concurring in part and dissenting in part:
While I do not agree with the holding in Harris v. Chicago Housing Authority (1992), 235 Ill. App. 3d 276, 601 N.E.2d 1011, I agree, for the reasons set forth in the majority opinion, that plaintiff’s complaint does not state a cause of action against ANR because of the “fireman’s rule.”
However, for that reason (that ANR is not subject to liability in tort arising out of decedent’s death), I respectfully dissent from that portion of the majority opinion which reverses the dismissal of the third-party contribution actions against ANR.
Section 2 of the Contribution Act (Ill. Rev. Stat. 1989, ch. 70, par. 302) provides:
“[Wjhere 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them.” (Emphasis added.)
The express language of the Act states that contribution only applies if the party against whom contribution is sought is subject to liability in tort. (See Jodelis v. Harris (1987), 118 Ill. 2d 482, 517 N.E.2d 1055.) Since the majority holds (and properly so) that ANR is not subject to liability in tort to the plaintiff, it follows, as a matter of law, that ANR is likewise not subject to contribution. Enblom v. Milwaukee Golf Development (1992), 227 Ill. App. 3d 623, 592 N.E.2d 190; McCombs v. Dexter (1989), 186 Ill. App. 3d 484, 542 N.E.2d 1245; Northrup v. Allister Construction Co. (1987), 163 Ill. App. 3d 221, 516 N.E.2d 586.
The majority questions the holdings in Enblom, McCombs and Northrup on a privity-related issue. In support, the opinion cites Simcox v. Simcox (1989), 131 Ill. 2d 491, 546 N.E.2d 609. I, however, fail to see how privity is even an issue. In Simcox, the plaintiff, against whom collateral estoppel was alleged, was not a party to the first proceeding. Sub judice, the third-party plaintiffs were parties and do not allege that they did not have notice of ANR’s motions to dismiss. To the contrary, the dismissal order of May 31, 1991, reflects that ANR’s motions to dismiss both the plaintiff’s and third-party’s actions were argued and decided at the same hearing. As was stated in Enblom:
“Milwaukee Golf has not argued that it did not have an opportunity to participate in the hearings on Inland’s motion, nor does it contend that it had no notice of the summary judgment motion. The order granting summary judgment for Inland specifically stated ‘all parties having due notice.’ As a result, the summary judgment is conclusive against Milwaukee Golf.” Enblom, 227 Ill. App. 3d at 629.1
I also note that neither Petrolane nor Worthington even argues lack of privity. I respectfully submit that this is so because it is not an issue. While one must be a party or in privity with a party to be bound by the doctrine of collateral estoppel, I am aware of no case that requires both.
The majority opinion also states:
“[T]he allegations of negligence by the plaintiff against ANR are different from the allegations by the plaintiff against Worthington and Petrolane; and the allegations of Petrolane and Worthington against ANR are different from the allegations of the plaintiff against ANR.” 255 Ill. App. 3d at 166.
This very contention, however, was rejected in McCombs, wherein the court applied the doctrine of collateral estoppel to a contribution claim despite the fact that the theories of recovery asserted in the contribution action (as in the case sub judice) were not identical to those contained in the plaintiff’s complaint. Instead, the court properly focused upon the fact that the building owner’s liability to the plaintiff had been negated and, therefore, there was no longer any basis for a contribution action:
“The Dexters contend that the phrase ‘subject to liability in tort’ means that an action for contribution may be premised upon legal theories of liability not contained in the plaintiff’s complaint. Certainly, there is no requirement that the bases for liability among the contributors be the same or that the basis for contribution be identical to the theory of recovery asserted in the original action. [Citation.] However, the language of the statute is plain that the basis for a contribution claim is the potential liability of both the person seeking contribution and the person from whom contribution is sought. In other words, unless both the Dexters and Patterson are subject to liability in tort, the Dexters have no right of contribution.” McCombs, 186 Ill. App. 3d at 486.
Under the facts of the case sub judice, plaintiff was unable to recover as a result of the “fireman’s rule.” The majority opinion states:
“We conclude that the plaintiff would never be able to prove any set of facts which would establish that the deceased’s injuries were sustained by risks that are not associated with fighting fires and would not be reasonably anticipated by a firefighter. The forklift truck itself was on fire. Maicach, like any reasonable person, must have realized that the source of the forklift power, be it gasoline or propane, was highly combustible and could explode. The danger to Maicach and the risks he had to take were apparent.” (Emphasis added.) (255 Ill. App. 3d at 162.)
It is clear from this language that under the facts of this case, ANR is not subject to liability in tort arising from the decedent’s death. Thus, while the allegations may be different, the party from which contribution is sought has been absolved from any legally culpable conduct. The distinction, therefore, is one without a difference.
