Kush v. Wentworth

Case Date: 05/29/2003
Court: 2nd District Appellate
Docket No: 2-01-0877 Rel

No. 2--01--0877


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


SANDY M. KUSH,

          Plaintiff-Appellant,

v.

LOUISE WENTWORTH,

          Defendant-Appellee.

)
)
)
)
)
)
)
)
)
Appeal from the Circuit Court
of Du Page County.

No. 99--L--60

Honorable
Kenneth Moy,
Judge, Presiding.


JUSTICE O'MALLEY delivered the opinion of the court:

Plaintiff sued defendant seeking to recover damages forinjuries that she suffered when defendant's horse kicked her whileplaintiff and defendant were participating in a group horse ride. As amended, plaintiff's complaint contained three counts alleging,respectively, that defendant violated the Animal Control Act (510ILCS 5/1 et seq. (West 2000)), that defendant was negligent, andthat defendant's conduct was willful and wanton. Based on itsruling that the Equine Activity Liability Act (Act) (745 ILCS 47/1et seq. (West 2000)) barred the first two counts of the complainton their faces and that defendant's alleged conduct did not rise tothe level of willful and wanton conduct, the trial court granteddefendant's motion for summary judgment. Plaintiff timely appeals. We reverse with respect to counts I and II and affirm with respectto count III.

The pleadings and depositions reveal the following facts. OnNovember 27, 1997, Thanksgiving Day, plaintiff and defendant wereparticipants in a group horse ride (the Thanksgiving ride). Atotal of about 40 riders participated in the Thanksgiving ride. Before the ride, the riders assembled at the Fox Meadows Farms inNaperville. All the riders and the horses that they were ridingleft the stable together and proceeded to a trail that was in anearby forest preserve. After reaching the trail, the riders splitinto two smaller groups of about 20 riders each. The ridersreferred to these smaller groups as the "fast group" and the "slowgroup." The pace of the slow group was mostly walking andtrotting, with some cantering.

Plaintiff and defendant both rode with the slow group. Plaintiff and defendant were both experienced horse riders.Defendant's horse was named "Skip."

About two weeks prior to the Thanksgiving ride, defendant rodeSkip on a trail ride with two other riders. During this priorride, when one of the other horses tried to pass Skip on Skip'sleft, Skip kicked out with his hind legs at the other horse and mayhave grazed the other horse. According to defendant, this was thefirst time, in the more than a year that she had owned Skip, thatSkip had kicked out at another horse.

About an hour after the start of the Thanksgiving ride,plaintiff and defendant had a brief conversation as they wereriding. Defendant told plaintiff about the prior incident in whichSkip kicked out at another horse. According to plaintiff,defendant sought advice as to possible corrective measures thatdefendant could take with Skip. During the conversation, defendanttold plaintiff that she was riding in the slow group on theThanksgiving ride because of Skip's prior "kicking out" incident. Defendant also vaguely recalled telling plaintiff during theconversation that she had tied a red ribbon in Skip's tail beforestarting the Thanksgiving ride. According to defendant, she tiedthe red ribbon in Skip's tail as a precaution to warn other ridersthat Skip could kick out. Defendant acknowledged that when shereturned to the stable after the Thanksgiving ride the red ribbonwas no longer in Skip's tail. Defendant did not know how or whenthe red ribbon disappeared. Plaintiff denied that defendant toldher about a red ribbon in Skip's tail. Plaintiff also denied thatshe ever saw a red ribbon in Skip's tail.

During the Thanksgiving ride, between 15 minutes and an hourafter the conversation between plaintiff and defendant, plaintiffbegan to canter the horse she was riding. Plaintiff planned topass three or four other horses that were in front of her. Skipwas one of the horses that plaintiff intended to pass. While herhorse was cantering, plaintiff approached Skip from behind and toSkip's left. When plaintiff was about three feet from Skip, Skipkicked out, striking plaintiff on the leg. Skip's kick brokeplaintiff's leg.

In her discovery deposition, plaintiff testified that she wasaware of three precautions that a rider could take with respect toa group ride if the rider's horse was a kicker. These precautionswere (1) to put a red ribbon in the horse's tail; (2) to ride atthe back of the group; and (3) to refrain from going on grouprides. Plaintiff considered these precautions to be part of horseriding etiquette. Plaintiff opined that if defendant had taken anyone of these precautions with respect to the Thanksgiving ride,Skip would not have been in a position to kick out and injureplaintiff. Prior to the Thanksgiving ride, plaintiff was not awarethat Skip had any particular reputation as a dominant or aggressivehorse.

