Find Legal Information

17 November 2000

No. 2--99--1311

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE McLAREN delivered the opinion of the court:

Linda VanPlew, the plaintiff, appeals the trial court's decision to grant themotion of defendants Robert and Margo Riccio (the Riccios) for summary judgment ina case where the plaintiff was attacked by the Riccios' dog. We affirm.

The following facts are taken from the pleadings. The plaintiff worked forCritter Sitters as a pet sitter. In December 1997, the Riccios called CritterSitters in preparation for their Florida vacation. In response, the plaintiffcalled the Riccios and visited their home on December 8, 1997. During thismeeting, the plaintiff spoke with Mr. Riccio briefly, gave him some paperwork, andpetted the dog. This first meeting lasted approximately 15 minutes.

The following day, the plaintiff returned to the Riccios' home with her husband. Mr. Riccio gave the plaintiff the completed paperwork and instructed the plaintiffto feed the dog and let it out while they were away. The plaintiff alleged thatshe was not instructed to play with or walk the dog or perform any other duties. This second visit lasted approximately 30 minutes. During the visit, theplaintiff petted the dog in the Riccios' presence.

The Riccios left for their vacation the following day, December 10, 1997, and theplaintiff went to the Riccios' home to attend to the dog. The plaintiff let thedog outside and remained in the home for approximately 10 minutes before lettingthe dog back in and leaving. The plaintiff did not feed the dog during thisvisit.

The following morning, December 11, 1997, the plaintiff returned to the home, fedthe dog, and gave it fresh water in its bowl. The dog then grabbed a rawhide bonefrom the family room, and the plaintiff let the dog outside, attaching the dog toits chain. After five minutes, the plaintiff opened the door and the dog baredits teeth. In response, the plaintiff closed the door, took a Milkbone treat fromthe cabinet, and opened the door. At this point, the dog dropped the rawhide boneonto the floor, just over the threshold, and took the treat. The dog remainedoutside as the plaintiff closed the door and moved the rawhide bone with her foot. After the dog ate the treat, the plaintiff opened the door and stepped out ontothe stoop to let the dog in the house. At this point, the dog made a "vicious-type noise" and grabbed the plaintiff's thigh, knocking her down off the foot-highstoop. The dog continued to bite and growl as the plaintiff struggled to crawlout of the dog's reach. The plaintiff eventually made it back into the house.

The plaintiff alleged that she sustained fractures to the second and thirdmetatarsal of her left foot, requiring two surgeries, including bone grafting. The plaintiff also allegedly suffered puncture wounds on her leg and anexacerbation of a congenital structural brain difficulty resulting in increasedheadaches and vision problems.

The plaintiff filed a two-count complaint seeking damages for personal injury. The first count alleged liability under section 16 of the Illinois Animal ControlAct (Act) (510 ILCS 5/16 (West 1998)), and the second count alleged common-lawnegligence. The trial court granted the Riccios' motion for summary judgment asto both counts, reasoning that recovery under the Act was precluded because theplaintiff was an "owner" under the Act's definition (510 ILCS 5/2.16 (West 1998)). The plaintiff filed this timely appeal, challenging only the trial court'sdecision regarding count I.

We note that the plaintiff's complaint also contained a count against CritterSitters and its owner, Sandy Alltop. This count was dismissed and is not at issuein this appeal.

On appeal, the plaintiff argues that the trial court erred by granting theRiccios' motion for summary judgment as to count I. The plaintiff argues that thetrial court improperly found that she was precluded from recovery under the Actbecause she was an "owner" within the meaning of the Act. We disagree with theplaintiff.

Summary judgment is a drastic method of disposing of litigation and should beallowed only when the right to it is clear and free from doubt. Petrovich v.Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). If a genuineissue of material fact exists, the motion must be denied. Krueger v. Oberto, 309Ill. App. 3d 358, 367 (1999). In making its decision on a summary judgmentmotion, the trial court must strictly construe the evidence against the movingparty and in favor of the opponent. Krueger, 309 Ill. App. 3d at 367. We reviewthe granting of a summary judgment motion de novo. Petrovich, 188 Ill. 2d at 30.

Section 16 of the Act provides:

"If a dog or other animal, without provocation, attacks or injures any person whois peaceably conducting himself in any place where he may lawfully be, the ownerof such dog or other animal is liable in damages to such person for the fullamount of the injury sustained." 510 ILCS 5/16 (West 1998).

To prevail under section 16 of the Act a plaintiff must prove (1) his injury wascaused by an animal owned by the defendant; (2) a lack of provocation; (3)peaceful conduct by the plaintiff; and (4) the plaintiff was in a place where hehad a legal right to be. Carl v. Resnick, 306 Ill. App. 3d 453, 463 (1999). Further, it is well established that a plaintiff may not recover under section 16of the Act if the plaintiff is an "owner" within the meaning of the Act. The Actdefines "owner" as:

"[A]ny person having a right of property in a dog or other animal, or who keeps orharbors a dog or other animal, or who has it in his care, or acts as itscustodian, or who knowingly permits a dog or other domestic animal to remain on orabout any premise occupied by him." 510 ILCS 5/2.16 (West 1998).

