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02/11/88 Ronald K. Harris, Jr., v. Al Walker

February 11, 1988





519 N.E.2d 917, 119 Ill. 2d 542, 116 Ill. Dec. 702 1988.IL.206

Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Bureau County, the Hon. C. Howard Wampler, Judge, presiding.


JUSTICE SIMON delivered the opinion of the court.


Plaintiff, Ronald K. Harris, Jr., was injured when he fell off a horse he had rented from the Ky-Wa Acres riding stables, owned and operated by the defendant, Al Walker. Filing a two-count personal injury action in Bureau County circuit court, plaintiff based count I upon section 16 of the Animal Control Act (Ill. Rev. Stat. 1983, ch. 8, par. 366), and grounded count II on a common law negligence theory. Defendant moved for summary judgment, presenting evidence that plaintiff signed and fully understood an exculpatory agreement. Based on this release and plaintiff's deposition testimony that he read and understood its terms before signing it, the circuit Judge granted the defendant's motion, ruling that the release barred both counts in plaintiff's suit.

On appeal, the Appellate Court, Third District, reversed the judgment and remanded to the circuit court for trial. A brief review of the three separate opinions filed by the three-Judge panel demonstrates how divided the court's decision was. One of the appellate court Judges holding for reversal stated that the exculpatory contract could not release defendant from liability under the Animal Control Act because it violated the State's public policy inherent in the Act. Another Judge, Concurring only in the reversal, opined that the Animal Control Act was not applicable, but that plaintiff had pled allegations of fraud sufficient to abrogate the release from negligence liability. The Dissenting Judge suggested that the only question on appeal was whether the release violated public policy, and he concluded that "the statute does not appear to be intended to protect the person who voluntarily encounters a known risk and agrees in writing to assume the risk." (152 Ill. App. 3d 384, 388 (Scott, J., Dissenting).) This split decision is in conflict with Clark v. Rogers (1985), 137 Ill. App. 3d 591 (finding that the legislature did not intend to preclude assumption of risk defense to Animal Control Act claim in case where plaintiff was injured by horse she was hired to train), and Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158 (ruling that the Act was not intended to abolish the defense of assumption of the risk in suit brought by horseshoer against owner of horse that kicked him). Exercising our discretion under Rule 315(a) (107 Ill. 2d R. 315), we granted the defendant's petition for leave to appeal.

Count I. The Animal Control Act Claim

Section 16 of the Animal Control Act, on which plaintiff's first count is based, 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. 1983, ch. 8, par. 366.)

The legislative history of the statute leads us to conclude that our legislature did not intend to create a statutory cause of action for a renter of a horse like the plaintiff in this case. The original version of this statute was passed in 1949 and applied only to dogs. (Ill Rev. Stat. 1953, ch. 8, par. 12d.) The apparent purpose of the legislation was modest: to reduce the burden on dog-bite plaintiffs by eliminating the "one-bite rule" -- the common law requirement that a plaintiff must plead and prove that a dog owner either knew or was negligent not to know that his dog had a propensity to injure people. Beckert v. Risberg (1965), 33 Ill. 2d 44, 46.

Enacting the Animal Control Act in 1973, the legislature amended this "dog-bite statute" to cover "other animals." We have found nothing, nor has plaintiff cited anything, that suggests that the underlying purpose of this amendment should not be as narrowly construed as that of its predecessor statute.

In deciding whether the plaintiff stated a valid cause of action under the statute, we start from our well-established presumption that a statute that represents a departure from the common law should be narrowly construed in favor of those who are subject to the statute's operation. (In re W.W. (1983), 97 Ill. 2d 53, 57; Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 220.) Accordingly, we believe that the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them. This interpretation is consistent with the emphasis the statute places on lack of provocation and plaintiff's peaceable conduct in a place in which he is legally entitled to be.

The plaintiff's relationship to the defendant in this case excluded the plaintiff from the coverage of the statute. Plaintiff rented the horse from defendant's stable and claimed to fully understand and accept the risks of horseback riding. By establishing this relationship, the plaintiff took himself out of the class of persons the legislature intended to protect. We therefore hold that where a person rents a horse and understands and expressly accepts the risks of using ...

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