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Deborah Janis v. Scott Graham

March 10, 2011

DEBORAH JANIS,
PLAINTIFF-APPELLANT,
v.
SCOTT GRAHAM, DONNA GRAHAM, PHILLIP WARNER, AND SANDI WARNER,
DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Kane County. Honorable Stephen Sullivan, Judge, Presiding. No. 08-L-500

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

Plaintiff, Deborah Janis, appeals from the trial court's order dismissing with prejudice count II of her third amended complaint and denying her leave to file a fourth amended complaint. We affirm.

On September 2, 2008, Janis filed a two-count complaint in the circuit court of Kane County, seeking damages in excess of $50,000 for injuries sustained when she was allegedly knocked to the ground by dogs owned by defendants, Scott and Donna Graham and Phillip and Sandi Warner. The dogs were allegedly "running loose and without restraint or supervision." Count I was brought under section 16 of the Animal Control Act (Act) (510 ILCS 5/16 (West 2006)). Count II alleged a violation of section 90.03(B) of chapter 90 of title IX of the South Elgin Code of Ordinances, which provided:

"No dog or other animal shall be permitted to run at large in the village [at] any time. It shall be the duty of the owner or any other person who has in his custody or control a dog or other animal to keep the same safely and securely tied or confined at all times." South Elgin Code of Ordinances §90.03(B) (passed Nov. 7, 1983).

On January 22, 2009, the trial court granted the Grahams' motion to dismiss count II pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2008)). The court also granted Janis time to file an amended complaint.

The court subsequently granted the Grahams' motion to dismiss the amended complaint without prejudice. The court directed Janis to replead count I to allege that she had been injured "without provocation." As to count II, the court held that the Village of South Elgin (Village) ordinance that Janis cited "does not create a private cause of action." If Janis wished to replead count II, it "shall be pled as a negligence action, and plaintiff must allege that the animals at issue had a dangerous propensity and that their owner(s) were aware of such propensity."

Janis filed her second amended complaint on April 15, 2009. Count II alleged that the "Village Code of South Elgin creates a duty on dog owners and those who have custody of dogs to keep them safely and securely tied at all times." As a "direct and proximate result" of defendants' violating section 90.03(B) by letting their dogs run at large, Janis was injured. Defendants filed separate motions to dismiss pursuant to section 2-615 of the Code. Janis was granted leave to file a third amended complaint, and the motions to dismiss, as they related to count II, were "converted" to motions to dismiss count II of the third amended complaint, which now included the allegation that defendants' dogs, in addition to running loose without restraint or supervision, ran into Janis "without provocation," thereby causing her injuries. On May 24, 2009, Janis sought leave to file a fourth amended complaint that would add a separate count III alleging negligence. On July 30, 2009, the trial court dismissed count II of the third amended complaint with prejudice, finding that Janis "has failed to state, and cannot state, a cause of action under the facts alleged in Count II of the Third Amended Complaint, for negligence based on the Village of South Elgin, Illinois Ordinance, Chapter 90." The court also denied Janis's motion for leave to file a fourth amended complaint and found no just reason for delaying the enforcement or appeal of the order. This appeal followed.

Janis contends that the trial court erred in dismissing count II of her third amended complaint. According to Janis, count II set forth a cause of action for negligence based on a breach of the Village ordinance requiring dogs to be fenced or otherwise restrained. The trial court dismissed count II pursuant to motions to dismiss brought under section 2-615 of the Code. A section 2-615 motion takes as true all well-pleaded facts alleged in the complaint. King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 266 (2003). On review of a section 2-615 dismissal, this court must determine whether the allegations contained in the complaint, when interpreted in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. King, 341 Ill. App. 3d at 266. A section 2-615 motion should be granted only if the plaintiff can prove no set of facts to support the alleged cause of action. King, 341 Ill. App. 3d at 266. This process does not require the trial court to determine credibility or weigh findings of fact; therefore, we are not required to defer to the trial court's judgment, and we review the matter de novo. King, 341 Ill. App. 3d at 266.

Janis styled count II of her third amended complaint "NEGLIGENCE BASED ON BREACH OF ORDINANCE." According to Janis, local regulation and control of dogs and other animals is provided for in section 24 of the Act, which provides:

"Nothing in the Act shall be held to limit in any manner the power of any municipality or other political subdivision to prohibit animals from running at large, nor shall anything in this Act be construed to, in any manner, limit the power of any municipality or other political subdivision to further control and regulate dogs, cats or other animals in such municipality or other political subdivision provided that no regulation or ordinance is specific to breed." 510 ILCS 5/24 (West 2006).

Thus, according to Janis, the Village had the authority to enact section 90.03(B), which provides:

"No dog or other animal shall be permitted to run at large in the village [at] any time. It shall be the duty of the owner or any other person who has in his custody or control a dog or other animal to keep the same safely and securely tied or confined at all times." ...


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