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Kirsten N. Hayes v. Tina L. Adams

February 28, 2013

KIRSTEN N. HAYES,
PLAINTIFF-APPELLANT,
v.
TINA L. ADAMS, DEFENDANT-APPELLEE (WILLIAM J. HEARLE, D/B/A CARRIAGE HOUSE ANIMAL CLINIC, AND SEKOWSKI VETERINARY SERVICE, LLC, D/B/A CARRIAGE HOUSE ANIMAL CLINIC, DEFENDANTS).



Appeal from the Circuit Court of Du Page County. No. 08-L-370 Honorable Kenneth L. Popejoy, Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices McLaren and Zenoff concurred in the judgment and opinion.

OPINION

¶ 1 In this case involving injuries caused by a dog bite, the plaintiff, Kristen N. Hayes, appeals the trial court's order granting summary judgment in favor of the defendant, Tina L. Adams. At issue is whether Adams was liable as the legal owner of the dog under the Animal Control Act (Act) (510 ILCS 5/16 (West 1996)). Adams was not present when the dog bit Hayes, having relinquished the dog into the custody and control of a veterinary clinic that then allowed the dog to escape. We determine that the Act does not impose strict liability on the legal owner and that there was no factual or reasonable basis to impose liability. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On April 23,1997, Adams took her Lhasa Apso dog, Gucci, to defendant William J. Hearle's veterinary practice, the Carriage House Animal Clinic, for a surgical procedure. Gucci had lived with Adams for approximately 9 or 10 years in Adams' home. Adams had never had any problems with Gucci, and Gucci had never chased other dogs or bitten anyone. Adams described Gucci as a pretty calm dog who was fine around children. Adams dropped Gucci off at the clinic and removed Gucci's collar and chain, which someone at the clinic replaced with a rope. Adams then continued on to work, taking the collar and chain with her.

¶ 4 The practice of the clinic was to walk dogs before surgery. The clinic used its own noose and chain for walking the dogs. A veterinary assistant walked Gucci to a grassy area where Gucci got loose and ran away. The assistant chased Gucci to an area where Hayes, who was eight years old at the time, was waiting for the school bus. The assistant yelled for help in catching Gucci, and Hayes tried to pick Gucci up for her. Gucci then bit Hayes on the right hand at the base of the thumb. As a result of the bite, Hayes suffered pain, swelling, and an inability to engage in various activities. She later underwent three surgeries, one in January 2000, one in December 2006, and another in the summer of 2008.

¶ 5 Hayes filed suit against Adams; and Hearle and Sekowski Veterinary Service. LLC, both doing business as the Carriage House Animal Clinic. Adams moved for summary judgment. On February 14, 2012, the court granted the motion on the basis that Adams did not have care or dominion over Gucci at the time of the injury. The court found that Adams was not strictly liable for the injury solely because of her ownership of the dog. Hayes' motion to reconsider was denied. The court found that there was no just reason to delay an appeal under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010), and Hayes appeals.

¶ 6 II. ANALYSIS

¶ 7 Hayes contends that, as the legal owner of Gucci, Adams was liable under the Act. Adams argues that, under case law, she cannot be held strictly liable when she did not have custody and control over the dog at the time of the injury.

¶ 8 "Summary judgment is proper where, when viewed in the light most favorable to the nonmoving party, the pleadings, depositions, admissions, and affidavits on file reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Secura Insurance Co. v. Illinois Farmers Insurance Co., 377 Ill. App. 3d 536, 542 (2007). "Whether the entry of summary judgment was appropriate is a matter we review de novo." Id. Questions of ownership under the Act are often for the trier of fact. However, in appropriate cases, summary judgment is proper. Frost v. Robave, Inc., 296 Ill. App. 3d 528, 533 (1998).

¶ 9 At the time of the injury, the Act provided that "[i]f a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained." 510 ILCS 5/16 (West 1996).

¶ 10 An "owner" was defined as "any person having a right of property in a dog or other animal, or who keeps or harbors a dog or other animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog or other domestic animal to remain on or about any premise occupied by him." 510 ILCS 5/2.16 (West 1996).

ΒΆ 11 In order to recover under the Act, the plaintiff must prove four elements: " '(1) an injury caused by an animal owned by the defendant; (2) lack of provocation; (3) the peaceable conduct of the injured person; and (4) the presence of the injured person in a place where he has a legal right to be.' " Beggs v. Griffith, 393 Ill. App. 3d 1050, ...


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