Tyrka v. Glenview Ridge Condominium Association , 13 N.E.3d 292 ( 2014 )

2014 IL App (1st)132762
No. 1-13-2762
Fifth Division
June 20, 2014
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
)
MARTA TYRKA, Individually and as ) Appeal from the Circuit Court
Next Friend of EMILIA TYRKA, a ) of Cook County.
Minor, )
)
Plaintiffs-Appellants, )
)
v. ) No. 12 M1 301780
)
GLENVIEW RIDGE CONDOMINIUM ) The Honorable
ASSOCIATION, ) James E. Snyder,
) Judge, presiding.
Defendant-Appellant )
)
(Melissa Bermejo as Special )
Representative of the Estate of Geri M. )
Allegretti, )
Defendant). )
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices Palmer and Taylor concurred in the judgment and opinion.
OPINION
No. 1-13-2762
¶1 Plaintiffs Marta and Emilia Tyrka appeal the trial court's order dismissing
the counts in their complaint against defendant Glenview Ridge Condominium
Association (condo association) pursuant to section 2-615 of the Code of Civil
Procedure (735 ILCS 5/2-615 (West 2012)). Although other counts remain
against another defendant, the trial court found, pursuant to Illinois Supreme
Court Rule 304(a) (eff. Feb. 26, 2010), that there was no just reason to delay the
appeal of its order dismissing counts VII and VIII against defendant condo
association.
¶2 This appeal concerns injuries sustained by plaintiffs Marta and Emilia
Tyrka as the result of an attack by a dog belonging to a condo owner. The issue
on appeal is whether plaintiffs have stated a cause of action against the condo
association for their injuries. For the following reasons, we affirm the
dismissal.
¶3 BACKGROUND
¶4 I. The Second Amended Complaint
¶5 The subject of the trial court's dismissal order was plaintiff's second
amended complaint. Since this appeal comes to us on a 2-615 dismissal, we
assume that all the well-pleaded facts in this complaint are true (DeHart v.
DeHart, 2013 IL 114137, ¶ 18), and we summarize them below.
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¶6 Counts VII and VIII were directed against defendant condo association,
and these counts allege that defendant condo association was responsible for the
management of the condo property located at 4150 West Central Road in
Glenview, including the property's common areas.
¶7 The complaint alleges that, on August 11, 2011, a dog owned by
defendant Allegretti attacked and mauled a dog owned by plaintiff Marta Tyrka.
Allegretti's unleashed dog also attacked plaintiffs Marta and Emilia Tyrka. As a
result of the attack, which occurred in a common area, plaintiffs suffered "great
pain and discomfort, physical and emotional impairment, all of which injuries
are permanent."
¶8 The complaint does not allege whether Allegretti was a condo owner, but
it does allege that she was a "resident" and "harbored" the dog at the condo
premises. In addition, the complaint does not allege whether plaintiffs were
condo owners, residents, lessees, or invitees but only that they were where they
"had a lawful right to be." The complaint does not allege whether the "common
area" where the attack occurred was a lobby where the public is invited, or a
hallway used by residents and invitees, or an interior courtyard used by
residents and invitees for relaxation, or an event room which residents can
reserve, or another type of space. Since Allegretti died on August 30, 2012, the
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complaint names as a party defendant Melissa Bernejo, who is the special
representative of Allegretti's estate.
¶9 Although the complaint alleges that Allegretti's dog attacked plaintiffs
"without provocation," the complaint does not provide details concerning the
attack, such as whether the attack on plaintiffs' dog occurred before or after the
attack on plaintiffs themselves, whether plaintiffs were trying to break up a
fight between the two dogs when they themselves were attacked, or whether
plaintiffs were walking their dog unleashed through the common area, as they
allege defendant Allegretti was doing.
