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November 14, 2001

PRESIDING JUSTICE HUTCHINSON delivered the opinion of thecourt:

Plaintiffs, Angelique Garcia and Lucky Williams, filed a six-count complaint against defendant, Ronald Nelson, to recover forpersonal injuries and property damage they suffered when the all-terrain vehicle (ATV) they were riding collided with defendant'sdog. The trial court granted defendant summary judgment (see 735ILCS 5/2--1005(b), (c) (West 1998)) on the complaint's first threecounts, which were brought under section 16 of the Animal ControlAct (the Act) (510 ILCS 5/16 (West 1996)). Plaintiffs voluntarilydismissed the other three counts, which were based on common-lawnegligence, and defendant voluntarily dismissed a counterclaimagainst Williams. Plaintiffs timely appealed the grant of summaryjudgment on the first three counts of their complaint.

On appeal, plaintiffs argue that the grant of summary judgmentwas erroneous because it cannot be said as a matter of law thatplaintiffs did not meet all of the Act's preconditions forrecovery. We agree, reverse the judgment, and remand the cause.

On the evening of February 10, 1996, plaintiff Lucky Williamswas driving his ATV east along North Boone School Road in Capron. Plaintiff Angelique Garcia was riding in back. As plaintiffsapproached defendant's property at 9431 North Boone School Road,the ATV collided with defendant's dog. The crash injuredplaintiffs, damaged the ATV, and killed the dog. Plaintiffsbrought a three-count complaint against defendant seeking damagesunder the Act for, respectively, Williams' injuries, Garcia'sinjuries, and the damage to the ATV. The complaint alleged thatthe dog caused plaintiffs' injuries. The complaint also allegedthat, at the time of the accident, plaintiffs were in a place wherethey had the right to be, were conducting themselves peacefully,and did not provoke the dog.

Section 16 of the Act provides:

"If a dog or other animal, without provocation, attacksor injures any person who is peaceably conducting himself inany place where he may lawfully be, the owner of such dog orother animal is liable in damages to such person for the fullamount of the injury sustained." 510 ILCS 5/16 (West 1996).

Defendant filed an answer and several affirmative defenses. Defendant alleged, inter alia, that plaintiffs could not recoverunder the Act because they had violated section 11--1426(a) of theIllinois Vehicle Code (the Vehicle Code) (625 ILCS 5/11--1426(a)(West 1996)) by driving the ATV on a public road. Defendant alsofiled a counterclaim against Williams for contribution in the eventthat Garcia recovered against defendant. Defendant subsequentlymoved for summary judgment. His motion alleged that there was nogenuine dispute that, at the time of the accident, plaintiffs wereeither illegally riding the ATV on private property without theowner's permission (see 625 ILCS 5/11--1427(f) (West 1996)) orillegally riding the ATV on a public roadway. Defendant reasonedthat, in either event, plaintiffs could not recover under the Actbecause they had not been in a "place where [they might] lawfullybe" within the meaning of the Act.

Defendant attached affidavits to the motion from himself andDennis Wilkening. Wilkening averred he owned the property acrossthe street from defendant's land. Both affiants stated that theynever permitted Williams or anyone else to ride ATVs in theirfields or in the ditches alongside their fields and that nobody hadpermission to be on their property on February 10, 1996.

Defendant also attached plaintiffs' discovery depositions. Ather deposition, Garcia testified that, on the evening of February10, 1996, she and Williams rode Williams' ATV from his house, whichwas about a mile west of defendant's house on the south side ofNorth Boone School Road. Garcia did not recall exactly where theaccident took place. However, immediately after the accident, shelay in the middle of the road and Williams lay behind her in aditch on the south side of the road.

In his deposition, Williams testified as follows. On theevening of February 10, 1996, he drove his ATV east from his homeat 8647 North Boone School Road. Garcia rode on the back of theATV. Williams started riding along the south side of the road,crossed to the north side, then crossed back to the south side. Suddenly, the dog appeared ahead of him and to his right. The doglunged at Williams and knocked plaintiffs off the ATV. As bestWilliams could recall, the collision happened just west ofdefendant's driveway as Williams drove his ATV "halfway in theditch, halfway in the road."

