Appeal from the Circuit Court of McHenry County. No. 93--LA--224. Honorable James C. Franz, Judge, Presiding.
Released for Publication February 20, 1997.
The Honorable Justice Bowman delivered the opinion of the court. Geiger, P.j., and Rathje, J., concur.
The opinion of the court was delivered by: Bowman
JUSTICE BOWMAN delivered the opinion of the court:
Pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), plaintiff Daniel Douglass and plaintiff-intervenor Edward J. Domalik appeal the trial court's order granting the separate summary judgment motions of defendants Barbara Peterson and Thomas and Karen Durnan (the Durnans). We affirm.
On May 5, 1993, Douglass was injured when "Lady," a horse which had escaped from her pasture and was running at large, collided with his motorcycle. Douglass filed a complaint against Peterson, the Durnans, and Michael Dolan, Janet Dolan, and Carol Dolan (the Dolans). Domalik, a passenger on the motorcycle, intervened in the case and filed a complaint against Douglass, Peterson, and the Dolans. The Dolans are not parties to this appeal.
Counts I and II of Douglass' complaint were directed against the Dolans. Count I alleged that the Dolans were the owners and/or keepers of Lady and that they violated the Illinois Domestic Animals Running At Large Act (Act) (510 ILCS 55/1 et seq. (West 1992)) by allowing Lady to run at large on May 5, 1993. Count II alleged that the Dolans acted negligently.
Counts III and IV of Douglass' complaint were directed against Peterson. Count III alleged that Peterson violated the Act because she was an owner and/or keeper of Lady. Count IV alleged that Peterson acted negligently.
Count V of Douglass' complaint was directed against the Durnans and was based on a claim of negligence. It alleged that the Durnans owned, maintained, and controlled the property from which Lady escaped and that they had a duty to ensure that Lady could not gain access to public highways from the property. It further alleged that the Durnans breached this duty by failing to keep Lady on the property and by failing to construct, erect, and maintain a fence which could have prevented Lady from wandering off the property.
Count I of Domalik's complaint was directed against Douglass and was based on a claim of negligence. Counts II and III of the complaint were directed against the Dolans. Counts I, II, and III are not at issue on appeal. Counts IV and V were directed against Peterson. Count IV was based on the Act and mirrored count III of Douglass' complaint; count V was based on common-law negligence and mirrored count IV of Douglass' complaint.
The following uncontested facts are from the various depositions and affidavits of the parties taken during discovery. Peterson had Lady "foaled" in 1987. At Lady's birth, Peterson obtained a "Certificate of Foal Registration" from the Jockey Club, which certified her ownership of Lady. The bottom of the certificate contains the following statements: "Certificate to be preserved and transferred to purchaser gratis if this horse is sold. Possession and presentation of this certificate is a requirement to race or breed the horse it identifies."
On September 1, 1992, Peterson sold Lady to Carol Dolan, the minor daughter of Janet and Michael Dolan, for $700. Carol Dolan gave Peterson $50 as a down payment and agreed to pay the remaining $650 in installments. Carol Dolan also agreed to pay the full amount owed to Peterson if she resold Lady. On the day of the sale, Peterson prepared and signed the following handwritten "bill of sale":
"I have sold to Carol Dolan one bay mare, thoroughbred, registered name Lady Coopersteen, for the sum of $700.00. I have received $50.00 cash down payment with the rest of the amount to be made in payments. The balance is due immediately if the horse is transferred or sold by her to any other party."
At the time of the sale, Peterson recorded the transfer of ownership of Lady in the appropriate space on the "Certificate of Foal Registration." Peterson retained possession of the certificate "for security," although she intended to give it to Carol Dolan after she had been paid in full for Lady. After the sale, Carol Dolan took possession of Lady, and Peterson neither housed Lady on her property nor incurred any ...