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Court v. Grzelinski

OPINION FILED JULY 14, 1978.

ARTHUR J. COURT, APPELLEE,

v.

FELIX GRZELINSKI, JR., ET AL. — (NICKEY CHEVROLET SALES, INC., ET AL., APPELLANTS.)



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

MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, Arthur J. Court, brought an action in the circuit court of Cook County against defendants, Felix Grzelinski, Jr., Nickey Chevrolet Sales, Inc., and General Motors Corporation. He seeks recovery for injuries sustained while fighting a fire which erupted in a vehicle owned by Grzelinski, sold in used condition by Nickey and manufactured by General Motors. Count I of plaintiff's fourth amended complaint is predicated upon Grzelinski's negligence in keeping containers of a highly flammable substance hidden from view in the vehicle. Count II jointly charges Nickey and General Motors in a strict liability action arising out of the explosion of the vehicle's gasoline tank.

On motions duly filed and consolidated, the trial court denied Grzelinski's motion to dismiss count I and, pursuant to the holding in Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App.3d 546, sustained Nickey's and General Motors' motions to dismiss count II. The trial court having expressly found no just reason for delaying enforcement or appeal of the order of dismissal, the plaintiff, pursuant to Rule 304(a) (58 Ill.2d R. 304(a)), appealed the dismissal of count II. The appellate court reversed the trial court, holding that count II properly states a cause of action in strict liability against Nickey and General Motors for the injuries which plaintiff sustained while fighting a fire in the course of his employment. (48 Ill. App.3d 716.) We granted leave to appeal to Nickey and General Motors (defendants).

The issues presented for review are: (1) Does plaintiff's complaint properly plead that defendant Nickey, a used car dealer, created the alleged defects in the vehicle's gasoline tank? and (2) Is a duty in products liability owed to a fireman for injuries incurred while fighting a fire in the course of his employment?

During pretrial discovery it was ascertained that on May 26, 1972, plaintiff, a firefighter for the city of Chicago, responded, along with other firemen, to a call of an automobile fire on south Harding Avenue in Chicago. As plaintiff attached the fire hose to a hydrant approximately 35 feet from the vehicle (a 1969 Chevrolet Malibu), an explosion caused ignited gasoline to be spewed from the vehicle's gas tank onto the plaintiff. As a result, plaintiff sustained severe burns, externally and internally.

Defendant Nickey asserts that plaintiff's complaint is deficient in that it fails to plead that the alleged defects in the vehicle's gasoline tank were created by Nickey. Nickey relies on Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill.2d 17, in which this court held that a plaintiff fails to state a cause of action against a used car dealer in products liability if he does not allege that the defects were created by that dealer. There, the plaintiff had failed to allege either that the defects existed when the product left the control of the manufacturer or that the defects were created by the used car dealer. The instant complaint, however, includes allegations that the gasoline tank was defectively designed by the manufacturer, thereby creating a "high degree of risk that [it] would explode," and that the tank was defectively assembled, installed and positioned by Nickey in that no adequate devices were used which would prevent the tank from exploding. At this stage of the proceedings, all well-pleaded allegations of the complaint must be taken as true. To the extent that plaintiff alleges that the defects were created not only by the manufacturer, but also by work defectively done by Nickey, his complaint satisfies the requirements of Peterson. See Realmuto v. Straub Motors, Inc. (1974), 65 N.J. 336, 344, 322 A.2d 440, 444.

It is essential to this appeal that we determine if a fireman can recover in products liability for injuries incurred while fighting a fire in the course of his employment. Defendant General Motors has correctly reasoned that the case turns on the question of "duty." Generally, in tort law, "duty" is the legal standard of conduct owed by one person to another. In the products liability context, a legal duty is imposed upon those involved in the original production and marketing chain of a product to the benefit of those individuals "to whom injury from a defective product may reasonably be foreseen." (Winnett v. Winnett (1974), 57 Ill.2d 7, 11.) We have held that, in products liability, such individuals are not only those within classes of users and consumers, but may include persons (such as the innocent bystander) outside the purchasing chain of the product. (Winnett v. Winnett (1974), 57 Ill.2d 7, 11-13.) Whether a particular fireman fighting a fire in the course of his employment is a person to whom injury from a defective product may reasonably be foreseen is ordinarily an issue of fact to be resolved not by the court, but by a jury.

Nevertheless, defendants maintain that firemen are a special class of plaintiff to whom no duty is owed, even if injury to them may reasonably be foreseen, because risk of harm resulting from fire (and consequent explosion) is inherent in the occupation for which they are trained and paid. Defendants' thesis, commonly known as the "fireman's rule," is founded in negligence and derives from numerous cases, in this and other jurisdictions, which rest on two distinguishable propositions. The more common of the two propositions is that a landowner or occupier owes no duty of care to firemen to prevent the fire which necessitated their presence on the premises. The other proposition is that a fireman cannot recover from any defendant for any injury resulting from those risks inherently involved in fire fighting. The former proposition is firmly established in Illinois law. The latter proposition, which actually subsumes the former and extends the "fireman's rule" to encompass defendants other than landowners or occupiers, is one of first impression in this court.

