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Whitten v. Luck

Court of Appeals of Illinois, Fifth District

March 13, 2014

DOUGLAS R. WHITTEN, Plaintiff-Appellant,
DONNA LUCK and BILL WARREN, Defendants-Appellees

Appeal from the Circuit Court of Montgomery County. No. 09-L-30. Honorable Douglas L. Jarman, Judge, presiding.



In an action for the injuries plaintiff motorcyclist suffered when a dog ran into his path and caused him to crash, the trial court's entry of summary judgment for the owners of the farmhouse rented by the dog's owner was upheld on appeal, since the record showed that plaintiff's action against the dog's owner was dismissed after he obtained a discharge in bankruptcy, and when plaintiff pursued relief against the owners of the house under the Animal Control Act, the trial court found that defendants were not owners of the dog for purposes of liability under the Act, because they did not exercise care, control, or custody of the dog, even though they prohibited the owner from keeping the dog in the house, but allowed him to keep the dog in the barn.

For Appellant: Randall A. Wolter, Wolter, Beeman & Lynch, Springfield, IL.

For Appellees: Edward T. Graham, Jr., Beavers, Graham & Calvert, Taylorville, IL.

PRESIDING JUSTICE WELCH delivered the judgment of the court, with opinion. Justice Spomer concurred in the judgment and opinion. Justice Goldenhersh dissented, with opinion.



[¶1] The plaintiff, Douglas R. Whitten, appeals from an order of the circuit court

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of Montgomery County entering summary judgment in favor of the defendants, Donna Luck and Bill Warren. For the reasons which follow, we affirm the decision of the circuit court.

[¶2] On June 2, 2009, the plaintiff was injured while riding his motorcycle on Rainmaker Trail near Butler, Illinois, when a black Labrador retriever ran into his path, causing him to lose control of his motorcycle and sustain injuries. Rainmaker Trail runs adjacent to farm property owned by the defendants. The defendants are a brother and sister who inherited the house and the 75-acre farm on which it sits when their mother died in 2008. The dog was owned by Daniel Lesko who, along with his girlfriend Meghan Ritzel, was renting a home on the 75-acre tract from the defendants. Ritzel is the granddaughter of the defendant Luck.

[¶3] All parties agreed that Lesko and Ritzel began renting the house in May of 2009, but a copy of the lease in the record before us indicates that the lease was not signed until July 20, 2009, over a month after the accident in question. In any event, pets were not allowed in the house, and both Lesko and Ritzel were aware of this. The signed lease specifically states, " No Pets allowed inside house, Outside Pets ONLY."

[¶4] The defendants were aware that Lesko owned a dog. Lesko was upset he could not keep the dog in the house because the dog was previously an inside dog. When he moved into the house, Lesko initially tried keeping the dog in the garage attached to the home, but that did not work out well. The defendants gave Lesko permission to keep the dog in a barn located on the 75-acre farm. The leased premises included the house and the surrounding yard, but the barn was not part of the lease agreement. In her deposition, Luck testified that her understanding of the lease was that pets could be on the leased property as long as they were contained while Lesko and Ritzel were gone and they were not kept in the house. She admitted that Lesko had her permission to keep the dog in the barn even though she still owned the barn and that she did not charge them any extra rent for the use of the barn. The dog lived and slept inside a pen inside the barn until he was let out by either Lesko or Ritzel. The barn was also used to store farm equipment and hay and was also used by a farmer who rented land from the defendants.

[¶5] Lesko provided all care for the dog. He fed the dog, trained it, played with it, groomed it, and paid all veterinary bills. Neither of the defendants ever provided any care for the dog. On the day in question, Lesko fed and watered the dog and contained it in the pen inside the barn. No other person had contact with the dog, except possibly Ritzel.

[¶6] After the accident, the plaintiff filed an action against both Lesko and the defendants, alleging: (1) common law negligence and (2) liability pursuant to the Animal Control Act (Act) (510 ILCS 5/1 to 35 (West 2008)). The plaintiff later voluntarily dismissed all claims based upon common law negligence, as well as his claim against Lesko under the Act because Lesko filed bankruptcy and a discharge was granted. The only charge remaining was the statutory charge against the defendants pursuant to the Act. Both the plaintiff and the defendants filed motions for summary judgment. After a hearing, the trial court entered summary judgment in favor of the defendants and against the plaintiff, specifically stating as follows:

" The court rejects the claim that the [d]efendants harbored the dog. There is no dispute that Mr. Lesko was the only one to exercise care, custody or control over the dog. He fed and watered

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the dog and was responsible for his wellbeing [ sic ]. Defendants exercised no care, custody or control over the dog. The only authority [d]efendants exercised over the dog was to direct in the lease that the dog could not be in the house and then to subsequently permit Mr. Lesko to keep the dog in the barn. [Citation.]
The claim that [d]efendants were owners because they permitted the dog to remain on premises occupied by them must also be rejected. The barn was not part of the premises demised in the lease. There is no dispute that the barn was used to store old farm equipment. Mr. Lesko's use of the barn was strictly for his benefit, and not for the benefit of [d]efendants. When [d]efendants permitted Mr. Lesko to use the barn for his dog, that ...

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