Edwards v. Lombardi ( 2013 )

2013 IL App (3d) 120518Opinion filed November 20, 2013
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2013
______________________________________________________________________________
)
JUSTIN EDWARDS, ) Appeal from the Circuit Court
) of the 13th Judicial Circuit,
Plaintiff-Appellant, ) Grundy County, Illinois,
)
v. )
) Appeal No. 3-12-0518
JAMES LOMBARDI & COLLEEN ) Circuit No. 09-L-31
LOMBARDI )
) The Honorable Lance R. Peterson,
Defendants-Appellees. ) Judge, Presiding.
)
______________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justices Carter and Schmidt concurred in the judgment and opinion.
______________________________________________________________________________
OPINION
¶1 Plaintiff Justin Edwards was attacked by a llama owned by defendants James and Colleen
Lombardi while cleaning the Lombardis' barn. Subsequently Edwards filed a complaint against
the Lombardis alleging both ordinary negligence and a violation of the Animal Control Act (510
ILCS 5/16 (West 2008)). The trial court granted summary judgment in favor of the Lombardis
on both counts, concluding that Edwards assumed the risk of being attacked. Edwards appeals
from the trial court's grant of summary judgment on the negligence count only. We affirm
because primary assumption of the risk bars Edwards from recovering.
¶2 FACTS
¶3 In 2005, plaintiff Justin Edwards—then a senior in high school—began working at a pet
store owned by defendants James and Colleen Lombardi. During his employment, Edwards also
visited the Lombardis' family farm and helped care for their outdoor animals, which included
chickens, turkeys, horses, and llamas. Edwards later left the employment of the Lombardis, but
at least four separate times prior to the incident giving rise to this lawsuit Edwards helped care
for the animals on the farm while the Lombardis were out of town. On each occasion, James
Lombardi took Edwards around the farm and showed Edwards how to feed and water the
animals, as well as clean the barn that housed the animals.
¶4 On these occasions, while Edwards was tending to the animals on the farm he
encountered a male llama named Beau. According to Edwards' deposition testimony, on one
occasion while James Lombardi was present, Beau reared up and hit Edwards, bloodying his
nose and mouth. Edwards testified that Beau would always confront him as he neared the
entryway to the barn, saying Beau would "pretty much charge at you a little bit." Edwards also
said that when he cleaned the barn, Beau pushed him into the wall of the barn. Furthermore,
Beau would spit at both Edwards and the Lombardis. Although every time Edwards cared for the
animals they were free to roam, sometimes when other people would care for the animals, Beau
would be locked up in a stall. James Lombardi denied knowing of any of incidents where Beau
was aggressive toward Edwards, although he did state that he had seen Beau be aggressive with
other animals. Other witnesses swore in affidavits that they had never seen Beau display
aggression or other dangerous propensities.
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¶5 Edwards agreed to care for the Lombardis' animals from July 1 to July 7, 2008 while the
Lombardis were out of town; in exchange, the Lombardis agreed to purchase a Chihuahua for
Edwards. Edwards asked James Lombardi whether Beau would be locked up during this period,
but James decided that Beau would be free to roam.
¶6 On the morning of July 6, 2008, Edwards arrived at the farm to clean the barn. Prior to
entering the barn, Edwards noticed Beau standing in the barn's hallway along with two miniature
horses. Edwards then entered the barn and began scooping up animal droppings. After about 10
to 15 minutes, Edwards noticed that Beau was approaching him. Edwards began to walk out of
the barn and took one to two steps toward Beau, and then Beau reared back and backed Edwards
into a corner. Edwards turned to escape by jumping over a half-wall into an adjoining stable, but
as he jumped, Beau got his head under Edwards' legs and threw Edwards over the wall. Edwards
crashed into the ground and immediately felt extreme pain: he could not lift his left arm and
believed it was dislocated. Edwards got to his feet, and Beau spit at Edwards and continued to
attempt to charge at him, though a gate now separated them. Edwards eventually made it into
another stall and then to the barn's gate, using a rake to fend off Beau while he exited the barn.
