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Sedlacek v. Belmonte Props., LLC

Court of Appeals of Illinois, Second District

August 19, 2014

FRANK M. SEDLACEK, JR., Plaintiff-Appellant,
v.
BELMONTE PROPERTIES, LLC, Defendant and Third-Party Plaintiff-Appellee (Janice Raymond, Karen Raymond, Joshua Raymond, and Rebekah Parker, f/k/a Rebekah Raymond, Third-Party Defendants)

Page 879

Appeal from the Circuit Court of McHenry County. No. 12-LA-222. Honorable Thomas A. Meyer, Judge, Presiding.

SYLLABUS

In an action for the injuries plaintiff suffered when a Rottweiler that belonged to the ex-wife of one of defendant's tenants broke through the fence on the leased property and attacked plaintiff while he was walking his dog on a public sidewalk, the trial court properly entered summary judgment for defendant, notwithstanding plaintiff's contention that defendant's alleged promise to repair the fence rendered defendant liable, since defendant's promise arguably applied to the tenant's Labrador, but it did not create a duty to repair the fence to contain the Rottweiler, which the tenants were keeping in violation of the lease, especially when there was no showing that repairs were promised after defendant knew the Rottweiler was on the property.

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Spence concurred in the judgment and opinion.

OPINION

McLAREN, JUSTICE.

Page 880

[¶1] Plaintiff, Frank M. Sedlacek, Jr., appeals the trial court's grant of summary judgment in favor of defendant, Belmonte Properties, LLC. Plaintiff sued defendant after he was injured by a dog kept by defendant's tenants. The injury occurred off of the leased property. We determine that defendant did not owe a duty to plaintiff. Accordingly, we affirm.

[¶2] I. BACKGROUND

[¶3] On May 2, 2011, plaintiff was walking his dog on a public sidewalk in Crystal Lake. A Rottweiler came running from the backyard of a home rented by Joshua, Karen, and Janice Raymond, broke through the fence, and injured plaintiff. The Rottweiler was owned by Rebekah Parker, Joshua's ex-wife. Plaintiff filed suit against defendant, the Raymonds' landlord, which later filed a third-party complaint for contribution against the Raymonds and Parker. Defendant then moved for summary judgment against plaintiff.

[¶4] Evidence presented in support of the summary judgment motion showed that Joshua and Karen had lived at the property since 2008. Janice moved into the home in 2010. When Joshua and Karen moved into the home, they signed a lease with a pet policy. The policy stated that all pets " must be restrained by a leash when in the common areas or on the grounds unless there is agreement among tenants that the pet is allowed in the common areas of the property." However, the policy expressly prohibited " [a]ggressive dog breeds." The policy also placed responsibility on the Raymonds for any damages caused by a pet and required them to hold harmless and otherwise release defendant from any liability, judgments, or claims for any injury caused by any pet or animal brought onto the property by the Raymonds. A pet addendum to the lease gave permission for the Raymonds to keep their own dog, a Labrador, on the property. It did not mention the Rottweiler, which they were not yet keeping. The undisputed evidence was that the Labrador was obedient and friendly.

[¶5] Joshua maintained the outside of the property by mowing the lawn, shoveling snow, and making some repairs to windows. Joshua testified at his deposition that, when he moved into the property, the latch on the gate was rusted and would not go up or down. He said that he discussed the condition of the gate with Kathy and Dean Belmonte, representatives of defendant, on multiple occasions and that they said that they would fix the gate. However, they never did so. Joshua said that, when the Raymonds moved in, defendant explained that, if their Labrador got out and bit anyone, the Raymonds would be responsible. According to Joshua, " that's when we did bring up the corner of the gate, and [Kathy] said she would get someone out there to fix it." Janice testified that they made multiple requests to fix the gate and that they were concerned in part because there would be three children living there. Kathy testified at her deposition that the Raymonds never complained about the gate and that she never made any representations that she would fix or replace the gate.

[¶6] According to Joshua, eventually " [t]he lower left-hand side" of the gate " was completely broken off and just hanging there," and the latch was not working properly. Joshua attached a bungee cord to the gate to secure it and required someone to be in the yard with the Rottweiler to supervise it. After the incident, Officer James Harris investigated. From what he could recall, the gate looked all right. Another officer, who had investigated a

Page 881

March 2011 incident in which the Rottweiler bit a person, testified that the gate had a working latch.

[¶7] Joshua initially agreed to watch the Rottweiler for a couple of weeks for Rebekah, but the dog ended up staying there for several months. He did not notify defendant that the dog was going to be there. About two weeks before the present incident, Dean stopped by the property to inquire about rent. According to Joshua, Dean told him to get rid of the dog or move out, and Joshua told Dean that the gate needed to be fixed and that he was working on getting the dog out. Dean testified that he saw the Rottweiler on the property and was afraid that the dog was going to break through the window to get to him. Based on his observation of it, he believed that it was vicious and aggressive. Dean spoke with Janice, who expressed concern about the safety of children around the dog. Dean informed her that the Rottweiler had to go. Later that afternoon, Dean called Karen and told her that the dog had to go. He did not check back to confirm that the dog was actually removed from the property, because he felt that he had assurances that the Raymonds were going to get rid of the dog. Dean and Kathy did not learn about plaintiff's injury until June 2011, when plaintiff sent them a letter about it.

[¶8] Applying the First District case of Solorio v. Rodriguez, 2013 IL App (1st) 121282, 987 N.E.2d 452, 369 Ill.Dec. 825, the trial court granted defendant's motion for summary judgment. The court noted that defendant told the Raymonds to remove the Rottweiler and that the injury was caused by the dog, not by the condition of the gate. The court ...


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