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06/20/96 JAMES NEVIOUS v. KEITH BAUER AND MARSHA

June 20, 1996

JAMES NEVIOUS, PLAINTIFF-APPELLANT,
v.
KEITH BAUER AND MARSHA BAUER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 21st Judicial Circuit, Kankakee County, Illinois. No. 93-L-16. Honorable Patrick M. Burns, Judge Presiding.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Kent Slater, Justice, Honorable John F. Michela, Justice. Justice Michela delivered the opinion of the court: Slater, J., concurs. Holdridge, P.j., specially concurs.

The opinion of the court was delivered by: Michela

The Honorable Justice MICHELA delivered the opinion of the court:

Plaintiff-appellant, James Nevious (plaintiff), brought an action against defendants-appellees, Keith Bauer and Marsha Bauer (defendants), under section 1 of the Illinois Domestic Animals Running At Large Act (the Act) (510 ILCS 55/1 et seq. (West 1994)) for injuries sustained in vehicular collision with defendants' bull. At the close of evidence, the trial court directed a verdict in defendants' favor. Plaintiff appeals contending the trial court misconstrued the burden of proof requirements under the Act, consequently erred in directing the verdict and abused its discretion by refusing proffered prior escape evidence. We reverse and remand with directions.

On the night of February 12, 1992, plaintiff sustained injuries when his automobile collided with a 2000 pound black Angus bull, now deceased, which was standing in the middle of Herscher Blacktop Road in Kankakee County. Apparently, the bull had escaped from the feedlot area on defendants' farm by leaning into and then jumping over a fence that was four to five feet in height. Discovery revealed the bull had previously escaped from the pasture area on defendants' farm. On two prior occasions, the bull had escaped underneath the pasture area fence where the fence met a creek. The pasture area fence was approximately four feet high.

Prior to trial, defendants filed a motion in limine requesting the trial court bar reference to the previous escapes as being dissimilar to the escape in question. Counsel for plaintiff argued the substantial similarity in height between the two fences was sufficient to allow the previous escape evidence. The trial court disagreed finding that plaintiff could not establish substantial similarity of circumstances between the previous escapes and the current escape which would put the defendants on notice that the bull would escape from the feedlot area. As a result, the trial court granted the motion.

At trial, defendant Keith Bauer testified he owned the bull and that the bull had escaped by leaning against the non-electrified fence and jumping out. He further testified he was responsible for controlling the bull and for ensuring that the bull would not escape. According to Mr. Bauer, the feedlot fence was the only fence on the farm which was not electrified. Nothing prevented Mr. Bauer from running electricity through the feedlot fence.

The cattle panels enclosing the feedlot were approximately four to five feet tall and were wired to steel posts with 12-gauge wire. Posts holding the cattle panels were pounded into the ground in the area where the bull jumped the fence. Other posts were cemented to the ground. Mr. Bauer testified that a startled bull could charge, jump four feet and travel up to 20 miles per hour. Mr. Bauer was aware that the local Farm and Fleet store sold taller and heavier cattle panels.

There was hay outside the fence on the evening of the escape. Mr. Bauer admitted that the bull could smell hay and that it ate hay daily. Mr. Bauer also admitted that a taller and stronger feedlot fence was needed when storing hay within seven feet outside the feedlot. However, the trial court sustained objections as speculative that the bull was hungry and attracted to the hay outside the feedlot on the evening of the collision.

Mr. Bauer testified the bull had not escaped from the feedlot prior to the evening of the collision. He was not aware of any practice or custom in Kankakee County regarding construction of feedlots or the use of electricity in feedlots. He had experienced no prior problems with the cattle panels before the evening of the collision. He testified he was unaware the bull had escaped until after the accident.

After plaintiff rested his case, defendants moved for a directed verdict. Defendants argued that plaintiff failed to prove that defendants lacked due care in restraining the bull. Plaintiff maintained that defendants had the burden of proving exercise of due care and lack of knowledge of the escape. Plaintiff further argued that, in any event, due care was a question of fact for the jury to resolve. The trial court disagreed stating that defendants only had the burden of going forward on the issue of knowledge. Mr. Bauer already testified to lack of knowledge of the bull's escape. Therefore, the trial court denied the motion stating that defendant only had to establish lack of knowledge as to Marsha Bauer in their case in chief.

Mr. Bauer testified that the bull had visited the feedlot regularly since 1990 without incident. He further testified that the bull had a gentle nature and had never before done anything to the feedlot fence. Marsha Bauer then testified she had no knowledge of the bull's escape prior to the accident. Defendants rested and then renewed their motion for a directed verdict. The trial court stated that it was plaintiff's burden to prove whether the fence was reasonable, and that the burden of proof always stays with the plaintiff. The trial court then granted the motion for a directed verdict because plaintiff failed to introduce any evidence regarding defendants' lack of due care in restraining the bull. The trial court denied plaintiff's post trial motion. Plaintiff now appeals.

On appeal, plaintiff argues the trial court misconstrued the burden of proof provisions of the Act and thus erred in directing a verdict for defendants. Plaintiff claims the plain reading of the Act places the burden on the defendants to establish exercise of due care as a defense to a alleged violation of the Act. Defendants respond that case law has interpreted the Act as placing the burden on plaintiff to establish that defendants failed to exercise due care. Consequently, since plaintiff failed to introduce any evidence of lack of due care, ...


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