Appeal from the Circuit Court of Cook County 10 L 003486 Honorable Jeffery Lawrence, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Palmer concurred in the judgment and opinion.
¶ 1 Plaintiffs James Solorio, Jr. and his son, James Solorio III appeal from the trial court's dismissal of counts IV and V of their first amended complaint, pursuant to section 2-619(a)(9) of the Civil Code of Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2010). On appeal, plaintiffs contend that the trial court erred in dismissing counts IV and V of their complaint because they properly stated a cause of action for both private nuisance and negligence. We affirm.
¶ 2 This appeal is based on an incident that occurred on March 10, 2010, in which James Solorio III was bitten "several times" by a pit bull while he was sitting on the front steps of his home, located at 10841 South Avenue O in Chicago. The pit bull belonged to Anthony Rodriguez. At the time of the incident, Rodriguez was leasing and occupying the premises located next door to the Solorio home, 10843 South Avenue O (Premises). The Premises were held in trust by Standard Bank & Trust Company (Standard Bank) as successor trustee to East Side Bank and Trust Company, under trust No. 1469, for the benefit of Zahan Shatat, who was also the landlord of the Premises.
¶ 3 On October 8, 2010, plaintiffs filed their first amended complaint against Rodriguez, who is not a party to this appeal, and Shatat and Standard Bank (defendants). In counts I, II, and III of the complaint, plaintiffs alleged claims against Rodriguez, under theories of strict liability, negligence, and statutory liability pursuant to the Animal Control Act (510 ILCS 5/1 et seq. (West 2010)). The counts against Rodriguez are still pending but are currently stayed pending this appeal.
¶ 4 Counts IV and V were alleged against Shatat and Standard Bank. In count IV, a claim of private nuisance, plaintiffs alleged that defendants "unreasonably interfered" with plaintiffs' use and enjoyment of their property, "by allowing a vicious dog to be harbored at the Premises with a broken fence gate that was unable to contain the dog." They further alleged that defendants had "substantially and unreasonably invaded" plaintiffs' property by allowing the dog to escape the Premises. In count V, a claim of negligence, plaintiffs alleged that Shatat knew Rodriguez was keeping a "vicious and dangerous dog" on the Premises because he knew the dog was "tearing up the basement" and that Shatat was negligent for failing to maintain the gate through which the dog escaped.
¶ 5 On October 29, 2010, defendant Shatat filed a memorandum of law in support of his motion to dismiss counts IV and V of plaintiffs' first amended complaint, pursuant to section 2-619 of the Code.*fn1 In it, Shatat argued that plaintiffs failed to allege facts showing that he engaged in anything that constituted a "private nuisance" and that he owed plaintiffs no duty that would give rise to a negligence action because he did not control or own the dog. In support, Shatat attached his own affidavit, in which he averred that he entered into a "Residential Tenancy Agreement" with Rodriguez, effective on March 10, 2010, that provided, "no pets or animals are allowed to be kept in or about the premises." He also averred that he, "at no time, ever owned, kept, cared for, had custody of, maintained, or controlled the pit bull dog" at the Premises. Also attached to the motion was the "Residential Tenancy Agreement," dated March 10, 2010, and signed by Shatat and Rodriguez. Paragraph 4 of the agreement states, "No pets or animals are allowed to be kept in or about the Premises."
¶ 6 In his discovery deposition taken on December 2, 2011, Shatat
testified that he did not recall having a conversation with Rodriguez
at the Premises in January 2010 in the presence of James Solorio, Jr.
Shatat did not see the dog on the Premises before the incident
occurred on March 10, 2010. On March 10, 2010, Shatat and Rodriguez
signed a lease for the Premises. Rodriguez had been renting the
Premises for "over four years." Shatat identified a copy of the lease
agreement and testified that at the time of signing he had discussed
the provision prohibiting pets or animals being kept at the Premises.
Shatat was not aware that Rodriguez had a dog on the property at the
time. Later in the deposition, Shatat testified that he signed the
lease with Rodriguez on or after March 11, 2010. After the lease was
signed, Shatat inspected the Premises and found them to be in "[g]ood
condition." After Shatat heard about the incident, he
went to the Premises and told Rodriguez to remove the dog.
Prior to March 10, 2010, Shatat never saw the gate in a broken
condition. Shatat had the authority to repair the gate and would have
if had known it was broken.
¶ 7 On November 21, 2011, plaintiffs filed a response to defendants' motion to dismiss. In an attached affidavit, James Solorio, Jr., averred that in January 2010, he was present at the Premises and heard Shatat tell Rodriguez to remove the dog from the Premises because it was "tearing up the basement."
¶ 8 On December 20, 2011, the trial court dismissed counts IV and V of plaintiffs' first amended complaint with prejudice as to each defendant. After hearing oral arguments on March 29, 2012, the trial court denied plaintiffs' motion to reconsider, explaining that it did not believe there was reason for Shatat to anticipate a broken gate would lead to an injury. In response to plaintiffs' argument that Shatat should have known the dog was dangerous because the dog had torn up the basement, the court said, "chewing up the basement is not the same thing as escaping and chewing up a neighbor." Plaintiffs filed a notice of appeal from the court's order on April 27, 2012.
¶ 9 On appeal, plaintiffs first contend that the trial court erred in dismissing count IV of their complaint, the private nuisance claim. Specifically, plaintiffs argue that Shatat knowingly allowed Rodriguez to harbor a dangerous dog on the Premises and failed to repair the gate through which the dog escaped, causing "a substantial annoyance to the plaintiffs going far beyond offending any 'special sensitivities' that the plaintiffs had."
¶ 10 Section 2-619(a)(9) of the Code provides that an action may be dismissed when "the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." 735 ILCS 5/2-619(a)(9) (West 2010). A court ruling on a section 2-619 motion must " 'interpret all pleadings and supporting documents in the light most favorable to the nonmoving party.' " Van Meter v. Darien Park District, 207 Ill. 2d 359, 367-68 (2003) (quoting In re Chicago Flood Litigation, 176 Ill. 2d 179, 189 (1997)). However, conclusions of law or fact unsupported by specific factual allegations should not be taken as true. Buckner v. O'Brien, 287 Ill. App. 3d 173, 176 (1997), aff'd, 182 Ill. 2d 12 (1998). The trial court's decision to grant a motion to dismiss pursuant to section 2-619(a)(9) is reviewed de novo. Van Meter, 207 Ill. 2d at 368.
¶ 11 A private nuisance is a "substantial invasion of another's interest in the use and enjoyment of his or her land." In re Chicago Flood Litigation, 176 Ill. 2d at 204. The invasion must be substantial, unreasonable, and either intentional or negligent. Id. Moreover, a private nuisance "must be physically offensive to the senses to the extent that it makes life uncomfortable." Dobbs v. ...