contributory negligence? That basic question does not admit of
an easy answer.
While Illinois courts have not directly addressed the
issue,*fn3 several other jurisdictions have done so recently.
In Walters v. Sloan, 20 Cal.3d 199, 142 Cal.Rptr. 152,
571 P.2d 609 (1977) a policeman was called to a party where he
attempted to arrest an intoxicated minor. After the policeman
was attacked and injured by several intoxicated people, he sued
the party host for unlawfully serving alcoholic beverages. That
claim was rejected as a matter of law. Several other
jurisdictions have accepted a similar rule. Cullivan v. Leston,
43 Or. App. 361, 602 P.2d 1121 (1979); Hannah v. Jensen,
298 N.W.2d 52 (Minn. 1980); Weaver v. O'Banion, 359 So.2d 706 (La.
Nonetheless it is inappropriate for this Court, bound to
follow Illinois law, to apply that doctrine here. There are
First, this is a controversial area of law still very much in
flux. At least one prestigious court has even more recently
rejected the notion that such actions will not lie. Trainor v.
Santana, 86 N.J. 403, 432 A.2d 23 (1981). Absent a definitive
acceptance of such a developing doctrine by an Illinois court,
this Court should not apply it under conventional Erie v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 principles.
Second, even accepting the
Walters-Cullivan-Hannah-Weaver decisions need not bar
Lehpamer's Counterclaim. All those cases involved negligence
claims. None presented the kind of intentional torts alleged by
Lehpamer.*fn4 Whatever the rationale for the rule — whether
something akin to assumption of risk or otherwise — the
considerations are very different when plainly wilful torts are
involved, and the cases are not direct authority here.
Finally, there is a strong indication that in any event the
Illinois courts would not accept the doctrine that precludes
policemen's tort actions. Each of the already-cited decisions
to that effect viewed its holding as an extension of the
"fireman's rule." That rule, accepted in nearly all
jurisdictions (including Illinois, see discussion in Court v.
Grzelinski, 72 Ill.2d 141, 147-48, 19 Ill.Dec. 617, 620,
379 N.E.2d 281, 284 (1978)*fn5), holds that an injured fireman
cannot sue someone for negligently causing a fire.
But the Illinois Supreme Court has recently considered the
"fireman's rule" in a different context. In Grzelinski a
fireman was injured while fighting a fire that had erupted in a
vehicle and exploded its gasoline tank. When the injured
firefighter brought a products liability action against the
manufacturer and retailer of the vehicle, the court was called
on to decide whether the "fireman's rule" barred plaintiff's
It first noted that the "fireman's rule" developed early on
when firefighters were legally characterized as licensees.
Under traditional doctrines landowners or occupiers owed them
"no greater duty than to warn of known concealed dangers and to
refrain from inflicting wilful or intentional injury." Illinois
had later rejected the common law classification as overly
harsh, instead imposing a duty of reasonable care to firemen.
Nonetheless it still barred actions based on negligently
causing the fire itself. Dini v. Naiditch, 20 Ill.2d 406, 417,
170 N.E.2d 881, 886 (1960). Against that background Grzelinski
refused to follow the lead of other jurisdictions*fn6 that had
extended the "fireman's rule" beyond its landowner/occupier
foundation, 72 Ill.2d at 148-49, 19 Ill.Dec. at 620, 379 N.E.2d
The rule cannot be expanded to a free-floating
proposition that a fireman cannot recover for
injuries resulting from risks inherently involved
in firefighting. To do so would be tantamount to
imposing the doctrine of assumption of risk into
the occupation of firefighting and would be
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.
Because Illinois has thus refused to expand the "fireman's
rule" to embrace a broad assumption of risk approach on an
occupational basis, it is highly unlikely that it would apply
that notion to police suits.*fn7 This opinion turns then to
the substance of Lehpamer's Counterclaim.
Counterclaim Count I, stating everything in the "Facts"
section of this opinion except the claim of emotional distress,
is simple and well pleaded. Certainly Anton has been provided
the adequate notice of Lehpamer's claim required by Rule 8(a).
Anton argues Lehpamer could not legitimately have feared an
attack because when Anton assertedly reached for his gun
several police officers held guns aimed directly at Anton. That
simply raises a factual issue. This Court is not required to
assume that an allegedly dangerous armed person will behave
rationally. It cannot say as a matter of law that Lehpamer
could not reasonably have feared an imminent battery.
Anton also contends Lehpamer has failed to state he was
injured by the assault. That argument must be rejected:
(1) No bodily injury is required for an assault.
Rosenberg v. Packerland Packing Co., 55 Ill. App.3d 959,
13 Ill.Dec. 208, 370 N.E.2d 1235 (1st Dist.
(2) Counterclaim Count II (at ¶ 18) alleges
Lehpamer has suffered severe emotional distress.
That carries any necessary burden of a damage
Lastly, Anton points to claimed discrepancies between
Lehpamer's interrogatory responses and various police reports.
Again those arguments raise factual issues, inappropriate for
resolution on a motion to dismiss.