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Raab v. Frank

Supreme Court of Illinois

November 21, 2019

KENNETH FRANK, Appellee David A. Grossen et al., Appellants.

          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 opinion.



         ¶ 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).

         ¶ 3 BACKGROUND

         ¶ 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 cattle.[1]

         ¶ 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 Act.

         ¶ 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. ΒΆ 34. Finally, the court reversed summary judgment on Frank's breach of contract claim, ...

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