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18 August 2000

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JUSTICE INGLIS delivered the opinion of the court:

This appeal comes before us from an order of the circuit court of Kane County grantingsummary judgment for defendants, Kenneth Malm and Tyra Malm, in an action for personal injuriesand property damage. The injuries occurred when a car driven by plaintiff Epifanio Antunez, inwhich plaintiff Amelia Corona was a passenger, collided with a horse that had escaped fromdefendants' property. Plaintiffs filed a four-count complaint, counts I and III alleging that defendantsviolated the Illinois Domestic Animals Running at Large Act (Act) (510 ILCS 55/1 (West 1998))and counts II and IV alleging common-law negligence.

On November 5, 1997, a horse named "Pretty Girl," owned by Douglas Maloney, gallopeddirectly across the path of the car driven by Antunez, causing the front end to collide with the leftside of the horse. At the time of the accident, the horse was boarded by defendants at their stable.

Defendants filed a motion for summary judgment on the grounds that (1) plaintiffs presentedno evidence that defendants failed to use reasonable care in restraining the horse or that they hadknowledge that the animal was running at large; and (2) any action for injuries or damages sustainedby a runaway horse must be predicated on the Act and, therefore, plaintiffs' common-law negligenceactions should be dismissed. The trial court agreed and granted defendants' motion for summaryjudgment on all counts. Believing that it was bound by this court's opinion in Abadie v. Royer, 215Ill. App. 3d 444 (1991), the trial court held that under the Act plaintiffs had the burden of provingdefendants failed to exercise reasonable care in restraining a runaway animal and that defendantshad knowledge that the animal was a runaway. Because plaintiffs did not present any evidence thatdefendants failed to exercise reasonable care or that defendants had knowledge that the horse hadescaped, the court granted summary judgment in favor of defendants. The trial court further heldthat, because liability for injuries caused by animals running at large must be predicated on the Act,plaintiffs were precluded from bringing an action for common-law negligence. Plaintiffs timelyappeal.

We note at the outset that summary judgment is appropriate only when the pleadings,depositions, and admissions on file, together with the affidavits, if any, show that there is no genuineissue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735ILCS 5/2--1005(c) (West 1998). Summary judgment is a drastic means of disposing of litigation andtherefore should be allowed only when the right of the moving party is clear and free from doubt. Rivas v. Westfield Homes of Illinois, Inc., 295 Ill. App. 3d 304, 307-08 (1998). In determining thepresence of a genuine issue of material fact, the court must construe the evidence strictly against themovant and liberally in favor of the opponent. Largosa v. Ford Motor Co., 303 Ill. App. 3d 751, 753(1999). We conduct a de novo review of the trial court's decision to grant summary judgment. Rockford Memorial Hospital v. Department of Human Rights, 272 Ill. App. 3d 751, 754 (1995).

Plaintiffs first contend that the trial court misconstrued the burden-of-proof provision of theAct and thus erred in granting summary judgment for defendants on counts I and III. The trial courtheld that it was bound by this court's opinion of Abadie. In that case, however, the issue on appealwas whether there were any genuine issues of material fact regarding whether the defendantsexercised reasonable care. In analyzing the evidence concerning the defendants' exercise ofreasonable care, the court in Abadie cited O'Gara v. Kane, 38 Ill. App. 3d 641 (1976), for theproposition that, to recover under the Act, "plaintiff must allege and prove that defendants did notuse reasonable care in restraining the animal and that defendants had no knowledge that the animalwas running at large." Abadie, 215 Ill. App. 3d at 450. Plaintiffs claim that we should reverseour holding in Abadie because the plain reading of the Act places the burden on a defendant toestablish the exercise of due care as a defense to an alleged violation of the Act. Defendants counterthat case law from this district and others has interpreted the Act as placing the burden on a plaintiffto establish that the defendant failed to exercise due care. Defendants conclude that, becauseplaintiffs failed to introduce any evidence of the lack of due care, the trial court correctly grantedsummary judgment in their favor. We agree with plaintiffs.

