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12/31/97 DAVID B. DOCHERTY v. ROGER L. SADLER

December 31, 1997

DAVID B. DOCHERTY, AS FATHER AND NEXT FRIEND OF PHILIP M. DOCHERTY, A MINOR, AND DAVID B. DOCHERTY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,
v.
ROGER L. SADLER, DEFENDANT-APPELLEE.



Appeal from Circuit Court of McDonough County. No. 96L17. Honorable William D. Henderson, Judge Presiding.

Honorable James A. Knecht, J., Honorable Frederick S. Green, J. - Concur, Honorable Robert J. Steigmann, J. - Concur. Justice Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

Minor plaintiff, Philip Docherty, was injured when defendant's dog collided with him. Minor plaintiff's father brought a complaint under the Animal Control Act (Act) (510 ILCS 5/1 et seq. (West 1996)). Defendant moved to dismiss, stating minor plaintiff was an "owner" for purposes of the Act and thereby exempt from protection under the Act. The trial court granted defendant's motion and dismissed the complaint with prejudice. Plaintiffs appeal, arguing minor plaintiff was not clearly aware of the risks that ultimately produced the injury and could not have assumed the risk of injury.

I. BACKGROUND

In November 1996, plaintiffs and defendant were neighbors. Defendant made arrangements for 10-year-old minor plaintiff Philip Docherty and his 12-year-old sister to care for defendant's dog. Defendant was to be out of town for five days.

Minor plaintiff was taken to defendant's home and shown the location of the items necessary to care for the dog. Minor plaintiff was to feed the dog and provide it with water. Later that evening, after defendant had left his residence, minor plaintiff and his sister returned, letting the dog out into the backyard. The dog ran around the corner of the house and, on its return, collided with minor plaintiff. Plaintiffs alleged severe and permanent injuries.

The Act states, in relevant part:

"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 1996).

Additionally, the Act provides:

"'Owner' means any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premise occupied by him. " (Emphasis added.) 510 ILCS 5/2.16 (West 1996).

The trial court found minor plaintiff to be an "owner" of the dog and thereby unprotected by the Act: "He was neither an innocent bystander nor a person within the class of persons protected by the Act. His relationship to the animal objectively excludes him from the protected class."

II. ANALYSIS

On appeal, plaintiffs argue "the injury to the [10-] year[-]old plaintiff was the result of a freak occurrence which was not a risk appreciated by or knowingly assumed by the [10-] year[-]old plaintiff." Plaintiffs contend the minor's status as "owner" under the Act ought not exempt him from protection. Defendant responds "plaintiff [minor] was not an innocent bystander at the time of his ...


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