Garcia filed a response to defendant's motion for summaryjudgment. Defendant filed a reply that included an affidavit fromthe Boone Township highway commissioner. The affidavit stated thatthe township has a right of way extending 30 feet each way from thecenter line of North Boone School Road and that neither thetownship nor the highway commission had designated any part of thisright of way as a trail or as an ingress or egress route for ATVs.

Plaintiffs moved for partial summary judgment. Their motionasserted that there was no genuine dispute that, at the time of theaccident, they were where they had a legal right to be. Plaintiffsasserted that there was no genuine dispute that the accidenthappened in the public right of way (see 605 ILCS 5/2--202 (West1996)), which included not only the paved portion of the road butpart of the grassy area alongside the pavement.

Plaintiffs attached an excerpt of defendant's deposition totheir motion. In the deposition, defendant testified that onFebruary 10, 1996, after he learned of the accident, he wentoutside and saw that his dog lay dead in his yard just west of hisdriveway and just south of the mailbox. Later that night,defendant found plastic from a headlight lens. This debris lay"right along the [south] edge of the road to maybe a foot or two inthe ditch."

Plaintiffs also attached the affidavit of WilliamVanderstappen, a professional surveyor who surveyed the location ofdefendant's driveway. Vanderstappen's affidavit includes a copy ofa plat drawn after the survey. The affidavit states that NorthBoone School Road is a paved surface about 21 feet wide; that theroad's right-of-way is about 66 feet wide and includes both thepaved road and the grassy areas on both sides; and thatapproximately 20 feet of defendant's driveway is within the road'sright-of-way. On the plat, the mailbox and much of the graveldriveway are depicted north of the southern boundary of the right-of-way.

In his response to plaintiffs' motion, defendant assertedthat, at the time of the accident, plaintiffs had not been wherethey had a legal right to be. Defendant reasoned that even ifplaintiffs could prove that they had not been on defendant'sproperty, they had no legal right to drive the ATV on the roadway. Defendant also asserted that plaintiffs could not prove that theyhad been conducting themselves peaceably, as they had been eithertrespassing or violating the traffic laws. Plaintiffs repliedthat, because the right-of-way was public, they had been where theyhad a right to be. Also, they had been acting peaceably.

Plaintiffs filed an amended complaint adding three countsbased on negligence. The trial court denied plaintiffs' motion forpartial summary judgment and granted defendants summary judgment onthe three counts brought under the Act. The trial court reasonedas follows. There was no dispute that Williams' ATV anddefendant's dog collided in the right-of-way. However, thisestablished that plaintiffs had not been in "any place where [they]may lawfully be" (510 ILCS 5/16 (West 1996)). The trial courtexplained that, although violating a traffic law would not alwaysbar recovery under the Act, plaintiffs' illegal act, driving theATV on a public road, caused the accident and thus defeated theirclaims.

After the trial court denied plaintiffs' motion to reconsider,plaintiffs voluntarily dismissed the common-law counts of thecomplaint and defendant voluntarily dismissed his counterclaim. The trial court found that there was no just reason to delayenforcement or appeal of its order (see 155 Ill. 2d R. 304(a)). (This finding was unnecessary to confer jurisdiction on this courtbecause the voluntary dismissal of the remaining claims renderedthe grant of summary judgment a final and appealable order underSupreme Court Rule 301 (155 Ill. 2d R. 301). See Dubina v. MesirowRealty Development, Inc., 178 Ill. 2d 496, 503-04 (1997).) Plaintiffs timely appealed.

On appeal, plaintiffs argue that the summary judgment fordefendant on the counts brought under the Act was based on an erroneous construction of the Act. Plaintiffs maintain that thepublic right-of-way was a place they could lawfully be, even thoughthey had no right to use the ATV there. Defendant responds thatplaintiffs cannot establish that they were in the right-of-way atthe time of the accident and that, even if they could, they werenot lawfully in the right-of-way because they were riding a bannedvehicle. Defendant also argues that summary judgment was properbecause plaintiffs were either trespassing or violating theIllinois Vehicle Code and, in either case, they were not "peaceablyconducting [themselves]." 510 ILCS 5/16 (West 1996). For thereasons that follow, we agree with plaintiffs.