Section 1 of the Act provides that no person or owner of livestock shall allow livestock torun at large in the state. 510 ILCS 55/1 (West 1998). It further provides:

"All owners of livestock shall provide the necessary restraints to prevent such livestock fromso running at large and shall be liable in civil action for all damages occasioned by suchanimals running at large; Provided, that no owner or keeper of such animals shall be liablefor damages in any civil suit for injury to the person or property of another caused by therunning at large thereof, without the knowledge of such owner or keeper, when such owneror keeper can establish that he used reasonable care in restraining such animals from sorunning at large." 510 ILCS 55/1 (West 1998).

Historically, the Act imposed strict liability on an owner or keeper for damages caused byanimals that ran at large. 1895 Ill. Laws 4; McKee v. Trisler, 311 Ill. 536 (1924). In 1931, thelegislature amended the Act to provide innocent owners with relief from the harsh consequences ofstrict liability if they acted with due care in restraining the animal and did not know of its escape. Estes v. Maddrell, 208 Ill. App. 3d 813 (1991). The amendment therefore balances the interests ofthe public at risk from straying animals with those of the livestock owner; the livestock owner is nolonger strictly liable if he or she can show that he or she used reasonable care and had no knowledgethat his or her animal was running at large. Nevious v. Bauer, 281 Ill. App. 3d 911, 915 (1996).

In Fugett v. Murray, 311 Ill. App. 323 (1941), the plaintiff was killed and his wife wasinjured when their motorcycle collided with a runaway horse. The action was tried on the theory thata duty rested with the defendant to show he used reasonable care to prevent the horse from runningat large. In construing the statute, this court determined that the amendment passed by the legislatureprovided relief to the animal's owner from the harshness of the law. We concluded that, under thegeneral rule involving accidents as a result of the violation of the statute making it unlawful for stockto run at large, there is a presumption of negligence by the owner or keeper of stock sufficient tobring the case to the jury. We further stated: "The defendant claims the benefit of the proviso. Theproof to be established under the proviso was within the knowledge of the defendant and not theplaintiffs. The burden of evidence, after the plaintiffs rested their case in chief, was on thedefendant." Fugett, 311 Ill. App. at 328.

In Wakefield v. Kern, 58 Ill. App. 3d 837 (1978), we came to a similar construction of theAct. We held that under the Act a keeper or owner of a horse may avoid liability if he meets a two-part test: if he is able to establish that (1) he used reasonable care in restraining his livestock, and (2)he did not have knowledge that the animal was running at large. Wakefield, 58 Ill. App. 3d at 840;see also Estes, 208 Ill. App. 3d at 816.

The First District, in Guay v. Neel, 340 Ill. App. 111 (1950), after quoting our analysis inFugett, confused the analysis by concluding that the plaintiff had the burden to prove her case by apreponderance of the evidence and that, once she made out a prima facie case, the burden ofproceeding shifted to the defendant. "The burden of proof remained, however, on the plaintiff." Guay, 340 Ill. App. at 118.

Similarly, the Fifth District in O'Gara v. Kane, 38 Ill. App. 3d 641 (1976), came to the sameconclusion. The court noted that the Act was amended by the proviso that an owner would not beheld liable if he were able to prove that he used reasonable care in restraining his animals and if hewas without knowledge that they were running at large. O'Gara, 38 Ill. App. 3d at 643. However,the court then, without explanation, followed the conclusion reached in Guay and held that, once theplaintiff made out a prima facie case, the burden shifted to the defendant; the burden of proof,however, remained on the plaintiff. O'Gara, 38 Ill. App. 3d at 644.

