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03/23/95 ADRIAN VROEGH v. J&M FORKLIFT ET AL. (ANR

March 23, 1995

ADRIAN VROEGH, SPECIAL ADM'R OF THE ESTATE OF DOUGLAS P. MAICACH,
v.
J&M FORKLIFT ET AL. (ANR FREIGHT SYSTEM, APPELLANT; PETROLANE GAS SERVICES, LTD., ET AL., APPELLEES)



The Honorable Justice Harrison delivered the opinion of the court.

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

Douglas P. Maicach was killed while fighting a fire at a facility owned by ANR Freight System (ANR). A wrongful death action followed. The count directed against ANR was dismissed with prejudice pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) on the grounds that the "fireman's rule" shielded ANR from liability. The issue before us now is whether that dismissal precludes two of the remaining defendants, Petrolane Gas Services, Ltd. (Petrolane), and Worthington Industries, Inc. (Worthington), from proceeding with third-party actions against ANR for contribution.

The circuit court answered this question in the affirmative, granting judgment on the pleadings (735 ILCS 5/2-615 (West 1992)) in favor of ANR with respect to the contribution claims advanced by Petrolane and Worthington. On an appeal brought under Rule 304(a) (134 Ill. 2d R. 304(a)), the appellate court reversed and remanded for further proceedings. (255 Ill. App. 3d 155.) We granted leave to appeal. (145 Ill. 2d R. 315.) For the reasons that follow, we reverse the appellate court's judgment and affirm the judgment of the circuit court.

The incident that gave rise to this litigation took place on January 3, 1989, when the Village of South Holland fire department received a call that a fire had broken out at ANR's loading dock facility. One of the fire fighters who responded was Douglas P. Maicach. Maicach and his fellow fire fighters found that what was on fire was one of ANR's forklift trucks. The forklift was powered by propane, and in the course of the fire, the propane fuel tank exploded, striking and killing Maicach.

Maicach's father-in-law, Adrian Vroegh, was appointed special administrator of Maicach's estate (740 ILCS 180/2.1 (West 1992)) and brought an action against ANR under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1992)). In addition to ANR, Vroegh's complaint, as amended, also named as defendants J&M Forklift, the company that maintained the forklift for ANR; Petrolane, the company that supplied the forklift's propane fuel tank and fuel; and Worthington, the fuel tank's manufacturer.

Once Petrolane had been named as a defendant in the wrongful death action, it filed a third-party action under the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West 1992)) to obtain contribution from ANR and Worthington. Worthington subsequently filed a contribution action of its own against ANR. ANR, in turn, filed motions under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1992)) to dismiss both Vroegh's wrongful death claim and the claims for contribution asserted against it by Petrolane and Worthington.

In moving for dismissal of the wrongful death claim, ANR argued that as owner of the premises where the fire occurred, it was shielded from liability for Maicach's death by operation of the "fireman's rule." That rule provides that an owner or occupier of land must exercise reasonable care to prevent injury to firemen that might result from a cause independent of the fire, but has no duty to prevent injury resulting from the fire itself. Court v. Grzelinski (1978), 72 Ill. 2d 141, 148, 19 Ill. Dec. 617, 379 N.E.2d 281.

The circuit court agreed that the rule was applicable here and therefore dismissed Vroegh's wrongful death claim against ANR with prejudice. The appellate court affirmed (255 Ill. App. 3d at 158-63), and a separate petition for leave to appeal directed to the propriety of that judgment has previously been considered and denied by this court. Dismissal of the wrongful death claim against ANR is therefore no longer subject to review.

The sole issue before us here is the continued viability of the contribution claims brought against ANR by Petrolane and Worthington. As with Vroegh's wrongful death action against ANR, the circuit court dismissed the contribution claims on the pleadings with prejudice. Unlike the wrongful death action, however, the appellate court reversed and remanded for further proceedings. The court held, over the dissent of one justice, that application of the "fireman's rule" to discharge ANR from liability on the wrongful death action did not mandate dismissal of the contribution claims filed against ANR. In the court's view, the "fireman's rule" is in the nature of an affirmative defense which does not protect a defendant from liability unless and until the defendant chooses to invoke it. Accordingly, the court reasoned, it operates as the kind of special defense or privilege discussed in Doyle v. Rhodes (1984), 101 Ill. 2d 1, 77 Ill. Dec. 759, 461 N.E.2d 382, and its progeny that may immunize a defendant from a direct tort action, but which does not remove that defendant from the reach of third-party actions for contribution.

In reviewing the appellate court's judgment, we look first to section 2 of the Joint Tortfeasor Contribution Act (740 ILCS 100/2 (West 1992)). That statute provides that

"where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them ***." (740 ILCS 100/2 (West 1992).)

As the language of the statute indicates, a party's obligation to make contribution rests on his liability in tort to the injured or deceased party, i.e., the plaintiff in the underlying action. There is no requirement that the bases for liability among the contributors be the same. ( J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc. (1987), 118 Ill. 2d 447, 462, 114 Ill. Dec. 105, 516 N.E.2d 260.) However, some basis for liability to the original plaintiff must exist. If a defendant is not a tortfeasor vis-a-vis the original plaintiff, it cannot be a joint tortfeasor vis-a-vis a codefendant and may not be held liable to that codefendant for contribution. See Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, 880, 117 Ill. Dec. 693, 520 N.E.2d 1044.

Entry of judgment against a codefendant and in favor of the original plaintiff is not necessary to establish the codefendant's legal culpability for purposes of contribution. Under the statute, a right of contribution exists among codefendants "even though judgment has not been entered against any or all of them." (740 ILCS 100/2(a) (West 1992).) All that is required is that the persons seeking contribution and the persons from whom contribution is sought be potentially capable of being held liable to the plaintiff in a court of law or equity. People v. Brockman (1991), 143 Ill. 2d 351, ...


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