Am. Family Mut. Ins. Co. As Subrogee of Benjamin David Juday v. Albers

• Decision Date: 10 February 2011
• Docket Number: No. 3–09–0839.,3–09–0839.
• Citation: 943 N.E.2d 791,348 Ill.Dec. 183,407 Ill.App.3d 569
• Parties: AMERICAN FAMILY MUTUAL INSURANCE COMPANY as Subrogee of Benjamin David Juday, Plaintiff–Appellant,v.David ALBERS, Defendant–Appellee.
• Court: United States Appellate Court of Illinois

407 Ill.App.3d 569
943 N.E.2d 791
348 Ill.Dec. 183

AMERICAN FAMILY MUTUAL INSURANCE COMPANY as Subrogee of Benjamin David Juday, Plaintiff–Appellant,
v.
David ALBERS, Defendant–Appellee.

No. 3–09–0839.

Appellate Court of Illinois, Third District.

Feb. 10, 2011.

[943 N.E.2d 792]

Scott J. Larsen, The Larsen Law Firm, P.C., Chicago, for American Family Mutual Insurance Company.Raymond P. Fabricius, Fabricius, Koenig & Lindig, Ottawa, for David Albers.

[348 Ill.Dec. 184 , 407 Ill.App.3d 570] OPINION Presiding Justice CARTER delivered the judgment of the court, with opinion.

The plaintiff, American Family Mutual Insurance Company as subrogee of Benjamin David Juday, filed complaint against the defendant, David Albers, under the Illinois Domestic Animals Running at Large Act (Act) (510 ILCS 55/1 (West 2002)) for damages sustained when Juday's vehicle collided with the defendant's cow. After a jury trial, a judgment was entered in favor of the defendant. The plaintiff filed a motion for judgment not withstanding the verdict (JNOV), which the trial court denied. On appeal, the plaintiff argues that: (1) the trial court erred by denying his motion for JNOV; (2) the

[348 Ill.Dec. 185 , 943 N.E.2d 793]

finding for the defendant was against the manifest weight of the evidence; and (3) the defendant failed to plead reasonable care as an affirmative defense. We affirm.

FACTS

On October 31, 2003, at 10:45 p.m., Juday was driving northbound on Route 39, approaching mile marker 75, in a pickup truck insured by the plaintiff when he collided with a cow owned by the defendant. Juday incurred property damage and car rental expenses. On November 4, 2005, the plaintiff filed a complaint alleging a violation of the Act.

At trial, the plaintiff's attorney indicated in his opening statement that the defendant would not be able to show “that what he did in any way was actually reasonable for restraining his cattle.” In his opening statement the defendant's attorney indicated that the case would turn on whether the defendant “exercise[d] reasonable care in harboring [407 Ill.App.3d 571] the animals.” He stated, “What this case is going to come down to is * * * you are going to have to decide whether or not what [the defendant] did in restraining his cattle was quote, unquote, reasonable.” He also stated, “[w]e believe the evidence is going to show that [the defendant] was exercising reasonable care.”

Following opening statements, the plaintiff's attorney called the defendant to testify as part of its case-in-chief. The plaintiff's attorney questioned the defendant about the type of fencing surrounding his farm, the condition of the fencing, and repairs and maintenance done to the fencing. The plaintiff's attorney also questioned the defendant as to whether he could have taken measures to make the section of fence that failed in this incident more secure and whether he could have built another fence, ditch, or wall on his property to restrain his cattle.

In responding to the plaintiff's direct examination, the defendant testified that on the date of the incident his family owned a 120–acre farm that was divided by Route 39 and located near mile marker 75 in La Salle County. On the farm, the defendant grew crops and raised cows. At the time of the incident, the defendant had 50 head of cattle, with each cow weighing approximately 1,100 to 1,200 pounds. The defendant's farm was surrounded by fencing. Some of the fencing was owned, erected, and maintained by the defendant. The fencing involved in this incident paralleling Route 39 was owned and maintained by the State of Illinois, which was a woven wire fence with two strands of barbed wire along the top.

Prior to leaving for a Halloween event on the day of the incident, the defendant put the cows out to pasture. Before moving the cows, the defendant checked the fence. While the defendant was at the Halloween event, he received a telephone call informing him that his cattle escaped. He went home and saw that his cattle had escaped onto Route 39. The cattle escaped through a 15–foot section of fence that appeared to have been knocked down from the cattle smashing it forward. The defendant's cattle had escaped in the past but never onto Route 39. The defendant testified that a fence cannot be built to hold cows because they can knock down anything in their way, similar to a car crashing through a fence.

The defendant also testified that the State of Illinois was responsible for the section of fence involved in this matter. Over the course of the winter, the same section of fence would become crushed by snow and water. Each spring, the defendant called the State of Illinois to inspect the fence and make any necessary repairs to its fence along Route 39.

[943 N.E.2d 794 , 348 Ill.Dec. 186]

On cross-examination, the defendant testified that in 1977, the State of Illinois erected the fence that paralleled Route 39. He had [407 Ill.App.3d 572] been using the fence to restrain cattle since that time. The section of fence from which the cows had escaped had been repaired in the past. The defendant never had any problems with that section of fence in the fall or summer seasons.

After the plaintiff rested its case, the defendant's attorney called the defendant to testify. The defendant testified that he had been working on the farm for over 50 years. Prior to the incident in this case, cattle had escaped from the defendant's property through his five-strand barbed wire fence that he erected elsewhere on the property, but never through the State's fencing involved in this case. Each spring, the defendant would contact the Illinois Department of...