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Smithers v. Center Point Properties Corp.

December 28, 2000

RAYMOND SMITHERS AND JOAN SMITHERS,
PLAINTIFFS-APPELLANTS
V.
CENTER POINT PROPERTIES CORPORATION, DART WAREHOUSE CORPORATION, AMERICAN NATIONAL INSURANCE COMPANY, AMERICAN DRUG STORES, INC., ANIXTER BROTHERS, INC., UNIVERSAL FURNITURE INDUSTRIES, INC., MIDWEST REALTY A/K/A MIDWEST REALTY ASSOCIATES,
DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice South

Appeal from the Circuit Circuit Court of Cook County. The Honorable Michael J. Hogan, Judge Presiding.

On December 29, 1995, at approximately 9 a.m., plaintiff, Raymond Smithers, went to 11701 S. Central in response to a "full flow water alarm." Plaintiff was with the Alsip Fire Department for 30 years and eventually became the deputy chief. While at the fire department, plaintiff's duties included running the Fire Prevention Bureau and the inspection department. He conducted hundreds of commercial, industrial and residential fire inspections during his employment with the fire department. He was also responsible for checking the exterior of the buildings to insure that the post indicator valves (PIVs) (sectional valves in the sprinkler line where the water goes into the building and allows a portion of the system to be shut down without closing down the entire system) were not blocked.

The address of the fire alarm, 11701 S. Central, is part of a warehouse complex which extends from 11601 to 12001 S. Central in Alsip, Illinois. The warehouse is a large single structure divided into four sections, each containing a different business. Universal Furniture Industries, Inc. (Universal) is a tenant at 11601 S. Central; and Dart Warehouse Corporation (Dart) is a tenant at 11701 S. Central. Center Point Properties Corporation (Center Point) owns these two sections of the warehouse. Anixter Brothers, Inc. (Anixter) is a tenant at 11801 S. Central and Midway Realty Associates (Midway) is the owner. American Drug Stores, Inc. (American Drug) is a tenant at 12001 S. Central and American National Insurance Company (American National) is the owner.

The entire warehouse shares a common underground circulating loop- type water supply and fire control system. There are two PIVs located behind 11601 S. Central and 11701 S. Central. The valves are connected to a line that goes into the building and are fed from the circulating loop.

After arriving at the warehouse, plaintiff went into the warehouse at 11601 S. Central. Finding no problems within the warehouse which could have triggered the alarm, plaintiff proceeded out of the rear exit of 11701 S. Central to check the leak. As he exited the building, he observed a sheet of ice extending 60-70 feet from the building and out into the area of the PIVs. During plaintiff's deposition, he testified that he noticed an ice accumulation near the PIVs, and he observed water leaking from the PIVs on December 20, 1995. As plaintiff came within approximately five feet of the PIVs, he fell and was injured.

At the time of the accident, plaintiff was wearing his fireman's uniform, a fire jacket and rocky eliminator boots. Plaintiff testified during his deposition that these boots were purchased by the fire department and were worn by firemen "to prevent people from slipping and falling."

Plaintiff and other members of the Alsip Fire Department had responded to other safety- related problems at this property prior to the date of the accident on December 29, 1995. Plaintiff had been out to this warehouse a total of 50 times, and had responded 10 times in the previous year to similar types of alarms at this location. In particular, on November 24, 1995, plaintiff was notified that there was ice building up behind the two buildings in the area where he later fell. On December 4, 1995, plaintiff personally observed water coming up from the PIVs. On December 20, 1995, plaintiff called a special meeting with all of the occupants to address "life safety problems" associated with water leaking from the PIVs.

Plaintiff and his wife filed a complaint against Centerpoint, Lakeshore Associates, American National, Universal, Anixter, American Drug and Midway for injuries sustained from the fall. Dart was later dismissed as a party defendant. Plaintiff's wife requested damages for loss of consortium. On December 24, 1997, plaintiff filed his first amended complaint in which he joined defendant Commodore Environmental Services, Inc.

On February 18, 1999, plaintiffs filed a second amended complaint alleging negligence by defendants due to their failure to maintain the fire suppression system. Plaintiffs also refer to several covenants entered into by defendants in a 1973 easement agreement. The agreement provides in pertinent part:

"Grant of Easement:

***The easement area shall be kept open and unobstructed for the benefit of, and may be used in common by, all the respective owners and occupants present and future, of the respective premises above described and the several buildings erected thereon, for ingress and egress by pedestrian and vehicular traffic to and from said lands and buildings; and each said owner shall share in all costs and expenses of maintaining said easements, including without limitation, all cleaning and janitorial work, snow removal, repairs and replacements, including co-surfacing, and all other functions necessary for the proper maintenance and upkeep of the easement area.

Grant of Easement for Water Tank System:

***The easements granted herein shall be for laying, operating, maintaining, replacing, in perpetuity, of eight inch (8) water mains running from said water tank along the courses set out in Exhibit A, and maintaining, repairing, operating, filling and refilling of said water tank; all parties shall have the right to tap such mains at locations falling within their own premises for the purpose of connecting sprinkler systems to any buildings now or hereafter located on each party's respective premises. Said easements shall be for the benefit of all the respective owners of each of the afore described [11601 - 12001 S. Central] parcels and the occupants thereof, present and future; and said water tank shall be operated, used and maintained by the First Party in common with all parties hereto, their heirs, successors and assigns."

On March 31, 1999, defendant American National filed a 2-619 (a)(9) motion to dismiss plaintiffs' complaint based upon the "fireman's rule," which was joined by American Drug, Center Point and Universal. On April 1, 1999, defendants Anixter and Midway filed a motion for summary judgment also based upon the "fireman's rule."

On August 2, 1999, defendants' 2-619 motion to dismiss and motion for summary judgment was granted pursuant to the "fireman's rule" enunciated in the Horn v. Urban Development Investments, 166 Ill. App. 3d 62, 519 N.E.2d 489 (1988), decision. On August 30, 1999, plaintiffs filed a timely notice of appeal.

For purposes of this appeal, the only remaining defendants are Center Point and Universal, as all other defendants have been dismissed pursuant to a settlement.

The issues raised on this appeal are: (1) whether the trial court's ruling that the "fireman's rule" bars plaintiff's recovery of damages for personal injuries was proper; (2) whether the defendant/owners waived the protection of the "fireman's rule" by voluntarily entering into covenants to provide pedestrians and vehicles with safe means of accessing their premises; and (3) whether the "deliberate encounter exception" and the public policy requiring landowners to maintain their premises in a reasonably safe condition for their invitees mandate abrogation of the "fireman's rule."

Review of a trial court's order granting a 2-619 motion to dismiss or a motion for summary judgment is de novo. Groce v. South Chicago Community Hospital, 82 Ill. App. 3d 1004, 669 N.E.2d 596 (1996) (motion for summary judgment); Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 713 N.E.2d 543 (1999) (2-619 motion to dismiss).

Plaintiffs argue that the fireman's rule not only relieves a landowner of liability for risks of apparent dangers associated with a fire but that it is a "free floating proposition immunizing a landowner or occupier of all risks associated with firefighting." They assert that the risks a fireman encounters must be obvious to the firefighter or, if not obvious, ones which the firefighter should recognize as dangers associated ...


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