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Lynda S. Howle v. Aqua Illinois

October 31, 2012

LYNDA S. HOWLE,
PLAINTIFF-APPELLANT,
v.
AQUA ILLINOIS, INC., AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE,
AND
ROBERT CHITWOOD,
DEFENDANT.



Appeal from Circuit Court of Vermilion County No. 09L81 Honorable Craig H. DeArmond, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

Carla Bender 4th District Appellate Court, IL

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Appleton and Pope concurred in the judgment and opinion.

OPINION

¶ 1 In September 2009, plaintiff, Lynda S. Howle, sued defendants, Aqua Illinois, Inc. (Aqua), and Robert Chitwood. Howle alleged, in part, that Aqua was liable under (1) section 16 of the Animal Control Act (Act) (510 ILCS 5/16 (West 2010)) (count II) and (2) the common-law tort of negligence (count IV) for injuries she sustained when Chitwood's dog "viciously attacked" her while on Aqua's property. (Howle's suit against Chitwood is not the subject of this appeal.)

¶ 2 In November 2009, Aqua filed a motion to dismiss both counts under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2010)). Following a September 2010 hearing, the trial court entered a written order that (1) rejected Aqua's claim that both counts were subject to dismissal under section 2-615 of the Code (735 ILCS 5/2-615 (West 2010)), (2) dismissed count II pursuant to section 2-619(a)(9) of the Code (735 ILCS 2-619(a)(9) (West 2010)), and (3) denied Aqua's motion to dismiss count IV under section 2-619(a)(9) of the Code.

¶ 3 In November 2011, Aqua filed a motion for summary judgment as to count IV pursuant to section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2010)). Following a December 2011 hearing, the trial court granted summary judgment in Aqua's favor.

¶ 4 Howle appeals, arguing that the trial court erred by granting Aqua's (1) motion to dismiss count II and (2) motion for summary judgment as to count IV. We disagree and affirm.

¶ 5 I. BACKGROUND

¶ 6 A. The Circumstances That Led to Howle's Suit

¶ 7 The following facts were gleaned from the parties' pleadings, depositions, affidavits, and other supporting documents filed in the trial court.

¶ 8 In August 2006, Aqua hired Chitwood as the distribution superintendent of its water-treatment plant (hereinafter, the Plant). Because Chitwood's responsibilities included dispatching crews to handle emergencies, Aqua required him to reside within a 15-minute drive of the Plant. In December 2006, Chitwood accepted Aqua's oral offer to rent on a month-to-month basis a house that Aqua owned. That house, located in the rear of the Plant's premises, was surrounded by a barbed-wire fence that delineated the Plant's overall property. A single-gated, keypad entrance, which was constantly monitored by a Plant operator and numerous security cameras, provided the only access into the Plant.

¶ 9 Chitwood explained that he agreed to pay Aqua $535 per month to rent the home, two-car garage, driveway, shed, and yard that surrounded the home. A small concrete wall separated the yard from an employee parking lot, but otherwise, the home did not have fencing or any other structures segregating it from the rest of the Plant. Chitwood possessed an electronic transmitter that would open the gate to allow personal visitors onto the Plant's property or, alternatively, he could place a name on a list to alert the Plant operator of the expected visitor. Although a landscaping contractor mowed the residence, Aqua employees performed snow removal and general maintenance on the home. Neither contractors nor Aqua employees entered the residential boundaries uninvited.

¶ 10 Chitwood initially shared the home with his wife and their dog, Annie. In spring 2007, Chitwood acquired a dog named Marley, who was a "Dalmation/Great Dane mix." Chitwood allowed Annie and Marley to roam freely about the Plant's premises. Sometime later, Marley approached the Plant's water treatment operator, Frances Richards, and began "snarling and growling" at her. Richards reported the incident to Aqua's vice president, Thomas Bruns, and its production manager, both of whom had supervisory authority over Chitwood. Both supervisors later informed Richards that they had spoken to Chitwood and told him that his dogs required supervision when they were outside his residence. (We note that in support of Aqua's motion to dismiss, Aqua attached a five-page affidavit from Bruns in which he asserts that Aqua had no ownership or control over the dog that injured Howle.)

¶ 11 Thereafter, Marley got into the Plant's main building through an open rear door. Richards grabbed an object and yelled at Marley to "get out!" Marley growled at Richards but quickly retreated. Richards noted that Chitwood was not present during that encounter. In a third confrontation, Richards was on the Plant's "catwalk," suspended about 30 feet above the ground, when Marley, who was accompanied by Chitwood down below, ran toward Richards and growled at her. Chitwood yelled at Marley to return but Marley did not comply. Marley retreated after Richards threw water down on Marley.