¶ 10 According to the complaint, defendant Allegretti's dog weighed more
than 25 pounds, and defendant condo association had regulations against
owning dogs weighing more than 25 pounds at the condo premises, and
defendant condo association knew that defendant Allegretti's dog weighed more
than 25 pounds. Defendant condo association also knew that the dog was
"violent or had a propensity for violence or a mischievous propensity to cause
injury or damage," because "prior to August 11, 2011, residents *** had
complained to [defendant condo association] about the violent nature of the
dog."
¶ 11 In addition, prior to August 11, 2011, defendant condo association knew
that the dog "had attacked another resident's dog in the common area." "At
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least three individuals who lived in the Glenview Ridge Condominiums *** had
complained to [defendant condo association] regarding:" (1) a prior attack by
the dog; (2) the dog's presence in the building despite the condo association's
regulations; and (3) general nuisance complaints about the dog. Defendant
condo association knew or should have known that the dog owned by defendant
Allegretti "would need to be walked" through the common areas of the condo
premises on a daily basis, and that the dog was walked without a leash. The
complaint does not allege whether the Allegretti dog would need to be walked
through the specific common area where the attack occurred.
¶ 12 As a result of these actions, the complaint alleged that defendant condo
association had acted negligently by failing to take steps to remove the dog and
by failing to warn others of the dangerous nature of the dog and that, as a result
of defendant condo association's negligence, plaintiffs were injured.
¶ 13 Counts VII and VIII are identical, except for the fact that count VII seeks
relief for injuries suffered by plaintiff Marta Tyrka, while Count VIII seeks
relief for injuries suffered by minor plaintiff Emilia Tyrka. The complaint does
not allege the age of the minor plaintiff.
¶ 14 The prayer for relief for both counts begins: "Wherefore the Plaintiff ***
prays for entry of judgment against the Defendant, Geri Allegretti." Like the
second amended complaint, the first amended complaint also mistakenly named
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"Defendant, Geri Allegretti" in the prayer for relief for the two counts against
defendant condo association.
¶ 15 II. Procedural History
¶ 16 We provide here only a short summary of the relevant procedural history
leading up to the filing of plaintiffs' second amended complaint.
¶ 17 After plaintiffs filed their original complaint on June 26, 2012, defendant
moved to dismiss the counts against it. Defendant's original dismissal motion is
not in the appellate record but its reply is in the record. The reply argues, among
other things, that the complaint's allegations about defendant's knowledge of the
dog's alleged viciousness were "conclusory" and hence insufficient to allow the
complaint to go forward at the pleading stage. The trial court granted
defendant's dismissal motion on November 28, 2012, but also allowed plaintiff
28 days to replead. The record does not contain a transcript of proceedings, and
the trial court's order does not state the reasons for the dismissal.
¶ 18 Plaintiffs filed their first amended complaint on December 27, 2012, and
defendants again moved to dismiss on January 22, 2013. Defendant again
argued, among other things, that plaintiffs' allegations about defendant's
knowledge were "wholly conclusory in nature." On April 15, 2013, the trial
court again granted defendant's dismissal motion and again granted plaintiffs'
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leave to replead. The record does not contain a transcript of these proceedings
and the trial court's order does not state the reasons for the dismissal.
¶ 19 On May 7, 2013, plaintiffs filed their second amended complaint, and
defendant again moved to dismiss. The substance of defendant's final dismissal
motion is discussed below.
¶ 20 III. The Dismissal Motion
¶ 21 On May 20, 2013, defendant condo association moved to dismiss the
counts against it pursuant to section 2-615 on the grounds (1) that the counts
were technically deficient since the prayer for relief sought relief only from
defendant Allegretti, the dog owner; and (2) that the counts were substantively
defective since plaintiffs had failed to establish a duty of care owed by
defendant condo association to protect against an attack by Allegretti's dog.
¶ 22 First, the motion stated: "Each count is technically deficient in that its
prayer for relief seeks relief from Geri Allegretti (whose death was spread of
record by Order of October 16, 2012) and not from the condominium
association. The corresponding counts of the First Amended Complaint had the
same technical deficiency, and plaintiffs failed to cure it in this Second
Amended Complaint."
