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05/12/88 Darrell Forsyth, Jr., v. Darrell Dugger

May 12, 1988

DARRELL FORSYTH, JR., PLAINTIFF-APPELLANT

v.

DARRELL DUGGER, A MINOR, ET AL., DEFENDANTS (JAMES TUCKER ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

523 N.E.2d 704, 169 Ill. App. 3d 362, 119 Ill. Dec. 948 1988.IL.738

Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On August 11, 1987, the circuit court of Macoupin County granted the motion for summary judgment filed by defendants Michael Tucker, James Tucker, and Peggy Tucker in the action filed by plaintiff Darrell Forsyth, Jr. Plaintiff appeals.

This case arose from an incident on May 3, 1984, in which plaintiff fell from a horse owned by the defendants while at the property of co-defendant Darrell Dugger, resulting in injuries to plaintiff. On April 2, 1985, plaintiff filed a four-count complaint. The first two counts involved Dugger, and having been settled, are not a part of the current controversy. Count III alleged defendants violated a portion of the Animal Control Act (Ill. Rev. Stat. 1985, ch. 8, par. 366). Count IV sounded in common law negligence.

On November 12, 1986, the court originally denied defendants' motion for summary judgment. On August 6, 1987, defendants filed a motion to reconsider that ruling. On August 11, the date set for trial, the court heard arguments on the motion, and finding it was incorrect with its earlier ruling, granted defendants' motion for summary judgment.

The evidence we have before us consists of two complete depositions and excerpts from a third. These establish that on May 3, 1984, plaintiff was 15 years of age. He, Michael Tucker, and Jim Hebetway decided to go horseback riding on the Tuckers' horses. Each had his own steed, with plaintiff riding a pony named Nipper. Plaintiff was an inexperienced horseman. Nipper had a bridle with a rope attached, but did not have a saddle. Plaintiff states he asked for one, but when told by defendant he would not need one, he acquiesced in that decision. Defendant stated he jokingly made that statement, but plaintiff did not insist on having a saddle.

They rode the horses around the pasture for approximately 20 minutes. They then proceeded to go riding on the road. Defendant stated he asked if anyone wanted a saddle at that point and received negative responses. As they approached Dugger's residence, Dugger called them over and indicated he wished to ride with them. At this point, Dugger jumped onto the back of plaintiff's mount, intending to ride double. Plaintiff stated he asked Dugger not to do so. Defendant stated plaintiff was agreeable to Dugger mounting his horse.

Nipper, in response to the mounting, moved forward several steps under a tree. Plaintiff ducked to miss a tree branch, but it struck Dugger. According to plaintiff, as Dugger came off Nipper, he grabbed plaintiff and pulled him off. Plaintiff fell, striking his arm on a ceramic flower pot, resulting in substantial cuts to his arm.

Initially, we observe that summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact, and that the movant is entitled to judgment as a matter of law. (McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 764, 428 N.E.2d 739, 741.) In ruling on the motion, the court has a duty to construe evidence strongly against the movant and liberally in favor of the opponent. Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 522, 434 N.E.2d 50, 52.

Count III of the complaint is based on section 16 of the Animal Control Act (known as the dog-bite statute), which reads:

"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 ...


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