delivered the opinion of the court:
The plaintiff has filed a petition for rehearing from our affirmance of the judgment in favor of ANR and against the plaintiff, and ANR has filed a petition for rehearing from our reversal of the judgment in favor of ANR and against Petrolane and Worthington. Pursuant to our order, ANR has responded to the plaintiff's petition, and Petrolane and Worthington have responded to ANR’s petition. We will first consider the plaintiff’s petition.
In the petition for rehearing the plaintiff now argues that he should be permitted to plead the same allegations that Petrolane and Worthington have pleaded against ANR. He maintains that a plea by him that ANR “created a latent and unforeseeable danger,” as pleaded by Petrolane and Worthington, would be an exception to the “fireman’s rule” that would entitle the plaintiff to his own separate cause of action. We must decline to do so for two reasons:
(1) Whether the allegations of Petrolane and Worthington would constitute an exception to the “fireman’s rule,” if pleaded by the plaintiff, was not before us (nor the trial judge). The only issue before us was whether the facts pleaded by Petrolane and Worthington, even if true, would not support a claim for contribution because the complaint filed by the plaintiff did not constitute an exception to the “fireman’s rule.” The sufficiency of the complaints of Worthington and Petrolane, if pleaded by the plaintiff, has not been briefed or argued in this court. Those allegations were accepted by ANR only as they applied to Worthington and Petrolane and only for the purposes of this appeal by Worthington and Petrolane.
(2) The plaintiff was aware of the claims of ANR, and he was aware that the “fireman’s rule” might not apply if the plaintiff was exposed to hidden dangers and thereby injured. The plaintiff was also aware of the allegations of Worthington and Petrolane. The plaintiff could have filed an amended complaint and did not do so. An argument similar to that now made by the plaintiff was made to this court in 720 Rand, Inc. v. Home Indemnity Co. (1989), 188 Ill. App. 3d 582, 587, 544 N.E.2d 1059, in which we said:
“It is the general rule that only issues, questions, points or contentions presented in the trial court will be considered on appeal; and a trial court should be held accountable for ruling only on what is asked of it. [Citation.] ***
***
The plaintiff never advanced the argument before the trial judge that it does here ***. To permit that argument to be advanced here for the first time would not only be unfair to the trial judge but contrary to a basic principle of appellate law. [Citation.]”
For these reasons, the petition of the plaintiff for rehearing is denied.
ANR’s petition for rehearing is signed by the same attorney who argued before us. In that petition for rehearing, ANR’s attorney states that this court “misperceived ANR’s principal argument which is based upon the nature of tort contribution liability and not upon any concept of collateral estoppel.” (Emphasis added.) The petition adds that ANR’s choice of case law in ANR’s brief “coincidentally” involved estoppel by verdict and “perhaps misdirected this court’s focus.” The petition insists that collateral estoppel was not the “main thrust” of ANR’s argument, and that our statement that collateral estoppel was the main thrust of ANR’s argument “is not accurate.” It concluded that part of the argument with the following:
“Thus, when the majority questioned the possible application of the collateral estoppel doctrine, it overlooked the fact that the doctrine, as such, is not the primary basis of ANR’s position, but is only, a fortiori, an application of it.”
The petition now cites for the first time more than 20 opinions. The petition reminds us that the members of the majority participated in two of those opinions, one more than 20 years ago and the other more than 14 years ago.
After listening again to the oral argument, we conclude that ANR’s attorney now takes a position diametrically opposite to the position he took before the opinion was rendered and that he is in violation of Supreme Court Rule 367(b). (134 Ill. 2d R. 367(b).) See County of Cook v. Illinois Local Labor Relations Board (1989), 189 Ill. App. 3d 1057, 551 N.E.2d 229.
When ANR’s attorney began his argument, he was interrupted by questions which were addressed to the issue of immunity. After answering those questions he said the following:
“We are not asserting that as a matter of pleading they have not pleaded a third-party action. The basis for the dismissal of the third-party action against my client is the doctrine of res judicata and/or collateral estoppel.” (Emphasis added.)
When one of the members of the court questioned whether res judicata had been raised in ANR’s brief, the attorney for ANR specifically referred to the cases which we have discussed in our opinion and which were cited by ANR in its brief. He emphasized that the cases were decided on the basis of res judicata or collateral estoppel. We judge that nothing could be clearer to us than the fact that collateral estoppel was, indeed, the “main thrust” of ANR’s argument.