¶7 Nadyne Axelrad-Snow is a member of the Illinois Llama Association and the
International Llama Association, where she attended a number of seminars on llama handling and
training. She raised Beau for seven months prior to selling him to the Lombardis. Axelrad-Snow
testified that llamas can be provoked both intentionally and unintentionally. She opined that
entering an enclosed space where a llama is located could be an act of provocation, depending on
the llama's personality.
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¶8 On May 20, 2009, Edwards filed a complaint against the Lombardis in the circuit court of
Will County, alleging the Lombardis were liable for his injuries under the Animal Control Act
(510 ILCS 5/16 (West 2008)). After the case was transferred to the circuit court of Grundy
County, the Lombardis answered the complaint on September 7, 2010. The Lombardis asserted
several affirmative defenses, including contributory negligence, assumption of the risk, and
provocation. Thereafter, the Lombardis moved for summary judgment. On February 22, 2011,
the trial court granted summary judgment in favor of the Lombardis on the issue of liability under
the Animal Control Act. The court also allowed Edwards to amend his original complaint to add
a count alleging that the Lombardis were negligent. The Lombardis did not file any answer or
other pleading directed at the new count of negligence, but instead moved for summary judgment
on the negligence issue. The court granted this motion on May 30, 2012, with an order stating
"Defendant's motion is granted as to the assumption of the risk issue, and denied to the extent it
is based on provocation." Edwards filed an emergency motion to clarify the court's order. In
response, on June 12, 2012, the court stated that the Lombardis' motion for summary judgment
was granted. Edwards then filed a timely notice of appeal.
¶9 ANALYSIS
¶ 10 Edwards has appealed the order granting summary judgment in favor of the Lombardis.
First, he argues that the Lombardis could not rely on assumption of the risk as an affirmative
defense because they did not plead the issue in response to the negligence count. Second, he
contends that the undisputed material facts of this case do not demonstrate that Edwards assumed
the risk of an attack. Finally, he argues that even if assumption of the risk applies, because the
Lombardis could anticipate he would encounter Beau, the deliberate encounter exception applies
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to abrogate assumption of the risk.
¶11 Summary judgment shall be entered where the pleadings, depositions, admissions and
affidavits on file, viewed in the light most favorable to the nonmoving party, reveal that there is
no genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. 735 ILCS 5/2-1005(c) (West 2010). "While summary judgment aids in the
expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and thus
should be allowed only when the right of the moving party is clear and free from doubt." Ford v.
Round Barn True Value, Inc., 377 Ill. App. 3d 1109, 1116 (2007). An order granting summary
judgment is reviewed de novo. Kajima Construction Services, Inc. v. St. Paul Fire & Marine
Insurance Co., 227 Ill. 2d 102, 106 (2007).
¶ 12 In a common-law negligence action, a plaintiff injured by an animal cannot recover
unless the animal had a dangerous disposition and the owner knows of the dangerous disposition.
Vanderlei v. Heideman, 83 Ill. App. 3d 158, 162 (1980); Nelson v. Lewis, 36 Ill. App. 3d 130,
133 (1976). See also Klatz v. Pfeffer, 333 Ill. 90, 94-95 (1928) (animal owner has duty to control
animal if the animal is inherently dangerous or the animal has manifested a disposition to attack
others). If the owner knows of prior attacks, then the owner assumes a duty to control the
animal. See Klatz, 333 Ill. at 94-95.
¶13 Here, there are sufficient facts in the record to create a triable issue of fact on whether the
Lombardis had knowledge of Beau's prior aggressive behavior. However, the trial court granted
summary judgment because it concluded that Edwards assumed the risk of being attacked by
Beau. Therefore, we must determine whether primary assumption of the risk applies.