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¶ 23 Second, the motion argued that plaintiffs had failed to establish that
defendant condo association had a duty to protect entrants from the potential
presence of dogs in the common areas.
¶ 24 Third, the motion argued that "plaintiffs' allegations as to this defendant's
knowledge that the Allegretti dog had already inured someone are wholly
conclusory in nature." The motion argued that, while plaintiffs alleged that the
Allegretti dog had attacked another dog, the complaint did not allege the
specific date or whether a bite or other injury occurred or whether the dog ever
attacked a person.
¶ 25 In plaintiffs' response to defendant's motion, plaintiffs argued that, under
common law negligence for dog attacks, regardless of the ownership of the dog,
a landowner is liable when the attack occurred on the landlord's premises and
the landowner knew of or had reason to know of the dog's viciousness.
¶ 26 IV. The Trial Court's Dismissal Order.
¶ 27 The trial court's order, entered on July 30, 2013, stated with respect to
defendant's motion to dismiss:
"This cause coming on to be heard on the motion of the defendant,
Glenview Ridge Condominium Association, to Strike and Dismiss
Counts VII and VIII of the Second Amended Complaint, briefs
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submitted, due notice and oral argument heard and the Court fully
advised in the premises[,]
It is hereby ordered that the motion is granted and Counts VII and
VIII of the Second Amended Complaint are stricken and the Second
Amended Complaint is dismissed as to Glenview Ridge Condominium
Association, with a special finding that no just cause exists to delay
enforcement of or appeal from said order of dismissal. "
¶ 28 Although the above order states that "oral argument [was] heard," the
appellate record does not contain a transcript or bystander's report for the
proceedings.
¶ 29 A notice of appeal was filed on August 22, 2013, and this appeal
followed.
¶ 30 ANALYSIS
¶ 31 On this appeal, plaintiffs challenge the trial court's dismissal of the counts
in plaintiffs' second amended complaint, after defendant condo association
moved to dismiss these counts pursuant to section 2-615 (735 ILCS 5/2-615
(West 2012)).
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¶ 32 I. Section 2-615 Motion
¶ 33 A section 2-615 motion attacks the legal sufficiency of the complaint.
DeHart, 2013 IL 114137, ¶ 18 (citing Bajwa v. Metropolitan Life Insurance
Co., 208 Ill. 2d 414, 421 (2004)). When ruling on a section 2-615 motion, a
court must accept as true all well-pleaded facts in the complaint, as well as any
reasonable inferences that may be drawn from those facts. DeHart, 2013 IL
114137, ¶ 18 (citing Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28
(2004)). A trial court should dismiss a count or cause of action under section 2-
615 only if it is readily apparent from the pleadings that there is no possible set
of facts which would entitle plaintiffs to the requested relief. DeHart, 2013 IL
114137, ¶ 18 (citing Bajwa, 208 Ill. 2d at 421). The question for the court is
whether the allegations of the complaint, when construed in the light most
favorable to the plaintiffs, are sufficient to establish the cause of action.
DeHart, 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James, 2012 IL 112393,
¶ 34).
¶ 34 However, our supreme court has also emphasized that Illinois is a fact-
pleading jurisdiction, and that plaintiffs are required to allege sufficient facts to
bring a claim within a legally recognized cause of action. Marshall v. Burger
King Corp., 222 Ill. 2d 422, 430 (2006). Although plaintiffs are not required to
set forth evidence in a complaint, they also cannot set forth "simply
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conclusions." Marshall, 222 Ill. 2d at 430. "[M]ere conclusory allegations
unsupported by specific facts will not suffice." Primax Recoveries v. Atherton,
365 Ill. App. 3d 1007, 1010 (2006).
¶ 35 On appeal, our review of a trial court's 2-615 dismissal order is de novo.
DeHart, 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James, 2012 IL 112393,
¶ 34). De novo consideration means that we perform the same analysis that a
trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564,
578 (2011).
