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03/24/88 Frank Lucas, A Minor By v. Joan Kriska

March 24, 1988

WASSERMAN, PLAINTIFF-APPELLEE

v.

JOAN KRISKA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

FRANK LUCAS, a Minor by his Mother and Next Friend, Carolyn

522 N.E.2d 736, 168 Ill. App. 3d 317, 119 Ill. Dec. 74 1988.IL.419

Appeal from the Circuit Court of Cook County; the Hon. Thomas P. Cawley, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Plaintiff Frank Lucas (Lucas) sought recovery for injuries he received when he was bitten by a dog while on property owned by defendant Joan Kriska (Kriska). Lucas' complaint alleged that Kriska's liability was based on common law negligence and statutory negligence under the Animal Control Act (Act) (Ill. Rev. Stat. 1985, ch. 8, par. 351 et seq.). The jury found by special interrogatory that Kriska did not own, harbor, or keep the dog within the meaning of the Act, but nevertheless returned a general verdict in favor of Lucas. The trial court entered judgment on the verdict and Kriska appeals.

The jury's response to the special interrogatory negates Kriska's liability under the Animal Control Act. Therefore, the sole issue on appeal is whether there is sufficient evidence of common law negligence to support the jury's verdict against Kriska. We reverse.

Background

In March 1978, Kriska owned and operated Red Wing Farms, a stable for boarding horses, located in Des Plaines, Illinois. Kriska fenced in approximately 1 1/2 acres of the farm for the boarding operation. Lucas' mother, Carolyn Wasserman, boarded a horse at Red Wing Farms. Kriska knew that Wasserman often brought Lucas, her eight-year-old son, to visit the horse. Edna Olson (Olson), Kriska's sister, also boarded a horse at Red Wing Farms and frequently brought her dog, a black Labrador, with her when she visited the stable. Olson never leashed or restrained the dog, and it roamed the grounds during her visits.

On March 4, 1978, Wasserman brought Lucas to Red Wing Farms to visit and feed the horses. When they arrived, Lucas got out of the car, went to the rear of the automobile, and waited for his mother to get something out of the trunk. Olson's dog approached Lucas slowly, jumped on him, bit his face, and knocked him down. Lucas was hospitalized and will have permanent facial scarring from the injury.

The jury returned a verdict in Lucas' favor but found by special interrogatory that Kriska was not the owner, keeper, or harborer of the dog. The trial court entered judgment on the verdict and Kriska appeals.

Opinion

Kriska argues that the judgment entered against her must be reversed because the evidence does not support a verdict based upon common law negligence. Lucas concedes that the special finding of the jury was inconsistent with a verdict based on the Animal Control Act ...


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