APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
504 N.E.2d 526, 152 Ill. App. 3d 384, 105 Ill. Dec. 426 1987.IL.174
Appeal from the Circuit Court of Bureau County; the Hon. C. Howard Wampler, Judge, presiding.
JUSTICE BARRY delivered the judgment of the court. PRESIDING JUSTICE HEIPLE, specially Concurring. JUSTICE SCOTT, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
Plaintiff, Ronald K. Harris, Jr., filed a two-count personal injury action in the circuit court of Bureau County to recover for injuries sustained in a fall from a horse which he rented from a riding stable, known as Ky-Wa Acres, and operated by the defendant, Al Walker. Count I of plaintiff's amended complaint sought recovery based upon the statutory remedy provided in section 16 of the Animal Control Act (Act) (Ill. Rev. Stat. 1983, ch. 8, par. 366). Count II of the complaint was based on common law negligence.
When the horse was rented, the plaintiff signed a document which purported to release Ky-Wa Acres and its employees from any injuries which the plaintiff might incur while on the premises or for any injury which might result from horseback riding. The plaintiff does not deny that he read and fully understood the terms of the document.
The defendant filed a motion for summary judgment predicated upon the foregoing release. The trial court granted summary judgment, and this appeal ensued.
The plaintiff claims that the release, or exculpatory contract, executed by him violates the settled public policy of this State declared by the Animal Control Act and is, therefore, not a bar to his claim for compensation for injuries sustained due to defendant's negligence. It is the plaintiff's contention that the legislature, by enactment of section 16 of the Act (Ill. Rev. Stat. 1983, ch. 8, par. 366), declared it to be the public policy of the State to hold owners of animals liable for injuries caused by such animals and that his complaint stated a valid cause of action.
The statute in question states:
"If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained." Ill. Rev. Stat. 1983, ch. 8, par. 366.
This legislative declaration has been recognized to include liability for horseback-riding injuries. (Chittum v. Evanston Fuel & Material Co. (1980), 92 Ill. App. 3d 188, 416 N.E.2d 5.) Notably, Chittum is a case of injury caused by a horse without any conduct that could be characterized as an "attack." Other Illinois appellate opinions have made clear that the statutory liability is not absolute -- i.e., not strict liability -- but qualified. Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 403 N.E.2d 756; Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268.
In the instant case, plaintiff alleged that the injury was caused by an animal owned or harbored, that there was a lack of provocation by plaintiff, that plaintiff was peaceably conducting himself, and that he was in a place where he had a legal right to be. Plaintiff clearly pleaded the four necessary elements of his statutory cause of action. Chittum v. Evanston Fuel & Material Co. (1980), 92 Ill. App. 3d 188, 416 N.E.2d 5; Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268.
Owen v. Vic Tanny's Enterprises (1964), 48 Ill. App. 2d 344, 199 N.E.2d 280, 8 A.L.R.3d 1388, provides further guidance for our Disposition of this appeal. In the Vic Tanny case, plaintiff, a member of defendant's gymnasium, was injured when she slipped and fell in a shower room. The appellate court held that her suit was barred by an exculpatory clause in the membership contract and found ...