¶ 36 I. Technical Deficiency in Prayer for Relief
¶ 37 Defendant argues that we may affirm on one of two grounds: (1) that the
prayer for relief was technically deficient; and (2) that the complaint was
substantively deficient because it failed to establish a duty on the part of
defendant condo association to protect plaintiffs from the dog owned by
defendant Allegretti.
¶ 38 As noted above, the prayer for relief in the counts against defendant
condo association asked for relief solely from defendant Allegretti. This same
technical defect existed in the first amended complaint, and plaintiffs failed to
correct it in their second amended complaint.
¶ 39 However, defendant has failed to provide any legal authority for this
point either in its appellate brief or in its motion to dismiss before the trial
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court. "This court has repeatedly held that a party waives a point by failing to
argue it." Lozman v. Putnam, 379 Ill. App. 3d 807, 824 (2008). See also
People v. Ward, 215 Ill. 2d 317, 332 (2005) ("point raised in a brief but not
supported by citation to relevant authority *** is therefore forefeited"); In re
Marriage of Bates, 212 Ill. 2d 489, 517 (2004) ("A reviewing court is entitled to
have issues clearly defined with relevant authority cited."); Rosier v. Cascade
Mountains, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting
legal authority or any reasoned argument, plaintiffs waived consideration of
their theory for asserting personal jurisdiction over defendants); Ferguson v.
Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 78 (1998) ("it is not necessary
to decide this question since the defendant has waived the issue" by failing to
offer case citation or other support as Supreme Court Rule 341 requires); Ill. S.
Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (argument in appellate brief must be
supported by citation to legal authority and factual record).
¶ 40 For the foregoing reasons, we do not find persuasive defendant's
argument about this technical defect.
¶ 41 II. Duty of Care
¶ 42 Defendant also argued, both in its appellate brief and in its motion to
dismiss before the trial court, that plaintiffs failed to establish that defendant
owed a duty of care to protect plaintiffs from defendant Allegretti's dog.
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¶ 43 Both of plaintiffs' counts against defendant are for common law
negligence. Although the parties discuss the Illinois Animal Control Act (the
Act) (510 ILCS 5/16 (West 2012)) in their appellate briefs, plaintiffs have not
alleged a statutory cause of action against defendant condo association pursuant
to the Act. The Act provides that a dog "owner" is liable in civil damages to a
person who was attacked by a dog without provocation, if that person was
peacefully conducting herself in any place where she had a lawful right to be.
510 ILCS 5/16 (West 2012). The Act defines the word "owner" broadly to
include any person "who knowingly permits a dog to remain on any premises
occupied by him or her" (510 ILCS 5/2.16 (West 2012)), and it does not require
plaintiffs to prove that the defendant knew of a dog's vicious nature. Severson
v. Ring, 244 Ill. App. 3d 453, 456 (1993). However, in their complaint,
plaintiffs bring claims of only common law negligence against defendant condo
association. Plaintiffs do not assert either a statutory claim under the Act or a
claim of breach of fiduciary duty against defendant condo association. In their
brief to this court, plaintiffs state: "Plaintiffs' case was filed pursuant to
common law negligence as opposed to the Illinois Animal Control Act." Thus,
neither the Act nor any fiduciary duty owed by the condo association is at issue
on this appeal.
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¶ 44 To state a cause of action for common law negligence, a complaint must
allege facts that establish: (1) the existence of a duty to use reasonable care
owed by the defendant to the plaintiffs, (2) a breach of that duty, and (3) an
injury proximately caused by that breach. Marshall, 222 Ill. 2d at 430; First
Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999).
¶ 45 In the case at bar, defendant did not move to dismiss on either the second
or third elements, which are (2) the breach of a duty or (3) the injuries
proximately caused by that breach. Defendant argued solely that it lacked (1) a
duty to use reasonable care.
