JUSTICE GARMAN delivered the judgment of the court, with
opinion. Chief Justice Burke and Justices Thomas, Kilbride,
Karmeier, Theis, and Neville concurred in the judgment and
1 Plaintiff Kirk Raab sued defendant Kenneth Frank in the
circuit court of Jo Daviess County for violations of the
Illinois Domestic Animals Running at Large Act (Animals
Running Act) (510 ILCS 55/1 (West 2010)), seeking damages for
injuries sustained when his vehicle collided with a cow owned
by Frank that escaped its confining fence and wandered onto
the highway. Frank filed a third-party complaint against the
owners of the neighboring parcel of land, David and Virginia
Grossen, seeking contribution pursuant to the Joint
Tortfeasor Contribution Act (Contribution Act) (740 ILCS
100/2 (West 2010)) based on negligence, breach of duty under
the Fence Act (765 ILCS 130/3 (West 2010)), and breach of
contract. Frank and Raab reached a settlement, and Raab's
claim against Frank was subsequently dismissed with
prejudice. The Grossens then filed a motion for summary
judgment (735 ILCS 5/2-1005 (West 2012)) on all claims
against them. The circuit court granted the Grossens'
motion for summary judgment on the negligence and Fence Act
claims. After initially denying summary judgment on the
breach of contract claim, the circuit court ultimately
dismissed that claim as well, accepting the Grossens'
argument that they owed no duty to Raab under the contract.
2 The appellate court affirmed the dismissal of the Fence Act
claim and reversed the circuit court's grant of summary
judgment on both the negligence claim and the breach of
contract claim. The Grossens then filed a petition for leave
to appeal, which we allowed pursuant to Illinois Supreme
Court Rule 315 (eff. July 1, 2018).
4 The Grossens are owners of a parcel of real estate (Parcel
A) in rural Jo Daviess County adjacent to a parcel leased by
Kenneth Frank (Parcel B). Virginia Grossen inherited Parcel A
from her mother in 2005 and executed a quitclaim deed to
convey the property to herself and her husband jointly in
2006. The Grossens do not live on this parcel. A common fence
runs between Frank's and the Grossens' parcels.
5 Frank uses Parcel B for pasturing cattle and has done so
since 2009. The terms of Frank's oral lease provide that
he is responsible for maintaining the fences on the parcel.
Upon renting the property, Frank inspected the fencing on
Parcel B to ensure that it was suitable for containing
cattle. Frank also learned of a signed agreement between the
prior owners of Parcels A and B regarding fence maintenance
responsibilities. Prior to 2011, the Grossens were not aware
of this agreement or that Frank was using Parcel B to pasture
6 Since renting, Frank has inspected the fence every Sunday.
In July 2009, July 2010, and July 2011, heavy rainstorms
damaged portions of the common fence between Parcels A and B,
necessitating repairs. Following each storm, Frank repaired
the damaged fence. He did not enlist the Grossens' aid in
the repairs or contact them to notify them of any damage.
Frank believed each of his repairs was adequate for
containing his livestock.
7 In November 2011, Frank's cattle escaped his parcel and
entered onto a nearby road. Raab was driving on the road and
collided with one of Frank's cattle.
8 In November 2013, Raab filed a one-count lawsuit against
Frank for personal injuries suffered in the collision. Raab
contended that Frank had failed to use reasonable care to
restrain his livestock, in violation of the Animals Running
9 In August 2014, Frank filed a three-count, third-party
complaint against the Grossens, seeking contribution under
the Contribution Act based on theories of breach of duty
under the Fence Act, negligence, and breach of contract.
Frank alleged that the cow that injured Raab escaped through
a portion of fence the Grossens were obligated to maintain.
The parties do not dispute that the alleged exit location is
the Grossens' responsibility under the contract.
10 In June 2016, the circuit court approved a $225, 000
settlement agreement between Raab and Frank. Subsequently,
the Grossens moved for summary judgment on all counts of
Frank's third-party complaint. The Grossens argued that
the negligence count was barred by the Animals Running Act,
no duty arose under the Fence Act, and the contract claim was
barred because the fence agreement did not run with the land.
11 In September 2016, in partially granting the Grossens'
motion for summary judgment, the circuit court determined
that the Animals Running Act barred any contribution from
nonowners or nonkeepers of livestock and granted summary
judgment on the Fence Act due to Frank's failure to
notify the Grossens of any known deficiencies in the fence.
See 765 ILCS 130/11 (West 2010) (a party must give 10
days' notice that reparation of an adjoining fence is
necessary prior to undertaking repairs on his own in order to
hold nonrepairing party liable for damages). The court denied
the Grossens summary judgment as to the breach of contract
count, however, finding that the fence agreement indeed ran
with the land.
12 In August 2017, the Grossens filed a second motion for
summary judgment, arguing that, under the Contribution Act,
the basis for a contributor's responsibility to share in
the payment of damages is his liability in tort to the
injured party. The circuit court held that a breach of the
fence contract could not create that liability in tort to
Raab. Therefore, following the dismissal of Frank's other
third-party claims, the contract could not be the sole basis
for contribution. The court thus dismissed the final
surviving claim against the Grossens. Frank filed a timely
notice of appeal.
13 On appeal, Frank argued that the circuit court erred in
granting the Grossens summary judgment on each of the counts
of his complaint. Reasserting his initial arguments, Frank
contended that a basis for contribution lies in either the
Animals Running Act, the Fence Act, or the fence agreement
signed by the parties' predecessors in interest.
14 The appellate court reversed the circuit court's grant
of summary judgment as to the Animals Running Act, holding
that Raab's inability to pursue an action against the
Grossens as nonowners of cattle under that act had no bearing
on Frank's ability to seek contribution from the Grossens
under the Contribution Act. 2019 IL App (2d) 171040, ¶
29. The appellate court affirmed the circuit court's
ruling on the Fence Act, holding summary judgment proper due
to Frank's failure to provide the Grossens notice of
known fence defects. Id. ¶ 34. Finally, the
court reversed summary judgment on Frank's breach of
contract claim, ...