In Nevious v. Bauer, 281 Ill. App. 3d 911, 912 (1996), the plaintiff brought an action againstthe defendants under the Act for injuries sustained in a car collision with the defendants' bull. Theplaintiff argued on appeal that the trial court misconstrued the burden-of-proof provisions of the Actand therefore erred in directing a verdict for the defendants. After citing the conflicting cases, theThird District surmised that, if the defendants were correct in asserting that the burden of proofalways remains with the plaintiff, then, under the Act, the plaintiff would have to prove lack of duecare and lack of knowledge. The court concluded that this interpretation of the Act was implausible,since the plaintiff was logically precluded from proving the negative, i.e., lack of knowledge on thedefendants' part. The court felt that the better interpretation, supported by the plain language of theAct, placed the burden on the defendants to prove the exercise of due care and lack of knowledge. In reaching this conclusion, the court relied on Fugett's analysis that the defendant claims the benefitof the proviso and that the proof to be established is within the knowledge of the defendant and notthe plaintiff. Nevious, 281 Ill. App. 3d at 916. The court concluded that, once the plaintiffestablished his case in chief, the burden of proof shifted to the defendant to establish both theexercise of due care in restraining the livestock and the lack of knowledge that it had escaped. Thecourt found that this interpretation was consistent with the legislative intent of balancing the public'sinterests with those of the owner or keeper.

The Fifth District, in Christenson v. Rincker, 288 Ill. App. 3d 185 (1997), adopted theholding in Nevious. The court found that the holding in Nevious clearly reflected the intent of thelegislature in amending what would otherwise be a strict liability statute. The court concluded thatthe two provisos in the statute constituted affirmative defenses and should be so construed. Christenson, 288 Ill. App. 3d at 190-91.

We agree with the decisions made in Nevious and Christenson. Our analysis of the languageof the statute demonstrates that the analysis in Nevious and Christenson is proper. The language ofthe Act clearly places on the owner or keeper the duty to restrain the animals from running at largeand the liability for damage caused by the animals if the owner or keeper fails to do so. The Actprovides to the owner or keeper of such animals an opportunity to avoid strict liability if he canprove that he had no knowledge that the animal was running at large and "that he used reasonablecare in restraining such animals from so running at large." Accordingly, we hold that the plaintiffneed plead and prove only that he or she was injured by an animal running at large that was ownedor kept by the defendant. The defendant must then affirmatively plead and prove (1) that he or sheexercised due care in restraining the livestock, and (2) that he or she lacked knowledge that it hadescaped. To hold otherwise is irrational and clearly contrary to the intent of the legislature. Christenson, 288 Ill. App. 3d at 191. Defendants' contention that Abadie was correctly decidedinures only to a defendant's benefit and places upon the plaintiff the impossibility of pleading andproving a negative. We must therefore overrule Abadie, in toto, reverse the trial court's decisiongranting summary judgment for defendants as to counts I and III, and remand the cause to the trialcourt with directions to allow defendants to plead, and subsequently prove, the affirmative defensesof due care in restraining the horse and of the lack of knowledge that the horse escaped.

We next turn to plaintiffs' argument that the trial court erred in granting defendants'summary judgment motion as to counts II and IV of the complaint, sounding in common-lawnegligence. In finding there was no cause of action for negligence, the trial court relied on Douglassv. Dolan, 286 Ill. App. 3d 181, 186 (1997), which held that liability for injuries caused by animalsrunning at large must be predicated on the Act. See also Smith v. Gleason, 152 Ill. App. 3d 346, 348(1987); Heyen v. Willis, 94 Ill. App. 2d 290 (1968).

