¶1dissenting:
¶2I respectfully dissent. I do not believe that a landowner has a common-law duty to install and maintain smoke detectors and fire extinguishers in order to reduce the possibility that a fire starting upon his premises will spread to an adjacent property. I also do not believe that a landowner must protect an adjacent landowner from injury arising out of an intentional act of arson.
¶3At common law, a landowner was not required to anticipate a fire upon his premises. Dodd v. Nazarowski, 4 Ill. App. 3d 173, 177-78 (1972). Therefore, in the absence of some statute, rule, or regulation, a landowner is not obligated to maintain fire prevention and safety equipment. See Galayda v. Penman, 80 Ill. App. 3d 423, 426 (1980) (landlord not obligated to install alarm or detection system for fire); Webster v. Heim, 80 Ill. App. 3d 315, 317 (1980) (landlord had no duty to occupant of property to provide fire exits, smoke detectors, or fire doors). Although this body of case law has been most often applied in the context of landlord and tenant relationships, I am aware of no authority that limits its application to these situations. Indeed, it would seem illogical to hold that a landowner would owe a greater duty to an adjoining property owner than he would owe to the occupants of his own land.
¶4The authoring justice’s opinion would therefore seem to be in direct contradiction to the common law. See Dodd, 4 Ill. App. 3d at 177-78. The opinion fails to address this conflict or explain its abandonment of such traditional common-law principles. Nor does the opinion offer any compelling authority in support of its assertion that the common law holds an innkeeper to a higher standard than a landlord or any other landowner.
¶5The authoring justice’s reliance upon Aetna Insurance Co. v. 3 Oaks Wrecking & Lumber Co., 65 Ill. App. 3d 618 (1978), in support of his conclusion is unconvincing. At the outset, it is important to note that the defendant in Aetna was not a landowner but instead was a contractor who had been hired to demolish an abandoned building. Aetna, 65 Ill. App. 3d at 620. The primary basis for imposing liability in that case was the fact that the contractor stored flammable fuel in the building and was aware that vagrants were smoking and cooking there. Aetna, 65 Ill. App. 3d at 623. Therefore, the contractor’s liability was not predicated upon his failure to install safety equipment to prevent the spread of a fire but instead upon his negligent conduct in preventing the fire from starting in the first instance. Aetna is in conformity with case law imposing liability for damages arising from the storage of combustibles and other dangerous materials. See Dealers Service & Supply Co. v. St. Louis National Stockyards Co., 155 Ill. App. 3d 1075, 1079 (1987) (landowner may be held liable for fire that resulted from the accumulation of combustible materials).
¶6Although there are a number of cases where a landowner has been held liable for fire damage to adjoining property, each such case involves a fire that started as a result of a negligent act by the landowner. See Masinelli v. McDonald, 251 Ill. App. 3d 398, 401-02 (1993) (landowner may be held liable for failure to repair defective fireplace flue); Powell v. Star Fireworks Manufacturing Co., 162 Ill. App. 3d 647, 650-51 (1987) (landowner may be held liable for fire that resulted from methane gas leak). There have been similar holdings in cases between adjoining apartment tenants. See American States Insurance Co. v. Whitsitt, 193 Ill. App. 3d 270, 274-75 (1990) (tenant may be held liable when fire was caused by storage of combustible materials in the vicinity of the furnace). However, I am unaware of any case or common-law principle holding that a landowner can be held hable for his failure to install safety equipment to prevent the spread of a fire.
¶7This is not to say that an adjoining landowner may not seek recovery based on an allegation of a violation of a legislative or municipal enactment. Apart from the common law, a landowner’s violation of a public safety statute or ordinance may provide an independent basis to maintain a negligence action. See Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434-35 (1991). Indeed, in the instant case, all but one of the plaintiffs allegations of negligence relate to violations of the BOCA Fire Prevention Code of 1993. However, due to the plaintiffs failure to provide the relevant BOCA provisions and municipal ordinances, our consideration is limited to the defendant’s remaining allegation that the defendant negligently failed to place fire extinguishers in accessible areas. I see no reason to create a new common-law duty simply because the plaintiff has failed to provide a sufficient record concerning the alleged BOCA violations.
¶8Another troubling aspect of the authoring justice’s analysis is that it imposes a duty that is broader in scope than the allegations of duty pled by the plaintiff. As already noted, the plaintiffs remaining allegation of negligence related to the defendant’s failure to place fire extinguishers in accessible areas. Rather than limit its holding to this sole factual allegation, the authoring justice also imposes an obligation to maintain fire extinguishers, as well as install and maintain smoke detectors. As such additional factual allegations were not properly before us, I do not believe that they should be considered in our analysis.
¶9Finally, I disagree with the imposition of liability for injury arising out of a third party’s criminal act. The law imposes no duty upon a landowner to anticipate and protect against such acts. See Hill v. Charlie Club, Inc., 279 Ill. App. 3d 754, 758 (1996). The authoring justice sidesteps this issue, explaining that the plaintiffs allegations are predicated upon the defendant’s failure to prevent the spread of the fire. I believe that this is a distinction without a difference. Simply-put, absent a special relationship, a landowner has no liability to protect others from the criminal acts of third persons. Hill, 279 Ill. App. 3d at 758. The authoring justice’s opinion abandons this legal principle and holds that liability may be imposed upon the defendant for his failure to protect the plaintiff from the fire that was started by an act of arson. I believe that such a conclusion is contrary to the law.
¶10For all of these reasons, I would affirm the entry of summary judgment on behalf of the defendant.