Summary judgment is proper when the pleadings, depositions,affidavits, and other matters on file establish that there is nogenuine issue of material fact and that the moving party isentitled to judgment as a matter of law. 735 ILCS 5/2--1005(c)(West 1998). A plaintiff need not prove her or his case at thispreliminary stage but must present some evidentiary facts tosupport each element of her or his cause of action. Barker v.Eagle Food Centers, Inc., 261 Ill. App. 3d 1068, 1071 (1994). Weconstrue the evidence liberally in favor of the nonmovant andstrictly against the movant. Sunderman v. Agarwal, 322 Ill. App.3d 900, 902 (2001). Our review is de novo. Outboard Marine Corp.v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).

To recover under section 16 of the Act, a plaintiff must pleadand prove (1) an injury caused by an animal the defendant owned;(2) lack of provocation; (3) that the plaintiff was conductingherself or himself peaceably; and (4) that the plaintiff was in aplace where she or he had the legal right to be. 510 ILCS 5/16(West 1996); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d141, 147 (1994). Plaintiffs pleaded all of these elements. Defendant does not argue that plaintiffs failed to adducesufficient evidence of the first two elements, causation and lackof provocation. Instead defendant argues that the trial courtproperly held that, because plaintiffs rode a banned vehicle on thepublic roadway, they could not, as a matter of law, prove thefourth element, that they were where they had the lawful right tobe. Defendant also argues that because plaintiffs were admittedlybreaking the law by driving the ATV where it was banned, theycannot recover under the Act because, as a matter of law, theycannot prove the third element, that they were acting peaceably.

Whether these arguments support the grant of summary judgmentturns on an interpretation of section 16 of the Act. Wheninterpreting a statute, we seek to ascertain and effectuate thelegislature's intent. A.P. Properties, Inc. v. Goshinsky, 186 Ill.2d 524, 532 (1999). Ordinarily, the statutory language itself isthe best guide to this intent. Paris v. Feder, 179 Ill. 2d 173,177 (1997). Words that the statute does not define should receivetheir plain and ordinary meanings, and the dictionary is one guideto these meanings. See In re A.P., 179 Ill. 2d 184, 198-99 (1997). If the statute's language is unambiguous, we must follow it. People v. Eidel, 319 Ill. App. 3d 496, 502 (2001). We consider thelanguage of the statute in light of the statute's purposes and theevils the law was designed to remedy. DeWig v. Landshire, Inc.,281 Ill. App. 3d 138, 142 (1996). We presume that the legislaturedid not intend inconvenience, injustice, or absurdity and willfavor an interpretation that renders the law reasonable andsensible over one that renders the law illogical and absurd. People v. Stanciel, 153 Ill. 2d 218, 233-34 (1992).

Applying these principles here, we inquire first whether thetrial court correctly held that, as a matter of law, plaintiffswere not "in any place where [they might] lawfully be." 510 ILCS5/16 (West 1996). Defendant presents two arguments in favor ofthis conclusion. The first is that plaintiffs cannot establishthat, when they were injured, they were not trespassing on privateproperty. We disagree. Construing the evidence liberally inplaintiffs' favor, we think that plaintiffs' occurrence testimony,defendant's testimony about the crash scene, the township highwaysupervisor's description of the right-of-way, and the surveyor'saffidavit and plat are more than enough evidence from which to findthat plaintiffs were in the public right-of-way when the ATVcollided with defendant's dog. We agree with the trial court thatthere is no genuine dispute that plaintiffs were within the right-of-way, which, according to a fair reading of the plat, extends farsouth of where the collision occurred.

Defendant's second argument is that the trial court correctlyheld that plaintiffs were not lawfully on the right-of-way becausethey could not legally ride the ATV on North Boone School Road. Defendant asserts that, because plaintiffs lacked the law'spermission to ride the ATV on the roadway, they are no moreentitled to recover than had they been injured while trespassing onprivate property. Plaintiffs contend that they need only provethat they were in a place in which they had a right to be and thatthey had the legal right to be on the public right-of-way, althoughthey concede that they had no legal right to ride an ATV there. Weagree with plaintiffs.

As pertinent here, section 16 requires only that a plaintiffplead and prove that he was in "any place where he may lawfullybe." (Emphasis added.) 510 ILCS 5/16 (West 1996). We think thislanguage plainly refers only to where a plaintiff is physicallylocated at the time of the injury and whether the law allows her orhim to be there--not to what she or he is doing there, how she orhe arrived there, or whether she or he is violating the law whileshe or he is in that location. We hold that the quoted languageunambiguously requires only that a plaintiff not be trespassing onreal property. In this case, plaintiffs had the right to bepresent on the public right-of-way, even if they had no legal rightto use the ATV while they were there.

