APPEAL from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal of orders by the Circuit Court of Cook County, in a personal injury suit, denying the plaintiffs' motion to amend their complaint and granting summary judgment in favor of the defendants and against the plaintiffs.
The issues on appeal are: (1) whether a legal basis of liability may exist in favor of an injured fireman when one fails to keep his premises in a reasonably safe condition and the hazard of fire, and loss of life fighting it, are reasonably foreseeable; (2) whether flagrant violation of fire safety ordinances designed to protect against disastrous fires and the loss of life imply that the ordinance might properly include firemen within its protection, thereby providing a cause of action to the fireman whose injury is proximately caused by the violation; and (3) whether plaintiffs' motion for leave to file an amended complaint should be allowed.
Defendant ARCO had leased the filling station named in this suit to defendant Porter Sledge. Defendant Sledge, in order to increase profits, engaged in the practice of placing as much gasoline in the tank of an auto as it could possibly hold when a "fill-up" was ordered.
At the time in question a customer, Charles Walker, parked his car at pump No. 3 and ordered a "fill-up." Pump No. 3 was defective at the time and had been for some time prior to this occurrence. The automatic shutoff had not been working. If the hose was left unattended, the gasoline would overflow and spill onto the car and the station driveway.
Mr. Yates, the service station attendant in the employ of Sledge, began to fill up Walker's car and left the defective hose unattended. The automatic shutoff failed to function and gasoline poured out of the tank, overflowing onto the car and to the pavement on this August day. When Yates observed the gasoline overflowing, he returned and shut off the pump, but a large amount of spilled gasoline had already collected on the driveway.
According to the pleadings, the facts are in dispute as to what happened next. Mr. Sledge and Mr. Yates claim they permitted the customer, Charles Walker, to take out a cigar, unwrap it, light it and discard the match into the pool of spilled gasoline. Mr. Walker could not be found but he initially claimed at the scene of the occurrence that he was 20 feet away from his auto when he saw the gasoline overflow and spill down the side of the auto. He contended that Mr. Yates started the fire.
When the spilled gasoline caught on fire, it set the auto on fire as well as the pool of gasoline on the apron of the driveway. The heat from the fire burning underneath the gasoline tank caused the gas vapors to expand and caused more gasoline to spill out of the overflow of the auto's gasoline tank. Sledge and his employee were unsuccessful in attempts to put out the fire so they summoned the city fire department.
When firemen Ira Washington and John O'Brien arrived on the scene, Ira Washington was immediately ordered by Captain Fox to use a pole and attempt to remove the gas tank cap so that the pressure inside the tank could be relieved to prevent a possible explosion of the auto or the gasoline station. Ira Washington was the driver of Truck No. 15, a hook and ladder, which was the third unit to respond to this alarm. John O'Brien was immediately ordered to use a chemical extinguisher containing Ansul and to work in the area of the burning gas tank. The firemen were working against time and both firemen immediately responded to these orders.
As Ira Washington was releasing the cap of the auto's gas tank with the pipe pole, the pressure within the auto's gas tank knocked the cap off and spewed flaming gasoline and gas vapors over an extensive area. Five firemen were burned, including serious injuries to the plaintiffs, Washington and O'Brien.
Ira Washington received third degree burns on his face, neck, arms, legs, back and buttocks. He was burned so severely his skin sloughed off and multiple skin grafts and long periods of hospitalization were required. He received permanent injuries which have prevented him from working. He received a disability pension as a fireman. Plaintiff John O'Brien also received burns to his face, hands, arms and legs.
It was later found ARCO sent its employees to Sledge's station to inspect the premises about one to three times each week. ARCO had never instructed its supervisors or inspectors that "no smoking" signs were required to be posted and none of the ARCO employees required such posting of signs.
On November 30, 1970, a complaint was filed by the plaintiffs in the Circuit Court of Cook County, charging the defendants with: (1) negligently maintaining the gasoline station in question; (2) negligently causing the fire on the premises; (3) negligently violating certain State and local fire safety laws; and (4) causing the injuries to the plaintiffs by negligent action or inaction.
On September 30, 1974, Judge John C. Fitzgerald granted defendants' motion for summary judgment against plaintiffs.
On October 8, 1974, plaintiffs filed a motion to amend their complaint, including a cause of action for willful and wanton misconduct in addition to causes grounded on negligence and statutory violations. Plaintiffs' motion was denied by Judge Fitzgerald on the same day.
Plaintiffs argue that the circuit court's granting of the defendants' motion for summary judgment was error, since a legal basis of liability exists when it is alleged that one has failed to keep his premises in a reasonably safe condition and the hazard of fire, and loss of life fighting it were reasonably foreseeable. We recognize this argument as the general rule applied by our Illinois Supreme Court in Dini v. Naiditch (1960), 20 Ill.2d 406, 417.
By the pleadings, there were allegations from which a jury could reasonably find defendants maintained the premises in a dangerous condition (i.e., the leaking gas pump; the absence of "no smoking" signs; the defendants' practice of overflowing on a "fill-up"; and other alleged negligent acts) and the hazard of fire, and injury to those fighting it was reasonably foreseeable.
In Dini the Illinois Supreme Court examined the issue of the landowners' liability to firemen for the negligent maintenance of the premises. The court noted that it had last considered the issue in 1892.
It was the feudal concept, in the English common law, that the duty a landowner owed a fireman was as if he were a licensee. The court in Dini expressly refused to label a fireman a licensee and rejected the notion that a fireman could not be considered an invitee.
• 1 More recently, the Illinois Supreme Court, in Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, imposed upon the possessor of land, as to a policeman or fireman, the same duty which the possessor of land owes to an invitee.
The Fancil court accepted the Restatement view that a possessor of land is subject to liability for physical harm caused to invitees, policemen and firemen by a condition of the land if (a) he knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such persons, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. However, the Fancil court further found, under facts different than those in the case at bar, the defendant's conduct did not constitute a failure to exercise due care. Defendant, living in a high crime area, failed to provide adequate lighting for an enclosure on his premises, where a policeman on patrol was shot in a gun fight. The danger to which the officer was subjected was inherent in his occupation and such risk was assumed.
It is said by the defendants in the instant case that a fireman assumes the risk of being injured by a fire which necessitates his presence, and those who negligently started the fire are ...