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05/18/88 Eileen Coglianese, As v. the Mark Twain Limited

May 18, 1988

EDMOND COGLIANESE, DECEASED, PLAINTIFF-APPELLANT

v.

THE MARK TWAIN LIMITED PARTNERSHIP, BENEFICIARY UNDER TRUST NO. 87-2227



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

EILEEN COGLIANESE, as Special Adm'r for the Estate of

524 N.E.2d 1031, 171 Ill. App. 3d 1, 120 Ill. Dec. 849 1988.IL.776

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. WHITE, P.J., and FREEMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Eileen Coglianese, as Special Administrator for the estate of Edmond Coglianese, appeals from the trial court's dismissal of her amended complaint seeking damages for wrongful death against defendant Mark Twain Limited Partnership. On appeal, plaintiff contends that defendant created a latent and hazardous condition on its premises which was responsible for the death of her husband while he was fighting a fire on defendant's premises.

On January 26, 1986, decedent, a fireman for the City of Chicago, died while fighting a fire at the Mark Twain Hotel in Chicago. The hotel was managed, operated and controlled by defendant. As a result of the fire, plaintiff filed a six-count complaint. Counts I and II constitute strict products liability against Scott Aviation alleging that decedent died as a result of a defective "Air Pak," a self-contained breathing apparatus. Counts I and II were not dismissed and are not a part of this appeal.

The remaining counts constitute a wrongful death and survival action against defendant. Plaintiff's complaint alleged that defendant's hotel was not in compliance with the applicable building and fire prevention codes of the City of Chicago. At the time of the fire, the walls within the hotel were not fire resistant and were combustible. During the fire, the interior walls of the hotel burned rapidly and produced great volumes of black smoke, soot, and other noxious gases. Despite wearing an apparatus intended to provide firemen with a breathable air supply while working in an environment hazardous to their health, decedent was overcome with smoke and noxious gases and suffocated to death. Plaintiff's complaint further alleged that defendant's failure to construct and maintain its walls in accordance with the city code constituted negligent or willful and wanton misconduct.

Based on application of the "fireman's rule," the trial court granted defendant's motion to dismiss counts III through VI of the second amended complaint. Plaintiff appeals.

In Dini v. Naiditch (1960), 20 Ill. 2d 406, 170 N.E.2d 881, our supreme court clarified the duty owed by a landowner to a fireman. In Dini, one fireman was killed and another seriously injured when an inadequately constructed staircase fell while they were fighting a fire. The court, in finding that judgment n.o.v. for defendants was improperly entered, held 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 at 416-17.

Since Dini v. Naiditch, several cases have further interpreted the scope of a landowner's duty and liability. In Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 236 N.E.2d 576, the court rejected plaintiff's contention that under Dini, a landowner may be held liable to a fire fighter for negligence in causing the fire. The court noted that harm from fire is a reasonable risk of a fireman's occupation. Thus, a landowner owes a fireman 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, or to give adequate warning thereof. Accord Netherton v. Arends (1967), 81 Ill. App. 2d 391, 225 N.E.2d 143.

Subsequently, in Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 361 N.E.2d 282, the court agreed with the holdings of Horcher and Netherton and declared what is commonly known as the "fireman's rule": "[While] a landowner owes a duty of reasonable care to maintain his property so as to prevent injury occurring to a fireman from a cause independent of the fire, he is not liable for negligence in causing the fire itself." 66 Ill. 2d at 108.

The reasoning behind this limitation of duty owed by a landowner to a fireman developed with the case law. Since most fires occur because of the negligence of the landowner or occupier, the courts found that the imposition of a duty to prevent fires from occurring or spreading on the owner's premises would impose a heavy and unreasonable burden on the owner. (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 361 N.E.2d 282; Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 236 N.E.2d 576.) Furthermore, the Washington court noted that the function of a fireman is to deal with fires, and he assumes the risks normally associated with that function when he enters upon that employment. Thus, several courts have stated that liability will be imposed on a defendant landowner only when a fire fighter is exposed to undue risks beyond those inevitably associated with fighting a fire. (See Court v. Grzelinski (1978), 72 Ill. 2d 141, 379 N.E.2d 281; Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. ...


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