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Zimmerman v. Fasco Mills Co.

December 30, 1998


Appeal from the Circuit Court of Winnebago County. No. 96--L--219 Honorable Ronald L. Pirrello, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Plaintiff, Bryan Zimmerman, administrator of the estate of Dale R. Zimmerman (Zimmerman), deceased, filed several successive complaints against defendants, Fasco Mills Company (Fasco Mills) and Stickle Enterprises, Ltd. (Stickle), under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 1994)) as a result of his brother's death. The circuit court of Winnebago County dismissed plaintiff's fourth amended complaint pursuant to section 2--619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2--619(a)(9) ((West 1994)) because the trial Judge found that the "fireman's rule" barred a cause of action on all eight counts of the complaint. Plaintiff argues on appeal that (1) the fireman's rule is inapplicable to the facts in the present case; and (2) the court committed error by not granting plaintiff's request to hold a pleading conference under Supreme Court Rule 218 (166 Ill. 2d R. 218). We reverse and remand.


Zimmerman was a volunteer firefighter for the Pecatonica Fire Protection District. On January 13, 1996, Zimmerman responded to a call of "men down" at a grain bin owned and operated by Fasco Mills in Seward, Illinois. Two men were trapped inside the grain bin. Stickle was employed by Fasco Mills on that day to evacuate the grain bin. Plaintiff alleged that both defendants were responsible for the supervision, control, and maintenance of the grain bin.

When he arrived at the scene, Zimmerman climbed the ladders on the outside of the grain bin to reach the only entrance to the interior of the bin. The entrance is a hole at the top of the bin near a ladder affixed to the interior wall of the bin. Zimmerman descended into the grain bin using the ladder affixed to the inner wall.

After entering the bin, Zimmerman became lethargic and was physically unable to climb the ladder to exit the bin. Members of the Pecatonica Fire Protection District attempted, without success, to hoist Zimmerman from the inside of the bin using a rope tied to the ladder at the top of the bin. Zimmerman was overcome by carbon monoxide gas while inside the grain bin and later died of asphyxia due to acute carbon monoxide poisoning.

Plaintiff, Zimmerman's brother, as administrator of decedent's estate, filed his original complaint on July 26, 1996, which the trial court dismissed because of the fireman's rule. Plaintiff unsuccessfully attempted several times to amend his complaint to allege facts outside the fireman's rule. On October 3, 1997, the court ultimately dismissed plaintiff's fourth amended complaint with prejudice under section 2--619 (a)(9). On February 26, 1998, the court denied plaintiff's motion to reconsider and plaintiff timely filed his notice of appeal.

In his fourth amended complaint, plaintiff alleged that Stickle and Fasco Mills acted negligently and wilfully and wantonly, by introducing 5 million cubic feet of carbon dioxide into the bin before Zimmerman's entry and by failing to warn Zimmerman of the hidden and latent defects on the premises. Plaintiff alleged that in 1982 Alan Spratt was killed in the grain bin under similar circumstances. Plaintiff further alleged that Fasco Mills and Stickle failed to supply various equipment necessary for the safe ingress to and egress from the bin as required by federal, state, and local laws. Plaintiff also alleged that defendants failed to test the atmosphere and ventilate the bin, in violation of several ordinances and statutes.


The trial court dismissed plaintiff's fourth amended complaint under section 2--619(a)(9) of the Code of Civil Procedure. Section 2-- 619(a)(9) permits involuntary dismissal where "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2--619(a)(9) (West 1994). Thus, the moving party admits the legal sufficiency of the complaint but asserts an affirmative defense or other matter that avoids or defeats the claim. Brock v. Anderson Road Ass'n, 287 Ill. App. 3d 16, 21 (1997). In the present case, the court found that the fireman's rule prohibited plaintiff's cause of action.

We review de novo the granting of a section 2--619 motion to dismiss. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997). For purposes of a section 2--619 motion to dismiss, all well- pleaded facts in the complaint are deemed admitted, and only the legal sufficiency of the complaint is at issue. Brock, 287 Ill. App. 3d at 16. The issue on appeal is whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of material fact, whether dismissal was proper as a matter of law. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115-16 (1993). The specific issue before this court is whether plaintiff alleged a cause of action, assuming his well-pleaded facts are true, that could have existed outside the contours of the fireman's rule.

The fireman's rule essentially 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." Vroegh v. J&M Forklift, 165 Ill. 2d 523, 527 (1995). The rule itself derives from the traditional common-law rules of landowner/occupier liability (Horn v. Urban Investment & Development Co., 166 Ill. App. 3d 62, 66 (1988)), and where the rule applies, it means that no duty is imposed by law (Vroegh, 165 Ill. 2d at 530). Although the present case does not involve a fire, the fireman's rule may be applicable here because the rule is also construed in the context of the duty a landowner owes to an emergency worker. Hedberg v. Mendino, 218 Ill. App. 3d 1087, 1090 (1991).

The fireman's rule is a creature of case law, and thus it is necessary to analyze the important cases to understand and properly apply the rule. In Dini v. Naiditch, 20 Ill. 2d 406 (1960), the seminal case discussing the fireman's rule in Illinois, firefighters were injured when an improperly attached staircase in the defendant's building collapsed due to the fire. The plaintiffs also alleged that the defendant's negligence contributed to the fire by failing to provide fire doors or fire extinguishers, permitting the accumulation of trash and litter in the corridors, and storing flammable liquids in close proximity to the inadequately constructed wooded stairway where the fire was located.

The court noted that the law originally treated a firefighter who enters the premises in an emergency in the discharge of his duty as a licensee and that the owner or occupant only owed the fireman the duty to refrain from the infliction of wilful or intentional injury. Dini, 20 Ill. 2d at 413-14. But the court also examined the law in other jurisdictions and concluded that "to avoid extending what has been deemed a 'harsh rule'[citations], courts have held that firemen were entitled to be warned of ...

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