The opinion of the court was delivered by: Presiding Justice South
Appeal from the Circuit Court of Cook County. Honorable Dean M. Trafelet, Judge Presiding.
the opinion of the court:
This is a personal injury action arising out of a fire that occurred on August 2, 1992. Plaintiff was a resident of 2203 South Ridgeland Avenue, Berwyn, Illinois. The fire occurred in the early- morning hours on that day and both the City of Berwyn and the Village of North Riverside responded to the call.
The trial court granted defendant's motion for summary judgment and motion to dismiss plaintiff's fifth amended complaint and ruled that the City of Berwyn had immunity pursuant to the Tort Immunity Act.
The issues presented for review are: (1) whether the Tort Immunity Act provides immunity for the action of the City of Berwyn's Fire Department; (2) whether section 5-103 of the Tort Immunity Act provides immunity for a fire rescue attempt; (3) whether the Special Duty Doctrine applies to this case; and (4) whether evidence exists giving rise to willful and wanton misconduct on the part of the City of Berwyn.
Officer Leilani Cappetta was the first emergency personnel to arrive on the scene approximately one minute after the fire was called into dispatch. Upon arrival, she ran toward the exits of the building while a number of people were exiting the front doors. Officer Cappetta eventually found a way to the third floor where she was met with extremely heavy smoke. She contemplated taking off her belt and crawling on her stomach along the third floor in order to alert residents but was prevented from doing so by another officer due to the extreme danger. When Officer Cappetta descended the stairwell, she came upon Berwyn Firefighter Chief Pechous as he was ascending with a fire hose. Officer Cappetta noticed that Chief Pechous wore no helmet or breathing apparatus and felt that he was in danger and advised him to put on his hat. At that time, a burst of flames came toward them, and Office Cappetta ran down the stairwell as another firefighter was coming up.
Officer Cappetta proceeded outside to speak to her Sergeant and advised him that she had heard yelling from the third floor and was going to go to the rear of the building. She came upon Officer Reagan whom she told she heard a woman screaming for help, to which Officer Reagan responded: "I know she's up there." Officer Cappetta then ran to Ridgeland Avenue to notify the firemen that there was a rescue needed. She assisted the firemen in moving the ladder and carrying it to the rear of the building. The ladder was placed and plaintiff was rescued.
Officer Bojovic arrived on the scene almost immediately upon being dispatched. He entered the building and proceeded to the second floor and started pounding on doors. He then found his way to the third floor stairwell where he met with Officer Cappetta. Smoke was very heavy and he began choking so he and Officer Cappetta proceeded back down the stairwell. He proceeded to the rear of the building where he assisted in raising the ladder to rescue plaintiff. He did not observe the total rescue. Edward Anderson arrived at the scene two or three minutes after the call came in. Lieutenant Considine, Firefighter Rosiar and a policeman asked for his assistance in getting the ladder off the North Riverside truck. He assisted in removing the ladder from the North Riverside truck, and the group ran the ladder back to the alley. He did not observe plaintiff's rescue.
Firefighter Rosiar also recalls being approached by a police officer and told that a ladder was needed in the rear of the building. He assisted in running the ladder from the truck. He testified that they were going as fast as four people could handle a ladder. When they reached the alley, he noticed a man on a windowsill. He also saw plaintiff on the windowsill, but saw no flames. He testified that North Riverside Chief Salvino was in charge of the rescue area. It was his understanding that whoever was the highest ranking commander of the area would be in charge of the scene and make a decision as to where to deploy a 35-foot ladder. Firefighter Rosiar testified that plaintiff was rescued before the elderly gentleman, who was also on the third floor, because she seemed to be in the most danger. The firefighters were acting on the instructions and commands of their supervisor. Firefighter Rosiar testified that there was so much smoke in the rear of the building that he was unable to see the entire window upon which plaintiff was sitting. As he climbed the ladder, he noticed that plaintiff was not attempting to place her foot upon the ladder and realized that he was going to have to carry her out of the window; however, the ladder was not high enough to reach the window where she sat. He then told the plaintiff to wait as he descended the ladder, repositioned it, extended it to the windowsill and went up the ladder a second time.
Firefighter Considine recalls that upon his arrival at the scene, he was approached by a police officer advising him of a rescue at the rear of the building. He gathered his crew together, and they removed a 35-foot extension ladder from the North Riverside ladder truck. When they arrived at the rear of the alley, they saw plaintiff perched on the third floor window sill. They raised the ladder and Officer Rosiar climbed the ladder and attempted to rescue plaintiff. Officer Rosiar thought that plaintiff froze and that she did not want to get onto the ladder. The ladder was repositioned, and he was able to coax her out of the building and onto the ladder. As plaintiff was coming down the ladder, Firefighter Rosiar attempted to comfort her by telling her "one step at a time, take your time, we've got an ambulance coming." Following plaintiff's rescue, they then rescued the elderly gentleman. He testified that plaintiff was the first person rescued.
Upon his arrival at the scene, Chief Pechous entered the building with another firefighter and a hose. At that point, they were under the assumption that the fire was contained in only one apartment. The fire turned out to be a "three-box alarm fire" and there were probably about nine engines and four trucks on the scene within 20 minutes.
At the time of the occurrence, North Riverside and Berwyn had entered into a Mutual Aid Assistance Agreement for mutual assistance in a fire or other emergency. North Riverside, specifically, Chief Dominic Salvino, appeared on the scene pursuant to those provisions of the agreement.
Chief Salvino arrived at the rear of the building at approximately the same time the firemen were bringing a 35-foot ladder for rescue purposes. There were two people hanging out of the windows. The first individual was completely obscured by the smoke. He took command of the area at the rear of the building upon his arrival and plaintiff's rescue was attempted first. At that time, she had her legs hanging out of the window. They were not able to effectuate plaintiff's rescue with the initial placement of the ladder and, therefore, repositioned it and pushed it closer to the window sill. He then ordered Lieutenant Considine of the Berwyn Fire Department to go up the ladder and assist plaintiff. He stated that had the ladder been placed any higher initially, it would have pinned plaintiff's legs against the building. Plaintiff also seemed to be frozen on the window sill. From the time when they initially noticed plaintiff upon the windowsill and the ladder was originally placed, until plaintiff was safely on the ground, took approximately 1½ to 2 minutes. The only delay was caused by plaintiff, because, he testified, she could have gotten onto the ladder at its initial placement.
Plaintiff testified that on the night of the fire she was asleep when she became aware of the fire because of her apartment filling with smoke. She wears glasses and did not put them on when she was awakened by the smoke. She testified that she panicked when she saw the smoke and ran from room to room trying to get fresh air. She spent one or two minutes trying to locate somebody outside and finally located some people outside of the window, at which time she screamed for help. During the fire, she climbed out on her window ledge because it was unbearable in her apartment. A ladder was initially put up to her but did not reach her. Her left arm and hand ...