¶ 14 I. Failure to Plead Assumption of the Risk
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¶ 15 As an initial matter, Edwards argues that the trial court erred in granting summary
judgment based on the affirmative defense of assumption of the risk because after Edwards
added his count in negligence, the Lombardis never repled their affirmative defenses in response
to the new count; instead, the Lombardis immediately moved for summary judgment. Edwards
points out that as an affirmative defense, assumption of the risk must be specifically pled so that
the plaintiff is not taken by surprise. See 735 ILCS 5/2-613(d) (West 2010). Ordinarily, if a party
fails to plead an affirmative defense, the defense is waived and cannot be considered even if the
evidence suggests the existence of the defense. Athans v. Williams, 327 Ill. App. 3d 700, 705
(2002).
¶ 16 Even if there were error, any failure by the Lombardis to replead their affirmative
defenses is not a ground for reversal here because Edwards forfeited this argument on appeal by
not presenting it below. An argument not raised by the appellant in the trial court and presented
for the first time on appeal is generally considered waived. Palen v. Daewoo Motor Co., 358 Ill.
App. 3d 649, 658 (2005). In his reply brief, Edwards concedes he did not object at the trial level
to the Lombardis' failure to replead their affirmative defenses. Because the issue was not argued
below, we deem it waived. Accordingly, we will examine the arguments of parties regarding
assumption of the risk.
¶ 17 II. Primary Assumption of the Risk
¶ 18 Primary implied assumption of risk is an affirmative defense that arises where the
plaintiff's conduct indicates that he "has implicitly consented to encounter an inherent and known
risk, thereby excusing another from a legal duty which would otherwise exist." Evans v. Lima
Lima Flight Team, Inc., 373 Ill. App. 3d 407, 418 (2007). While a plaintiff assumes the risks
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that are inherent in the nature of the activity itself, he does not assume risks created by the
defendant's negligence. Sullivan-Coughlin v. Palos Country Club, Inc., 349 Ill. App. 3d 553, 560
(2004). The defense is "based on the theory that a plaintiff 'will not be heard to complain of a
risk which he has encountered voluntarily, or brought upon himself with full knowledge and
appreciation of the danger.' " Vanderlei, 83 Ill. App. 3d at 162 (quoting William L. Prosser, Torts
§ 79 at 523 (4th ed. 1971)). Assumption of the risk is particularly applicable when the parties are
in a contractual relationship with each other. Vanderlei, 83 Ill. App. 3d at 162. If the doctrine
applies, primary assumption of the risk operates as a complete defense to a negligence action
because the defendant is said not to owe any duty to the plaintiff. Clark v. Rogers, 137 Ill. App.
3d 591, 594 (1985).
¶ 19 The parties cite two prior cases dealing with primary implied assumption of the risk in the
context of an animal attack. In Vanderlei, a professional horseshoer was kicked by the
defendant's stallion while placing a shoe on the horse; the horseshoer admitted that he had been
kicked twice before under similar circumstances, and also admitted that it was known within his
profession that horses sometimes kick while being shod. Vanderlei, 83 Ill. App. 3d at 163. The
appellate court reversed the jury verdict in favor of the horseshoer and entered a judgment in
favor of the defendant, finding that the facts demonstrated the horseshoer assumed the risk of
being kicked. Vanderlei, 83 Ill. App. 3d at 163. In Clark, the plaintiff was a professional horse
trainer employed to train the defendant's stallions, and she sued after she was bucked off a
stallion named Jet. Clark, 137 Ill. App. 3d at 595. The plaintiff admitted she was told that Jet
was used to tease mares for breeding purposes before she attempted to ride him. Clark, 137 Ill.
App. 3d at 595. Also, she testified that when she attempted to mount Jet there were mares in the
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vicinity, and she knew stallions could be excitable around mares. Clark, 137 Ill. App. 3d at 595.