Further, where a person voluntarily accepts responsibility for controlling orcaring for a dog or other animal, that person is an "owner" within the meaning ofthe Act and is precluded from recovery under the Act. See Eyrich v. Johnson, 279Ill. App. 3d 1067, 1070 (1996). For example, in Hassell v. Wenglinski, 243 Ill.App. 3d 398 (1993), the appellate court held that a home-care worker who wasinjured while she voluntarily walked her employer's dog was an "owner" and wasprecluded from recovery under the Act. Hassell, 243 Ill. App. 3d at 400. InDocherty v. Sadler, 293 Ill. App. 3d 892 (1997), the appellate court held that a10-year-old boy who agreed to take care of a neighbor's dog while the neighbor wasaway was an "owner" and was precluded from recovery under the Act. Docherty, 293Ill. App. 3d at 896. In Wilcoxen v. Paige, 174 Ill. App. 3d 541 (1988), theappellate court held that the operator of a dog boarding and grooming business whowas injured by a dog that was in her care was an "owner" and was precluded fromrecovery under the Act. Wilcoxen, 174 Ill. App. 3d at 543. Finally, in Eyrich,the appellate court held that a farm worker who was injured by a boar when heentered the boar's pen to retrieve a feed pan was precluded from recovery underthe Act. Eyrich, 279 Ill. App. 3d at 1070. Thus, when a plaintiff has"voluntarily assumed care and custody of [a dog] and [is] injured while exercisingcontrol of the dog," the plaintiff may not recover under the Act. Docherty, 293Ill. App. 3d at 896.

The plaintiff argues, and we agree, that "ownership" is normally a fact questionfor the jury to decide. See Steinberg v. Petta, 114 Ill. 2d 496, 502 (1986). However, where, as in this case, there is no genuine issue of material factconcerning the plaintiff's status as an "owner," summary judgment is proper. SeeEyrich v. Johnson, 279 Ill. App. 3d 1067, 1070 (1996).

In this case, the plaintiff falls within the judicially construed statutorydefinition of "owner." Like the boy in Docherty, the plaintiff here had the dogin her care and was acting as its custodian when the dog attacked her. Theplaintiff voluntarily placed herself in a "position of control akin to an ownerand accepted responsibility for control of the animal." Docherty, 293 Ill. App.3d at 896.

Further, the fact that the plaintiff's contact with the dog was brief did notchange the nature of the contact. That is, it is uncontroverted that theplaintiff accepted responsibility for the dog and that the dog was in theplaintiff's care; she was responsible for feeding the dog, providing water for thedog, and letting the dog outside. Her "responsibilities in feeding the dog,providing it with water, and letting it into the yard clearly assign[ed her] thestatus of owner." Docherty, 293 Ill. App. 3d at 896; see also Hassell, 243 Ill.App. 3d at 402 ("Nothing in the Act, however, requires a person to exercise careor custody of an animal for a set period of time in order to meet the definitionof 'owner' ").

The plaintiff cites Steinberg v. Petta, 114 Ill. 2d 496 (1986), McEvoy v. Brown,17 Ill. App. 2d 470 (1958), and Thompson v. Dawson, 136 Ill. App. 3d 695 (1985). These cases are distinguishable from the case at bar. In Steinberg, defendant wasan absentee landlord whose tenant owned a dog that bit plaintiff. Unlike theplaintiff here, the absentee landlord in Steinberg had no contact with the dog,did not care for, water or feed the dog, and assumed no responsibility for thedog. Further, in Thompson, defendants placed water and food in their yard for astray dog, but provided no shelter, had no contact with, and assumed no control orresponsibility for the dog. In McEvoy, while her son-in-law's dog was inplaintiff's backyard during a visit from her grandchildren, plaintiff fed the dogonly once before the dog injured her. Unlike the case at bar, the degree ofcontrol and responsibility in these cases did not rise to a level of "ownership." Thus, these cases are not controlling here.

The plaintiff also cites numerous cases from the courts of other states. To theextent the plaintiff has found contrary authority in some foreign jurisdictions,we decline to adopt their reasoning and accept, instead, the reasoning establishedin the cases of our own state. Although decisions of courts of foreignjurisdictions, when relevant, may be examined for such value as we find in them,these cases are not binding on this court. Skipper Marine Electronics, Inc. v.United Parcel Service, Inc., 210 Ill. App. 3d 231, 239 (1991).

The plaintiff also argues that the definition of "ownership" cannot be as broad asour interpretation here because the definition also applies to section 8 of theAct requiring "owners" to innoculate their dogs from rabies. See 510 ILCS 5/8(West 1998). The plaintiff asserts that the legislature did not intend to extendsuch responsibility to persons who, like her, undertake brief and minimalresponsibilities for a dog. However, the plaintiff cites nothing in the languageof the statute, legislative history, or judicial interpretation to support thisargument. We acknowledge that the interpretation of the term "owner" as used inthe Act may cause some confusion in its application to the rabies section of theAct. However, in light of the numerous cases supporting our interpretation inthis case, this potential confusion does not affect the outcome here. Therefore,we determine that the trial court properly granted summary judgment in theRiccios' favor as to count I of the plaintiff's complaint.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

GEIGER and HUTCHINSON, JJ., concur.