dissenting:
I must dissent from the majority opinion for two reasons. First, it misconceives and misapplies the “fireman’s rule” as previously defined in this State and as followed in “virtually every other jurisdiction in which the question has been considered. ” (Washington v. Atlantic Richfield Co. (1976), 66 Ill. 2d 103, 108.) And, second, the opinion extends the doctrine of strict products liability beyond the limits heretofore recognized by this court.
The majority attempts to tie the fireman’s rule as it has been defined in this State to the common law duties of landowners or land occupiers as determined by the status of various classes of persons upon the premises. The present-day fireman’s rule in this State and in most other jurisdictions is in no way related to the duty of the landowner or land occupier as determined by the status of the persons upon the premises. That concept was abandoned by this court in Dini v. Naiditch (1960), 20 Ill. 2d 406, where the general negligence principle (duty to use reasonable care) was applied as to firemen. In Washington v. Atlantic Richfield Co. this court, after reviewing appellate court applications of the Dini decision, held that while the landowner owes a duty of reasonable care to maintain his property so as to prevent injury to the firemen from causes independent of the fire, he is not liable for negligence in causing the fire. This further refinement of the duty to firemen as announced in Dini was necessitated by an attempt in Washington to extend the duty to use reasonable care as to firemen beyond the factual pattern of Dini.
It is true that many of the cases in this State and elsewhere in discussing the fireman’s rule refer to the duty of the landowner or land occupier to the firemen. This is done, of course, because the persons sued in those cases are the landowners or land occupiers and therefore the court must discuss the duty that the defendant owes to the firemen injured. In deciding those cases, however, the court does not consider the case in the light of a special preferential status enjoyed by the defendant simply because he owns or occupies the premises. Recovery was denied to the plaintiff in Washington not because the defendant was a landowner but because the risk that the plaintiff encountered was one normally associated with the function of his employment. See 66 Ill. 2d 103, 109.
The majority appears to be willing to apply the fireman’s rule only in the “limited context of landowner/ occupier liability.” This implies that the majority would not permit a fireman to recover for injuries he receives in extinguishing a fire in my automobile which I caused by negligently pouring gasoline on the hot manifold if the automobile is parked in my driveway, but that he would be permitted to recover if .my automobile is parked in the street. This appears to me not only to be extremely illogical but also to possibly present some constitutional questions. See Harvey v. Clyde Park District (1964), 32 Ill. 2d 60; Grasse v. Dealer’s Transport Co. (1952), 412 Ill. 179.
Also, the majority opinion equates the statement of the general rule that a fireman assumes the risk normally associated with the function of his employment with the affirmative defense of “assumption of risk” in negligence actions or the affirmative defense known as “assumption of risk” in products liability cases. The term “assumption of risk” has been used by courts to cover a wide variety of conduct. As noted in the majority opinion it has one meaning in ordinary negligence actions (see Barrett v. Fritz (1969), 42 Ill. 2d 529) and another in products liability cases (see Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418). The term has recently been used by this court in still another context which may require further judicial refinement before its meaning is fully delineated. (See Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1.) The failure of the term to convey a precise meaning has led to the criticism of its use in negligence actions. (See Barrett v. Fritz.) The majority opinion is in error, however, in equating assumption of risk as used in the fireman’s rule with the affirmative defenses in negligence and products liability cases. Under the fireman’s rule assumption of risk is not an affirmative defense. It, instead, defines the duty that is owed to a fireman. In Krauth v. Israel Geller & Buckingham Homes, Inc. (1960), 31 N.J. 270, 273-74, 157 A.2d 129, 130-31, the Supreme Court of New Jersey stated:
“The rationale of the prevailing rule is sometimes stated in terms of ‘assumption of risk,’ used doubtless in the so-called ‘primary’ sense of the term and meaning that the defendant did not breach a duty owed, rather than that the fireman was guilty of contributory fault in responding to his public duty. [Citation.] Stated affirmatively, what is meant is that it is the fireman’s business to deal with that very hazard and hence *** he cannot complain of negligence in the creation of the very occasion for his engagement. In terms of duty, it may be said there is none owed the fireman to exercise care so as not to require the special services for which he is trained and paid.” (Emphasis added.)
The following cases applying the fireman’s rule also consider assumption of risk as determining the question of duty and not as an affirmative defense: Romedy v. Johnston (Fla. App. 1967), 193 So. 2d 487; Buren v. Midwest Industries, Inc. (Ky. 1964), 380 S.W.2d 96; Langlois v. Allied Chemical Corp. (La. App. 1970), 238 So. 2d 41; Clark v. Boston & Maine R.R. (1917), 78 N.H. 428, 101 A. 795; Spencer v. B.P. John Furniture Corp. (1970), 255 Ore. 359, 467 P.2d 429.
