APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
516 N.E.2d 379, 162 Ill. App. 3d 510, 114 Ill. Dec. 224 1987.IL.1528
Appeal from the Circuit Court of Tazewell County; the Hon. Donald C. Courson, Judge, presiding.
JUSTICE WOMBACHER delivered the opinion of the court. BARRY, P.J., and STOUDER, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER
The plaintiff, Richard Kirchgessner, appeals from the trial court's dismissal of his complaint against the defendant, the County of Tazewell.
In his complaint, the plaintiff alleged that the defendant allowed a dog to escape from the Tazewell County Animal Shelter, which the defendant operates. The dog ran onto a highway, causing the plaintiff, who was riding a motorcycle, to strike it and injure himself. The plaintiff further alleged that the defendant was the "owner" of the dog, as defined in the Animal Control Act (the Act) (Ill. Rev. Stat. 1985, ch. 8, par. 352.16), and that the defendant owed a duty to prevent the dog from injuring the plaintiff.
In effect, the single-count complaint, while perhaps inartfully drafted, alleges both a cause of action based on statutory liability under the Animal Control Act and a separate cause of action based on common law negligence.
The defendant filed a motion to dismiss, contending that a governmental unit operating a public pound cannot be liable to a private plaintiff for the negligent exercise of its operation. The trial court found that the defendant was not an "owner" of the dog under the Act, and that the defendant owed no duty to the plaintiff. Accordingly, the court granted the defendant's motion to dismiss.
On appeal, the plaintiff first argues that the trial court erred in ruling that the defendant was not an "owner" of the dog.
The plaintiff desires that the defendant be declared an "owner" of the dog in order to bring the defendant within the scope of the liability provision of the Animal Control Act. Section 16 of the Act provides: "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. 1985, ch. 8, par. 366.) Duty is not an element of such a cause of action (see Stehl v. Dose (1980), 83 Ill. App. 3d 440, 403 N.E.2d 1301), nor is it necessary to prove negligence on the part of the owner (Thompson v. Dawson (1985), 136 Ill. App. 3d 695, 483 N.E.2d 1072).
Section 2.16 of the Act defines "owner" as "any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premise occupied by him." (Ill. Rev. Stat. 1985, ch. 8, par. 352.16.) "'Person' means any person, firm, corporation, partnership, society, association or other legal entity, any public or private institution, the State of Illinois, municipal corporation or political subdivision of the State, or any other business unit." Ill. Rev. Stat. 1985, ch. 8, par. 352.17.
The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the legislature's intent. (Stewart v. Industrial Com. (1987), 115 Ill. 2d 337, 504 N.E.2d 84.) The legislature has the power to articulate reasonable definitions of any terms within its enactment and such definitions, for the purposes of its acts, will be sustained to the exclusion of hypothetical indulgences. Mack v. Seaman (1983), 113 Ill. App. 3d 151, 446 N.E.2d 1217.
The keeper of an animal, as well as its owner, can be held liable under the Animal Control Act. (Clark v. Rogers (1985), 137 Ill. App. 3d 591, 484 N.E.2d 867.) A keeper of an animal has been defined in terms of management, custody, care or ...