APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
504 N.E.2d 240, 152 Ill. App. 3d 346, 105 Ill. Dec. 371 1987.IL.166
Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. UNVERZAGT and HOPF, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Plaintiffs, Gary and Linda Smith, appeal from the trial court's order dismissing counts I, II, and V of their third amended complaint against defendant, Robert Gleason. Plaintiffs brought this action to recover for injuries Linda sustained when her car collided with a horse owned by Arlie Glass and boarded by Ezell Robins on Gleason's property. Plaintiffs contend on appeal that their complaint was improperly dismissed against Gleason because they stated a cause of action for negligence and for a violation of "An Act to revise the law in relation to fences" (the Fence Act) (Ill. Rev. Stat. 1985, ch. 54, par. 2).
Plaintiffs alleged in their complaint that on November 27, 1984, Linda was driving her car on Kilbourn Road approaching an intersection with Jody Lane. The property located on the west side of Kilbourn Road near the intersection belonged to Gleason. As Linda entered the intersection, a horse, escaping from Gleason's property, collided with her car.
The complaint further alleged that Gleason rented the property to Robins, who boarded horses, and the runaway horse belonged to Glass. Plaintiffs alleged that at the time of the rental agreement, the land was not equipped to board horses. Robins enclosed the property with a fence constructed with electrified wire and metal or wooden posts. Robins allegedly alerted Gleason that the fence was inadequate to restrain the horses. According to the complaint, Gleason promised to erect a permanent fence but had neglected to do so before the collision.
We conclude that the trial court properly dismissed the complaint against Gleason. Count II of the complaint alleged that Gleason violated the Fence Act. Plaintiffs rely on section 2 of the Act, which provides:
"Fences four and one-half feet high, and in good repair, consisting of rails, timber boards, stone, hedges, barb wire, woven wire or whatever the fence viewers of the town or precinct where the same shall lie shall consider equivalent thereto suitable and sufficient to prevent cattle, horses, sheep, hogs and other stock from getting on the adjoining lands of another, shall be deemed legal and sufficient fences: Provided, that in counties under township organization, the electors, at any annual town meeting, may determine what shall constitute a legal fence in the town; and in counties not under township organization, the power to regulate the height of fences shall be vested in the county board." (Ill. Rev. Stat. 1985, ch. 54, par. 2.)
The statute, however, by its language, has no relation to outside fences but is applicable only between the owners of adjoining lands. (McKee v. Trisler (1924), 311 Ill. 536, 544, 143 N.E. 69.) The Fence Act imposes a duty to erect a division line fence by adjoining property owners. Plaintiffs did not complain that Gleason's property lacked a division line fence; rather, their complaint centered around the condition of an exterior fence, which is not covered under the Act.
Count I of the complaint, which sought to recover for Gleason's alleged negligence, was also properly dismissed. Plaintiffs alleged that Gleason was negligent in leasing the property to Robins when it was not in the condition to board horses, in failing to erect a permanent fence, in failing to inspect the condition of the fence, and in failing to prohibit the use of the pasture for the grazing or running of horses. In Illinois, however, there is no common law duty on the part of a lessor to guard against damage or injury to persons caused by animals which escape from the leased premises. Heyen v. Willis (1968), 94 Ill. App. 2d 290, 296, 236 N.E.2d 580.
"No person or owner of livestock shall allow livestock to run at large in the State of Illinois. All owners of livestock shall provide the necessary restraints to prevent such livestock from so running at large and shall be liable in civil action for all damages occasioned by such animals running at large; Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large." (Ill. Rev. Stat. 1985, ch. 8, par. 1.)
Pursuant to the statute, only owners or keepers of livestock are liable for damages. Plaintiffs did not allege in the complaint ...