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Horcher v. Guerin

APRIL 26, 1968.

KENNETH HORCHER, PLAINTIFF-APPELLANT,

v.

MARY E. GUERIN, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County, Nineteenth Judicial Circuit; the Hon. CHARLES S. PARKER, Judge, presiding. Judgment affirmed.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

Kenneth Horcher, plaintiff, brought this action for injuries which he sustained while fighting a fire on premises owned by the defendants. The jury returned a verdict for the plaintiff; the trial court subsequently rendered a judgment for the defendants notwithstanding the jury verdict, and, in the alternative, ordered a new trial.

The plaintiff contends that the defendants were guilty of negligence in leaving their premises in a state of disrepair and in not demolishing the building; and that under the authority of Dini v. Naiditch (20 Ill.2d 406, 170 N.E.2d 881 (1960)), they are, therefore, liable to the plaintiff.

The building owned by the defendants contained two stories. The first floor was occupied by a tire store; the second floor housed two apartments. In August of 1962, the defendants were notified by the City of Waukegan that the building was in a dangerous and unsafe condition, in violation of certain city ordinances, and that it either should be repaired or demolished. After such notice, the tenants moved out and the building was not thereafter leased to anyone. The owners advised the City that they were attempting to sell the building, and no repairs were made.

In April of 1963, the City sent another letter to the defendants and again repeated the ordinance violations, and directed the repair or demolition of the building. The electricity, gas and water services were disconnected, and the lower floor windows and doors boarded up.

The building caught fire on December 25, 1963, and the plaintiff, along with other city firemen, was called. He testified that while he was on the second floor of the building, he attempted to open the windows on the south side; that the windows were stuck; and that he was unable to open them.

The fire chief testified that he directed the fire fighting from inside the building; that it was not advisable to ventilate the building while the firemen were inside; and that he had not instructed the plaintiff to ventilate the building by opening the windows. He further stated that any ventilation would have accelerated the fire.

The fire chief also testified that when he directed his men to abandon the second floor of the building, he had decided to let the building burn and to control it from the outside. It then became advisable to ventilate the building. The plaintiff and another fireman commenced to break the second-story windows by ramming a ladder through them from the outside. While the ladder was being withdrawn from one of the windows, a particle of glass was pulled outwardly and struck the plaintiff in the eye. As a result of this injury, the plaintiff lost the eye in question. There was evidence as to whether or not the ladder was the proper tool for use in breaking the windows, and whether the procedure followed by the plaintiff was an accepted one.

While the Supreme Court in Dini v. Naiditch, supra, did not define the status of a fireman while on the property of another fighting a fire, at page 416 it refused to treat the fireman as a "licensee." Rather, at pages 416 and 417, it expressed approval of the theory of the court in Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491 (1920), and stated: ". . . an 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."

Whether the status be defined or whether a fireman entering the premises of another in the discharge of his duty be described as sui generis (see: Krauth v. Geller, 31 NJ 270, 157 A.2d 129, 130 (1960)), the duty owed to the fireman as set forth in Dini, is the same as that owed to an invitee. Driscoll v. Rasmussen Corp., 35 Ill.2d 74, 77, 219 N.E.2d 483 (1966); Netherton v. Arends, 81 Ill. App.2d 391, 396, 225 N.E.2d 143 (1967).

In Meiers, the New York court imposed liability upon a landowner for failure to provide adequate lighting or a safe passageway for a fireman who, while responding to a fire call at night, fell into an unguarded coal hole on the landowner's private drive. The New York rule with reference to the duty owed to a fireman while on a landowner's premises in answer to a fire call, required the landowner to keep the means of access thereto in a reasonably safe condition, and to warn firemen coming thereon of unusual hazards on the premises. 86 ALR2d 1205, 1216.

This is not unlike the duty owed to an invitee under Illinois law, where the landowner in exercising reasonable care for the safety of an invitee must remove hidden dangers from the premises or give adequate warning thereof. Beccue v. Rockford Park Dist., 94 Ill. App.2d 179, 236 N.E.2d 105 (1968); Altepeter v. Virgil State Bank, 345 Ill. App. 585, 598, 104 N.E.2d 334 (1952).

We do not read Dini, however, to stand for the proposition that the landowner may be held liable to a fireman for negligence in causing the fire which brought the fireman to the premises. It is held, almost without exception, that a landowner or occupier is not liable in such case. Jackson v. Velveray Corp., 82 NJ Super 469, 198 A.2d 115, 118 (1964); Krauth v. Geller, supra, 130, 131; 35 Am Jur2d, Fires, § 45. As to the fire itself, it is the fireman's business to deal with this particular hazard. He is trained and paid for this. Undoubtedly, most fires can be attributed to negligence of some nature. Therefore, public policy dictates that a landowner does not owe a duty to firemen, upon which liability may be predicated, to exercise care that a fire does not occur on his premises. The exposure to liability which would result from such rule would impose an unreasonable burden upon a person who owned or occupied improved land.

The duties of a fireman expose him to risk of harm from fire: this is a reasonable risk of his occupation. The landowner owes a fireman, as well as an invitee, a duty not to expose him to an unreasonable risk of harm — that is, a duty to remove hidden, unusual or not to be expected dangers from the premises, or to give adequate warning thereof. Beccue v. Rockford Park Dist., supra; Netherton ...


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