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04/13/87 Marvin Zears Et Al., v. William Davison

April 13, 1987

MARVIN ZEARS ET AL., PLAINTIFFS-APPELLANTS

v.

WILLIAM DAVISON, DEFENDANT-APPELLEE AND THIRD-PARTY, PLAINTIFF-APPELLEE (MARVIN ZEARS, THIRD-PARTY, DEFENDANT-APPELLANT)

SUBSEQUENTLY THE PLAINTIFFS FILED AN AMENDED COMPLAINT ADDING ADDITIONAL COUNTS ALLEGING A CLAIM UNDER THE ANIMAL CONTROL ACT (ILL. RE

v.

STAT. 1983, CH. 8, PAR. 366).



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

506 N.E.2d 1041, 154 Ill. App. 3d 408, 107 Ill. Dec. 150 1987.IL.493

Appeal from the Circuit Court of Fulton County; the Hon. Charles H. Wilhelm, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. HEIPLE and STOUDER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Plaintiff appeals the dismissal of two counts of his amended complaint seeking damages for injuries caused by a cow owned by the defendant. The trial court found that liability of the defendant was to be determined pursuant to the provisions of the Domestic Animals Running at Large Act (Ill. Rev. Stat. 1981, ch. 8, par. 1) and dismissed the counts alleging a cause of action under the Animal Control Act (Ill. Rev. Stat. 1983, ch. 8, par. 366). We affirm.

Plaintiff Marvin Zears was driving a vehicle on Illinois Route 116 in Fulton County. Plaintiff William Block was a passenger in the car. Plaintiff's car struck a cow owned by defendant William Davison which was wandering loose on the highway. Plaintiffs filed a suit against the defendant alleging he violated the Domestic Animals Running at Large Act (Ill. Rev. Stat. 1981, ch. 8, par. 1). The complaint further alleged that the defendant negligently failed to close the gate to the field in which the cow had been kept, failed to use reasonable care in inspecting for an open gate, and negligently allowed his cow to remain unattended upon the highway. The defendant answered the complaint and filed a third-party complaint for contribution against Mr. Zears.

The trial court granted the defendant's motion to dismiss the new counts of the amended complaint on the ground that the facts alleged did not state a cause of action under the Animal Control Act.

Section 16 of the Animal Control Act 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.)

The statute was enacted in 1949 and was initially only applicable to dogs. The act was subsequently amended in 1973 to apply to all animals that can be affected by rabies. The statute was passed to eliminate the prior knowledge requirement of the common law. (See Beckert v. Risberg (1965), 33 Ill. 2d 44, 210 N.E.2d 207.) Under the common law negligence action, one who was injured by an animal could not recover unless he could prove that the animal had a dangerous Disposition and that the animal owner knew of it. Under the statute one can recover without this proof.

The express language of the statute appears to be absolute. If one does not provoke the animal and is peaceably and lawfully on the premises, the owner is liable for all damages proximately caused by his animal. Nevertheless, the statute has been held not to apply in various situations where the plaintiff brought himself within the express terms. See Steichman v. Hurst (1971), 2 Ill. App. 3d 415, 275 N.E.2d 679; Bailey v. Bly (1967), 87 Ill. App. 2d 259, 231 N.E.2d 8.

The Domestic Animals Running at Large statute provides in pertinent part:

"ereafter, it shall be unlawful for any animal of the species of horse, ass, mule, cattle, sheep, goat, swine or geese to run at large in the State of Illinois: 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 ...


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