January 20, 1999

No. 3--97--0965

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1999

PRESIDING JUSTICE HOMER delivered the opinion of the court:

The plaintiff brought a premises liability action against a homeowner to recover for injuries he sustained when a chimney collapsed on him while he was fighting a fire in the homeowner's residence. The jury returned a verdict in favor of the plaintiff and the homeowner appealed. Following our careful consideration, we determine that the "fireman's rule" precludes the plaintiff's recovery. Therefore, we must reverse.

I. FACTS

The defendant was the owner of a two-story farmhouse located in rural Frankfort, Illinois. The defendant had lived in the house, estimated to be between 70 and 100 years old, since 1974. The chimney located in the center of the house was constructed primarily of cement block except for the portion above the roof line. That three-and-one-half-foot portion of the chimney was constructed of a single layer of bricks. The chimney was not used by the defendant until a furnace was installed in the basement in the late-1970s. Over the years, the interior of the home had been significantly renovated, but the chimney was not altered.

On April 24, 1994, sparks from a burning brush pile ignited a fire at the defendant's house. The plaintiff, an experienced volunteer firefighter with the New Lenox Fire Department, was among the members of three fire districts that were called to the scene. The house burned for over two hours at extremely high temperatures as the fire spread from the southwest corner of the house to the northeast corner. Significant portions of the walls, ceilings, floors, and roof were burned away. The second floor and attic areas were partially exposed to the outside. After one and a half hours of firefighting activity, most of the flames were extinguished.

The plaintiff and his crew were the first to enter the burning house through a second floor window. Their job was to open up or "overhaul" the area by removing the ceilings and wallboard so water could be applied to the fire by the engine crew operating the hoses. After a while, the plaintiff exited the building to take a break due to the intensity of the smoke and heat. Other crews were still on the second floor conducting salvage and overhaul activities.

Intending to rejoin the crews on the second floor, the plaintiff re-entered the house through the front door and proceeded up the main staircase which was located about four feet from the chimney. As he was ascending the staircase, the top portion of the chimney fell through a large hole in the roof and struck the plaintiff in the back. Tragically, the plaintiff sustained substantial injuries, including a broken back which resulted in permanent paralysis below his waist.

The plaintiff filed the instant lawsuit alleging that the defendant's chimney presented an unreasonable risk of harm to persons on the premises because it was constructed of only one layer of bricks and did not contain a chimney liner. He also alleged that the defendant failed to warn him of the unreasonable risk of harm posed by the chimney.⁽¹⁾ In response, the defendant filed an affirmative defense asserting that the doctrine of assumption of risk precluded the plaintiff from recovering. In various motions which were denied by the trial court, the defendant also argued that she owed no duty to the plaintiff based upon the fireman's rule.

In addition to his own testimony, the plaintiff presented the testimony of an architect, two fire officials who were present at the scene, the defendant and the defendant's ex-husband. Other witnesses called by the plaintiff testified as to the extent of his injuries. The defendant presented her own testimony and that of her daughter, son, and two fire investigation experts. The relevant portions of the testimony will be discussed further in the analysis.

The jury returned a verdict in favor of the plaintiff and awarded damages of $823,904.67, which were subsequently reduced by the trial court to $528,904.67. The defendant filed a motion for judgment notwithstanding the verdict (n.o.v.) or, in the alternative, for a new trial arguing, inter alia, that the plaintiff failed to prove the existence of a duty owed by the defendant and that the fireman's rule precluded recovery. The defendant's motion was denied and the instant appeal followed.

On appeal, the defendant argues the following: (1) that the trial court erred in (a) denying her motion for judgment n.o.v., (b) improperly instructing the jury regarding duty and refusing to instruct regarding the fireman's rule, and (c) admitting evidence regarding industry standards and practices with respect to chimney construction and the defendant's previous ownership interest in a home remodeling company; and (2) that the jury's verdict was contrary to the manifest weight of the evidence.

II. ANALYSIS

Judgment n.o.v. is properly granted where the evidence, considered in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict based upon that evidence could ever stand. Tierney v. Community Memorial General Hospital, 268 Ill. App. 3d 1050, 1054, 645 N.E.2d 284, 287 (1994). A motion for judgment n.o.v. presents a question of law and will only be granted if the plaintiff has failed to prove an essential element of his case. Bryant v. Livigni, 250 Ill. App. 3d 303, 313, 619 N.E.2d 550, 558 (1993). On appeal of a trial court's denial of judgment n.o.v., this court conducts de novo review. Williams v. Hall, 288 Ill. App. 3d 917, 919, 681 N.E.2d 1037, 1038 (1997). Reversal is not warranted if there is any evidence demonstrating a substantial factual dispute or where assessments of witnesses' credibility or determinations regarding conflicting evidence are decisive to the outcome. Greenberger, Krauss, & Tenenbaum v. Catalfo, 293 Ill. App. 3d 88, 94, 687 N.E.2d 153, 158 (1997).

To prevail on a claim for premises liability, a plaintiff must allege and prove the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach of duty. Ward v. K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). In the instant case, the defendant contends that the plaintiff failed to present evidence establishing the existence of a duty owed by defendant to plaintiff because: (1) the fireman's rule precluded a finding of duty and (2) the collapse of the chimney was not foreseeable. For the following reasons, we reverse.

Fireman's Rule

The fireman's rule is a doctrine that limits the extent to which firefighters may recover for injuries sustained when they enter onto privately-owned property in the discharge of their duties. McShane v. Chicago Investment Corp., 235 Ill. App. 3d 860, 864, 601 N.E.2d 1238, 1242 (1992). Premised on the concept of assumption of risk, the fireman's rule places a limitation on landowner liability based upon the fact that firefighters knowingly and voluntarily subject themselves to certain hazards while fighting fires. See 62 Am. Jur. 2d Premises Liability