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Frost v. Robave Inc.

April 21, 1998

KENNETH V. FROST, PLAINTIFF-APPELLANT,
v.
ROBAVE, INC., DEFENDANT-APPELLEE (JEFFREY ROBERTS; NICHOLAS CAVE; CENTRAL NATIONAL BANK OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 16638, SUBSEQUENTLY KNOWN AS EXCHANGE NATIONAL BANK, NOW KNOWN AS LASALLE NATIONAL BANK; AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, AS TRUSTEE UNDER TRUST NO. 46532; KENNETH GOLDBERG, INDIV. AND DOING BUSINESS AS C.M.C. MGR COMPANY AND C.M.C MGR. COMPANY, DEFENDANTS).



Appeal from the Circuit Court of Cook County. Honorable Gary L. Brownfield, Philip L. Bronstein, judges Presiding.

The opinion of the court was delivered by: Justice Rakowski

An owner-employee of a business occasionally takes his dog with him to work. During these visits, the dog is given food and water. Under these circumstances, is the business entity a harborer or keeper of the dog and, therefore, liable for a dog attack occurring off the business premises after the business has closed for the day? The trial court said no and entered summary judgment in favor of the business. We agree.

Because the dog did not regularly stay or spend nights at the business, the employee took the dog to work for his personal convenience, the business did not in any way benefit from the dog's presence, and the business entity did not have care, custody, or control of the dog at the time of the attack, it is neither a keeper nor a harborer of the dog and is not liable at common law or under the Illinois Animal Control Act (510 ILCS 5/1 et seq. (West 1996) (Act)).

BACKGROUND

Sometime around 8 p.m. on January 3, 1994, plaintiff, Kenneth Frost, took his German shepherd, Tristan, for an evening walk. He returned to the four-story mixed-use building at 1347 South Michigan Avenue, Chicago, Illinois, where he lived. He entered the building and started up a common stairwell to his third-floor loft apartment. At the same time, another third-floor tenant, Jeffrey Roberts, decided to go down to the lobby and check for mail. As Roberts opened his apartment door, his Akita, Jake, ran out and down the stairwell. According to Roberts, he attempted to get Jake back into the apartment, but to no avail. As plaintiff reached the second-floor landing, Jake attacked, and the dogs began to scuffle. Plaintiff attempted to break up the fight, was bitten by Jake and severely injured.

Defendant Robave, Inc., is located on the second-floor landing where plaintiff was attacked. Robave is a clothing manufacturing business owned and operated by Roberts and his roommate, Nicholas Cave. At the time of the attack, Robave was closed for the day.

Roberts had purchased Jake and considered himself to be Jake's owner. Jake was initially purchased as a show dog but due to hocking of his legs he was unable to compete. At the time of the attack, Jake was a pet and lived with Roberts and Cave in their apartment. Roberts paid all expenses relating to Jake, including City of Chicago license, rabies license, food bills, pet supplies and toys, vet bills, boarding fees, and grooming bills. Robave did not in any way contribute to Jake's maintenance.

At times, Roberts would take Jake along when he worked at Robave. Although the parties dispute how often this would occur, it is undisputed that Jake was neither regularly housed nor did he regularly stay over night at Robave. It is also undisputed that Jake was not used to guard the Robave premises.

Plaintiff testified that he had seen Jake on the business premises on more than a 100 occasions at various times of the day and night. Plaintiff also submitted affidavits from several other tenants stating the dog was often seen on the business premises and that water and food bowls, and a cage, were present. Plaintiff also offered evidence that Jake had an unpredictable nature and had attacked other people in the past.

PROCEDURE BELOW

Alleging negligence and violation of the Illinois Animal Control Act, plaintiff filed suit against Robave, Inc., Roberts, Cave, Central National Bank of Chicago, American National Bank and Trust Company of Chicago, Kenneth Goldberg, and C.M.C. Mgr. Co. Both banks have been dismissed pursuant to orders not relevant to this appeal. As best we can tell from the record, Roberts, Cave, Goldberg, and C.M.C. Mgr. Co. remain as defendants. This appeal only involves the entry of summary judgment in favor of Robave. We have jurisdiction pursuant to Rule 304(a). 155 Ill. 2d R. 304(a) (as amended, effective February 1, 1994).

STANDARD OF REVIEW

The purpose of summary judgment is to determine whether any issues of fact exist, not to try any issues of fact. Pyne v. Witmer, 129 Ill. 2d 351, 357-58 (1989). Summary judgment is properly granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1996). In deciding whether summary judgment is proper, all documents on file are to be strictly construed against the movant and liberally construed in favor of the non-movant. Only when the moving party's right to judgment is clear and free from doubt should summary judgment be granted. Tersavich v. First National Bank & Trust, 143 Ill. 2d 74, 80-81 (1991); Rumford v. Countrywide Funding Corp., 287 Ill. App. 3d 330, 334 (1997). "If, upon examination of the record it can be fairly said that there does exist a triable issue of fact then the motion for summary judgment should be denied." Ray v. City of Chicago, 19 Ill. 2d 593, 599 (1960). If there is no dispute as to the material facts and the undisputed facts support only one inference, the only question is the legal effect of the facts. Davies v. Grauer, 291 Ill. App. 3d 863, 867 (1997). We review the grant of summary judgment de novo, and may affirm on any basis evident in the record even though it is not the ground the trial court based its ruling on. Smith v. Neumann, 289 Ill. App. 3d 1056, 1063 (1997).

I. ILLINOIS ANIMAL CONTROL ACT

A. IN GENERAL

Plaintiff contends that summary judgment was improper because a reasonable inference could be drawn that Robave was a keeper or harborer of Jake and, therefore, an "owner" within the meaning of the Act. The Act 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 ...


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