State bombs out in fireworks laws

Chicago Lawyer

In an annual burst of patriotism, most families head to the beaches, outdoor arenas and stadiums to view their local fireworks display in early July.

But what most Chicagoans may not realize is that generally they will be viewing these potentially hazardous shows at their own risk. Two families visiting the Chicago area from Washington in 1991 found out the hard way.

The McClellan and Hernandez families decided, along with thousands of others, to see the annual fireworks show at Bloom Township High School. They sat in the designated spectator area which was handled by the traffic division of the Chicago Heights Police Department, the fire chief, the city administrator and the manager of Chicago Fireworks Manufacturing Company which made the fireworks.

Uniformed Chicago Heights firefighters placed barriers on the field to maintain what they considered was sufficient distance between the spectators and pyrotechnics to prevent injuries.

But, during the show, a launched shell failed to explode until it fell to the ground. The blast burned Toni McClelland, her two children, the Hernandez couple and nine other innocent bystanders.

The two families sued Chicago Heights and Chicago Fireworks alleging that the defendants failed to keep the shell dry and that spectators had been permitted to sit too close to the launch site. McClellan v. City of Chicago Heights, 61 F.3d 577 (7th Cir.1995).

The City of Chicago Heights moved for summary judgment under the Local Governmental and Governmental Employees Tort Immunity Act which provides immunity to local public entities for failure to provide adequate police protection or services, including crowd control. 745 ILCS 10/1-101 (1996). The motion was granted. On appeal, the 7th Circuit Court of Appeals affirmed, citing an Illinois case with nearly identical facts.

Dockery v. Village of Steeleville, 200 Ill.App.3d 926, 558 N.E.2d 449 (5th Dist.1990), involved an American Legion fireworks display which went awry on July 4, 1987. The plaintiff there was struck in the face by an aerial bomb and it was alleged, too, that the city negligently failed to keep spectators at a safe and proper distance from the site where the fireworks were being discharged.

The Illinois Appellate Court affirmed summary judgment for the city saying that the activities constituted police functions and, therefore, were shielded from liability under the Tort Immunity Act. The court made the distinction, perhaps without a difference, that the complaint alleged inadequate police protection rather than an affirmative act on the part of the city such as directing plaintiff to an unsafe area to watch the display.

The result is harsh, though, leaving innocent injured spectators without a proper remedy based on mere technicalities.

And these stories are not unique.

In 1993, eight people were injured at Tennessee's Opryland theme park July Fourth show when a fireworks device misfired into a crowd of spectators.

Six years ago a 10-inch rocket misfired during the finale of a Bay City, Michigan Fireworks Festival, injuring six people.

That same year an errant rocket plowed into a crowd of spectators and injured 19 people during the grand finale of a Connecticut town's Independence Day fireworks display.

Nearly 10 years ago more than 35 spectators were injured when a fireworks rocket malfunctioned in Kenosha, Wisconsin.

Generally, it is agreed that the promoter of a fireworks exhibition has a duty to exercise reasonable care to provide the patrons, spectators or invitees with a safe place to view the display and to exercise reasonable care in selecting a person or company skilled in the manufacture and exhibition of fireworks.

Yet, even more accidents occur with fireworks enthusiasts at home. Sometimes in the passion of celebrating the nation's birthday, people lose their sense of judgment and buy legal or illegal fireworks to celebrate in yards or on street corners. Illinois bans the sale of most fireworks. 425 ILCS 35/5 (1996). But novelty fireworks -- such as sparklers, caps and snakes --are legally sold in this state. The temperature of a lighted sparkler, though, can reach 1,800 degrees Fahrenheit. Such novelties injure more than 800 preschoolers a year, according to the National Society to Prevent Blindness.

The common law requires that those who deal in dangerous explosives refrain from placing them in the hands of children of tender age. If the child is too young to know the character of the thing sold him, it is the business of the dealer to refuse to sell him articles likely to put in jeopardy his own or some other person's life. Where such sales are made in violation of the law, the seller is liable for the consequences naturally and proximately resulting from the unlawful act.

In 1953, the Illinois legislature changed the statute to restrict the sale of sparklers given their undeniable capability to cause serious injuries -- particularly to small children. But Illinois should follow the lead of some 14 states which altogether ban the personal use of fireworks.

Every year at least 10,000 Americans are maimed by Independence Day fireworks -- more than were wounded by British bayonets, muskets and cannon balls during the entire Revolutionary War.

Although fireworks on the Fourth seems as American as mom and apple pie, perhaps now is the time for the legislature to re-examine this hot issue and take an even firmer stance against the sale and use of such devices that really don't properly demonstrate patriotism at all.