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02/09/88 Arthur W. Horn, v. Urban Investment and

February 9, 1988

ARTHUR W. HORN, PLAINTIFF-APPELLANT

v.

URBAN INVESTMENT AND DEVELOPMENT COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

519 N.E.2d 489, 166 Ill. App. 3d 62, 116 Ill. Dec. 597 1988.IL.160

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. REINHARD and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Plaintiff, Arthur W. Horn, brought this action in the circuit court of Du Page County against defendants, Brooks Fashion Stores, Inc. (Brooks), the operator of a retail clothing store in Oak Brook, and the Urban Investment and Development Co. , a part owner of the premises where the store was located, to recover damages for personal injuries he sustained when he slipped and fell at the store. He appeals the entry of summary judgment for defendants.

The depositions and documents on file considered by the trial court disclose, in relevant part, that plaintiff was a fireman for the Village of Oak Brook. In his complaint he alleged that he was in Brooks' store in response to an activated fire alarm. He alleged that he slipped and fell on the wet floor in the storeroom while investigating the source of the alarm and the water and severely injured himself.

When the fire department was notified, two fire engines, an ambulance and a rescue truck responded. Plaintiff was on the first engine that arrived and was wearing a protective coat, a hat and fire boots with rubber soles. Plaintiff entered the store at the front entrance. One of the clerks said there was water in the back and the firemen went to a storage room which was not open to the public. Plaintiff stated that the firemen would have gone back there in any case because that is where the fire alarm panel was, and it would be normal to check the panel.

There was no smell of smoke in the building, and no apparent fire. In a corner area of the storage room there was water dripping from the ceiling. It was coming down from a number of different spots. There were some openings in the suspended ceiling where the tiles had fallen out. A portion of the linoleum tile floor was wet. When the firemen entered the storage room, the store manager was moving stock to protect it from water dripping from the ceiling. Lieutenant Jim Bodony, plaintiff's commanding officer, checked the fire alarm panel. In order to find out what caused the alarm and to secure it, plaintiff took the stepladder that had been in the storage room and placed it beneath the area of the ceiling where the water was dripping. He went up the ladder with a flashlight and looked around the area above the suspended ceiling. He checked the sprinkler pipes to see if the sprinkler had been activated. He did not see a sprinkler head off. The smoke or heat detectors are usually in the air-conditioning duct. Plaintiff saw a duct above the suspended ceiling. He could not determine the source of the water from that vantage point. The alarm could have been set off by either the smoke detector, the flow of the sprinklers or a pull box.

Plaintiff decided to move the ladder about five feet to get on the other side of the duct. He came down from the ladder and began to step backward, pulling the stepladder with him. As he did so he slipped on the wet floor, fell down and sustained injuries to his left knee. Plaintiff stated he believed that, subsequently, it was determined that the alarm was caused by water in the duct which caused a short circuit apparently in the smoke or heat detector and that the water had come from a leak in the roof. There was construction going on in the roof at the time. He said, however, that he was not a roofer and did not know that the roof was leaking. He said he believed the incident occurred on a dry day.

Defendants moved for summary judgment. The trial court heard argument on the motions and entered an order granting defendants' motions for summary judgment. Plaintiff filed a timely motion for rehearing which was denied. Plaintiff filed a timely notice of appeal.

Plaintiff raises two issues on appeal: (1) whether the fireman's rule (see Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881; see also Court v. Grzelinski (1978), 72 Ill. 2d 141, 379 N.E.2d 281) is inapplicable to this case because it was not the function of a fireman to repair leaky roofs or broken fire alarm systems; and (2) whether entry of summary judgment for defendants was improper because there are genuine issues of material fact as to whether defendants should have anticipated the injury to plaintiff because the possessor of land owes an invitee a duty of reasonable care to protect against known or obvious dangers.

Plaintiff states that he is unaware of any Illinois cases involving the applicability of the fireman's rule to situations where a fireman is injured while engaged in a function plaintiff claims is not normally associated with fire fighting. Plaintiff directs us to cases from other jurisdictions where such recovery has been allowed, according to plaintiff. (See, e.g., Malo v. Willis (1981), 126 Cal. App. 3d 543, 178 Cal. Rptr. 774; see also Bonney v. Canadian National Ry. Co. (D. Me. 1985), 613 F. Supp. 997.) Plaintiff concludes that because in the instant case he was injured while performing a function which is not one of the functions of a fireman, the fireman's rule should not prohibit his recovery of damages.

Defendants maintain that plaintiff's occupation makes no difference to the outcome of this suit. If anything, defendant maintains the rules of law, which apply to any invitee, apply with even greater force to an invitee such as plaintiff, who brought to bear his special training as a fireman to the task which he was performing at the time ...


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