¶ 46 Whether a duty exists in a particular case is a question of law for the
court to decide and so it is therefore an appropriate ground for a section 2-615
motion to dismiss. See Marshall, 222 Ill. 2d at 430 (citing Chandler v. Illinois
Central R.R. Co., 207 Ill. 2d 331, 340 (2003)). By contrast, whether a
defendant breached that duty and whether the breach was the proximate cause
of the plaintiffs' injuries are generally factual matters for a jury to decide, so
long as there is a genuine issue of material fact regarding those elements.
Marshall, 222 Ill. 2d at 430 (citing Espinoza v. Elgin Joliet & Eastern Ry. Co.,
165 Ill. 2d 107, 114 (1995)).
¶ 47 Plaintiffs allege that defendant owed them a duty because defendant
owned the premises upon which they were injured. To begin with, plaintiffs do
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not allege the status of their presence on the premises. We do not know
whether they were condo owners, residents, lessees, or invitees. Plaintiffs do
not allege where the incident occurred, but offer only the conclusion that the
attack occurred in "a common area." Plaintiffs allege knowledge by defendant
but not which person, on behalf of the condo association, possessed that
knowledge, or in what form the residents' complaints were made, or when they
were made.
¶ 48 To support their allegation that defendant owed them a duty, plaintiffs
rely primarily on the following four cases: (1) Frost v. Robave, Inc., 296 Ill.
App. 3d 528, 537-38 (1998); (2) Goennenwein v. Rasof, 296 Ill. App. 3d 650,
654 (1998); (3) Severson v. Ring, 244 Ill. App. 3d 453, 458 (1993); and (4)
Lucas v. Kriska, 168 Ill. App. 3d 317, 320 (1988). In the majority of these
cases, no liability was found.
¶ 49 In Frost, this court held that a business entity was not liable in common
law negligence for a dog attack which occurred on the second-floor landing
immediately outside of the business' office, although the dog was owned by a
co-owner of the business and the dog's owner occasionally took the dog to
work. Frost, 296 Ill. App. 3d at 530-31. The Frost court acknowledged that,
under common law negligence, a business entity does not necessarily have to be
the dog's owner to be liable for a dog attack, and that "[f]acts giving rise to a
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duty" occur "where [a] defendant is legally responsible for the premises where
the injury occurred." Frost, 296 Ill. App. 3d at 537. However, since the attack
in Frost did not occur on the defendant business' premises and the business did
not own or have custody or control of the dog, the defendant business could not
be held liable. Frost, 296 Ill. App. 3d at 537.
¶ 50 Plaintiffs argue that Frost shows that defendant condo association is
liable because it is legally responsible for the premises where the attack
occurred. However, all Frost establishes is that defendant may be liable, not
that it is.
¶ 51 In Goennenwein, the appellate court affirmed a trial court's grant of
summary judgment in favor of the defendant, although the defendant was the
undisputed owner of the home where a dog attack occurred. Goennenwein, 296
Ill. App. 3d at 651, 655. In Goennenwein, a four-year-old was attacked at a
Passover seder by a dog owned by the adult son of the defendant host and
premises owner. Goennenwein, 296 Ill. App. 3d at 651-52. The court affirmed
the dismissal of the common-law negligence claim because "plaintiff failed to
come forward with evidence to raise an issue of fact as to defendant [premises
owner]'s knowledge of the dog's alleged dangerousness." Goennenwein, 296
Ill. App. 3d at 655.
¶ 52 Discussing the issue of knowledge, the court stated:
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"It is presumed that a dog is tame, docile, and harmless absent evidence
that the dog has demonstrated vicious propensities. Lucas v. Kriska, 169
Ill. App. 3d 317, 320 (1988). To impose a duty on defendant, plaintiff
needed to establish that defendant knew or had reason to know that the
dog would be dangerous to children. See Lucas, 168 Ill. App. 3d at 320.
Because a dog ordinarily is not a danger to children (see Lucas, 168 Ill.
App. 3d at 320), plaintiff needed to come forward with evidence to show
that defendant knew that [this particular dog] was a danger to children."
