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May 17, 1994


Appeal from the Circuit Court of Du Page County. No. 92-L-0582. Honorable Edward R. Duncan, Jr., Judge, Presiding.

Bowman, Inglis, Doyle

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

The minor plaintiff, Alicia Meyer, appeals from the trial court's grant of summary judgment in favor of defendant, Naperville Manner, Inc. We affirm in part, reverse in part and remand.

On March 18, 1992, plaintiff filed her original complaint at law through her parents and next friends, John and Eileen Meyer. The complaint alleged that, as a riding student of defendant, she sustained injuries when riding a horse owned by defendant on October 6, 1991. The action was initially brought pursuant to section 16 of the Animal Control Act (Animal Control Act or Act) which 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." 510 ILCS 5/16 (West 1992).

After the trial court granted plaintiff's motion to strike certain affirmative defenses interposed by defendant, plaintiff was given leave to file an amended complaint on January 12, 1993. In it, plaintiff added a second count sounding in common-law negligence alleging that defendant (1) failed to warn plaintiff that the riding technique she had previously learned at another school was dangerous to use with defendant's horses; (2) plaintiff was promoted from "beginner" through "advanced" when she had not safely learned to manage defendant's horses; and (3) defendant entrusted the safety of its child students to a 17-year-old instructor who had no training or instruction in teaching and no prior teaching experience.

Defendant interposed three affirmative defenses to the original complaint. First, plaintiff's mother, Eileen Meyer, signed a waiver or release of liability on behalf of Alicia which acted as a complete bar to plaintiff's statutory cause of action. Second, plaintiff was contributorily negligent. Third, the Act did not cover injuries sustained by renters of horses or students taking horseback riding lessons. Plaintiff moved to strike the affirmative defenses, arguing, in part, that a parent has no right to waive or release a minor child's cause of action without judicial approval. In opposing plaintiff's motion to strike its affirmative defenses, defendant relied in part on Harris v. Walker (1988), 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917, which held under the circumstances in that case that a person who rents a horse and understands and expressly accepts the risks of using the horse cannot recover for damages under section 16 of the Act.

On July 28, 1992, the trial court denied plaintiff's motion to strike without prejudice the first affirmative defense asserting the signed release as a complete bar to the action; the court stated that it needed to have more factual information. The court denied plaintiff's motion to strike the third affirmative defense that the Animal Control Act did not support plaintiff's cause of action. The second affirmative defense of contributory negligence was stricken since at that time only a statutory claim, rather than a negligence claim, was before the court.

After further discovery, including the depositions of plaintiff and her mother, defendant filed a motion for summary judgment arguing that the Animal Control Act has been construed narrowly and does not impose strict liability upon defendant, particularly where a plaintiff rents a horse and signs a waiver of liability as in Harris. Defendant further argued that plaintiff voluntarily assumed the risk of injury where she took horseback riding lessons and her mother signed the waiver of liability. In support of its position, defendant also relied on Ennen v. White (1992), 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (where person acceptsresponsibility for controlling animal, she cannot recover for injuries sustained in failing to control animal; Act does not extend protection to rider of a horse).

The parties stipulated that defendant's motion for summary judgment would apply to the amended complaint; plaintiff stood on the arguments made with respect to the affirmative defenses. On January 12, 1993, the court granted summary judgment in favor of defendant, and plaintiff brought this timely appeal.

The deposition included in the record establishes that Alicia, who was 10 years old at the time of her deposition, began taking horseback riding lessons when she was seven. She first began taking weekly lessons at High Style Stables which later became the Black Medina Horse Troop. She had frequently been riding with her Aunt Annie. Alicia took lessons regularly from High Style Stables for about two years--until she was nine years old. After a hiatus of several months, she took lessons for two more months and then went to Naperville Manner. At High Style, she moved from beginner to the intermediate level where she learned to canter which she explained was a fast pace just before the horse went into a gallop, the fastest pace. Alicia explained the movements of the horse's legs at the different speeds, the signals used to control the horse from left to right, and the positions of the rider and her legs used in controlling the horse.

At Naperville, there were several levels of instruction: beginner flat (flat surface), intermediate flat, advanced flat, and beginner over fences. Alicia attended lessons weekly. When she began there, she explained that she had previously been in a higher group of intermediate students. Defendant asked Alicia to demonstrate a walk, a trot, and possibly a canter, and then a figure "8" and a half-circle. She began riding at Naperville in the spring or early summer and rode a horse named Dudley until her first show at the end of June. She then rode a horse named Kissey and had been riding at Naperville for two or three months before the accident. She began there as a beginner and, after one week, entered the intermediate flat class because she knew her "diagonal" position in riding a horse around the arena. Alicia moved up to the advanced level in her second month, and she fell off the horse in her last week at the advanced level. She was to start beginner over fences the following week.

On October 6, the day she was injured, Alicia began riding a horse named Skippy whom she had been told was usually a calm horse. The lesson was inside an indoor arena and the class was preparing for a show at the stable. They were to practice walking, trotting, and cantering. She began by performing a sitting trot, then a walk, and after the instructor commented, performed a postingtrot. At the time of the incident, Alicia had progressed to a "two-point trot" in which the student ...

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