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Steven Cieslewicz, Independent Administrator of v. Forest Preserve District of Cook County

May 17, 2012

STEVEN CIESLEWICZ, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ANNA M. CIESLEWICZ, DECEASED,
PLAINTIFF-APPELLANT,
v.
FOREST PRESERVE DISTRICT OF COOK COUNTY, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.
MARY MURPHY-SMITH AND CHARLES SMITH, PLAINTIFFS-APPELLANTS,
v.
FOREST PRESERVE DISTRICT OF COOK COUNTY, AND A MUNICIPAL CORPORATION,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Nos. 03 L 1949, 03 L 1705 (Consolidated) The Honorable Bill Taylor The Honorable John Ward, Judges Presiding.

The opinion of the court was delivered by: Justice Lampkin

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Robert E. Gordon and Justice Garcia concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs, Steven Cieslewicz and Mary Murphy-Smith and Charles Smith, brought the underlying case as a result of dog attacks occurring on property owned by defendant, Forest Preserve District of Cook County (Forest Preserve). Upon reconsideration, the trial court granted defendant's motion for summary judgment, finding defendant was not an "owner" as defined by the Animal Control Act (Act) (510 ILCS 5/1-5/27 (West 2002)) and, therefore, was not liable under the Act for the injuries caused by the offending dogs. On appeal, plaintiffs contend the trial court erred in finding as a matter of law that defendant was not an owner pursuant to the Act. Based on the following, we affirm.

¶ 2 FACTS

¶ 3 On January 12, 2003, Anna Cieslewicz and Mary Murphy-Smith were attacked, in separate incidents, by two dogs on or near the Major Taylor Trail in the Dan Ryan Woods, which is within defendant's property. Anna died and Mary was severely injured. On the date of the attacks, Forest Preserve officers James Kapsalis and Reginald Ross located one of the dogs, a brown and black pit bull, and killed it when the dog charged at Officer Kapsalis. The second attack dog, a white and brown mixed-breed, was trapped on January 16, 2003.

¶ 4 Prior to the attacks, a number of individuals reported seeing aggressive dogs in the area. According to her deposition testimony, one month before the attack, Mary was charged at and threatened by a pit bull and approximately four other dogs. She immediately reported the incident to two Forest Preserve officers and was told that the situation would be handled. Mary later identified the pit bull as having been involved on both occasions. John Trice provided an affidavit in which he stated that he encountered two pit bulls between 30 to 40 times from November 2002 until January 12, 2003, while jogging near the Major Taylor Trail. Trice said he was accosted by the dogs on each occasion. Trice reported the first incident to a Forest Preserve park ranger and was told the situation would be taken care of. Trice later identified photographs of the pit bulls, which were the same dogs that attacked Mary. Thomas Justic provided an affidavit in which he stated that he encountered aggressive dogs while riding his bicycle in the Dan Ryan Woods near the location of the attacks. On December 28, 2002, Justic saw one pit bull that snarled and barked when he passed and became more aggressive when Justic passed again. On January 4, 2003, Justic encountered the same pit bull while riding his bicycle. The pit bull, however, was joined by two other dogs, all of which chased Justic's bicycle. Justic described the pit bull as "much more aggressive" on the second encounter. Justic attempted to report the incidents to a Forest Preserve park ranger, but called the City of Chicago animal control department when he was unsuccessful at locating a park ranger.

¶ 5 Defendant does not have an animal control department. The City of Chicago and Cook County animal control departments service defendant's property. Darrell James Howell, a division superintendent of maintenance for the Forest Preserve, testified at his deposition that he observed stray dogs in the Dan Ryan Woods every three or four months over the course of his 15-year career. When a stray was seen, Howell was to call the City of Chicago and Cook County animal control departments. Howell said his staff patrolled the woods two or three times per week for strays. Howell additionally saw animal control patrolling the woods about two to three times per week. According to Officer Ross's written discovery answers, he spent one-third of his time at work patrolling the Dan Ryan Woods. Officer Ross approximated that he received stray dog reports from citizens every two months and from defendant's maintenance division every two to three months. While canvassing the Dan Ryan Woods, Officer Ross spotted a pit bull twice. When Officer Ross observed any stray dogs, he contacted Cook County animal control or attempted to run the dog out of the woods himself. Officer Kapsalis testified at his deposition that he frequently patrolled the Dan Ryan Woods and never saw a loose or stray pit bull. Forest Preserve officer James Womack testified at his deposition that, when he observed a stray dog in the Dan Ryan Woods, he took steps to force the animal from the property and called animal control if unsuccessful. According to Jessie Young, an animal control officer for Cook County, he patrolled the Dan Ryan Woods once per week for approximately 45 minutes to search for stray animals.

¶ 6 According to records retained by the Cook County animal control department, a total of three dogs, including two pit bulls, were caught and removed from the Dan Ryan Woods on June 5, 2002, July 26, 2002, and January 9, 2003. According to records retained by the City of Chicago animal control department, animal control officers were dispatched to the Dan Ryan Woods to investigate at least nine stray dog complaints in 2002; however, in most instances, the animal was gone by the time the officer arrived.

¶ 7 On May 2, 2008, the trial court denied defendant's motion for summary judgment, finding that there were genuine issues of material fact precluding judgment as a matter of law as to the question of whether defendant exhibited ownership over the dogs at issue by "knowingly permitting" the dogs to remain on defendant's property as provided by the Act. Defendant filed a motion to reconsider. The trial court granted the motion to reconsider and, on November 19, 2009, granted defendant's motion for summary judgment, finding there were no genuine issues of material fact where plaintiffs did not provide sufficient evidence to demonstrate defendant was an owner of the dogs. Specifically, the trial court found that plaintiffs were required to show that defendant did more than "merely allow the dogs to be temporarily" on defendant's property, such that defendant's "maintained any control over the dogs or that [defendant] acted as a harborer or custodian of the dogs."

¶ 8 DECISION

¶ 9 Plaintiffs contend the trial court erred in granting summary judgment where they presented evidence demonstrating that defendant was the statutory owner of the offending dogs and was responsible for failing to remove the dogs from the Dan Ryan Woods prior to the attacks.

¶ 10 Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 2002). When reviewing a motion for summary judgment, a court must consider all of the evidence strictly against the movant and in a light most favorable to the nonmoving party. General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284, 769 N.E.2d 18 (2002). We review de novo ...


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