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06/28/89 Doris Guthrie, v. Ted Zielinski Et Al.

June 28, 1989

DORIS GUTHRIE, PLAINTIFF-APPELLANT

v.

TED ZIELINSKI ET AL., DEFENDANTS-APPELLEES

IN THE CASE AT BAR, THE TRIAL COURT ACCEPTED THE DEFENDANTS' ARGUMENT BASED ON HARRIS

v.

WALKER AND GRANTED THEIR MOTION FOR SUMMARY JUDGMENT, STATING:



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

541 N.E.2d 178, 185 Ill. App. 3d 266, 133 Ill. Dec. 341 1989.IL.1018

Appeal from the Circuit Court of Du Page County; the Hon. Fredrick Henzi, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

The plaintiff, Doris Guthrie, appeals from the trial court's denial of her motion for partial summary judgment on her complaint under the Animal Control Act (the Act) (Ill. Rev. Stat. 1987, ch. 8, par. 366); she also appeals from the trial court's granting of the defendants' motion for summary judgment. On appeal, the plaintiff contends that the trial court erred in finding that the doctrine of assumption of risk barred her recovery under the Animal Control Act. With regard to her own motion for partial summary judgment, the plaintiff contends that the trial court erred in finding a genuine issue of material fact, namely, whether the plaintiff had provoked the animal that attacked her, thus precluding her from judgment as a matter of law.

The relevant facts before the trial court in its consideration of the parties' opposing motions for summary judgment are as follows. The plaintiff, the 32-year-old daughter of the defendants, Ted and Margaret Zielinski, was in the habit of visiting her parents approximately four times a month or more. She had a key to their house and customarily entered through a garage door without knocking or announcing her entry. Sometime in May 1986, the defendants obtained a large dog named Jasper from an acquaintance who warned them that the dog was difficult to control. For approximately the first week the defendants owned Jasper, the acquaintance had to return daily to feed the dog. The first time the plaintiff ever saw the dog, he was kept in a 100-foot dog run behind the defendants' garage. As she approached the dog run, the dog commenced barking "like he was ready to . . . kill someone" and frightened the plaintiff so that she ceased her attempts to be friendly with him. Over the course of the next several months, the plaintiff continued to visit her parents on a regular basis, and the dog's unfriendly attitude toward her never changed.

Ordinarily, the defendants kept the dog in the dog run, but on occasion Mrs. Zielinski allowed Jasper inside and fed him in the kitchen. The parties agree, however, that prior to the incident in question, Jasper was never in the house when the plaintiff came to visit.

On October 15, 1986, the plaintiff went to her parents' home after work and entered through the garage door as usual. Upon entering, she saw her parents in the kitchen and greeted them by saying "hello." They greeted her in return and were very happy to see her. The plaintiff then turned to close the door and check the time on a wall clock. In a matter of seconds, the dog, which had apparently been in the kitchen, leaped onto the plaintiff, biting and severely mauling her right leg above the knee. Mrs. Zielinski and the plaintiff's son assisted her to a car and transported her to a hospital where she received treatment. The plaintiff remained hospitalized for three days and received intravenous drugs for the prevention of infection. During her recovery, a period of approximately six weeks, she was unable to care for her infant daughter and could not return to her part-time job as housekeeper. Ultimately the wound healed but left serious scarring and occasional pain in the plaintiff's right leg.

The plaintiff filed a complaint against the defendants pursuant to the Animal Control Act, alleging that the defendants were the owners of an animal which attacked her, without provocation, while she was peaceably conducting herself in a place where she had a legal right to be. On the basis of depositions taken of all parties, plaintiff filed a motion for summary judgment, claiming that there were no genuine issues of material fact and that she was entitled to judgment as a matter of law.

In opposition, the defendants filed a motion for summary judgment based on the affirmative defense of assumption of risk. The defendants asserted that the plaintiff knew of the dog's unfriendly attitude toward her, yet she entered the defendants' house unannounced and provoked the dog by her presence. The defendants' assertion was based on Harris v. Walker (1988), 119 Ill. 2d 542, in which the supreme court considered the Act with regard to a plaintiff who rented a horse at a stable and signed a release containing an exculpatory clause prior to taking the horse out for a ride. The high court concluded that the plaintiff's relationship to the defendant stable owner precluded him from asserting coverage under the Act. The supreme court stated:

"We therefore hold that where a person rents a horse and understands and expressly accepts the risks of using the horse, he cannot recover damages from the person who rented the horse to him under the Act." 119 Ill. 2d at 548.

"[Apparently] the Supreme Court is agreed in enunciating the doctrine of assumed risk; is giving credence to notice and apparently playing around with a doctrine of surprise, or lack thereof."

The trial court further denied the plaintiff's motion for summary judgment, finding that a question of fact existed as to whether the attacking dog had been ...


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