having any records whatsoever respecting the maintenance of the property. While the lease required Naiditch to inspect the hotel once a month, he admitted on trial that he had not made such regular inspections, and that he had not seen the hotel some six weeks prior to the fire, having been on vacation.

It also appears from the testimony of residents of the hotel that there were oil drums converted into open garbage cans in the hotel corridors, which were emptied only two or three times a week, that paper and other waste was piled in the corridors beside the cans, that the walls were cracked and rain had leaked through the roof into the fourth floor hallway, and that the janitor, Jimmy Sato, was "always drunk," but retained despite complaints. It also appears from the record that prior to the fire, defendants' attention had been called to nine separate violations of city ordinances within the building, although there is some controversy as to the findings of a former building inspector who testified for defendant.

With reference to the condition of the premises on the night of the fire, one of the residents testified that two garbage cans on the first floor of the hotel were full and overflowing, and that paper was piled about a foot high on the floor. Another resident, who returned home about 11 P.M., said that three or four garbage cans in his section of the fourth floor were full, with paper piled around the cans so that he had to "cross around." According to firemen who fought the blaze, they could see rubbish in the hotel corridor when they reached the second floor of the building, as well as trash and litter on the stairs. Moreover, there were no fire doors, according to the testimony of the deputy fire marshal who was on the premises during the fire and made a minute inspection after the fire, and that of the chief building inspector, and of the division fire marshal who was also inside the building during the fire and directed the fighting of the blaze. Nor were there any fire extinguishers of any kind in the hotel, according to the original admission of Naiditch and the testimony of residents who had lived there for three or four years, and that of the police detective who examined the premises after the fire.

With reference to the occurrence, it appears that at about 12:50 A.M. on April 28, 1955, after the fire had apparently been burning for at least thirty-five minutes, a police officer on duty some blocks away was attracted by the flames. He drove to the scene, where he found the Green Mill Hotel burning, and he radioed a report. Within minutes fire equipment arrived, but the flames were then shooting through the hotel roof and people were hanging out of the windows yelling and screaming.

According to the fire battalion chief, the fire was located in the stairway at the Green Street entrance, blocking the exit. He therefore ordered an engine company up the inside of the stairway to cool the fire off in order to effect rescue operations. Fire captain Duller, and firemen Smith, Collins and Dini, who was carrying a hose on his shoulder, entered the building through the Green Street entrance, and proceeded up the stairs to the second floor landing, where they could hear the roar of the fire above. Collins was sent for a smaller hose, and Dini was left on the landing to couple the smaller hose into a shut-off pipe, while Duller and Smith started on up to the third floor where they could see the fire raging above them. At that moment, and without any warning, the entire stairway collapsed and fell into a heap at the first floor level. Captain Duller was buried in the burning debris, and his body was not recovered until the following day. Smith, who escaped, testified that something hit him on the head and drove him through the stairs onto the area below. Dini was pinned in a pile of burning wood, but extricated himself with great difficulty, and made his way out in flames which he extinguished by jumping into a puddle of water at the curbing.

Dini was so severely burned that his recovery was in doubt for two months. He suffered third degree burns on his scalp, face, neck, chest, arms, left leg and knee. Both outer ears were almost completely burned off, as were his nose, lips and eyelids. He also suffered severe burns inside his mouth and throat, which not only made breathing difficult, and swallowing and eating impossible, but interfered with the administration of anesthesia. When the burned skin sloughed off, leaving raw areas, it was necessary, in order to prevent infection, to make some thirteen skin grafts from other areas of his body. That phase of his hospitalization treatment lasted until August 13, 1955; and from October 13, 1955, to February 25, 1959, Dini underwent some fifty-nine additional operations for skin grafting and for the reconstruction of eyelids, and ears, and the removal of scar tissue.

His injuries are permanent insofar as loss of motion and flexion in the affected members is concerned, and insofar as they affect his appearance. Moreover, since March 1956, except for periods of hospitalization, Dini has worked only approximately three hours a day in the Fire Prevention Bureau operating a typewriter, with the resulting loss of income.

Captain Duller was 54 years of age at the time of his death in the fire. He had been married some 21 years, and left surviving a widow, an 18-year-old son, and a 16-year-old daughter.

On the basis of substantially the foregoing facts, the jury returned the verdicts for plaintiffs Dini and Duller, as hereinbefore noted, and the superior court entered judgment for defendants notwithstanding the verdict on the ground that there was no basis of liability, since the fire ordinances violated by defendants were not enacted for the benefit of firemen. Moreover, the court entered a summary judgment dismissing the complaint of Elizabeth Dini on the ground that a wife has no cause of action for loss of consortium resulting from the negligent injury of her husband.

