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Goennenwein v. Rasof

May 21, 1998

LAUREN GOENNENWEIN, A MINOR, BY HER GUARDIAN, FATHER, AND NEXT FRIEND, HARRY GOENNENWEIN, PLAINTIFF-APPELLANT,
v.
MADELYN RASOF, DEFENDANT-APPELLEE (JEFFREY RASOF AND STEVEN RASOF, DEFENDANTS).



Appeal from the Circuit Court of Lake County. No. 95--L--1974 Honorable Charles F. Scott, Judge, Presiding.

The opinion of the court was delivered by: Justice Doyle

THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Plaintiff, Lauren Goennenwein, by her father, Harry Goennenwein, appeals the entry of summary judgment for defendant, Madelyn Rasof, in plaintiff's personal injury action. On appeal, plaintiff raises two issues: whether the trial court erred in finding that defendant was not an owner of the dog that injured plaintiff; and whether issues of fact existed concerning whether plaintiff knew or should have known of the dog's allegedly dangerous propensities. According to the second amended complaint, defendant's sons, Jeffrey and Steven Rasof, owned a Rottweiler that bit plaintiff on the face at defendant's home. Defendant allegedly was an "owner" of the dog under the Animal Control Act (Act) (see 510 ILCS 5/2.16 (West 1996)) because she "harbored" it in her home. In the alternative, the second amended complaint alleged that defendant was negligent in that she kept or harbored a vicious dog, acted as a custodian of a vicious dog, knowingly permitted a vicious dog to remain on the premises, failed to warn plaintiff of the presence of the dog, failed to control the dog, allowed the vicious dog to be present, and allowed the dog to attack and bite plaintiff.

Defendant moved for summary judgment, arguing that she was not the owner of the dog and she had no knowledge of its vicious propensities. The undisputed facts from the depositions revealed the following.

The dog, Buddy, was purchased by two of defendant's sons, Jeffrey and Steven. Steven had given up his interest in the dog to Jeffrey. Defendant lived in Buffalo Grove, and Jeffrey resided in an apartment in Chicago. Defendant invited her four sons and their dates to a Passover dinner at her house. Four-year-old plaintiff and her mother Lissette were guests of defendant's son Alan. According to Lissette, when she talked on the phone with defendant before the dinner, defendant indicated that she would confine her own dogs, a toy poodle and a female Rottweiler.

About an hour before the other guests arrived for the dinner, Jeffrey came to defendant's house with Buddy. Defendant was not aware that Jeffrey was going to bring the dog, but she did not tell Jeffrey to take the dog home. When Alan, Lissette, and plaintiff arrived, Buddy jumped on Alan in a friendly greeting. For about an hour before dinner, Buddy wandered around the house and did not growl, snarl, or threaten anyone. Someone provided him with water, and Jeffrey gave him food during dinner. After dinner, plaintiff got up from the table and, as she was walking past Buddy, he lunged at her, knocked her down, and bit her face.

In her deposition, Lissette testified to an incident in which Buddy jumped on her when she was hugging Alan. However, defendant was not present for the incident, and there was no evidence that defendant was aware of it. Lissette also testified that Alan told her that his grandmother was not coming to the dinner because a couple of weeks earlier Buddy had nipped her hand and she did not want to be around the dog. By contrast, both defendant and Steven testified that the grandmother was not coming to the dinner because she was spending the holiday with another one of her children. Defendant testified that she did not know Buddy would be at the dinner until Jeffrey showed up with the dog. While Lissette stated that plaintiff did not have food when she walked by the dog, Lissette admitted that she did not see the attack.

Defendant testified that Buddy was at her house during an earlier dinner party which was uneventful. Defendant denied that either Alan or Lissette asked her to confine Buddy. According to defendant, plaintiff threw food to Buddy during dinner. Defendant was not aware that Buddy had bitten anyone before this incident.

According to Steven, Buddy was a friendly dog who had never bitten anyone. He did not growl at people but did display aggression with other dogs. Steven's grandmother is afraid of large dogs, but he did not hear that she had been bitten by Buddy. Steven further testified that he saw plaintiff feeding Buddy pieces of turkey. When plaintiff tried to squeeze past Buddy, she was carrying a piece of turkey up by her mouth, and Buddy growled and went for it. Steven jumped up and pulled the dog off of plaintiff. At the time of the incident, Buddy was about a year old and weighed over 100 pounds.

Plaintiff, who was six years old at the time of her deposition, could not recall much about the incident. She denied that she was holding any food when the dog bit her, but she could not remember what she was doing at the time other than walking towards the kitchen. She also denied that the dog growled at her before it bit her or that she had given it any food.

The trial court granted summary judgment to defendant on those counts of the complaint that were against her, and it made a Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) finding. Plaintiff timely appealed.

Summary judgment is proper when the pleadings, affidavits, and other documents on file, construed in favor of the non-movant, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is a drastic means of resolving litigation and should be allowed only when the right of the moving party to judgment is clear and free from doubt. Espinoza, 165 Ill. 2d at 113. While a plaintiff need not prove her case at the summary judgment stage, she must come forward with some facts that would arguably entitle her to judgment. Jones v. Minster, 261 Ill. App. 3d 1056, 1059 (1994). We review the entry of summary judgment de novo. In re Estate of Hoover, 155 Ill. 2d 402, 411 (1993).

Plaintiff first contends that the trial court erred in granting summary judgment on the count alleging that defendant was the owner, under the Act, of the dog that bit plaintiff. Under section 16 of the Act, an owner is liable if a dog, without provocation, attacks a person in a place where he may be lawfully. 510 ILCS 5/16 (West 1996). The Act defines an "owner" in the following manner:

"[A]ny 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 ...


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