dissenting:
The isáue presented for review is whether a fireman, who suffers personal injuries while combating a fire, may hold a landowner liable for negligence in causing the fire which brought him to the premises. The majority answers this question in the affirmative, and I must respectfully dissent.
As stated in the majority opinion, the defendants are ARCO, the lessor, and Sledge, the lessee. Briefly, the pleadings, depositions and exhibits reveal the following chain of events. On the day in question Charles Walker parked his car on the premises and ordered a fill-up. Mr. Yates, the station attendant, inserted the gas pump hose in the car’s tank and left the pump running unattended. Because the hose had a malfunctioning shutoff valve, the gas tank overflowed and spilled a large amount of gasoline on the car and station pavement. When Yates observed the problem, he returned to the pump and manually shut it off. Thereafter, the gasoline ignited. The flaming automobile then was pushed to a location ten feet from the pumps to minimize the chance of an explosion, and the car’s gas cap was put back in place. After an unsuccessful attempt to extinguish the fire, the station attendants summoned the fire department. Upon arriving the fire captain ordered plaintiff, Ira Washington, to grab a pole and remove the car’s gas cap. As Washington was fulfilling this order, pressure from within the auto’s gas tank knocked the gas cap off and spewed flaming gasoline over an extensive area, Plaintiffs were burned badly as a result. The pleadings, depositions and exhibits also suggest the violation of several safety statutes and ordinances.
The majority relies primarily on the decision in Dini v. Naiditch, 20 Ill. 2d 406, 170 N.E.2d 881, and claims that case stands for the proposition that a landowner or occupier is liable to a fireman for negligence in causing the fire which brought the fireman to the premises. The majority asserts this to be true whether the negligence is grounded in the common law or on the violation of an enactment. I believe said reliance is misplaced, for a careful reading of that case and a review of other recent decisions compels a contrary conclusion.
Before entering summary judgment for defendants, Judge John C. Fitzgerald entertained extensive argument on the issue. At the conclusion of said argument, the Judge cogently stated to plaintiffs’ attorney:
“[I]f you could point out one instance the breach of which after the firemen reached the premises, caused these injuries, that proximately caused tire injury. That is the missing link. Now that was present in the Dini case.”
In Dini, referred to above, one fireman was killed and another injured when an inadequately constructed stairway collapsed upon them while fighting a conflagration on the defendants’ premises. The record additionally revealed that the defendants had failed to provide fire doors or extinguishers, permitting the accumulation of trash in the corridors, and stored benzene in close proximity to the stairway. In holding the defendants liable, the Illinois Supreme Court rejected past law relegating firemen to the status of licensee, and held that firemen are entitled to the same rights as an invitee. Rephrased, the court held that as to a fireman rightfully on the premises and fighting a fire where he might reasonably be expected to be, a landowner owes a duty of reasonable care to maintain his property so as to prevent his injury. Dini does not create liability on the part of the landowner for negligence in causing a fire. Rather, as the court stated, liability attaches for a lack of care in the maintenance of the property which results in injury to the fireman. Thus, in Dini liability was predicated upon a combination of factors, the foremost of which was the collapse of the inherently defective stairway.
This point is perhaps best evidenced by the Supreme Court’s express adoption of the rule enunciated in Meiers v. Fred Koch Brewery (1920), 229 N.Y. 10, 127 N.E. 491. In Meiers, there too the court allowed recovery by a fireman for injuries suffered while fighting a fire on the defendant’s premises. However, liability was not predicated upon the negligent creation of a fire. Rather, the negligence involved was the failure to cover a hole into which the fireman fell. Thus, recovery was based on tort liability independent of the fire itself. Similarly, in Shypulski v. Waldorf Paper Products Co. (1951), 232 Minn. 394, 45 N.W.2d 549, a case upon which Dini also relied, a fireman was killed by a concrete wall which collapsed while he was fighting a fire. The defendants knew of the dangerous condition of the wall, and yet they failed to warn the fireman. In holding that the fireman had a cause of action, the court stated: “Although firemen assume the usual risks incident to their entry upon premises made dangerous by the destructive effect of fire, there is no valid reason why they should be required to assume the extraordinary risk of hidden perils of which they might easily be warned.” 232 Minn. 394, 401, 45 N.W.2d 549, 553.
Since our Supreme Court’s decision in Dini, several other cases have held that a fireman cannot predicate a personal injury action solely on another’s negligence in causing a fire. For example, in Netherton v. Arends, 81 Ill. App. 2d 391, 225 N.E.2d 143, the plaintiff fireman and his wife appealed from an adverse judgment on the pleadings. The acts of negligence which plaintiffs charged in their complaint were substantially as follows: (1) that defendants caused or knowingly permitted a large quantity of inflammable straw to be placed against the foundation of the dwelling in such a manner as to create a fire hazard; (2) like charges as to having large quantities of highly inflammable and volatile gases, combustible plastic materials, certain acids, ether, and gunpowder; and (3) otherwise negligently and carelessly maintained said premises so as to cause or permit the same to catch fire. The parallel with the instant complaint is unmistakable. In Netherton th'e appellate court affirmed the decision of the court below holding that the complaint did not state a cause of action. The court noted that in each case where liability had been imposed, the negligent act or omission causing the fire was not the act or omission causing the injury. As stated therein, which is equally appropriate here:
“Epitomizing, the duty of an owner or occupant of premises to an invitee fireman is a duty to warn of known latent defects in the premises which with a reasonable degree of forseeability might cause injury to him, or to avoid defects in the premises which with a reasonable degree of forseeability might cause injury either to him or any other invitee, or to use ordinary care to have his premises in a reasonably safe condition for use in a manner consistent with the purpose of the express or implied invitation. [Citation.]” 81 Ill. App. 2d 391, 396, 225 N.E.2d 143, 146.