In the petition ANR’s attorney makes this statement:
“This court’s majority opinion (at p. 20) postulates that ANR. proposes a dichotomy between a rule of substantive law and a rule of immunity. That is not precisely accurate. What ANR (and all the case law) proposes is a single, general rule; to wit: no liability in tort to the injured party means no contribution liability to a tortfeasor who has injured the injured party. The ‘immunity’ cases are not an exception; rather, they only illustrate situations of potential tortfeasors who have procedural or affirmative defenses to direct actions.”
We must refer again to the oral argument made by the attorney for ANR in which he said something quite different:
“I will agree that if the fireman’s rule is a rule of immunity rather than a rule of substance, then the fact that we have been found to be quote immune does not afford us necessarily a defense to the action for contribution.”
Our answer to ANR’s contention now is that, if we misapprehended or misconceived ANR’s principal argument, we were not taken by the hand down the path that led to our “misapprehension” or “misconception” of the “main thrust” of ANR’s argument; we were pushed and prodded down that path by ANR’s attorney in oral argument. But we did not misapprehend ANR’s argument. We adhere to our holding that collateral estoppel was the main thrust of ANR’s argument, and we adhere to our statement that ANR’s position was that there is a difference between a rule of substantive law and a rule of immunity. On this issue of the effect of the “fireman’s rule,” we refer to other authority not mentioned in our opinion.
In Wills v. Bath Excavating & Construction Co. (Colo. App. 1991), 829 P.2d 405, 409, the court said:
“We agree *** that, while a public safety officer’s special skills, training, and experience may be considered with reference to any comparative negligence involved, a per se grant of immunity to those whose negligence created a dangerous situation for the officer is unwarranted. In consequence, we conclude that the fireman’s rule is no longer the law in Colorado.”
In Cristiano v. Marinaccio (1989), 145 Misc. 2d 791, _, 548 N.Y.S.2d 378, 380, the court referred to the New Jersey Supreme Court’s pronouncement that willful and wanton conduct “is an exception to the immunity offered by the fireman’s rule.”
In a recent law review article it was said:
“Thus, because property owners/occupiers can reasonably avoid incidents involving gross negligence, they usually are not afforded immunity under the firefighter’s rule.” David L. Strauss, Where There’s Smoke, There’s the Firefighter’s Rule: Containing the Conflagration After One Hundred, Years, 1992 Wis. L. Rev. 2031, 2040.
There are other arguments raised for the first time by ANR’s attorney in the petition which we will nonetheless address. He says that the “fireman’s rule is not a defense.” (Emphasis in original.) Our brief answer is that the “fireman’s rule” is based on a limited assumption of risk. (See Washington, 66 III. 2d at 109; Court, 72 Ill. 2d at 149; McShane, 235 Ill. App. 3d at 865.) It is, in our judgment, a “special defense” which the supreme court said could immunize a defendant from direct tort action but would not put a defendant beyond the reach of the Contribution Act. (Doyle, 101 Ill. 2d at 9.) It is a defense that must be raised in some way by a defendant, and it may be waived if it is not raised. Can anyone doubt that ANR could have simply filed an answer in which it denied that it had been negligent and denied that its negligence was the proximate cause of Maicach’s injury?
As noted, ANR’s attorney has now cited for the first time more than 20 cases, including two in which the members of the majority participated. In the one decided in 1973, in which Justice Egan concurred (Karon v. E.H. Marhoeffer, Jr. Co. (1973), 14 Ill. App. 3d 274, 302 N.E.2d 478), and which involved a claim for indemnity not contribution, the sole argument made by the third-party plaintiff was that it had not been given an opportunity to participate in the third-party defendant’s motion for summary judgment against the plaintiff. The appellate court held that it had. The third-party plaintiff did not argue that the issues were different or that there was a lack of privity. In the one decided in 1979, in which Justice McNamara concurred (Kramer v. Chicago Title & Trust Co. (1979), 69 Ill. App. 3d 1015, 387 N.E.2d 1105), the third-party plaintiff conceded privity and that he was bound by the previous judgment. His argument was that in the previous case he had been a defendant and that in his own case he was the plaintiff. That case also did not involve contribution.
