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Parikh v. Gilchrist

Court of Appeals of Illinois, First District, First Division

October 23, 2017

BIJAL PARIKH, Plaintiff-Appellant,

         Appeal from the Circuit Court of Cook County No. 13 L 6027 Honorable Donald J. Suriano, Judge Presiding.

          JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.


          MIKVA, JUSTICE

         ¶ 1 A jury found in favor of defendants, Forbes D. Gilchrist and Joyce A. Gilchrist, in a case brought by the plaintiff, Bijal Parikh, under the Animal Control Act (Act) (510 ILCS 5/16 (West 2012)). On appeal, Mr. Parikh argues that the jury's verdict was against the manifest weight of the evidence and the trial court improperly refused to give a non-Illinois Pattern Jury Instruction (IPI). For the following reasons, we affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Mr. Parikh filed a one-count complaint against the Gilchrists seeking damages under the Animal Control Act. He alleged that the Gilchrists' dog chased him, causing him to fall and injure his knee. Under the Act, "[i]f a dog ***, without provocation, attacks, attempts to attack, or injures any person *** in any place where he or she may lawfully be, the owner of such dog *** is liable *** for the full amount of the injury proximately caused thereby." 510 ILCS 5/16 (West 2012).

         ¶ 4 Trial witnesses referred to photo exhibits that are not in the record on appeal, and we therefore cannot consider them. See People v. Heaton, 266 Ill.App.3d 469, 476 (1994) ("[E]vidence which is not part of the record on appeal is not to be considered by a reviewing court ***."). We will, however, review the evidence that is included in the record.

         ¶ 5 Mr. Parikh testified that he and his family had lived in their house since December 2012. He knew the Gilchrists, his neighbors, had a dog, but he had never had contact with it. On April 30, 2013, Mr. Parikh got home from work and took his 19-month-old daughter outside to play in the front yard. He then decided to take his daughter to the back yard, so he picked her up, walked to the path on the west side of his house, and began walking toward the back. He had walked past the Gilchrists' shed-though he never entered their property-when he saw their dog tied to a plastic chair in their back yard. When he first saw the dog, he testified that it was 10 to 15 feet away from him in the Gilchrists' yard. The dog began barking at Mr. Parikh and his daughter and then "took off with the chair." Mr. Parikh's daughter began crying in his arms, and the dog started to run toward him with the chair. Mr. Parikh was concerned for his daughter's safety and did not know what the dog would do. He turned and ran back up the side of his property towards his garage.

         ¶ 6 As he ran, Mr. Parikh could hear the dog and the chair. He testified that he looked over to see if the dog was going to catch up to him. The first door to the garage was open. Mr. Parikh entered, "trying to get around [his] car and make sure *** the steel railings d[id]n't hit [him] or his daughter." Mrs. Parikh's car was parked next to his car and "by the time [he] past [sic] her car that's where [he] fell." Mr. Parikh turned his body as he fell so that his daughter did not get hurt and landed on his back with his daughter on his stomach. He could not get back up because of pain in his right knee.

         ¶ 7 Mr. Parikh used his cell phone to call his wife, who came, picked up their daughter, and called 911. Paramedics took Mr. Parikh to the hospital, where he had surgery on his shattered knee. Doctors installed screws and wires, which were still in his knee at the time of trial.

         ¶ 8 On cross-examination, Mr. Parikh testified that he was not afraid of dogs and would not run if a dog merely wanted to "play." Before April 30, 2013, he had never seen the Gilchrists' dog anywhere but their backyard and had never heard it bark. There is a lot of vegetation between the Gilchrists' and Mr. Parikh's yards. Mr. Parikh had a sprinkler system in place to water the lawn in the summer but did not recall if he had it on that particular day. Mr. Parikh was not sure how far away the dog was when he turned to run. He could not estimate how far he had to run to get back to his garage or how long it took him. Although he peeked back at one point, he could not estimate how close the dog ever got to him. Mr. Parikh kept running but had to slow down to make the sharp turn into the garage. The dog never caught up to him. Mr. Parikh's flip-flops were wet from the grass. He acknowledged that he told hospital personnel that his shoes were wet, he lost his balance, and he slipped in his garage. After he fell, he did not see the dog anywhere in the area. Due to the foliage and the Gilchrists' shed, he would not have been able to see Mrs. Gilchrist if she had been watering the garden.

         ¶ 9 Mr. Parikh's wife, Vishwa Parikh, testified that she could see the Gilchrists' backyard through her kitchen windows. She had seen the Gilchrists' dog sitting or walking, but she had never had contact with it. On April 30, 2013, Mr. Parikh got home from work, changed into sandals, and took their daughter outside to play. Mrs. Parikh went upstairs and, looking out an upper window, could see the Gilchrists' dog tied to a plastic chair in their backyard. As she made her way back downstairs, she saw her husband and daughter playing in the front driveway. From the kitchen window, she observed that the Gilchrists' dog was no longer where she had seen it.

         ¶ 10 Mrs. Parikh heard barking between the two houses. The house phone then rang. It was Mr. Parikh, who told her to come to the garage. She could hear her daughter crying in the background. In the garage, she found Mr. Parikh lying on the floor, holding their crying daughter on his stomach. Mrs. Parikh testified that both their cars were parked in the garage that day. She asked Mr. Parikh what happened and he said, "that stupid dog ran after us and I fell." Mrs. Parikh called an ambulance to take her husband to the hospital. As Mr. Parikh was being attended to, Mrs. Parikh saw Mrs. Gilchrist standing with her dog in the Parikh's side yard. Mrs. Gilchrist asked what happened, and Mrs. Parikh stated, "your dog ran after my baby and my husband."

         ¶ 11 On cross-examination, Mrs. Parikh testified that, whenever she had witnessed the Gilchrists giving their dog commands in the past, the dog obeyed them. She also testified that only one of two garage doors was open. She acknowledged that someone running from the side of the house and into the garage ...

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