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Coe v. Lewsader

Court of Appeals of Illinois, Fourth District

September 30, 2016

RYAN COE and HILLARY COE, Plaintiffs-Appellees,
v.
ERIC LEWSADER and TRISH LEWSADER, Defendants-Appellants.

         Appeal from Circuit Court of Edgar County No. 01L14 Honorable Matthew L. Sullivan, Judge Presiding.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Turner and Appleton concurred in the judgment and opinion.

          OPINION

          HARRIS JUSTICE

         ¶ 1 In this action brought by plaintiffs, Ryan and Hillary Coe, against defendants, Eric and Trish Lewsader, pursuant to the Animal Control Act (Act) (510 ILCS 5/1 to 35 (West 2010)), the Edgar County circuit court certified four questions for interlocutory appeal pursuant to Illinois Supreme Court Rule 308 (eff. Jan. 1, 2015). We granted defendants' application for leave to appeal. We answer one of the certified questions, decline to answer the remaining three certified questions, and remand for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 In January 2012, plaintiffs filed an eight-count first amended complaint against defendants seeking damages for personal injuries sustained by Ryan on September 26, 2009, and for loss of consortium sustained by Hillary as a result of Ryan's injuries. Four counts sought damages under a theory of negligence, and the remaining four counts sought damages under the Act. Plaintiffs alleged that during the early morning hours of September 26, 2009, Ryan was riding his motorcycle on North Illinois Highway 1 in Edgar County, Illinois, when his motorcycle struck defendants' dog "as it was lying or otherwise positioned" in the middle of the roadway. Defendants responded, asserting Ryan was contributorily negligent and his actions were the sole proximate cause of the accident, alleging he was operating his motorcycle at an excessive speed while intoxicated.

         ¶ 4 On January 22, 2014, plaintiffs voluntarily dismissed, without prejudice, their negligence counts. Thereafter, both parties filed motions for summary judgment, which the trial court denied.

         ¶ 5 On March 26, 2015, the parties jointly submitted questions to the circuit court for certification. On October 17, 2015, the circuit court entered an order certifying the following questions for review:

"1. Is a person in a place where he 'may lawfully be' under the [Act] if he is not trespassing but is intoxicated and operating a motorcycle on a public highway at a speed of 90 mph at 2:00 in the morning?
2. Does a dog lying in the middle of the road constitute an 'overt action' toward the Plaintiff for purposes of the [Act]?
3. Is there any fact situation, specifically including the assumed facts above, when the doctrine of comparative negligence may be a valid affirmative defense under the [Act] or does Johnson v. Johnson [, 386 Ill.App.3d 522, 898 N.E.2d 145 (2008), ] control in all [Act] cases?
4. Is a person who is intoxicated and operating a motorcycle at 90 mph at 2:00 in the morning peaceably conducting himself for purposes of the [Act] even if he does not arouse the fighting instincts of the dog?"

         ¶ 6 On October 8, 2015, defendants filed an application for leave to appeal pursuant to Rule 308 in order to address the certified questions. Plaintiffs agreed that an interlocutory appeal was appropriate. This court granted defendants' application for an interlocutory appeal.

         ¶ 7 For purposes of this appeal, the parties stipulated to the following facts. At 2 a.m. on September 26, 2009, Ryan was intoxicated and operating a motorcycle on a public highway at a speed of 90 miles per hour when his motorcycle collided ...


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