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Randich v. Pirtano Construction Company

July 29, 2003


Appeal from the Circuit Court of Du Page County. No. 01-L-332 Honorable Kenneth Moy, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman


This appeal arises from the dismissal of the amended complaint filed by plaintiff, Todd Randich, against defendants, Pirtano Construction Company, Inc. (Pirtano) and Utility Constructors, Inc. (Utility), alleging negligence and willful and wanton misconduct. We affirm in part, reverse in part, and remand.

The trial court dismissed plaintiff's amended complaint under section 2--619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2--619(a)(9) (West 2000)). Accordingly, the well-pleaded facts from the amended complaint are accepted as true. Zimmerman v. Fasco Mills Co., 302 Ill. App. 3d 308, 311 (1998). The following recitation of the facts is based on the pleadings and the trial court's order.

Defendants are construction contractors. On April 29, 1999, they were working for Western Cable Communications (Western) installing underground television cable along a public utility easement granted to Western at the Wespark housing subdivision in Romeoville. Defendants' employees laid the cable underground through the use of a directional boring machine. In the process of boring into the ground, defendants' employees punctured a natural gas main.

Northern Illinois Gas Company (NICOR) employees and members of the Lockport Fire Protection District (LFPD) were dispatched to the scene to contend with the gas leak and ensure safety. Plaintiff, an emergency medical technician (EMT), was one of the members of the LFPD sent to the scene.

Plaintiff was in the vicinity of the leaking gas when it was ignited by an unknown source within the housing development. A resulting explosion and fire completely destroyed two houses and damaged several others. More important, several NICOR employees and members of the LFPD were injured. Plaintiff was among the members of the LFPD who were injured in the explosion, sustaining "serious and permanent injuries."

On November 14, 2001, plaintiff filed his amended complaint alleging negligence and willful and wanton misconduct on the part of defendants. Specifically, plaintiff's negligence claim alleges that defendants failed to (1) investigate and ascertain the precise location of underground gas mains in the vicinity where they were operating the directional boring machine; (2) properly expose the gas main by hand digging before boring into the ground; and (3) arrange with NICOR in advance to turn off the gas prior to digging. Plaintiff's claim of willful and wanton misconduct basically sets forth the same factual allegations as the negligence claim, but adds that defendants acted with actual knowledge that a gas main was located within the utility easement where defendants were conducting their drilling activities.

In response, defendants filed a motion to dismiss under section 2--619(a)(9) of the Code (735 ILCS 5/2--619(a)(9) (West 2000)). The court granted the motion and dismissed plaintiff's claims against defendants on the ground that the fireman's rule prohibited plaintiff's cause of action. Plaintiff also alleged negligence on the part of NICOR. However, NICOR was not a party to the motion to dismiss. Thus, the court dismissed only the claims against Pirtano and Utility and further found that there was no just reason to delay enforcement or appeal of the dismissal order. Thereafter, plaintiff filed a timely notice of appeal under Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), which allows appeals from final judgments that do not dispose of the entire proceeding.

On appeal, plaintiff asserts that defendants cannot avail themselves of the fireman's rule because (1) the rule does not bar actions based on willful and wanton misconduct; (2) defendants are not considered owners or occupiers of Western's utility easement; (3) public policy and the development of the deliberate encounter doctrine abrogate the fireman's rule; and (4) the application of the rule violates plaintiff's equal protection rights. .

As an initial matter, section 2--619(a)(9) allows 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 2000). Accordingly, defendants admit the legal sufficiency of plaintiff's amended complaint but assert that the fireman's rule defeats plaintiff's claims. See Zimmerman, 302 Ill. App. 3d at 311. Our standard of review of a section 2--619 dismissal is de novo. Zimmerman, 302 Ill. App. 3d at 311.

The fireman's rule limits the extent to which firefighters or other public officers are allowed to recover for injuries incurred when, in an emergency, they enter upon an owner's or occupier's property in discharge of their duty. McShane v. Chicago Investment Corp., 235 Ill. App. 3d 860, 864 (1992). It 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). Thus, the rule limits a fireman's right to recover for injuries arising out of the fire itself. McShane, 235 Ill. App. 3d at 865.

The first issue in this case is whether the fireman's rule bars a cause of action based on willful and wanton misconduct. In Illinois, there is conflicting authority on this issue. Where a legal question has been the subject of decisions with varying results, we will carefully examine what has been said by courts on the subject. Scott v. Instant Parking, Inc., 105 Ill. App. 2d 133, 135 (1969).

The fireman's rule is a creature of case law, and thus the pertinent case law must be analyzed to understand and properly apply the rule. Zimmerman, 302 Ill. App. 3d at 312. Originally, the fireman's rule developed under the English common law during the existence of the feudal system of landownership. Dini v. Naiditch, 20 Ill. 2d 406, 413 (1960). Under this system, a firefighter was labeled as a licensee to whom the owner or occupant owed no greater duty than to refrain from the infliction of willful or intentional injury. Dini, 20 ...

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