¶ 12 On August 13, 2008, Bruns wrote a memorandum entitled, "Disciplinary Meeting with Bob Chitwood," which documented a meeting conducted the previous day regarding an incident in which Marley approached the Plant's janitor, Charlie Miller, in a threatening way. Miller, who was not injured, threw a can at Marley before Marley retreated. After rejecting Chitwood's claim that a coyote was to blame, Bruns concluded his memorandum, as follows:

"Because there have been previous incidents involving

Chitwood's dogs, including one in broad daylight with me, I told Chitwood that this was his final warning concerning his dogs. If another incident occurs, either his dogs will have to be removed or he will have to move out of the [Plant's] house and find another place to live.

[Chitwood] indicated that he understood completely and would not let it happen again." (The record does not show that Chitwood's other dog, Annie, was disturbing Aqua employees.)

¶ 13 Bruns acknowledged that Aqua had leverage over Chitwood in that it could have terminated his residency and employment if he did not comply with Aqua's demands. Bruns added that the intent of the meeting with Chitwood was to inform him that his dogs had to be restrained and remain on the residential property. Despite that intent, Bruns stated that Aqua did not impose a specific requirement upon Chitwood as to how he should restrain his dogs. Thereafter, Bruns requested that Plant personnel inform him if Chitwood's dogs were creating any sort of disturbance on or near Plant property.

¶ 14 In the fall of 2008-after Bruns issued the disciplinary notice-Chitwood's son, Justin, and his pit bull, Sage, moved in with the Chitwoods. At that time, Justin did not discuss Sage's temperament with Chitwood. Later, Chitwood's immediate supervisor, Joshua Gabehart, accepted Chitwood's invitation to play cards at his home. While there, Gabehart recalled petting Sage, who had jumped into his lap, as Marley lay at his feet. Gabehart stated that he understood that Sage was Justin's dog, adding that anytime he would see the three dogs outside Chitwood's home, they were on the residential property being supervised by Chitwood's wife.

¶ 15 On December 27, 2008, the Chitwoods hosted a family gathering at their home. In attendance were (1) Justin and his fiancee; (2) Chitwood's other son, Adam, and his wife; (3) Chitwood's sister, Sandra Elliott, and her sons, Robert and Scott; and (4) Scott's girlfriend, Howle. In addition, Adam brought three dogs, one of which was a "pit bull mix" called Sienna. That afternoon, Adam was bitten on the hand while attempting to stop a fight between Sienna and Marley. In addition, Sage became aggressive by growling at some of the guests as they were dining. At that point, Justin pulled Sage back and stated that Sage had bitten a friend on the hand.

¶ 16 Later that evening, Howle and Scott were in the garage, saying their goodbyes before leaving. Howle described what happened next, as follows:

"Scott and I were saying good-bye to [Chitwood] and I went to shake his hand. We were going to go inside and say good-bye ***, and as I was shaking [Chitwood's] hand and Sage was there, I got done shaking his hand, and I just tapped [Sage's] head-I didn't bend over or get into his face or nothing, and he just jumped up." (The result of Sage's attack on Howle was a cheek tear that required 10 stitches to close and left a visible scar, as well as some cartilage loss to her left ear, which is irreparable.)

¶ 17 Scott, who witnessed the incident, recalled seeing Howle with a laceration on her cheek that was "completely wide open." Sandra immediately transported Scott and Howle to the hospital. As they waited in the emergency ward, Justin informed Scott, as well as other family members, that Sage had bitten another friend, but Justin did not elaborate.

¶ 18 In February 2009, Bruns sent Chitwood a "Notice of Intent to Terminate Tenancy," informing him to vacate the Plant's residential property before May 1, 2009.

¶ 19 B. Howle's Complaint, Aqua's Filings, and the Trial Court's Rulings

¶ 20 In September 2009, Howle filed a complaint against Aqua, alleging that Aqua was liable under (1) section 16 of the Act (count II) and (2) the common-law tort of negligence (count

IV) for injuries she sustained when Sage "viciously attacked" her while on Aqua's property.

¶ 21 In November 2009, Aqua filed a motion to dismiss both counts pursuant to section 2-619.1 of the Code. Attached to its motion was an affidavit by Bruns, essentially claiming that Aqua "never owned or controlled any of the dogs owned by Chitwood or [Justin]" and although Aqua was aware that Chitwood had dogs on its premises, it had no knowledge of biting incidents prior to December 2008. Following a September 2010 hearing, the trial court entered a written order that (1) rejected Aqua's claim that both counts were subject to dismissal under section 2-615 of the Code, (2) dismissed count II pursuant to section 2-619(a)(9) of the Code, and (3) denied Aqua's motion to dismiss count IV under section 2-619(a)(9) of the Code. In dismissing count II, the court found that Aqua did not "own" Sage within the meaning of section 16 of the Act.

¶ 22 In November 2011, Aqua filed a motion for summary judgment as to Howle's negligence claim (count IV) pursuant to section 2-1005 of the Code. Specifically, Aqua argued that the record-even when viewed in the light most favorable to Howle-revealed that it did not

(1) own Sage, (2) owe Howle a duty because it had no control over the area where the injury occurred, or (3) know about Sage's "vicious propensities." Following a December 2011 hearing, the ...


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