File v. Duewer ( 2007 )

NO. 4-06-0394 Filed 5/24/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
FRED FILE, ) Appeal from
Plaintiff-Appellant, ) Circuit Court of
v. ) Morgan County
RAYMOND DUEWER, ) No. 03L35
Defendant-Appellee. )
) Honorable
) Tim P. Olson,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Plaintiff, Fred File, brought suit against defendant,
Raymond Duewer, seeking damages for injuries caused by a heifer
owned by defendant. The trial court granted summary judgment
against plaintiff on his amended complaint seeking relief under
the Animal Control Act (510 ILCS 5/16 (West 2002)) and granted
plaintiff leave to refile under the Illinois Domestic Animals
Running at Large Act (Running at Large Act) (510 ILCS 55/1 (West
2002)). After plaintiff did so, the trial court again granted
summary judgment against plaintiff. Plaintiff appeals, contend-
ing his suit is properly brought under the Animal Control Act and
he stated a cause of action under that statute. We agree and
reverse the trial court's grant of summary judgment.
I. BACKGROUND
On September 27, 2001, plaintiff and Richard Releford
were engaged in carpentry work on defendant's property. Defen-
dant, who was in the business of raising cattle, had approxi-
mately 70 head of cattle break out of their enclosure, which were
roaming at large in neighboring cornfields. Plaintiff, who also
had experience raising cattle, and Releford were asked to assist
in helping round up the cattle.
Plaintiff rode in a pickup truck with defendant to find
the cattle. While driving near the cattle, plaintiff noticed a
nervous heifer and pointed it out to defendant. The roundup was
going well using pickup trucks to guide the cattle until they
were spooked by farm machinery in a nearby field. The cattle
scattered. Defendant dropped plaintiff off in a field near some
of the cattle and left to round up the others. Plaintiff was
joined in the field by defendant's daughter, Pat, who had driven
her own truck to the field to assist in the roundup. While
plaintiff and Pat were on foot attempting to get the cattle
headed back to defendant's farm, plaintiff and Pat both noticed a
heifer that looked "awful nervous." Plaintiff then started
walking toward Pat's truck, to give the nervous heifer a wide
berth, when it charged him, knocking him to the ground. Plain-
tiff suffered a broken shoulder and a knee injury.
On July 7, 2003, plaintiff filed a complaint against
defendant alleging negligence and violation of the Running at
Large Act (510 ILCS 55/1 (West 2002)). On April 26, 2004, this
complaint was amended but still alleged common-law negligence and
a violation of the Running at Large Act. On October 26, 2004,
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defendant was granted leave to file affirmative defenses: (1) he
exercised reasonable care in restraining his livestock; (2)
assumption of the risk; and (3) comparative fault.
On December 12, 2005, plaintiff filed a third amended
complaint that abandoned both the negligence allegations and the
Running at Large Act allegations and instead alleged a violation
of the Animal Control Act (510 ILCS 5/16 (West 2002)). On
February 24, 2006, defendant filed a motion for summary judgment
arguing the Animal Control Act did not apply to the facts of this
case.
On April 13, 2006, the trial court granted summary
judgment, finding
"[t]he cattle in question escaped their pen
and were in the process of being rounded up
when the injuries complained of occurred. At
the time the cattle escaped from their enclo-
sure, they did so without the knowledge of
defendant. This set of facts clearly places
this situation under the purview of the [Run-
ning at Large Act], not the Animal Control
Act."
The court then allowed plaintiff leave to file an amended com-
plaint under the Running at Large Act.
On April 21, 2006, plaintiff filed his fourth amended
complaint and alleged violations of the Running at Large Act.
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Defendant filed a motion for summary judgment to which he at-
tached both his and plaintiff's discovery depositions. Defendant
argued (1) there was no issue of material fact that the fence
enclosing his cattle prior to their escape was in reasonable and
adequate condition for enclosing them and (2) the trial court
ruled in its order on April 13, 2006, that when the cattle
escaped, they did so without defendant's knowledge. Both of
these facts were defenses to liability under the Running at Large
Act provided within the statute itself. 510 ILCS 55/1 (West
2002).
On May 5, 2006, the trial court granted defendant
summary judgment, finding both parties agreed no recovery was
available to plaintiff if defendant used reasonable care to
prevent the animals from getting loose. The court dismissed the
case. This appeal followed.
II. ANALYSIS
The statutes at issue here relate to the same subject:
liability for injuries received from animals. Therefore, they
must be construed together. See Zears v. Davison, 154 Ill. App.
3d 408, 411, 506 N.E.2d 1041, 1043 (1987).
The Animal Control Act states:
"If a dog or other animal, without prov-
ocation, attacks or injures any person who is
peaceably conducting himself in any place
where he may lawfully be, the owner of such
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dog or other animal is liable in damages to
such person for the full amount of the injury
sustained." 510 ILCS 5/16 (West 2002).
The original version of this statute applied only to
dogs and its purpose was to reduce the burden on dog-bite plain-
tiffs by eliminating the "one-bite rule"--the requirement the
plaintiff plead and prove the dog owner knew or should have known
the dog had a propensity to injure people. Harris v. Walker, 119
Ill. 2d 542, 546-47, 519 N.E.2d 917, 918 (1988). The statute was
amended in 1973 to include "other animals." Harris, 119 Ill. 2d
at 547, 519 N.E.2d at 918-19. The legislature intended only to
provide coverage under the statute for plaintiffs who, by virtue
of their relationship to the owner of an animal or lack of any
such relationship, may not have any way of knowing or avoiding
the risk the animal poses to them. This is consistent with the
emphasis the statute places on lack of provocation and the
plaintiff's peaceable conduct in a place where he is legally
entitled to be. Harris, 119 Ill. 2d at 547, 519 N.E.2d at 919.