While a fireman may not be aware of the exact nature of the danger when he responds to a call for his services, he assumes all of the natural risks that may reasonably be anticipated. He is specially trained to anticipate and to encounter the risks associated with a fire. While he may be able to recover for injuries from unexpected, hidden, or abnormal dangers caused by a defendant or known to a' defendant and not disclosed, he cannot recover for injuries occasioned by dangers which his training and experience would lead .him to reasonably anticipate. It is not important in the application of the fireman’s rule to determine what caused the particular danger which brought about the injury. Of critical importance is whether the particular danger is one that the fireman would anticipate in the performance of his duties. Washington v. Atlantic Richfield Co., Erickson v. Toledo, Peoria & Western R.R. (1974), 21 Ill. App. 3d 546, and Young v. Toledo, Peoria & Western R.R. Co. (1977), 46 Ill. App. 3d 167, all involved injuries received by firemen as the result of explosions, and in each case recovery was denied because one of the reasons for the firemen’s presence was to guard against such a danger. This would also appear to be true in the present case. An exploding gasoline tank is one of the normal hazards associated with an automobile fire. One of the reasons for the firemen’s presence is to guard against such a danger. In the application of the fireman’s rule it is not important to determine what precipitated the explosion, whether it be careless handling of gasoline or an alleged defective or defectively installed gasoline tank. Certainly when a fire is in the known presence of contained gasoline an explosion is a possibility to be anticipated. While the risk of a gasoline tank exploding may not be reasonably anticipated and therefore not assumed by a fireman when called to extinguish a fire in a hay bam or a bmsh fire in a ravine or even a residential fire, it seems to me that it is a most obvious danger in an automobile fire. .
In Spencer v. B.P. John Furniture Corp., the court stated:
“Gasoline and oil in service stations and explosives in a munitions plant are also to be expected, because these substances, which are dangers to fire fighters, are commonly identified with such places. Even some lack of care in the manner in which these substances are handled is to be expected. On the other hand, the unlawful storage of a 50-gallon drum of gasoline in the basement of a residence would be an example of a highly dangerous, hidden, and totally unexpected situation. If a fireman neither discovered nor learned of it, he would not assume the risk of injury from a resultant explosion.” 255 Ore. 359, 365-66, 467 P.2d 429, 432.
Also, in a note entitled Landowner’s Negligence Liability to Persons Entering as a Matter of Right or Under a Privilege of Private Necessity, 19 Vand. L. Rev. 407, 420-21 (1966), the author states:
“Firemen are still required to assess the situation in which they find themselves, however, and may not be entitled to a warning in circumstances where they should anticipate the danger or where they can actually see it. Thus, presence of gasoline in a basement in which fire has broken out and an explosion has occurred may constitute an unusual hazard concerning which the occupier is under a duty to warn if he has opportunity to do so. On the other hand, firemen who are called to combat a fire at a garage may be held to have assumed the risk of a gasoline explosion because storage of the fuel is commonplace in garages.”
Thus, I am convinced that the majority opinion misconceives the fireman’s rule and has erroneously failed to apply it.
I also believe that the plaintiff in this case is not an individual who is entitled „to the protections afforded under the concepts of “strict liability.” This court thoroughly considered the extent of the duty of a manufacturer of an alleged defective product in Winnett v. Winnett (1974), 57 Ill. 2d 7, and elected, in defining the duty, not to strictly adhere to the categorization of plaintiffs as users, consumers or innocent bystanders and stated:
“In our judgment the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the purpose for which it was intended or for which it is reasonably foreseeable that it may be used. Any other approach to the problem results in making the manufacturer and those in the chain of product distribution virtual insurers of the product ***.” (57 Ill. 2d 7, 11.)
The court continued:
“Whether the plaintiff here is an individual who is entitled to the protections afforded *** depends upon whether it can be fairly said that her conduct in placing her fingers in the moving screen or belt *** was reasonably foreseeable. A foreseeability test, however, is not intended to bring within the scope of the defendant’s liability every injury that might possibly occur. ‘In a sense, in retrospect almost nothing is entirely unforeseeable.’ [Citation.] Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur. [Citation.] ” (Emphasis in original.) 57 Ill. 2d 7, 12-13.
The majority opinion, citing Winnett, erroneously concludes that “[w]hether a fireman fighting a fire in the course of his employment is a person to whom injury from a defective product may reasonably be foreseen is ordinarily an issue of fact ***.”This statement in the opinion totally ignores the responsibility of the court to determine first the question of duty and manifests a willingness to abrogate that responsibility and surrender it to the fact finder. Also the quoted language of the opinion, in the process of abrogating the responsibility to determine duty, assumes the major premise that the product was defective.
The legal concept of foreseeability cannot be equated with duty. They are not coextensive. (Mieher v. Brown (1973) , 54 Ill. 2d 539; Dreisonstok v. Volkswagenwerk, A.G. (4th Cir. 1974), 489 F.2d 1066; see Hoenig & Goetz, A Rational Approach to “Crashworthy” Automobiles: The Need for Judicial Responsibility, 6 Sw. U.L. Rev. 1, 40 (1974) .) Thus it is the function of the court to determine whether a duty is owed to the fireman plaintiff in our case before submitting the foreseeability question to the jury.