In Horcher v. Guerin (1968), 94 Ill. App. 2d 244, 236 N.E.2d 576, the appellate court reached the same conclusion. In response to a contention substantially identical to the one at bar, the court stated:
“We do not read Dini, however, to st^nd for the proposition that the landowner may be held liable to a fireman for negligence in causing the fire which brought the fireman to the premises. It is held, almost without exception, that a landowner or occupier is not liable in such case. [Citations.]” (94 Ill. App. 2d 244, 247-48, 236 N.E.2d 576, 578.)
The rationale for the rule is quite clear. As stated in Horcher:
“The duties of a fireman expose him to risk of harm from fire: this is a reasonable risk of his occupation. The landowner owes a fireman, as well as an invitee, a duty not to expose him to an unreasonable risk of harm — that is, a duty to remove hidden, unusual or not to be expected dangers from the premises, or to give adequate warning thereof.” [Citations.] (94 Ill. App. 2d 244, 248, 236 N.E.2d 576, 579.)
The court further held that the same rule applies to charges of negligence by reason of the violation of a statute or ordinance.
In Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, 315 N.E.2d 912, the plaintiff fireman appealed from a dismissal of his complaint for failure to state a cause of action. The appellate court affirmed noting that the allegations of the complaint related solely to the cause of the fire or factors contributing to its severity. The court stated that liability can be imposed only where the fireman is exposed to undue risks of injury beyond those inevitably involved in fighting a fire.
Any lingering beliefs that the above appellate court decisions have deviated from our Supreme Court’s holding in Dini have been dispelled recently by that court. In 1975 the Illinois Supreme Court handed down its decision in Fancil v. Q.S.E. Foods, Inc., 60 Ill. 2d 552, 328 N.E.2d 538, wherein the plaintiff policeman appealed from the dismissal of his complaint for failure to state a cause of action. In Fancil a policeman sought damages for injuries sustained when he was ambushed by criminals. His complaint alleged in pertinent part that the defendant landowner knew criminals frequented his premises, that the defendant negligently permitted his premises to remain unlighted, and that as a direct and proximate cause of the defendant’s failure to light his premises, the policeman was ambushed and injured while inspecting said premises for unauthorized persons. In affirming the decision of the lower court, the Supreme Court noted that the fact that the property was not illuminated was obvious to all.. The court further added:
“The risk to which the decedent was subjected because of the conditions which existed upon the defendant’s premises was the same risk which every police officer encounters while conducting security checks in both residential and commercial areas. The danger of being ambushed by criminals lurking in poorly illuminated areas, in shadows or behind objects is a risk inherent in the occupation. Hence, the danger to which the decedent was subjected was not an unreasonable risk for a police officer.” (Emphasis supplied.) (60 Ill. 2d 552, 558.)
In reaching this decision, the court relied expressly on the holdings in Netherton and Horcher cited above.
Finally, in Marquart v. Toledo, Peoria & Western R.R. Co. (1975), 30 Ill. App. 3d 431, 333 N.E.2d 558, the defendant railroad appealed from a denial of summary judgment against plaintiffs’ firemen. With regard to Count III of the complaint, the appellate court held that a fireman, who is injured while fighting a fire, cannot recover damages for negligence in causing or aggravating the fire. Accordingly, the court reversed the denial of summary judgment.
The foregoing cases demonstrate beyond dispute that plaintiffs in the instant case do not have a cause of action based on common law negligence. It is indeed unfortunate that they suffered extensive injuries. Nevertheless, plaintiffs assumed the risk of said injuries, for said risks were inherent in their occupation. The majority's assertion that “* # * the plaintiffs did not even know what risks existed * * *” is without basis in the record. Every action of the firemen upon arrival at the scene showed an acute awareness of the dangers involved.
The majority also accepts as a separate basis of liability the violation of several ordinances by defendants. Again I must disagree. As stated above, a landowner may not be held liable to a fireman for negligence in causing a fire which brings the fireman to the premises. This is true whether the negligence be based on the common law or the violation of an enactment. (Horcher v. Guerin, 94 Ill. App. 2d 244, 236 N.E.2d 576.) In the case at bar, each violation of an ordinance cited by plaintiffs related to the negligent creation of a fire or a fire hazard. Accordingly, said violations do not give rise to a cause of action.
For the foregoing reasons, I would affirm the decision of the court below.