Goennenwein, 296 Ill. App. 3d at 654-55.
Thus, to impose liability on someone other than the dog's owner under
principles of common law negligence, plaintiffs must show that a defendant
premises owner had prior knowledge of the dog's viciousness. Lucas, 168 Ill.
App. 3d at 320; see also Goennenwein, 296 Ill. App. 3d at 654-55.
¶ 53 The Goennewein court then discussed facts which could have provided
the defendant host and premises owner with the knowledge that the dog might
pose a potential danger to the child. Those facts included whether the dog had
"growl[ed], snarl[ed] or threaten[ed] anyone" in the hours immediately prior to
the attack, and whether the dog had previously attacked anyone when
previously on the defendant's premises. Goennenwein, 296 Ill. App. 3d at 655.
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¶ 54 Similarly, in Severson, the appellate court also considered what facts
would provide a premises owner with knowledge that a dog might pose a
danger, and it also found significant the existence of a prior attack on a person.
Severson, 244 Ill. App. 3d at 458-59. In Severson, the appellate court held that
a trial court erred in granting summary judgment on a common-law negligence
claim, because there was a material issue of fact about whether the defendant
premises owner knew of the dog's vicious nature. Severson, 244 Ill. App. 3d at
458-59. In Severson, the appellate court reversed because the dog had bitten
another child just 20 days before it bit this 2-year-old plaintiff, and because the
dog owner had stated in front of the defendant premises owner that a person
should not "go near" his dog when the dog was "chained up" in the defendant's
yard. Severson, 244 Ill. App. 3d at 458-59.
¶ 55 In Lucas, which was also cited by plaintiffs, the appellate court held that
the trial court erred in not entering judgment for the defendant premises owner
on the plaintiff's common-law negligence claim, notwithstanding the jury's
verdict for the eight-year-old plaintiff. Lucas, 168 Ill. App. 3d at 319, 321. The
appellate court held that, although the defendant was undisputedly both the
premises owner and the brother of the dog's owner, reversal was required in
light of the complete absence of evidence of any prior bites by the dog. Lucas,
168 Ill. App. 3d at 319, 321. Thus, in Goennenwein, Severson and Lucas, the
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appellate court considered the absence or presence of prior attacks on people
significant in determining whether a premises owner had the knowledge
required for a common-law negligence claim that a dog was potentially
dangerous.
¶ 56 Since the case at bar involved a section 2-615 motion to dismiss rather
than a summary judgment motion as in both Goennenwein and Severson,
plaintiffs here do not have to come forward with evidence but only with factual
allegations. However, they still must allege sufficient facts in order to
overcome the presumption discussed above in Goennenwein and Lucas that
dogs are tame, docile and harmless. Goennenwein, 296 Ill. App. 3d at 654-55;
Lucas, 168 Ill. App. 3d at 320 ("Illinois law presumes the tameness and docility
of dogs and only imposes liability where there is notice of the dog's vicious
propensities").
¶ 57 Plaintiffs argue in their appellate briefs that paragraphs 14 through 18 of
their two negligence counts allege sufficient facts to show the knowledge which
was lacking in Goennenwein and Lucas:
"14. That on and prior to August 11, 2011, and at all times relevant
hereto, [defendant condo association], knew that the dog owned and
harbored by [defendant Allegretti] was violent or had a propensity for
violence or a mischievous propensity to cause injury and damage.
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15. That prior to August 11, 2011, residents of the Glenview Ridge
Condominium premises complained to [defendant condo association]
about the violent nature of the dog owned and harbored by [defendant
Allegretti].
16. That prior to August 11, 2011, [defendant condo association]
knew that the dog owned and harbored by [defendant Allegretti] had
attacked another resident's dog in the common area of the Glenview
Ridge Condominiums.
17. That prior to August 11, 2011, [defendant condo association]
knew of said dog attack in the common area of their premises.
