Appeal from the Circuit Court of the 13th Judicial Circuit, Grundy County, Illinois, Circuit No. 09-L-31, The Honorable Lance R. Peterson, Judge, Presiding.
Justices Carter and Schmidt concurred in the judgment and opinion.
¶1 Plaintiff Justin Edwards was attacked by a llama owned by defendants James and Colleen Lombardi while cleaning the Lombardis' barn. Subsequently Edwards filed a complaint against the Lombardis alleging both ordinary negligence and a violation of the Animal Control Act (510 ILCS 5/16 (West 2008)). The trial court granted summary judgment in favor of the Lombardis on both counts, concluding that Edwards assumed the risk of being attacked. Edwards appeals from the trial court's grant of summary judgment on the negligence count only. We affirm because primary assumption of the risk bars Edwards from recovering.
¶3 In 2005, plaintiff Justin Edwards—then a senior in high school—began working at a pet store owned by defendants James and Colleen Lombardi. During his employment, Edwards also visited the Lombardis' family farm and helped care for their outdoor animals, which included chickens, turkeys, horses, and llamas. Edwards later left the employment of the Lombardis, but at least four separate times prior to the incident giving rise to this lawsuit Edwards helped care for the animals on the farm while the Lombardis were out of town. On each occasion, James Lombardi took Edwards around the farm and showed Edwards how to feed and water the animals, as well as clean the barn that housed the animals.
¶4 On these occasions, while Edwards was tending to the animals on the farm he encountered a male llama named Beau. According to Edwards' deposition testimony, on one occasion while James Lombardi was present, Beau reared up and hit Edwards, bloodying his nose and mouth. Edwards testified that Beau would always confront him as he neared the entryway to the barn, saying Beau would "pretty much charge at you a little bit." Edwards also said that when he cleaned the barn, Beau pushed him into the wall of the barn. Furthermore, Beau would spit at both Edwards and the Lombardis. Although every time Edwards cared for the animals they were free to roam, sometimes when other people would care for the animals, Beau would be locked up in a stall. James Lombardi denied knowing of any of incidents where Beau was aggressive toward Edwards, although he did state that he had seen Beau be aggressive with other animals. Other witnesses swore in affidavits that they had never seen Beau display aggression or other dangerous propensities.
¶5 Edwards agreed to care for the Lombardis' animals from July 1 to July 7, 2008 while the Lombardis were out of town; in exchange, the Lombardis agreed to purchase a Chihuahua for Edwards. Edwards asked James Lombardi whether Beau would be locked up during this period, but James decided that Beau would be free to roam.
¶6 On the morning of July 6, 2008, Edwards arrived at the farm to clean the barn. Prior to entering the barn, Edwards noticed Beau standing in the barn's hallway along with two miniature horses. Edwards then entered the barn and began scooping up animal droppings. After about 10 to 15 minutes, Edwards noticed that Beau was approaching him. Edwards began to walk out of the barn and took one to two steps toward Beau, and then Beau reared back and backed Edwards into a corner. Edwards turned to escape by jumping over a half-wall into an adjoining stable, but as he jumped, Beau got his head under Edwards' legs and threw Edwards over the wall. Edwards crashed into the ground and immediately felt extreme pain: he could not lift his left arm and believed it was dislocated. Edwards got to his feet, and Beau spit at Edwards and continued to attempt to charge at him, though a gate now separated them. Edwards eventually made it into another stall and then to the barn's gate, using a rake to fend off Beau while he exited the barn.
¶7 Nadyne Axelrad-Snow is a member of the Illinois Llama Association and the International Llama Association, where she attended a number of seminars on llama handling and training. She raised Beau for seven months prior to selling him to the Lombardis. Axelrad-Snow testified that llamas can be provoked both intentionally and unintentionally. She opined that entering an enclosed space where a llama is located could be an act of provocation, depending on the llama's personality.
¶8 On May 20, 2009, Edwards filed a complaint against the Lombardis in the circuit court of Will County, alleging the Lombardis were liable for his injuries under the Animal Control Act (510 ILCS 5/16 (West 2008)). After the case was transferred to the circuit court of Grundy County, the Lombardis answered the complaint on September 7, 2010. The Lombardis asserted several affirmative defenses, including contributory negligence, assumption of the risk, and provocation. Thereafter, the Lombardis moved for summary judgment. On February 22, 2011, the trial court granted summary judgment in favor of the Lombardis on the issue of liability under the Animal Control Act. The court also allowed Edwards to amend his original complaint to add a count alleging that the Lombardis were negligent. The Lombardis did not file any answer or other pleading directed at the new count of negligence, but instead moved for summary judgment on the negligence issue. The court granted this motion on May 30, 2012, with an order stating "Defendant's motion is granted as to the assumption of the risk issue, and denied to the extent it is based on provocation." Edwards filed an emergency motion to clarify the court's order. In response, on June 12, 2012, the court stated that the Lombardis' motion for summary judgment was granted. Edwards then filed a timely notice of appeal.
¶10 Edwards has appealed the order granting summary judgment in favor of the Lombardis. First, he argues that the Lombardis could not rely on assumption of the risk as an affirmative defense because they did not plead the issue in response to the negligence count. Second, he contends that the undisputed material facts of this case do not demonstrate that Edwards assumed the risk of an attack. Finally, he argues that even if assumption of the risk applies, because the Lombardis could anticipate he would encounter Beau, the deliberate encounter exception applies to abrogate assumption of the risk.
¶11 Summary judgment shall be entered where the pleadings, depositions, admissions and affidavits on file, viewed in the light most favorable to the nonmoving party, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). "While summary judgment aids in the expeditious disposition of a lawsuit, it is a drastic means of disposing of litigation and thus should be allowed only when the right of the moving party is clear and free from doubt." Ford v. Round Barn True Value, Inc., 377 Ill.App.3d 1109, 1116 (2007). An order ...