Even were we to consider the controverted language ambiguous,we would not construe it to bar recovery by people such asplaintiffs in this case. Although in general the Act is to bestrictly construed in favor of the animal owner (Harris v. Walker,119 Ill. 2d 542, 547 (1988)), our ultimate goal is still toeffectuate the legislature's intent. For several reasons, we thinkthe legislature intended to allow one who is injured by a dog in apublic place to recover, regardless of whether she is riding abanned vehicle there.

First, the basic purpose of the Act does not support treatinga plaintiff who is in a public place less favorably merely becausehe is violating a law of whatever sort. The Act was passed toprotect the public by encouraging tight control of animals. Meyer,262 Ill. App. 3d at 148. The Act does this by dispensing with thecommon-law rule that an owner is not liable for injuries his doginflicts unless he has notice of the dog's vicious propensities. Harris, 119 Ill. 2d at 547. Nonetheless, the Act does not make ananimal owner strictly liable to all potential plaintiffs butprotects only "innocent bystanders" who, by virtue of theirrelationship (or lack of one) to the animal, have no reason to knowor avoid the risk that the animal poses to them. Harris, 119 Ill.2d at 547; Meyer, 262 Ill. App. 3d at 148.

A plaintiff who invites the risk that the animal will injurehim, or one who explicitly assumes that risk, is not an "innocentbystander" and may not recover under the Act. Thus, the Act doesnot aid a person who suffers injuries from falling off a rentedhorse if the person has signed a release of liability (Harris, 119Ill. 2d at 547) or if she is injured only because the horse actsnaturally as should be anticipated (Ennen v. White, 232 Ill. App.3d 1061, 1064-65 (1992)). Similarly, the Act denies recovery toone who provokes the animal (510 ILCS 5/16 (West 1996)).

In harmony with the "innocent bystander" theme, the Act alsodenies recovery to one who trespasses on the animal owner's property. See Dobrin v. Stebbins, 122 Ill. App. 2d 387, 389(1970). A trespasser ordinarily invites the risk of injury becauseshe or he should know that private parties often keep dogs on theirproperty, sometimes for the very purpose of discouragingtrespassers. Also, a trespasser on private property should realizenot only that she or he is infringing the rights of the owner butalso that "the [owner's] dog, with his characteristic loyalty,would instinctively defend and protect" (Dorman v. Carlson, 106Conn. 200, 203, 137 A. 749, 750 (1927)) the owner's person orproperty.

These considerations do not support denying relief to one who was violating the traffic laws but not infringing on any rights ofthe animal or its owner when the injury occurred. Here, althoughplaintiffs were not innocent of violating the Illinois VehicleCode, they were innocent bystanders (or by-riders) vis-a-visdefendant and defendant's dog. Plaintiffs were on a public right-of-way, where people could go freely without obtaining defendant'spermission. Had plaintiffs been riding a permitted vehicle,defendant could not argue that they were not lawfully there.

We do not believe that the mere fact that plaintiffs weredriving a banned vehicle provides any basis for a fact finder toconclude that plaintiffs were not in a place they could lawfullybe. From defendant's viewpoint, that plaintiffs were riding an ATVrather than a permitted vehicle is a sheer fortuity. Driving anATV on the public right-of-way need not infringe on an animalowner's rights any more than, for example, driving a large sportutility vehicle there. Also, while most people realize that dogsare ordinarily loyal to their masters and jealous of their ownterritory, drivers cannot assume that the average dog willinstinctively defend the general welfare against anyone who floutsthe traffic laws. Dogs often chase cars and other vehicles, butthese dogs seldom, if ever, discriminate between vehicles thatcomply with the Vehicle Code and those that do not.

As this discussion suggests, we believe that accepting thetrial court's interpretation of the Act would not only fail toserve the Act's purpose but would also invite absurd or unjustresults. We do not think the legislature intended to free a dogowner of her or his duty to control his dog just because the dog'svictims happened to have been violating a law. To grant suchlicense would effectively turn domestic dogs into canine policeofficers who are free to "take a bite out of crime" and, indeed, abite out of the offenders themselves. That would be bothunnecessary and unjust. The State can enforce the traffic lawsagainst people such as plaintiffs without excusing those such asdefendant from their normal duty to control their dogs in theinterest of public safety.