Finally, the majority equates the “fireman’s rule” with an immunity. It is true that a defendant who is subject to liability in tort will not be spared from a contribution action just because he is cloaked with common law or statutory immunity which, if raised, would defeat the claim. Illinois courts have consistently so held in Moon v. Thompson (1984), 127 Ill. App. 3d 657, 469 N.E.2d 365 (parental immunity); Doyle v. Rhodes (1984), 101 Ill. 2d 1, 461 N.E.2d 382 (Workers’ Compensation Act); Stephens v. McBride (1983), 97 Ill. 2d 515, 455 N.E.2d 54 (Tort Immunity Act); and Wirth v. City of Highland Park (1981), 102 Ill. App. 3d 1074, 430 N.E.2d 236 (interspousal immunity). The key to understanding the difference between the immunity cases and the case sub judice is differentiating between one who is not subject to liability in tort as opposed to one who is but has an immunity. When courts speak of a defendant possessing an immunity it is usually presumed that it is subject to liability in tort. This is so because if a party is not subject to tort liability it would be meaningless to discuss immunity.
The foundation of the “fireman’s rule” is that a landowner does not owe a duty to a fireman for injuries incurred as a result of fighting a fire. That the cornerstone of the “fireman’s rule” is lack of duty is expressed in Court v. Grzelinski (1978), 72 Ill. 2d 141, 148, 379 N.E.2d 281:
“First, since most fires occur because of the negligence of the landowner or occupier, it was believed that the imposition of a duty to prevent fires from occurring or spreading on a person’s premises would place an unreasonable burden upon the person who owned or occupied improved land. [Citations.] This public policy consideration, however, tended to undermine the general duty imposed upon landowners or occupiers to exercise reasonable care to keep their premises safe. A compromise was reached with regard to firemen, recognizing that the risk of harm from fire is inherent in a fireman’s occupation.”
It is axiomatic that one who does not owe a duty cannot be subject to liability in tort. Because ANR did not owe the decedent a duty, it is not subject to liability in tort and cannot be subject to contribution. This is not the same (as the majority contend) as an immunity. An immunity is an affirmative defense which may or may not be raised. (See Doyle, 101 Ill. 2d at 10-11.) The distinction between a defendant who is not subject to liability in tort as opposed to one who is but possesses a common law or statutory immunity is set forth in Northrup:
“In order to find the Midlands culpable in this case, as in any case, the court would need to find that the Midlands owed plaintiff a duty of care and that they failed to act in accordance with that duty. *** Since the Midlands met their legal duty of care, their conduct cannot be considered legally culpable, and thus, under Doyle, they are not subject to liability in tort to Northrup.
* * *
Allister cites no case in which defendant was found to be liable for contribution even though he had fulfilled his duties to the plaintiff. The defendants in the contribution actions cited by Allister were immune from suit, but their culpable actions rendered them subject to liability in tort. [Citation.] In the eyes of the law, the Midlands’ actions toward Northrup were not culpable, and therefore Allister’s suit for contribution must fail.
*** Since the Midlands met their duties to Northrup, their acts are not legally wrongful. Since the Midlands are not tortfeasors, the principles underlying the Contribution Act authorize no contribution from them.” Northrup, 163 Ill. App. 3d at 225-27.
It should also be noted that the motion to dismiss was brought and allowed pursuant to section 2 — 615 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), where the test is whether plaintiff is entitled to recover assuming all well-pleaded facts to be true, as opposed to section 2— 619 (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619), where a valid cause of action is presumed but barred by affirmative matter — such as an immunity.
Nor does the Wisconsin case Hauboldt v. Union Carbide Corp. (1991), 160 Wis. 2d 662, 467 N.W.2d 508, upon which the majority relies, offer any help on this issue. This is so because, in Hauboldt, the landowner (Coleman) was not joined as a defendant, and, unlike the case sub judice, there was never a judicial determination that Coleman was not subject to liability in tort for the plaintiff’s injuries. Hauboldt only holds that Coleman was liable in contribution to the third-party plaintiff, a decision which Coleman never challenged on appeal.
From the above, it is clear that pursuant to the “fireman’s rale,” ANR did not owe a duty to the decedent. As a result, it is not subject to liability in tort arising out of the decedent’s death. Accordingly, it is not the subject of a third-party contribution claim.
I would, therefore, affirm the trial court’s dismissal of Worthington’s and Petrolane’s third-party complaints for contribution against ANR.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
Although the Enblom court used the term “collateral estoppel,” it would also be “law of the case.” See McDonald’s Corp. v. Vittorio Ricci Chicago, Inc. (1984), 125 Ill. App. 3d 1083, 1086-87, 466 N.E.2d 1116.