In her discovery deposition, defendant testified that she hadowned Skip since 1996 and that Skip was "not a very competitivehorse." Defendant testified that, in view of Skip's prior kickingincident and because Skip was "being a handful" on the day of theThanksgiving ride, she thought it would be safer to join the slowgroup for the Thanksgiving ride. Defendant explained that by"being a handful" she meant that Skip was feeling energetic. Defendant denied that she had any difficulty controlling Skip onthe Thanksgiving ride. Defendant believed that she was beingoverly cautious by putting a red ribbon in Skip's tail before theride.

In her discovery deposition, Birgitta Martin, whose husband isplaintiff's cousin, testified that she was a participant in theThanksgiving ride and that she saw Skip kick plaintiff. Martin wasriding in the slow group behind plaintiff when Skip kickedplaintiff. Prior to the kicking incident, Martin had observed Skipat various times throughout the Thanksgiving ride. Martintestified that she never saw a red ribbon in Skip's tail at anytime during the Thanksgiving ride. Before the Thanksgiving ride,Martin was not aware of Skip having a reputation as a kicker or amean horse.

Plaintiff's complaint, as amended, sought damages fromdefendant for the injuries that plaintiff suffered as a result ofSkip kicking her. The complaint contained three counts. Count Ialleged that defendant was liable under section 16 of the AnimalControl Act (510 ILCS 5/16 (West 2000)). Count II alleged thatdefendant was liable because she was negligent. Count III allegedthat defendant was liable because she engaged in willful and wantonconduct that included, inter alia, defendant's failure to tag Skipas a "kicker"; failure to keep Skip at the back of the group; andfailure to refrain from taking Skip on the Thanksgiving ride.

Defendant filed a motion for summary judgment. The trialcourt granted the motion, finding that the Act applied to barrecovery for plaintiff as to all three counts of her complaint.

Plaintiff filed a timely motion to reconsider. Plaintiffargued that defendant's conduct constituted willful and wantonconduct. Following a hearing on the matter, the trial court deniedplaintiff's motion to reconsider.

On appeal, plaintiff contends that the trial court erred ingranting summary judgment in favor of defendant. We review a trialcourt's grant of summary judgment de novo. Morris v. Margulis, 197Ill. 2d 28, 35 (2001).

The trial court granted summary judgment on counts I and IIbecause it found that the Act precluded liability on the part ofdefendant for negligent conduct. We ordered the parties to briefthe issue of whether a defendant who is neither an "equine activitysponsor" nor an "equine professional" can properly avail herself ofthe Act's limitations on liability. The parties agree that, at thetime of the incident in question, defendant was neither an equineactivity sponsor nor an equine professional as defined by the Act.

In determining whether defendant can claim protection underthe Act, we must interpret the Act strictly in favor of plaintiffbecause the Act is in derogation of the common law. At common law,a plaintiff could recover under a negligence theory for injuriessustained in the course of equine-related activities. Meyer v.Naperville Manner, Inc., 285 Ill. App. 3d 187, 191-92 (1996). Forthis reason, to the extent that the Act precludes recovery under a negligence theory, it is a statute in derogation of the common law. Statutes in derogation of the common law are to be strictlyconstrued in favor of persons sought to be subjected to theiroperation. Chandler v. Illinois Central R.R. Co., 333 Ill. App. 3d463, 470 (2002). Courts will read nothing into such statutes byintendment or implication. Chandler, 333 Ill. App. 3d at 470. Accordingly, we interpret the Act strictly in favor of plaintiff.

We now turn to the Act itself. Section 15 of the Actprovides:

"Each participant who engages in an equine activityexpressly assumes the risk of and legal responsibility forinjury, loss, or damage to the participant or theparticipant's property that results from participating in anequine activity, except in the specific situations as setforth in Section 20, when the equine activity sponsor orequine professional may be held responsible." (Emphasisadded.) 745 ILCS 47/15 (West 2000).

Section 15 provides for an assumption of risk defense to liabilityand then provides that there are exceptions to that defenseenumerated in section 20 that apply only to equine activitysponsors and equine professionals. 745 ILCS 47/15 (West 2000).