The trial court erred in concluding that, as a matter of law,plaintiffs were not in a place where they could lawfully be whendefendant's dog caused their injuries. Thus, summary judgmentcannot be sustained on this ground. We proceed to defendant'ssecond argument in support of the judgment: that, as a matter oflaw, plaintiffs were not "peaceably conducting [themselves]" (510ILCS 5/16 (West 1996)) at the time of the accident because theywere breaking the law by operating a banned vehicle on the publicroadway. Defendant appears to argue that this illegal act, andperhaps any illegal act, is sufficient to refute a claim ofpeaceable conduct. We disagree.

The Act does not define "peaceably conducting" oneself. However, we see several compelling reasons to reject defendant'sapparent assertion that lawbreaking is per se not "peaceable." First, giving the words at issue their ordinary meanings, we cannotsay that illegal conduct is never "peaceable." Dictionaries define"peaceable" as "quietly behaved" or "marked by freedom from strifeor disorder" (Webster's Collegiate Dictionary 852 (10th ed. 1996))and peace as a state of "public tranquility; freedom from civildisturbance or hostility" (Black's Law Dictionary 1151 (7th ed.1999)). These definitions accord with (or reflect) long-standingjudicial definitions of the "public peace" as the generaltranquility and good order (see, e.g., Davis v. Burgess, 54 Mich.514, 517, 20 N.W. 540, 542 (1884); State v. Woodworth, 234 N.W.2d243, 247 (N.D. 1975)) and a "breach of the peace" as "conduct thatinvites or is likely to invite immediate public turbulence, or thatleads to or is likely to lead to an immediate loss of public orderand tranquility." Valentino v. Glendale Nissan, Inc., 317 Ill.App. 3d 524, 532 (2000); see also Woodworth, 234 N.W.2d at 247.

Because not every unlawful act tends to cause turbulence orpublic disorder, one may violate the law while still actingpeaceably. See State v. Cooper, 563 S.W.2d 784, 787 (Mo. App.1978) (defendant who carried concealed gun was traveling"peaceably" although he may have been driving while intoxicated);City of Corvallis v. Carlile, 10 Or. 139, 143 (1882) (operatingstore on Sunday offended "public policy" but not "public peace"). Thus, in ordinary parlance, Williams' driving the ATV on the publicroad was illegal but not necessarily "unpeaceable."

Second, as is true with the "lawful place" element, defining"peaceable" conduct narrowly would not serve the purposes of theAct and could lead to absurd or unjust results. The legislaturemight well wish to deny aid to one who disturbs the public peace,as he ought to realize that his conduct might arouse the fightinginstincts of a nearby animal. However, denying relief to anyonewho violates any law would not sensibly distinguish between"innocent bystanders" and those who invite or assume the risk ofinjury from the animal. Instead, an indiscriminate policy ofdenying recovery where there is any illegality would convertwatchdogs who guard their owners' persons and property into deputydogs who may enforce all manner of laws with no relation to thewelfare of animals or animal owners. The Act could not have beenmeant to penalize attack victims for acts unrelated to theirinjuries or to give animal owners such a windfall.

We have found no Illinois cases that address the specificquestions of statutory construction presented here. However, thehistory of the Connecticut "dog bite" statute serves as a guide tointerpreting our law. In Kelley v. Killourey, 81 Conn. 320, 70 A.1031 (1908), the court affirmed the denial of recovery where thejury found that the victim provoked the attack by maltreating thedog. Although the statute appeared to impose absolute liability,the court held that the jury had been properly instructed to denyrecovery if the victim had caused his own injuries by committing a"wrongful or willful and unlawful act." Kelley, 81 Conn. at 323,70 A. at 1032. The court stressed that the instruction was properbecause the only wrongful or unlawful conduct to which it couldhave referred was the victim's abuse of the dog, actions the victimshould have known would rouse the dog to defend himself with force. Thus, there was no danger that the jury had improperly denied theplaintiff recovery merely because the victim had performed awrongful act. Kelley, 81 Conn. at 324, 70 A. at 1031-32.

After Kelley, the Connecticut legislature amended the statute to deny recovery where, at the time the injury was occasioned, thevictim "was committing a trespass or other tort." Conn. Gen. Stat.