APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
Chicago et al., Third-Party, Defendants-Appellants; Krasny & Company,
Inc., Third-Party, Plaintiff-Appellee)
536 N.E.2d 736, 180 Ill. App. 3d 955, 129 Ill. Dec. 686 1989.IL.101
Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
Plaintiff George H. Martin, a Chicago fireman, filed an action seeking damages for personal injuries suffered as a result of fighting a fire. Plaintiff alleged negligence as to defendant Krasny & Company, Inc., which owned and managed the building, and alleged strict products liability and negligence as to defendant Lion Uniform Company, which designed, manufactured and sold the protective clothing which plaintiff wore. (Defendants Kane Uniform Company and Janesville Apparel Company are not parties to this appeal.) Lion and Krasny filed third-party complaints for contribution against third-party defendants, the City of Chicago and the Chicago fire department. The trial court denied the city's motion to dismiss and found that the city was not immune from an action for contribution. On its own motion, the trial court certified the following question of law: "May a contribution action pursuant to the Illinois Contribution Act be maintained against a local public entity where provisions of the Local Governmental and Governmental Employees Tort Immunity Act may bar a direct action against the local public entity?" The city's application for leave to appeal was granted pursuant to Supreme Court Rule 308(a) (107 Ill. 2d R. 308(a)).
We are concerned here with the third-party action filed on March 1, 1984, by Lion Uniform and the third-party action filed on October 18, 1985, by Krasny, seeking contribution under section 2(a) of the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, par. 302(a)) in the event they should be held liable to plaintiff. The contribution action alleged that in its undertaking to provide fire services, the city failed to exercise ordinary care to plaintiff in several material respects. The city moved to dismiss the amended third-party complaints, asserting non-liability under section 2-201 (public employees are not liable for injuries arising from discretionary decisions regarding the training and equipping of fire fighters), and sections 5-102 and 5-103 (governmental entities are not liable for injuries occurring in providing fire fighting services or in maintaining and operating fire fighting equipment) of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2-201, 5-102, 5-103).
On October 1, 1987, the trial court denied the city's motion to dismiss. The court relied on Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382 (State employee's direct action against the State/employer barred by Workers' Compensation Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.); however, defendant may bring third-party negligence action for contribution against the State/employer), and Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54 (plaintiff's direct action against city barred after he failed to give statutory notice of claim to city; however, plaintiff's failure to comply with notice requirement does not bar defendant from bringing contribution action against city). The court concluded that the city's immunity from a direct suit by plaintiff did not extend to immunity from contribution actions.
The issue before us is whether a municipality which might contribute to an individual's injuries related to fire protection services is thereby "liable in tort" for purposes of an action for contribution brought by the defendant in a suit filed by the injured individual. Defendants seek contribution from the city under the Illinois Contribution Among Joint Tortfeasors Act (Ill. Rev. Stat. 1985, ch. 70, pars. 301 through 305). A right of contribution may exist if the State is "subject to liability in tort" in this action. Ill. Rev. Stat. 1985, ch. 70, par. 302(a).
Defendants initially point to language indicating that the intent of the Contribution Act is "to reach anyone who is culpable regardless of whether they have been immunized from a direct tort action by some special defense or privilege." (Doyle v. Rhodes, 101 Ill. 2d at 9.) This court has previously explained, in distinguishing cases relying on this broad statement, that where contribution is sought from the State, different considerations arise. Stephens v. Cozadd (1987), 159 Ill. App. 3d 452, 512 N.E.2d 812; Welch v. Stocks (1987), 152 Ill. App. 3d 1, 503 N.E.2d 1079.
It has long been established in Illinois that a municipality owes no duty under the common law to any individual for failure to provide a governmental service such as fire protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515.) Similarly, the municipality is relieved of liability for injuries to persons resulting from the negligence of officers or employees connected with the maintenance and operation of its fire department. Roumbos v. City of Chicago (1928), 332 Ill. 70, 163 N.E. 361, citing Wilcox v. City of Chicago (1883), 107 Ill. 334. See also Stubblefield v. City of Chicago (1971), 48 Ill. 2d 267, 269 N.E.2d 504 (city immune from liability where bystander injured when struck by firehose after fireman lost control of hose while fighting fire).
The Illinois rule of non-liability follows the general rule in most jurisdictions that a municipality usually cannot be held liable in damages for negligence in connection with fire fighting. (18 E. McQuillin, The Law of Municipal Corporations §§ 53.52, 53.82 (3d ed. 1984).) "Thus, in those jurisdictions where the doctrine of governmental immunity was held applicable, the courts have been practically uniform in holding that the governmental entity was immune from liability for injury or damage resulting from negligent acts of omission or commission in connection with the maintenance and operation of a fire department." (57 Am. Jur. 2d Municipal Tort Liability § 265, at 228 (1971), citing Roumbos v. City of Chicago (1928), 332 Ill. 70.) The rule of nonliability rests upon the reasoning that the power conferred upon the municipality to establish a department for the protection of the property of its citizens from fire is of a public or ...