As stated in the quoted portion of Winnett above, the manufacturer is liable only to those individuals to whom injury from a defective product may reasonably be foreseen and only in those situations where the product is being used for the purpose for which it was intended, or for which it is reasonably foreseeable that it may be used.
In considering what constitutes a defective product this court stated in Dunham v. Vaughan & Bushnell Mfg. Co. (1969), 42 Ill. 2d 339, that although the definitions of the term “defect” in the context of products liability law use varying language, all of them rest upon the common premise that those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function. Also, Dean Prosser has stated, “A product is to be regarded as defective if it is not safe for such a use that can be expected to be made of it ***.” (Emphasis added.) Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn. L. Rev. 791, 826 (1966).
In Weber v. Fidelity & Casualty Insurance Co. (1971), 259 La. 599, 603, 250 So. 2d 754, 755, the Louisiana Supreme Court held that a product is defective if it is “unreasonably dangerous to normal use.” (Emphasis added.) In Perez v. Ford Motor Co. (5th Cir. 1974), 497 F.2d 82, 87, the court, applying Louisiana law, stated that normal use refers to the use of the vehicle, not to the type or severity of the collision encountered:
“Thus, the controlling fact is the use to which the vehicle was being put at the time of the accident and not the accident itself. If the vehicle was being used to travel on the streets *** in the course of routine driving, it meets the ‘normal use’ requirement ***. The fact that it was involved in an accident or that the accident involved uncommon occurrences does not legally preclude a claim ***.”
Also, Mr. Justice Traynor of the California Supreme Court, whose preeminence in the field of products liability law is recognized in the majority opinion in this case, stated in Greenman v. Yuba Power Products, Inc. (1963), 59 Cal. 2d 57, 64, 377 P.2d 897, 901, 27 Cal. Rptr. 697, 701: “To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the [tool] in a way it was intended to be used ***.” (Emphasis added.)
Also Mr. Justice Traynor stated in his article The Ways and Meanings of Defective Products and Strict Liability, 32 Tenn. L. Rev. 363, 372 (1965): “Defect becomes a fiction, however, if it means nothing more than a condition causing physical injury.” And in Prosser, Torts 668-69 (4th ed. 1971), it is stated: “[T]he seller is entitled to expect a normal use of his product, and is not liable when it is put to an abnormal one. [T]he seller is not liable when the product is *** used in some unusual and unforeseeable way ***.”
Under the allegations in this complaint it appears that the fire in the automobile had its origin in some set of circumstances entirely unrelated to the use of the vehicle or its malfunction. Count I of the complaint charges that the owner of the automobile had placed some highly flammable substance in the vehicle and that this had ignited. There is a host of cases which have permitted recovery for defective design of automobiles. In all of these, however, even in so-called “second collision cases,” and those involving injuries to bystanders, the injuries were occasioned as a result of the use of the automobile as an automobile. Many of these cases were cited by this court in Buehler v. Whalen (1977), 70 Ill. 2d 51, wherein it was stated: “[T]he manufacturer’s duty is to use reasonable care in the design and manufacture of its product, bearing in mind that the intended and actual use of automobiles results in collisions.” 70 Ill. 2d 51, 61.
John Hubbard, Virginia Kelly, and Russell Shew, members of the staff of the Center for Auto Safety in Washington, D.C., authored an article entitled Fuel-Fed Vehicle Fires which appeared in the Association of Trial Lawyers of America’s magazine “Trial” in January of 1978.-This article discloses that the focus of attention in testing, designing and in promulgating safety standards and regulations is on improving the safety of automobile gasoline tanks and fuel systems when the automobile is being used as an automobile; that is, the emphasis is on reducing or eliminating the hazards of fire and explosion associated with the impact of collisions. I suppose that it is possible from an engineering standpoint to construct a container for gasoline that will not- explode under any circumstances, but when an automobile manufacturer places its product in the stream of commerce it is not saddled with that heavy burden. The product must be only reasonably safe considering its normal and anticipated function and use.
Inasmuch as the injury in this case was in no way connected with the use of the automobile as an automobile or to its intended or normal use, I would hold that no duty under the concepts of strict products liability was owed to the plaintiff.' The automobile was being incinerated, which is a far cry from the normal use of a vehicle or even of an anticipated use of a vehicle. The law in this State and in fact in few if any other jurisdictions has not extended the strict products liability concept this far. This goes far beyond the theory of strict liability in tort and in fact appears to be at the threshold of absolute liability. I would-, for these reasons, respectfully dissent from the opinion of the majority of my colleagues.
WARD, C.J., and UNDERWOOD, J., join in this dissent.