In reviewing this cause, we shall consider first the claims of Gino Dini and administratrix Lillian Duller, which involve the issue of the landowners' liability to firemen for the negligent maintenance of the premises. We believe that this question, considered last by this court in 1892, should properly be re-examined in its entirety.

It must be recognized at the outset that the English common law, from which our law is derived, was part and parcel of a social system in which the landowners were the backbone, and that it was inevitable that in such a legal climate supreme importance would be attached to proprietary interests. (Bohlen, Fifty Years of Torts, 50 Harv. L. Rev. 725, et seq.) It was the feudal conception that the landowner was sovereign within his own boundaries that gave birth to the rule that the only duty a landowner owed a licensee was not to wilfully or wantonly injure him. (Bohlen, Studies in the Law of Torts, 156-206.) It was, then, hardly a "giant step" to give the label of "licensee" to a member of the fire department who, in an emergency, enters the premises in the discharge of his duty, and to hold, as the early cases did, that the owner or occupant owed the fireman no greater duty than to refrain from infliction of wilful or intentional injury. 13 A.L.R. 641, 642; 141 A.L.R. 584, 586; Gibson v. Leonard, 143 Ill. 182.

However, the history of the law on the subject of landowners and "licensees" shows a tendency to whittle away a rule which no longer conforms to public opinion. As Bohlen points out, "Like so many cases in which a barbaric formula has been retained, its content has been so modified by interpretation as to remove much of its inhumanity." (50 Harv. L. Rev. 725, 735.) Thus, to avoid extending what has been deemed a "harsh rule" (Hamilton v. Minneapolis Desk Mfg. Co. (1899) 78 Minn. 3, 80 N.W. 693; Mulcrone v. Wagner (1942), 212 Minn. 478, 4 N.W.2d 97), courts have held that firemen were entitled to be warned of "hidden dangers" or "unusual hazards" known to the landowner or occupant. 55 A.L.R.2d 525, 529; Shypulski v. Waldorf Paper Products Co. (1951), 232 Minn. 394, 45 N.W.2d 549; Jenkins v. 37th St. Corp. (1940) 284 N.Y. 397, 31 N.E.2d 503; Schwab v. Rubel Corp. (1941), 286 N.Y. 525, 37 N.E.2d 234; Mason Tire & Rubber Co. v. Lansinger (1923), 108 Ohio St. 377, 140 N.E. 770; Restatement of Torts, § 345.

Other courts have avoided the harsh rule by finding from slight variations of circumstances that the injured fireman was an "invitee" (Clinkscales v. Mundkoski (1938), 183 Okla. 12, 79 P.2d 562); or a "business visitor" to whom the landowner owed a duty of reasonable care to keep the premises safe. Zuercher v. Northern Jobbing Co. (1943), 243 Minn. 166, 66 N.W.2d 892.

Still other courts, as well as legal scholars, have forthrightly rejected the label of "licensee," with its concomitant set of rights and duties for firemen. Meiers v. Fred Koch Brewery (1920), 229 N.Y. 10, 127 N.E. 491; Shypulski v. Waldorf Paper Products Co. (1951), 232 Minn. 394, 45 N.W.2d 549; Smith v. Twin State Gas & Elec. Co. (1928), 83 N.H. 439, 144 A. 57, 60; 35 Mich. L. Rev. 1157, 1158; Harper, Torts, 96 (1933); Prosser, 26 Minn L. Rev. 573; 6 DePaul L. Rev. 97 et seq.; 69 U. Pa. L. Rev. 142, 147.

In the Meiers case the court allowed a fireman to recover for injuries caused when he stepped into a hole while fighting a fire on defendant's premises. While the court did not clearly define the status of a fireman, it refused to categorize him as a "licensee." In a closely circumscribed opinion, the court allowed recovery to "one not a licensee entering business property as of right over a way prepared as a means of access for those entitled to enter, who is injured by the negligence of the owner in failing to keep that way in a reasonably safe condition for those using it as it was intended to be used."

The Minnesota court, in Shypulski v. Waldorf Paper Products Co. 232 Minn. 394, observed that since firemen have a unique status, it follows that the duties owed to them may properly be unique; and that same approach was followed by our Illinois Appellate Court in Ryan v. Chicago and Northwestern Railway Co. 315 Ill. App. 65, 75. After reviewing the status of public officers, including firemen, who come on the land in the exercise of a legal privilege, the Illinois court allowed damages for the death of a police officer while on defendant's right of way, caused by ...

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