In addition to the three cases we have already discussed, Enblom, McCombs and Northrup, ANR’s attorney cited at oral argument two other cases, Taake v. WHGK, Inc. (1992), 228 Ill. App. 3d 692, 592 N.E.2d 1159, and Esworthy v. Norfolk & Western Ry. Co. (1988), 166 Ill. App. 3d 876, 520 N.E.2d 1044. In the petition for rehearing ANR reargues those five cases, all of which involved collateral estoppel. In four of those cases the trial court ruled that the third-party defendant had not been guilty of the negligence charged or that the plaintiff had failed to prove proximate cause. In the fifth case, the plaintiff (and third-party plaintiff) were required to prove willful and wanton negligence on the part of the third-party defendant and the plaintiff had not done so. In the case before us, there has been no determination that ANR was not guilty of some act of negligence. Indeed, under the state of the pleadings, ANR was guilty of willful and wanton negligence that proximately caused the death of Maicach and it was guilty of misuse of the third-party plaintiff’s product.
After the petition for rehearing was filed, ANR’s attorney called to our attention Delaney v. McDonald’s Corp. (1993), 249 Ill. App. 3d 239, 618 N.E.2d 1057. In that case the plaintiff filed an action for injuries suffered on a construction site against the site owner and a contractor. The site owner filed a third-party action for contribution against the contractor. The plaintiff’s complaint against the contractor was dismissed with prejudice for failure of the plaintiff to exercise reasonable diligence to obtain service against the contractor before expiration of the statute of limitations. The trial court then granted summary judgment in favor of the contractor and against the third-party plaintiff based on the fact that the dismissal of the underlying complaint acted as an adjudication on the merits and that, therefore, the contractor was not liable in tort to the plaintiff. The appellate court affirmed. We have been informed that the supreme court has granted the third-party plaintiff’s petition for leave to appeal.
ANR’s attorney argues that if the Delaney case is affirmed by the supreme court, it would be clear authority sustaining ANR’s position. If, on the other hand, ANR maintains, the supreme court reverses the appellate court in Delaney, that reversal “would not necessarily support this Court’s majority’s articulate position.” Apart from noting factual distinctions between Delaney and the case before us, we must respectfully express disagreement with the appellate court holding in Delaney.
The “main thrust” of ANR’s petition is that ANR did not have any “duty” to Maicach and that without a “duty” there can be no liability in tort. ANR states that in those “immunity” cases upon which we relied the immunized person did in fact have a duty to the plaintiff. This statement, of course, is pure ipse dixit on the part of ANR, which cites no cases to support the statement.
We recognize that the supreme court has sometimes couched the “fireman’s rule” in terms of duty, but we do not believe we should seize upon isolated language in the supreme court opinions and construe that language to mean what ANR argues. There is nothing in the Contribution Act that says that contribution shall lie between two or more persons who violate a duty to a third party. The Act simply says that contribution shall lie between two or more persons who are liable in tort to another person. Regardless of how ANR may argue, it cannot avoid the fact that immunized persons are not liable in tort and, yet, the supreme court says that they are liable in contribution.
This is a case of first impression in Illinois. In fact, our research has not disclosed any case in which the precise issue of the effect of the “fireman’s rule” on the right of contribution has been raised. In the Wisconsin case, Hauboldt v. Union Carbide Corp., which we discussed in our opinion, the right of contribution was taken for granted. The rule itself is not without its detractors. (See David L. Strauss, “Where There’s Smoke, There’s the Firefighter’s Rule: Containing the Conflagration After One Hundred Years, 1992 Wis. L. Rev. 2031.)2 Five States have refused to adopt the rule. At least four States have adopted and later abolished the rule.
The question before us is what limits, if any, are to be placed on application of the rule? Our supreme court has already decided in Court that the protection of the rule would not be extended to manufacturers of products. Consequently, acceptance of ANR’s argument means this: ANR may be guilty of willful and wanton negligence in causing the fire; ANR may also be guilty of misuse of the product that contributed to the explosion of the propane tank; the manufacturer of the tank, who would not be a defendant but for the negligence of ANR in causing the fire, may be liable for Maicach’s death; but ANR walks away scot-free. That is an unjust result. That result could not have been the intent of the legislature when it adopted the Contribution Act, which was a codification of Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 374 N.E.2d 437; and, in our judgment, such a result could not have been the intent of the supreme court when it adopted Skinner.
For these reasons, the petition of ANR for rehearing is denied.
McNAMARA, P.J., concurs.
This law review article informs us that Illinois was the first State to adopt the fireman’s rule in Gibson v. Leonard (1892), 143 Ill. 182, 32 N.E. 182.