The elements of a cause of action under the Animal
Control Act are (1) injury caused by an animal owned by defen-
dant; (2) lack of provocation; (3) peaceable conduct of the
plaintiff; and (4) a legal right on the part of the plaintiff to
be in the place where he was injured. Chittum v. Evanston Fuel &
Material Co., 92 Ill. App. 3d 188, 190, 416 N.E.2d 5, 7 (1980).
An available defense to a cause of action brought under this
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statute is assumption of the risk. Harris, 119 Ill. 2d at 547-
48, 519 N.E.2d at 919; Malott v. Hart, 167 Ill. App. 3d 209, 211,
521 N.E.2d 137, 138 (1988).
The Running at Large Act states:
"No person or owner of livestock shall
allow livestock to run at large in the State
of Illinois. All owners of livestock shall
provide the necessary restraints to prevent
such livestock from so running at large and
shall be liable in civil action for all dam-
ages occasioned by such animals running at
large; [p]rovided, that no owner or keeper of
such animals shall be liable for damages in
any civil suit for injury to the person or
property of another caused by the running at
large thereof, without the knowledge of such
owner or keeper, when such owner or keeper
can establish that he used reasonable care in
restraining such animals from so running at
large." 510 ILCS 55/1 (West 2002).
Throughout Illinois history, various statutes have
governed animals running at large. In 1895, the statute imposed
strict liability on a defendant for damages caused by domestic
animals running at large. McQueen v. Erickson, 61 Ill. App. 3d
859, 862, 378 N.E.2d 614, 616 (1978). In 1931, the statute was
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amended to provide the owner or keeper of such animals was not
liable for damages if he is able to establish he used reasonable
care in restraining the animals and he did not know his animals
were running at large. McQueen, 61 Ill. App. 3d at 862, 378
N.E.2d at 616. Illinois courts have consistently held the
statute is designed to provide redress for injuries caused by
animals grazing at pasture beyond the control and supervision of
their owners. Zears, 154 Ill. App. 3d at 411, 506 N.E.2d at
1043. To recover damages under this statute, the plaintiff must
prove only he was injured by an animal running at large owned or
kept by the defendant. To avoid strict liability, the defendant
must then affirmatively plead and prove (1) he exercised due care
in restraining his animal and (2) he lacked knowledge it had
escaped. Corona v. Malm, 315 Ill. App. 3d 692, 697, 735 N.E.2d
138, 142 (2000).
The Animal Control Act, since its 1973 amendment,
covers all animals owned by someone and provides the owner is
liable for attacks or injuries caused by their animal. The more
specific Running at Large Act has been held to be an exception to
the more general Animal Control Act since its amendment to
include other animals besides dogs. See Zears, 154 Ill. App. 3d
at 411, 506 N.E.2d at 1043; McQueen, 61 Ill. App. 3d at 864, 378
N.E.2d at 617-18; Moore v. Roberts, 193 Ill. App. 3d 541, 543,
549 N.E.2d 1277, 1279 (1990).
Although the Running at Large Act applies specifically
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to livestock such as the cattle in this case, at the time of the
injury here, the cattle were no longer running at large. The
legislative history of the statute indicates it is designed to
provide redress for injuries caused by animals grazing at pasture
that are beyond the control and supervision of their owners. The
statute was primarily aimed at situations where animals were
turned out to graze and wandered. See DeBuck v. Gadde, 319 Ill.
App. 609, 613, 49 N.E.2d 789, 791 (1943). "Running at large"
traditionally implied knowledge, consent, or willingness of the
owner that an animal be at large or such negligent conduct as is
equivalent thereto. But it did not embrace cases where, through
some untoward circumstance, the owner was unable to watch and
care for an animal in a particular instance, or where, notwith-
standing precautions taken to restrain them, animals escaped
without the negligence of the owner and who made immediate and
suitable efforts to recover them. See Blakley v. Glass, 342 Ill.
App. 90, 95 N.E.2d 128 (1950) (abstract of op.) (animal is not
"running at large" where, without negligence on part of owner, it
escapes from pasture and owner goes in pursuit thereof); DeBuck,
319 Ill. App. at 612-13, 49 N.E.2d at 790.
At the time of plaintiff's injury, defendant was
asserting control over his cattle. This is not a case where
cattle had been let out to pasture and then wandered onto a
roadway where they were hit by a car. The latter is often the
circumstance in cases alleging violations of the Running at Large
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Act. See Corona, 315 Ill. App. 3d at 693, 735 N.E.2d at 139;
Zears, 154 Ill. App. 3d at 409, 506 N.E.2d at 1042; McQueen, 61
Ill. App. 3d at 860, 378 N.E.2d at 615. Instead, they were the
objects of a roundup to bring them back to defendant's property.
Further, plaintiff was attacked by the charging heifer and
suffered injuries. These injuries were not of a nature exclusive
to cattle running at large but easily could also have occurred in
the cattle enclosure on defendant's property. We note an almost
identical factual scenario existed in Malott, and the plaintiff
brought his suit under the Animal Control Act, apparently without
challenge by defendant or dismissal by the trial court. See
Malott, 167 Ill. App. 3d at 209, 521 N.E.2d at 137-38.
This case should be decided under the Animal Control
Act. As discovery seems to have been completed, the parties on
remand can file any motions or pleadings appropriate to a case
brought under the Animal Control Act.
III. CONCLUSION
For the foregoing reasons, we reverse both of the trial
court's findings of summary judgment and remand for disposition
of this case pursuant to the Animal Control Act.
Reversed and remanded.
STEIGMANN, P.J., and APPLETON, J., concur.
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