The limitation of the exceptions in section 20 to equineactivity sponsors and equine professionals suggests that the Actwas meant to apply only to those classes of persons. The "specificsituations" set forth in section 20 include willful and wantondisregard for the safety of the participant and intentionallyinjuring the participant. 745 ILCS 47/15 (West 2000). If section15 limits the liability of people other than equine activitysponsors and equine professionals, then persons who are neitherequine activity sponsors nor equine professionals are immune fromliability even where they intentionally injure a participantbecause the exceptions of section 20, according to section 15, apply only to equine activity sponsors and equine professionals. The legislature could not have intended this absurd result. SeePeople v. Swift, 202 Ill. 2d 378, 384 (2002) ("In interpretingstatutes, we must avoid constructions [that] would produce absurdresults"). For this reason, at least when viewed in isolation, theonly rational reading of section 15 is that it limits liabilityonly for equine activity sponsors and equine professionals.

Our analysis is complicated, however, by section 20(b), whichprovides:

"Except as provided in Section 15, nothing in this Actshall prevent or limit the liability of an equine activitysponsor, an equine professional, or any other person if theequine activity sponsor, equine professional, or person: [engages in one of several enumerated activities]." (Emphasisadded.) 745 ILCS 47/20(b) (West 2000).

There are two problems. First, in contradiction to section 15,section 20(b) provides that its exceptions apply to "any otherperson" as well as to equine activity sponsors and equineprofessionals. 745 ILCS 47/20(b) (West 2000). Thus, section 15and section 20(b) are inconsistent as to whether section 20(b)applies to persons other than equine activity sponsors and equineprofessionals.

The second problem concerns the language in section 20(b),which provides: "Except as provided in Section 15, nothing in thisAct shall prevent or limit liability ***." (Emphasis added.) 745ILCS 47/20(b) (West 2000). This qualification, which exceptssection 15 from the operation of section 20(b), creates a repeatingloop of statutory reference. The problem is that sections 20(b)and 15 each provide that the other section controls. By thelanguage "[e]xcept as provided in Section 15," section 20(b)provides that it is trumped by section 15. By stating that itapplies "except in the specific situations set forth in Section20," section 15 provides that it is trumped by section 20. Theresult is an infinite loop where section 20(b) defers to section 15which defers to section 20 which defers back to section 15 and soforth.

Although this is an obvious drafting error, the language ofsection 20(b) is unclear even absent the statutory self-referenceproblem. If we ignore the fact that section 15 refers back tosection 20, there is still the problem that section 20(b) exceptssection 15 from section 20(b)'s general exceptions to anything inthe Act that would prevent or limit liability. This is problematicbecause section 15 is the only section of the Act that prevents orlimits liability. For this reason, section 20(b) is meaningfulonly if it is an exception to section 15. Section 20(b), however,expressly provides the opposite: section 15 is an exception tosection 20(b).

This nonsense leads to one of two conclusions. First, thelegislature may have meant the opposite of what it said. Thissuggestion has some appeal. If possible, a statute should beconstrued in a manner such that no term is rendered meaningless orsuperfluous. M.A.K. v. Rush-Presbyterian-St. Luke's MedicalCenter, 198 Ill. 2d. 249, 257 (2001). If we were to ignore the"[e]xcept as provided in section 15" language in section 20(b),this would give meaning to the rest of section 20(b) because itwould modify section 15. Balanced against this, however, is therule that a court, in its construction of a statute, must notdepart from the statute's plain language by reading into itexceptions, limitations, or conditions that the legislature did notexpress. People v. Ellis, 199 Ill. 2d 28, 39 (2002).

The second possible conclusion is that section 20(b) waswritten as an exception to a section of the statute, besidessection 15, that was either deliberately or inadvertently omittedfrom the final version of the statute. Section 20(b) would bemeaningful if another section of the Act, other than section 15,prevented or limited liability. The Act's legislative historysuggests that the Act was based on the Colorado equine statute. Colorado's equine statute, unlike the Act, contains a subsection that states:

"Except as provided in subsection (4) of this section, anequine activity sponsor, an equine professional, *** or anyother person, *** shall not be liable for an injury or thedeath of a participant resulting from the inherent risks ofequine activities *** and except as provided in subsection(4) of this section no participant nor participant'srepresentative shall make any claim against, maintain anyaction against or recover from an equine activity sponsor, anequine professional *** or any other person for injury, loss,damage or death of the participant resulting from any of theinherent risks of equine activities ***." Colo. Rev. Stat.Ann.