Appeal from the Circuit Court of Cook County; the Hon. Walter
B. Bieschke, Judge, presiding.
JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:
Plaintiff, James Steinberg, a minor, by and through his mother and next friend, Sheila Martinez, brought a two-count action against defendant Lawrence Petta, the absentee landlord of a piece of property located in Blue Island. Plaintiff sought to recover damages for injuries caused by a bite from a dog owned by Petta's tenants, Thomas Groskoph and Carol Welch, alleging that Petta had harbored the dog within the meaning of the Animal Control Act and had been negligent in allowing the dog to be on the premises. The trial court directed a verdict in favor of the defendant on the issue of negligence, but the jury returned a verdict for plaintiff in the amount of $7,508.20 based upon a violation of the Animal Control Act. Defendant appeals, raising the single issue of whether he harbored his tenant's dog within the meaning of the Animal Control Act.
Defendant is the owner of a two-story building located in Blue Island, which he has owned since 1953. In 1971, defendant converted the building into a three-unit apartment with a two-car garage connected to both an entrance to the first-floor apartment and to an efficiency apartment. All tenants had access to the backyard of the building. Defendant ceased living on the premises in 1971 and moved three or four blocks away. In that year, defendant leased the first-floor apartment to Carol Welch pursuant to a lease. Although the lease, on its face, expired in 1972, defendant testified that its terms were in effect in October 1981. The lease provided that pets were not permitted on the premises.
In 1981, defendant employed James Tagler, a Blue Island police officer, to act as the manager of the property. Tagler was imbued with the authority to collect rents from the tenants, which he accomplished by personally visiting the premises, and leasing vacant apartments. Tagler was also responsible for the care of the yard, work done on the premises and repairs to the outside of the building. The outside aspects of the building, including the backyard, were within Tagler's control. In his capacity as manager of the building, Tagler only visited the premises to collect rents, and if he was responding to a complaint. In his capacity as a Blue Island Police officer, Tagler passed by the premises.
In early 1981, Tagler rented the utility apartment to Carol Welch. In May or June, 1981, Thomas Groskoph began occupying the first-floor apartment with Carol Welch and her son Donald. There was conflicting evidence presented as to when the dog, described as either an Alaskan husky or a malamute, was first seen on the premises. Tagler testified that he first saw the dog in either June or July, 1981. Gail Barclay, a neighbor, testified that she had seen the dog as a puppy tied with a leash in the backyard of the building beginning in approximately August 1980.
In approximately June 1981, Thomas Groskoph asked for and received permission from Tagler to install a fence around the backyard. A four-foot cyclone fence was constructed, but defendant did not pay for its installation. Gail Barclay testified that on August 13, 1981, a sign was posted on the fence stating "Beware of Dog," although Tagler testified that he could not recall ever seeing the sign. She also testified that the backyard was equipped with a barbecue and lawn furniture and was used by all the tenants of the building.
In July 1981, Tagler received a telephone call from Mrs. Sacardo, a neighbor who lived north of the building, complaining that the dog was barking and leaving a mess in the yard. Approximately one week later, Tagler received a telephone call from Mark Sarisoley, the tenant occupying the second-floor apartment, asking Tagler to speak to the dog's owners because the dog had come near Sarisoley and bothered him when he was taking out the garbage. Subsequent to the call from Mr. Sarisoley, Tagler received a complaint from a neighbor named Peter who lived to the south of the building. Peter registered a complaint similar to that of Mrs. Sacardo regarding the dog's barking and leaving a mess. As a result of the complaint from Mark Sarisoley, Tagler went to the building and spoke to Carol Welch and Thomas Groskoph.
On August 13, 1981, plaintiff James Steinberg, who was 11 years old at the time, was playing football with his two friends, and went into the alley adjacent to defendant's apartment building to retrieve the football. There the three boys encountered Vince Navarro and Scott Grisby standing by the cyclone fence, petting the dog. After speaking to Navarro and Grisby, plaintiff and his friends stood 10 feet from where the dog was, approximately one or two feet away from the fence. The dog, which weighed 65 pounds, moved the distance along the fence toward the plaintiff without making a sound, lunged over the top of the fence and bit the plaintiff's nose. Plaintiff's companion struck the dog and it retreated into the backyard. Plaintiff was taken to the hospital for treatment of the injury to his nose and underwent surgery the following day.
On October 15, 1981, plaintiff filed a two-count complaint which, as amended, alleged that Thomas Groskoph, Carol Welch and Lawrence Petta were liable for the plaintiff's injuries under the provisions of the Animal Control Act and that defendant Petta was negligent for allowing a dog with known vicious tendencies to be on the premises. The plaintiff did not effectuate service upon either Thomas Groskoph or Carol Welch. At the conclusion of plaintiff's evidence, the trial court directed a verdict in favor of defendant Petta on the issue of negligence. The jury returned a verdict for plaintiff in the amount of $7,508.20 based upon the provisions of the Animal Control Act and judgment was entered thereon. On September 12, 1984, the trial court denied both the defendant's motion for judgment notwithstanding the verdict or for a new trial and plaintiff's motion for a new trial solely as to the amount of the damages awarded by the jury. On October 11, 1984, defendant filed a notice of appeal. On October 16, 1984, plaintiff filed a notice of cross-appeal, seeking reversal of the judgment and to have the case remanded for trial solely on the issue of damages. However, in his brief before this court, plaintiff has not pursued the question of a new trial on the issue of damages and that question is waived. 87 Ill.2d R. 341(e)(7).
In order for the plaintiff to recover under section 16 of the Animal Control Act (Ill. Rev. Stat. 1983, ch. 8, par. 366), he is required to prove: (1) an attack by a dog; (2) that the defendant is the "owner" of the dog; (3) injury to the plaintiff; (4) absence of provocation by the plaintiff; and (5) that the plaintiff was conducting himself peaceably in a place where he had a legal right to be. (Stehl v. Dose (1980), 83 Ill. App.3d 440, 443, 403 N.E.2d 1301, 1303.) The Act's definition of "owner" includes a person who "keeps or harbors a dog * * *." (Ill. Rev. Stat. 1983, ch. 8, par. 352.16.) Defendant's sole argument on appeal is that as an absentee landlord, with no actual notice of the presence of the dog on the premises or actual knowledge of the fence which had been installed around the common area of the backyard, he cannot be considered an owner, keeper or harborer of his tenants' dog. We do not agree.
• 1, 2 Although defendant Petta testified that he had no actual knowledge of the presence of the dog on the premises or the installation of the fence until after the dog had attacked plaintiff on August 13, 1981, defendant had hired James Tagler to manage the building on his behalf. Where an agent does an act in the course of his employment, although the principal did not authorize or participate in, or know of the conduct, or even if he forbade the acts or disapproved of them, the rule of respondeat superior applies. (Lynch v. Board of Education (1980), 82 Ill.2d 415, 424-25, 412 N.E.2d 447, 454-55.) Tagler was acting within the scope of his employment in allowing the dog to remain on the premises and authorizing the construction of the cyclone fence. His duties included the care of the yard, maintenance of and repairs to the building, collecting of rents from the tenants, and the leasing of vacant apartments. Indeed, plaintiff Steinberg testified that he believed that Tagler was the owner of the building. The trial court instructed the jury, without any objection from the defendant, that "James Tagler was the agent of the defendant Lawrence Petta at and before the time of this occurrence" and "[t]herefore, any act ...