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Garcia v. Nelson

November 14, 2001

ANGELIQUE GARCIA AND LUCKY WILLIAMS, PLAINTIFFS-APPELLANTS,
v.
RONALD NELSON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Boone County. No. 98--L--12 Honorable Gerald F. Grubb, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson.

Ordered published January 2, 2002.

ANGELIQUE GARCIA AND LUCKY WILLIAMS, PLAINTIFFS-APPELLANTS,
v.
RONALD NELSON, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Boone County. No. 98--L--12 Honorable Gerald F. Grubb, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson.

Plaintiffs, Angelique Garcia and Lucky Williams, filed a six-count complaint against defendant, Ronald Nelson, to recover for personal injuries and property damage they suffered when the all-terrain vehicle (ATV) they were riding collided with defendant's dog. The trial court granted defendant summary judgment (see 735 ILCS 5/2--1005(b), (c) (West 1998)) on the complaint's first three counts, which were brought under section 16 of the Animal Control Act (the Act) (510 ILCS 5/16 (West 1996)). Plaintiffs voluntarily dismissed the other three counts, which were based on common-law negligence, and defendant voluntarily dismissed a counterclaim against Williams. Plaintiffs timely appealed the grant of summary judgment on the first three counts of their complaint.

On appeal, plaintiffs argue that the grant of summary judgment was erroneous because it cannot be said as a matter of law that plaintiffs did not meet all of the Act's preconditions for recovery. We agree, reverse the judgment, and remand the cause.

On the evening of February 10, 1996, plaintiff Lucky Williams was driving his ATV east along North Boone School Road in Capron. Plaintiff Angelique Garcia was riding in back. As plaintiffs approached defendant's property at 9431 North Boone School Road, the ATV collided with defendant's dog. The crash injured plaintiffs, damaged the ATV, and killed the dog. Plaintiffs brought a three-count complaint against defendant seeking damages under the Act for, respectively, Williams' injuries, Garcia's injuries, and the damage to the ATV. The complaint alleged that the dog caused plaintiffs' injuries. The complaint also alleged that, at the time of the accident, plaintiffs were in a place where they had the right to be, were conducting themselves peacefully, and did not provoke the dog.

Section 16 of 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 full amount of the injury sustained." 510 ILCS 5/16 (West 1996).

Defendant filed an answer and several affirmative defenses. Defendant alleged, inter alia, that plaintiffs could not recover under the Act because they had violated section 11--1426(a) of the Illinois Vehicle Code (the Vehicle Code) (625 ILCS 5/11--1426(a) (West 1996)) by driving the ATV on a public road. Defendant also filed a counterclaim against Williams for contribution in the event that Garcia recovered against defendant. Defendant subsequently moved for summary judgment. His motion alleged that there was no genuine dispute that, at the time of the accident, plaintiffs were either illegally riding the ATV on private property without the owner's permission (see 625 ILCS 5/11--1427(f) (West 1996)) or illegally riding the ATV on a public roadway. Defendant reasoned that, in either event, plaintiffs could not recover under the Act because they had not been in a "place where [they might] lawfully be" within the meaning of the Act.

Defendant attached affidavits to the motion from himself and Dennis Wilkening. Wilkening averred he owned the property across the street from defendant's land. Both affiants stated that they never permitted Williams or anyone else to ride ATVs in their fields or in the ditches alongside their fields and that nobody had permission to be on their property on February 10, 1996.

Defendant also attached plaintiffs' discovery depositions. At her deposition, Garcia testified that, on the evening of February 10, 1996, she and Williams rode Williams' ATV from his house, which was about a mile west of defendant's house on the south side of North Boone School Road. Garcia did not recall exactly where the accident took place. However, immediately after the accident, she lay in the middle of the road and Williams lay behind her in a ditch on the south side of the road.

In his deposition, Williams testified as follows. On the evening of February 10, 1996, he drove his ATV east from his home at 8647 North Boone School Road. Garcia rode on the back of the ATV. Williams started riding along the south side of the road, crossed to the north side, then crossed back to the south side. Suddenly, the dog appeared ahead of him and to his right. The dog lunged at Williams and knocked plaintiffs off the ATV. As best Williams could recall, the collision happened just west of defendant's driveway as Williams drove his ATV "halfway in the ditch, halfway in the road."

Garcia filed a response to defendant's motion for summary judgment. Defendant filed a reply that included an affidavit from the Boone Township highway commissioner. The affidavit stated that the township has a right of way extending 30 feet each way from the center line of North Boone School Road and that neither the township nor the highway commission had ...


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