18. That prior to August 11, 2011, at least three individuals who lived
in the Glenview Ridge Condominiums located at 4150 W. Central Road,
in the City of Glenview, County of Cook, and State of Illinois had
complained to [defendant condo association] regarding a prior attack by
said dog, the dog's presence in the building despite the violation of the
Defendant's rules and regulations, and general nuisance complaints
regarding the dog owned and harbored by [defendant Allegretti]."
¶ 58 When these paragraphs are stripped of their legal conclusions and
reduced to only their factual allegations, the paragraphs allege that three
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individuals living at the condo premises complained to defendant condo
association about "[1] a prior attack by said dog, [2] the dog's presence in the
building despite the violation of the Defendant's rules and regulations, and [3]
general nuisance complaints."
¶ 59 Of these three factual allegations, only one relates to the dog's potentially
violent nature, namely, the alleged prior attack. The dog's presence in violation
of defendant's regulations and general nuisance complaints reveals nothing
about a potential propensity for violence. Nuisance complaints could be due to
barking; and the violation of defendant's regulations, according to plaintiffs,
was because the dog was over 25 pounds. Illinois courts do not presume that
any particular breed, size or type of dog is vicious, and every dog must be
evaluated individually. Goennenwein, 296 Ill. App. 3d at 655
¶ 60 As for "the prior attack" identified in paragraph 18, paragraph 18 does
not allege what the Allegretti dog attacked: whether the target of this prior
attack was a person, another unleashed dog, a cat, a squirrel or a piece of
furniture. The complaint does not allege any of the circumstances of this prior
attack, such as whether the dog attacked to ward off a perceived danger to its
owner. Although the complaint states repeatedly that the attack on plaintiffs
was "unprovoked," the complaint does not make the same assertion with respect
to this prior attack.
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¶ 61 In paragraph 16, the complaint does allege that defendant condo
association knew of a prior attack by the Allegretti dog on "another resident's
dog in the common area." If the attacks in paragraphs 16 and 18 are one and
the same, this allegation is still not sufficient, without more, to show that
defendant had knowledge that this dog was likely to attack, without any
provocation, people peaceably walking through the common areas of the condo
association. Again, there are no allegations concerning the circumstances of
this prior attack, such as the date, whether there were any injuries or bites,
whether the dog's owner was under any threat or danger, whether the attack was
unprovoked, or whether the dogs involved were unleashed.
¶ 62 Nowhere does the complaint allege the facts discussed in prior appellate
cases such as whether the dog previously snarled at, growled at, threatened or
attacked another person. Goennenwein, 296 Ill. App. 3d at 655 (appellate court
considered whether the dog had previously attacked, "growl[ed], snarl[ed] or
threaten[ed] anyone"); Severson, 244 Ill. App. 3d at 458-59 (a recent prior
attack, plus a warning by the dog owner delivered in front of the defendant
premises owner, created a material issue of fact about the premises owner's
knowledge); Lucas, 168 Ill. App. 3d at 321 (the trial court erred in not granting
judgment notwithstanding the verdict in light of the complete absence of
evidence of prior bites by the dog). As a result, plaintiffs' second amended
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No. 1-13-2762
complaint fails to show knowledge by defendant condo association, and we
must affirm the trial court's dismissal of the counts against defendant condo
association. Primax, 365 Ill. App. 3d at 1010 ("mere conclusory allegations
unsupported by specific facts will not suffice").
¶ 63 We observe that the second amended complaint is plaintiffs' third attempt
at drafting a complaint, and plaintiffs did not seek leave to amend for a third
time after defendant argued for a third time both that knowledge was an issue
and that plaintiffs' allegations of knowledge were "conclusory." A reviewing
court must presume that another attempt at repleading will be fruitless when
there is no proposed amended pleading in the record. Lake County Grading Co.
of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d
452, 461 (1995).
¶ 64 CONCLUSION
¶ 65 For the foregoing reasons, we affirm the trial court's dismissal of counts
VII and VIII in plaintiffs' second amended complaint against defendant condo
association.
¶ 66 Affirmed.
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