Appeal from the Circuit Court of Lake County. No. 01--L--573. Honorable John R. Goshgarian, Judge, Presiding.
The opinion of the court was delivered by: Justice Byrne
This appeal presents an issue of first impression in Illinois: under what circumstances does a landlord owe a duty of care to his tenant's invitees to prevent injury from an attack by an animal kept by the tenant on the leased premises? On April 17, 2000, plaintiff, Alexus Klitzka, and her mother visited the home of defendants Mark and Amanda Hellios, where Alexus was bitten in the face by the couple's dog, Haley. Mark and Amanda leased the home from Mark's parents, defendants Michael and Trudy Hellios. Mark and Amanda lacked insurance to cover injuries to invitees in their home. Alexus filed a three-count complaint alleging, inter alia, that Michael and Trudy knew or should have known that Haley was dangerous and therefore breached a duty to warn and protect her. Michael and Trudy moved for summary judgment, arguing that they were landlords who had no control over the premises and therefore owed Alexus no duty. The trial court granted Michael and Trudy summary judgment. Alexus appeals, arguing that summary judgment was inappropriate because (1) there is a question of material fact as to whether Michael and Trudy knew or should have known that the dog was dangerous, and (2) Michael and Trudy breached a duty to exercise reasonable care to prevent Alexus' injuries. We affirm, holding that, even if Michael and Trudy knew the dog was dangerous, they had no duty to protect Alexus because they retained no control over the portion of the premises where the injury occurred.
On April 17, 2000, Alexus was a 2"-year-old child who lived with her parents. Mark and Amanda lived next door in a house they rented from Michael and Trudy Hellios. There was no written lease, but Mark and Amanda paid $700 monthly rent. It is undisputed that Mark and Amanda held exclusive possession of the premises and that Michael and Trudy retained no control over the home. Alexus concedes that a landlord-tenant relationship existed.
In 1998, Mark and Amanda purchased an Akita puppy and named it Haley. Mark worked for Hellios Construction, his father's company, and he took Haley there daily. Michael saw the dog frequently at work. Mark and Amanda did not submit Haley to any formal obedience training, but they consulted a book about the Akita breed. Michael and Trudy read parts of the book, as well. One portion of the book states that Akitas can serve as exemplary guard dogs and may display aggression toward unfamiliar people and animals.
On April 17, 2000, Alexus and her mother went to Mark and Amanda's home so Alexus could play with their son. Ten minutes later and without any warning or provocation, Haley bit Alexus in the face while she was in the living room. Alexus suffered facial swelling, bruising, abrasions, lacerations, and puncture wounds.
Mark and Amanda denied that Haley exhibited any "vicious tendencies" before April 17, 2000. However, they admitted that Haley had an altercation with a stray dog, and neither animal was hurt. Amanda also admitted that during the summer of 1999, Haley fought with dogs owned by neighbors who lived across the street.
Alexus' parents asserted that they attempted to avoid Haley before the incident because the dog would frequently growl and bark at people who passed by Mark and Amanda's yard. Alexus' mother stated that, during the summer of 1999, Amanda said that Haley had been banned from the construction company after fighting with another dog there.
Alexus filed her complaint on July 18, 2001. Counts I and II were directed toward Mark and Amanda, the dog's owners. Count III alleged that Michael and Trudy were negligent for (1) allowing Haley to remain on the premises even though they knew or should have known that the dog was dangerous; (2) failing to determine whether Haley was unmanageable and uncontrollable; and (3) failing to inform Alexus or her parents of the danger. As a direct result of this alleged negligence, Haley attacked Alexus, who suffered severe facial injuries that required 15 to 20 stitches and caused permanent scarring and hypersensitivity.
The trial court granted Michael and Trudy summary judgment, and found that there was no just cause or reason to delay enforcement or appeal of the order. See 155 Ill. 2d R. 304(a). This timely appeal followed.
In a negligence action, the plaintiff must provide sufficient facts showing the existence of a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from the breach. Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991). Where the plaintiff fails to provide facts "from which the court could infer the existence of a duty," summary judgment for the defendant is appropriate. Vesey, 145 Ill. 2d at 411. The existence of a duty is a question of law to be determined by the court. Vesey, 145 Ill. 2d at 411.
In all appeals from the entry of summary judgment, we conduct a de novo review of the evidence in the record. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment is appropriate where the pleadings, affidavits, depositions, and admissions on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 1998); Bier v. Leanna Lakeside Property Ass'n, 305 Ill. App. 3d 45, 50 (1999). "Summary judgment is a drastic means of resolving litigation and should be allowed only when the right of the moving party is clear and free from doubt." Bier, 305 Ill. App. 3d at 50. "Therefore, where reasonable persons could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact." Espinoza, 165 Ill. 2d at 114. If a party ...