Plaintiffs maintain that the trial court erred in relying on Douglass, that Douglass, as well asSmith and Heyen, does not apply because it involved whether common-law liability could beimposed on a landowner who was not an owner or keeper as opposed to a landowner who was, asin this case. This distinction, however, is irrelevant. The claims of common-law negligence in thiscase are inextricably linked to plaintiffs' claims of a statutory violation. Under their common-lawnegligence counts, plaintiffs allege that defendants failed to provide an adequate enclosure, failedto inspect and reasonably maintain the enclosure, and failed to find and repair any defects in theenclosure. Such allegations are inextricably related to the legal duties created by the Act, amongthem being defendants' duty to use reasonable care in maintaining the enclosures so that the horsedoes not run at large. Because the allegations are inextricably linked to the statutory violation, we find there is no independent basis for the action apart from the Act itself. See Maksimovic v.Tsogalis, 177 Ill. 2d 511 (1997).

We note that, in some cases, liability might be predicated on a negligence claim as in the casewhere the owner has knowledge of an animal's mischievous propensity. See, e.g., Zears v. Davison,154 Ill. App. 3d 408, 410 (1987). However, plaintiffs do not allege that defendants had knowledgeof the animal's mischievous propensity. Under the circumstances here, plaintiffs' allegations ofdefendants' negligence are mere surplusage. The trial court therefore properly granted defendants'motion for summary judgment as to counts II and IV.

Plaintiffs last contend that the trial court erred in granting defendants leave to file revisedaffirmations in support of their answers to plaintiffs' requests for admission of facts. Plaintiffscontend that, because defendants' notarized signature pages were not properly sworn statements asrequired under Supreme Court Rule 216(c) (134 Ill. 2d R. 216(c)), defendants must be deemed tohave admitted all the facts plaintiffs sought in their requests to admit. We disagree.

Plaintiffs served each defendant a request to admit on May 25, 1999, to which they eachtimely filed responses. Defendants answered each request by placing an "X" by each question, eitheradmitting or denying each allegation. Both defendants signed and dated the signature pages to eachresponse. Both signature pages were notarized as "subscribed and sworn to" before the notary publicon the date on which they were signed. Plaintiffs objected to the sufficiency of the sworn statementsand on October 5, 1999, filed a motion to have the allegations in plaintiffs' requests deemedadmitted. The trial court denied plaintiffs' motion and granted defendants leave to file revisedaffirmations to the requests to admit within 30 days. There is no report of proceedings in the recordof the hearing on the motion. At the hearing on the motion for summary judgment, the trial court,noting the parties were not on the record during the prior hearing, stated that the certification andswearing on the responses looked very much the same and "so again, my holding was that it's clearly-- it would be elevating form over substance to rule in favor of [plaintiffs] on that issue." Defendantsamended the signature pages to conform to the sample attestation clause found in the committeecomments to Supreme Court Rule 213(j) (177 Ill. 2d R. 213(j), Committee Comments).

A trial court is afforded great latitude in ruling on discovery matters, and a reviewing courtwill not disturb such a ruling on appeal absent a manifest abuse of discretion. Gilmore v. City ofZion, 237 Ill. App. 3d 744, 754 (1992). Rule 216(c) requires that the party to whom the request isdirected serve upon the party requesting the admission "a sworn statement denying specifically thematters of which admission is requested or setting forth in detail the reasons why he cannot truthfullyadmit or deny those matters." 134 Ill. 2d R. 216(c). Rule 216(c) does not provide a requirement thatthe sample attestation clause included in the committee comments to Rule 213(j) must be used inRule 216. Both of defendants' responses were signed and sworn before a notary public. We agreewith the trial court that, if we were to find any nonconformance, it was, at most, a technicaldeficiency that did not render the responses inadequate or improper. See Mount Prospect State Bankv. Forestry Recycling Sawmill, 93 Ill. App. 3d 448, 459 (1980) (technical deficiencies do not renderaffidavits improper; substance and not form controls). We find no abuse.

Accordingly, the judgment of the circuit court of Kane County granting summary judgmentin favor of defendants is reversed as to counts I and III, and the cause is remanded. The judgmentis affirmed in all other respects.

Reversed in part and affirmed in part; cause remanded.

GEIGER and GALASSO, JJ., concur.