The "fireman's rule" originated and developed at a time when the English common law classified the duties of landowners or occupiers according to the status of the persons entering the premises: i.e., trespassers, licensees or invitees. At first, firemen who entered the premises in the discharge of their duties were designated "licensees" to whom landowners or occupiers owed no greater duty than to warn of known concealed dangers and to refrain from inflicting willful or intentional injury. (Gibson v. Leonard (1892), 143 Ill. 182, 190, overruled in Dini v. Naiditch (1960), 20 Ill.2d 406, 417; Prosser, Torts, sec. 60 at 376-382 (4th ed. 1971); 1 J. Dooley, Modern Tort Law secs. 19.01, 19.07, at 375, 387 (1977).) Later courts>, recognizing the harshness of this classification, reclassified firemen as "invitees" to whom landowners or occupiers owed a duty of ordinary care to keep the premises safe. (Clinkscales v. Mundkoski (1938), 183 Okla. 12, 79 P.2d 562.) Finally, in 1960, this court rejected the common law classifications as applied to firemen, and held that landowners or occupiers owed a duty of reasonable care to maintain their property so as to prevent injury to firemen "rightfully on the premises, fighting the fire at a place where [they] might reasonably be expected to be." (Dini v. Naiditch (1960), 20 Ill.2d 406, 417.) Thereafter, this court and numerous appellate courts> interpreted the Dini case to impose a duty of reasonable care on landowners or occupiers to prevent injury to firemen which might result from a cause independent of the fire, but no duty to prevent injury resulting from the fire itself. Washington v. Atlantic Richfield Co. (1976), 66 Ill.2d 103, 108; Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App.3d 546, 549; Young v. Toledo, Peoria & Western R.R. Co. (1977), 46 Ill. App.3d 167, 169.

This distinction evolved for two mutually supportive reasons. First, since most fires occur because of the negligence of the landowner or occupier, it was believed that the imposition of a duty to prevent fires from occurring or spreading on a person's premises would place an unreasonable burden upon the person who owned or occupied improved land. (Washington v. Atlantic Richfield Co. (1976), 66 Ill.2d 103, 108; Horcher v. Guerin (1968), 94 Ill. App.2d 244, 248.) This public policy consideration, however, tended to undermine the general duty imposed upon landowners or occupiers to exercise reasonable care to keep their premises safe. A compromise was reached with regard to firemen, recognizing that the risk of harm from fire is inherent in a fireman's occupation. This compromise was believed to provide a necessary social balance between the absolute possessory control of land and the duty of reasonable care to firemen whose public responsibility summons them to the premises. As is apparent, this version of the "fireman's rule" rests not merely upon a recognition that certain risks are normally expected in fire fighting, but upon a policy consideration limiting the duty of landowners or occupiers.

Defendants attempt to extend the "fireman's rule" beyond its limited context of landowner/occupier liability. The rule cannot be expanded to a free-floating proposition that a fireman cannot recover for injuries resulting from risks inherently involved in fire fighting. To do so would be tantamount to imposing the doctrine of assumption of risk onto the occupation of fire fighting and would be directly contrary to the limited concept of assumption of risk in Illinois. In negligence actions, assumption of risk is confined to those situations involving persons who have a contractual or employment relationship with the defendant. (See Barrett v. Fritz (1969), 42 Ill.2d 529, 534; Sweeney v. Matthews (1968), 94 Ill. App.2d 6, 18-20.) In products liability actions such as this, assumption of risk is a bar to recovery only if the plaintiff is aware of the product defect and voluntarily proceeds in disregard of the known danger. (Williams v. Brown Manufacturing Co. (1970), 45 Ill.2d 418, 426; Restatement (Second) of Torts sec. 402A, comment n, at 356 (1965).) In either case, assumption of risk is an affirmative defense interposed against a plaintiff who voluntarily exposes himself to a specific, known risk, not a preclusion of recovery against a plaintiff whose occupation inherently involves general risks of injury.

Defendants cite two California appellate court decisions which have approved the broad proposition that a fireman cannot recover for injuries resulting from risks inherently involved in fire fighting. (Giorgi v. Pacific Gas & Electric Co. (1968), 266 Cal.App.2d 355, 72 Cal.Rptr. 119; Scott v. E.L. Yeager Construction Co. (1970), 12 Cal.App.3d 1190, 91 Cal.Rptr. 232.) In the earlier of the two decisions, the court cited two cases which had applied the "fireman's rule" in situations outside the limited context of landowner/occupier liability. (See Clark v. Boston & Maine R.R. (1917), 78 N.H. 428, 431-32, 101 A. 795, 797; Chesapeake & Ohio Ry. Co. v. Crouch (1968), 208 Va. 602, 608-09, 159 S.E.2d 650, 655.) Although both those cases expressly based their holdings on the doctrine of assumption of risk, the California court disclaimed reliance on that doctrine. Instead, it based its holding on two asserted policy considerations — risk spreading and efficient judicial administration — which have since become the subject of criticism. See Moss, An Examination of The California Fireman's Rule, 6 Pac. L.J. 660 (1975).

Risk spreading is based upon the rationale that the cost of injuries to fire fighters should be distributed among the community at large rather than be imposed upon the party responsible for the injuries. Such policy would apply regardless of whether injury to a fireman resulted from the fire itself or from causes independent of the fire. To the extent that, in Illinois, a fireman may recover from a landowner or occupier for injuries resulting from causes ...


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