dissenting:
The legislative history of the Smoke Detector Act clearly demonstrates that the entire Act became effective on August 14, 1987. Subsections 3(e) and (f) provided, however, that no criminal sanctions could be imposed for violations of the Act until after July 1, 1988, in the case of dwellings in existence on that date or the first day of occupancy in the case of dwellings constructed, reconstructed or substantially remodelled after December 31, 1987. (425 ILCS 60/ 3(e), (f) (West 1992).) The question for us then becomes, "Did the General Assembly mean to defer the effective date of the Act, or did it mean only to allow a period during which the public would have a chance to conform its behavior to the requirements of the Act without fear of criminal prosecution?”
After reviewing the portions of the legislative debate contained in the record on appeal, I cannot agree with the majority that the General Assembly meant to defer the effective date of the Act. As sponsor of the bill which created the Act, Senator Kustra stated, "First and foremost, this bill is an educational process. We have to get people out there to *** install them in their homes ***.” (85th Ill. Gen. Assem., Senate Proceedings, June 26, 1987, at 88.) Clearly, the primary concern was to require smoke detectors in homes and leased properties in order to save lives. (85th Ill. Gen. Assem., Senate Proceedings, June 26, 1987, at 78-79.) The criminal penalties contained in the Act were a secondary concern.
By passing the Act the General Assembly rejected the common law principle that a landlord has no duty to maintain a fire detection or alarm system in leased premises. Based on my review of the legislative history of the Act, I cannot conclude that the General Assembly meant to say that the public policy of the State would not be changed until after the grace periods had expired. To the contrary, the General Assembly felt so strongly in favor of the change in public policy that it made the Act effective immediately upon signature by the Governor. Therefore, I would hold that the Act, effective some seven months before the fire which took Tiffany Todd’s life, may be the basis for the imposition of a civil duty upon the defendant.
The passage of the Act, however, skews the common law analysis and raises the question, "Since the General Assembly has already acted to change the common law, need the courts address the issue?” For the sake of Tiffany Todd’s family, the answer is yes.
In Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, the Illinois Supreme Court addressed the issue of whether our State should abandon the principle of contributory negligence and instead adopt comparative negligence. After noting that the General Assembly had been faced with bills calling for the abolition of contributory negligence on six occasions and yet had failed to enact any of them, the court announced: "We believe that the proper relationship between the legislature and the court is one of cooperation and assistance in examining and changing the common law to conform with the ever-changing demands of the community.” (Alvis, 85 Ill. 2d at 23, 421 N.E.2d at 896.) Clearly, then, the courts may analyze the issue of the existence of a common law duty independent of the actions taken by the General Assembly.
The elements of the common law duty analysis include the foreseeability and likelihood of injury, the magnitude of the burden of guarding against the injury and the consequences of placing that burden on the defendant. (Swett o. Village of Algonquin (1988), 169 111. App. 3d 78, 523 N.E.2d 594.) The danger of fire is certainly foreseeable. The severity of the harm is great — loss of property and perhaps loss of life. The burden of requiring the landlord to install a working smoke detector is minimal with today’s technology. Smoke detectors are small, inexpensive and easy to install. In return, they can save lives and thousands, if not millions, of dollars in property loss. Based on the severity of the potential harm and the relative ease of protecting against it, I would hold that a common law duty should be imposed upon landlords to provide smoke detectors on their leased premises.
Accordingly, I would hold not only that the Smoke Detector Act imposed a duty upon the defendant to install smoke detectors in the home he leased to Tiffany Todd’s family, but also that such a duty should be imposed at common law.