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Zaragoza v. Ebenroth

May 31, 2002

BARBARA ZARAGOZA, PLAINTIFF-APPELLEE,
v.
TRACY EBENROTH, DEFENDANT-APPELLANT (DEB ARNOLD AND JOSHUA KEEHN, DEFENDANTS).



Appeal from the Circuit Court of the 14th Judicial Circuit Rock Island County, Illinois No. 99--LM--1012 Honorable Mark A. Vandeweile, Judge Presiding.

The opinion of the court was delivered by: Justice Homer

UNPUBLISHED

Plaintiff Barbara Zaragoza sued defendants Tracy Ebenroth, Deb Arnold, and Joshua Keehn for negligence and violation of the Illinois Animal Control Act (510 ILCS 5/1 et seq. (West 2000)) after sustaining injuries during a dog attack. The jury returned a verdict for plaintiff against defendants Ebenroth and Keehn in the amount of $12,110.13. The jury found in favor of defendant Arnold. Only defendant Ebenroth appeals the jury verdict. We affirm.

BACKGROUND

Zaragoza was riding her bicycle in rural Port Byron, Illinois. As she pedaled by Arnold's house, Ebenroth (Arnold's daughter) was watching four dogs: Ebenroth's black Labrador retriever, Arnold's two black Labrador retrievers, and Keehn's Rottweiler. Before Ebenroth could react, the dogs chased Zaragoza. One of the dogs bit Zaragoza on the buttocks causing her to fall to the ground and to injure her shoulder. Ebenroth was able to restrain the dogs before they attacked Zaragoza any further. Ebenroth then drove Zaragoza to her home. At the time of the attack, Arnold was in Michigan and Keehn was inside Arnold's house.

Zaragoza initially filed a complaint against Ebenroth alleging violations of the Illinois Animal Control Act (the Act) (510 ILCS 5/1 et seq. (West 2000)). In her first amended complaint, Zaragoza added Arnold and Keehn as defendants and alleged negligence and violation of the Act against each of them. After Zaragoza filed her second amended complaint, the court granted Arnold's motion for summary judgment as to the count of negligence.

The parties engaged in arbitration, but defendants rejected the arbitrator's decision. Before the case proceeded to trial, the court defaulted Keehn because he failed to answer the complaint and failed to appear before the court.

During trial two issues arose which are the subject of this appeal. First, the trial judge barred Arnold from providing hearsay testimony indicating that Keehn's dog had previously bitten Keehn's father in the buttocks. Second, Zaragoza, over the defense's objection, was allowed to introduce an evidence deposition given by Doctor Laura Davies, which provided evidence with regard to the injuries Zaragoza sustained. At the conclusion of the jury trial, the jury verdict held Ebenroth and Keehn liable for $12,110.13 in damages but determined that Arnold was not liable for any damages. The jury verdict forms revealed that the jury determined that Arnold was not an owner of a dog that attacked Zaragoza, whereas Ebenroth was an owner of a dog that attacked Zaragoza. Subsequent to the jury verdict, only Ebenroth filed a notice of appeal.

ANALYSIS

On appeal, Ebenroth argues that the trial court abused its discretion by excluding certain portions of Arnold's testimony as hearsay. Ebenroth also contends that the court abused its discretion by admitting the deposition of Dr. Davies.

1. Hearsay Testimony

The trial court's decision to bar testimony will be overturned only if it amounts to a clear abuse of discretion. See Boatmen's National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194, 1198-99 (1993). In this instance, Arnold's offer of proof revealed that she was going to testify that after the incident, Keehn told her that his dog had a history of biting his father's buttocks. The trial judge sustained Zaragoza's objection to the hearsay testimony.

Ebenroth argues that Arnold's testimony should have been permitted as a party admission. For Arnold's testimony to be admissible, Keehn must have been a party opponent, he must have made an admission, and the testimony must have been reliable. See People v. Cruz, 162 Ill. 2d 314, 374-75, 643 N.E.2d 636, 665 (1994) (stating that admissions are admissible when made by a party opponent); Vojas v. K mart Corp., 312 Ill. App. 3d 544, 547, 727 N.E.2d 397, 400 (2000) (indicating that any statement made by a party or on his behalf that is relevant to a trial issue may generally be admitted into evidence as an admission by a party opponent); In re Marriage of L.R., 202 Ill. App. 3d 69, 83, 559 N.E.2d 779, 788 (1990) (concluding that when certain statements lack sufficient indicia of reliability, application of an exception to the general rule against hearsay is not warranted).

Although Keehn failed to appear and default was entered against him, he remains a party to the suit. See 59 Am. Jur. 2d Parties ยง7 (1987). We must now determine whether Keehn is a party opponent to Arnold. In Cruz, 162 Ill. 2d at 374-75, 643 N.E.2d at 665, our supreme court held that "[r]elevant admissions of a party *** are admissible when offered by the opponent as an exception to the hearsay rule." Arnold and Keehn were potential adverse parties since the effect of Arnold's testimony implicated Keehn's dog as the aggressor and suggested that she and ...


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