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Washington v. Atlantic Richfield Co.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. John Fitzgerald, Judge, presiding.


Rehearing denied April 1, 1977.

The plaintiffs, Ira Washington and John O'Brien, are Chicago firemen who were seriously burned while engaged in extinguishing a fire in and around an automobile whose driver had pulled into a filling station to purchase gas. The complaint named four defendants: Atlantic Richfield Company, the owner of the station; Porter Sledge, the lessee and operator of the station; Richard Yates, an employee of Sledge; and Charles Walker, the driver of the automobile. Summons was not served on Yates or Walker.

The trial court entered summary judgments in favor of the defendants and against the plaintiffs. The appellate court reversed, with one judge dissenting (36 Ill. App.3d 344), and we granted leave to appeal.

The facts that appear from the depositions and affidavits before the court upon the motion for summary judgment may be summarized as follows:

Yates inserted the hose in the gas tank of Walker's automobile, and then left the car unattended while he serviced another car at a different pump. The shut-off valve in the hose was defective, and failed to operate when the tank became full, with the result that gasoline began to overflow from the tank. When Yates observed this, he returned and shut off the pump manually, but before he did so a puddle of gasoline had accumulated on the pavement beneath and around the car. At this point Walker lit a cigar, and discarded the match, which fell in the pool of gasoline and ignited it. The fire spread to the car, the heat from the fire caused the gasoline in the tank to expand, and the expansion in turned caused more gasoline to spill out of the car's tank.

The fire department was summoned, and the plaintiffs, Ira Washington and John O'Brien, and several other firemen, arrived at the scene. After the fire began, Yates had put the cap back on the gas tank. Washington was directed by his battalion chief to try to remove the cap in order to relieve the pressure in the tank and thus avoid an explosion, a standard procedure in fires of this kind. As Washington began to remove the cap, the pressure of the tank blew it off and flaming gasoline spread over an extensive area, injuring the plaintiffs.

The complaint alleged negligence on the part of the defendants in using a defective pump, in failing to prevent the gas tank from overflowing and in permitting Walker to smoke while the car was being filled.

The question presented by this appeal is whether the liability of a possessor of land for injuries to a fireman extends to acts of negligence which cause the fire. In arguing that it does, the plaintiffs place their chief reliance on Dini v. Naiditch (1960), 20 Ill.2d 406, which also involved firemen injured while fighting a fire. In that case a fire in the upper stories of a building was blocking access to a staircase which led to the ground floor, thus preventing occupants from escaping to the street. As two firemen were ascending the stairway to direct a hose at the flames, the stairway, which was not properly attached to the adjacent supporting wall, suddenly collapsed and fell to the ground floor, killing one of the firemen and severely burning the other.

The court held that under those circumstances it was improper for the trial court to enter a judgment n.o.v. for the defendants. The predicate of our decision was that a fireman was no longer to be regarded strictly as a licensee, as had previously been the case in Illinois, but that a landowner was liable "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." 20 Ill.2d 406, 416-17.

In applying its general theory of liability to the facts of the case at hand, the court in Dini made the following comment:

"In the instant case, from the evidence previously noted that defendants failed to provide fire doors or fire extinguishers, permitted the accumulation of trash and litter in the corridors, and had benzene stored in close proximity to the inadequately constructed wooden stairway where the fire was located, the jury could have found that defendants failed to keep the premises in a reasonably safe condition and that the hazard of fire, and loss of life fighting it, was reasonably foreseeable." 20 Ill.2d 406, 417.

Although the cause of the fire in the Dini case was not known, some of the items mentioned in the statement quoted above relate to acts of negligence which might have been contributory causes of the fire, rather than to negligence in the failure to maintain the premises in a safe condition, and the opinion thus gives support to the plaintiffs' position. Decisions subsequent to Dini, however, have not so interpreted it.

In Netherton v. Arends (1967), 81 Ill. App.2d 391, decided by the Appellate Court for the Fourth District, suit was brought by a fireman to recover damages for injuries caused by smoke inhalation while fighting a fire at the defendants' premises. The asserted basis of liability was that negligence in the storage of combustibles was responsible for causing the fire. The appellate court rejected this theory of liability, saying:

"We do not think that Dini holds or intended to hold that negligently creating a fire hazard or causing a fire ipso facto creates a liability upon an owner or occupant to an invitee fireman for injuries received in the performance of his duties." (81 Ill. App.2d 391, 395.)

And the court added:

"There is no charge that the fumes, gases or smoke produced by the fire were unusual in any manner or different in type, quantity, quality or amount than those of any ordinary fire. In the absence of such a charge, the hazards which the fireman faced were only those hazards incidental to the employment that was his." (81 Ill. App.2d 391, 396.)

The Appellate Court for the Second District reached a similar conclusion in Horcher v. Guerin (1968), 94 Ill. App.2d 244. In the course of fighting a fire in a vacant and boarded-up building, a fireman attempting to break a second-story window from the outside was struck by a splinter of glass and lost his sight in one eye. There, too, plaintiff argued that liability was established under the Dini decision. The court held to the contrary, saying:

"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. [Citations.] * * *

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, ...

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