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Zaragoza v. Ebenroth

Case Date: 05/31/2002
Court: 3rd District Appellate
Docket No: 3-01-0856 Rel

No. 3--01--0856

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

BARBARA ZARAGOZA,

          Plaintiff-Appellee,

          v.

TRACY EBENROTH,

          Defendant-Appellant

(Deb Arnold and Joshua Keehn,

          Defendants).

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) 		Appeal from the Circuit Court
of the 14th Judicial Circuit
Rock Island County, Illinois



No.  99--LM--1012



Honorable
Mark A. Vandeweile,
Judge Presiding.

JUSTICE HOMER delivered the opinion of the court:
Plaintiff Barbara Zaragoza sued defendants Tracy Ebenroth,Deb Arnold, and Joshua Keehn for negligence and violation of theIllinois Animal Control Act (510 ILCS 5/1 et seq. (West 2000))after sustaining injuries during a dog attack. The jury returneda verdict for plaintiff against defendants Ebenroth and Keehn inthe amount of $12,110.13. The jury found in favor of defendantArnold. Only defendant Ebenroth appeals the jury verdict. Weaffirm.

BACKGROUND

Zaragoza was riding her bicycle in rural Port Byron,Illinois. As she pedaled by Arnold's house, Ebenroth (Arnold'sdaughter) was watching four dogs: Ebenroth's black Labradorretriever, Arnold's two black Labrador retrievers, and Keehn'sRottweiler. Before Ebenroth could react, the dogs chasedZaragoza. One of the dogs bit Zaragoza on the buttocks causingher to fall to the ground and to injure her shoulder. Ebenrothwas able to restrain the dogs before they attacked Zaragoza anyfurther. Ebenroth then drove Zaragoza to her home. At the timeof the attack, Arnold was in Michigan and Keehn was insideArnold's house.

Zaragoza initially filed a complaint against Ebenrothalleging violations of the Illinois Animal Control Act (the Act)(510 ILCS 5/1 et seq. (West 2000)). In her first amendedcomplaint, Zaragoza added Arnold and Keehn as defendants andalleged negligence and violation of the Act against each of them. After Zaragoza filed her second amended complaint, the courtgranted Arnold's motion for summary judgment as to the count ofnegligence.

The parties engaged in arbitration, but defendants rejectedthe arbitrator's decision. Before the case proceeded to trial,the court defaulted Keehn because he failed to answer thecomplaint and failed to appear before the court.

During trial two issues arose which are the subject of thisappeal. First, the trial judge barred Arnold from providinghearsay testimony indicating that Keehn's dog had previouslybitten Keehn's father in the buttocks. Second, Zaragoza, overthe defense's objection, was allowed to introduce an evidencedeposition given by Doctor Laura Davies, which provided evidencewith regard to the injuries Zaragoza sustained. At theconclusion of the jury trial, the jury verdict held Ebenroth andKeehn liable for $12,110.13 in damages but determined that Arnoldwas not liable for any damages. The jury verdict forms revealedthat the jury determined that Arnold was not an owner of a dogthat attacked Zaragoza, whereas Ebenroth was an owner of a dogthat attacked Zaragoza. Subsequent to the jury verdict, onlyEbenroth filed a notice of appeal.

ANALYSIS

On appeal, Ebenroth argues that the trial court abused itsdiscretion by excluding certain portions of Arnold's testimony ashearsay. Ebenroth also contends that the court abused itsdiscretion by admitting the deposition of Dr. Davies.

1. Hearsay Testimony

The trial court's decision to bar testimony will beoverturned only if it amounts to a clear abuse of discretion. See Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d305, 314, 614 N.E.2d 1194, 1198-99 (1993). In this instance,Arnold's offer of proof revealed that she was going to testifythat after the incident, Keehn told her that his dog had ahistory of biting his father's buttocks. The trial judgesustained Zaragoza's objection to the hearsay testimony.

Ebenroth argues that Arnold's testimony should have beenpermitted as a party admission. For Arnold's testimony to beadmissible, Keehn must have been a party opponent, he must havemade an admission, and the testimony must have been reliable. See People v. Cruz, 162 Ill. 2d 314, 374-75, 643 N.E.2d 636, 665(1994) (stating that admissions are admissible when made by aparty opponent); Vojas v. K mart Corp., 312 Ill. App. 3d 544,547, 727 N.E.2d 397, 400 (2000) (indicating that any statementmade by a party or on his behalf that is relevant to a trialissue may generally be admitted into evidence as an admission bya party opponent); In re Marriage of L.R., 202 Ill. App. 3d 69,83, 559 N.E.2d 779, 788 (1990) (concluding that when certainstatements lack sufficient indicia of reliability, application ofan exception to the general rule against hearsay is notwarranted).

Although Keehn failed to appear and default was enteredagainst him, he remains a party to the suit. See 59 Am. Jur. 2dParties