The appellate court affirmed a grant of summary judgment for the defendant, finding that under
the circumstances the plaintiff assumed the risk of any fall. Clark, 137 Ill. App. 3d at 595.
¶ 20 Based on the reasoning of these cases, we conclude that the facts of this case indicate that
Edwards assumed the risk he would be attacked by Beau when he entered the barn. Edwards
contracted to care for the Lombardis' animals knowing Beau would be free to roam. Before he
entered the barn, Edwards saw that Beau was inside and unconfined. Like the horseshoer in
Vanderlei, who had been kicked on prior similar occasions, Edwards knew that Beau had been
aggressive toward him in the past: Edwards testified that Beau would always charge when he
neared the barn, and Beau had pushed him into a wall and hit him in the face in the past. Despite
these experiences, Edwards chose to enter the barn knowing Beau was inside. Therefore, he
assumed the risk that Beau would attack him in a manner similar to those past instances.
¶ 21 We reject Edwards' attempts to distinguish Vanderlei and Clark on the basis that those
cases involved professionals who therefore understood the risks inherent in their field; here,
Edwards knew the risk Beau posed to him because of his past experience with Beau's aggression.
We also reject the argument that Edwards could not assume the risk here because it was the
Lombardis who were negligent for failing to confine Beau. Edwards knew Beau would be free to
roam but agreed to care for the animals anyway. Furthermore, it was not the decision to leave
Beau unconfined that led to the attack, but rather it was Edwards' decision to enter a confined
space with an animal that had previously been aggressive towards him. Therefore, it was proper
for the trial court to enter summary judgment on the basis that Edwards assumed the risk of being
attacked by Beau.
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¶ 22 III. Deliberate Encounter Exception
¶ 23 Edwards argues that even if he is said to have assumed the risk, the deliberate encounter
exception applies because the Lombardis would have expected him to encounter Beau while he
was working on the farm. Under the deliberate encounter exception, a landowner is liable for
injuries to a business invitee resulting from an open and obvious danger if the landowner has
reason to expect a person would choose to encounter the apparent danger. LaFever v. Kemlite
Co.,185 Ill. 2d 380, 390-91 (1998). The exception is often applied in cases involving economic
compulsion, such as where workers are compelled to encounter dangerous conditions as part of
their employment. Morrissey v. Arlington Park Racecourse, LLC, 404 Ill. App. 3d 711, 725-26
(2010).
¶ 24 We note that it is unclear whether the deliberate encounter exception would apply to
excuse Edward's assumption of the risk. The doctrine normally applies in the context of open
and obvious dangers on land, (LaFever, 185 Ill. 2d at 390-91), although the appellate court in
Morrissey indicated that even when primary assumption of the risk applies, the deliberate
encounter exception may still allow a plaintiff to recover (Morrissey, 404 Ill. App. 3d at 732
(finding insufficient support to conclude that primary assumption of the risk necessarily
abrogates the deliberate encounter exception)).
¶ 25 We need not decide whether the deliberate encounter exception applies here, however,
because once again Edwards has waived the argument on appeal by failing to raise it below. See
Palen, 358 Ill. App. 3d at 658 (argument not raised by the appellant at trial is considered waived
on appeal). Edwards asserts that he did in fact raise this argument at the trial court; however, he
fails to cite to any relevant pages of the record where he raised this argument. We have also
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independently reviewed the common-law record and report of proceedings, and there is no
indication from any of the pleadings, briefs, or motions that Edwards ever argued to the trial
court that the deliberate encounter exception applied here. Therefore, given the record before us,
we conclude that Edwards did not raise this argument below and therefore the issue is waived.
¶ 26 Accordingly, because the undisputed material facts demonstrate that Edwards assumed
the risk of being attacked by Beau, the trial court properly granted summary judgment in favor of
the Lombardis.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, the judgment of the circuit court of Grundy County is affirmed.
¶ 29 Affirmed.
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