Christenson v. Rincker, 5-96-0266
Decision Date | 16 May 1997 |
Docket Number | No. 5-96-0266,5-96-0266 |
Parties | , 223 Ill.Dec. 727 Benard CHRISTENSON and Cynthia Christenson, Plaintiffs-Appellants, v. David RINCKER, Defendant-Appellee. |
Court | United States Appellate Court of Illinois |
William R. Tapella, II, Shick & Tapella, Charleston, for Plaintiffs-Appellants.
Edward T. Graham, Jr., Hershey, Beavers, Periard, Graham & Fines, Taylorville, for Defendant-Appellee.
On April 24, 1992, plaintiff, Bernard Christenson, was driving on Illinois Route 16 with his wife, plaintiff Cynthia Christenson, as a passenger when their vehicle struck a cow on the roadway. The cow was owned by defendant, David Rincker. Both plaintiffs were injured as a result of this collision and filed suit against defendant. At trial, the primary issue of contention was whether defendant used reasonable care in restraining his cow from running at large. The jury returned a verdict for defendant. On appeal, plaintiffs pose three issues for this court: (1) whether the trial court erred in the determination of the burden of proof when it refused plaintiffs' tendered instruction and, as claimed by plaintiffs, imposed on plaintiffs the burden of disproving defendant's affirmative defense under the statute; (2) whether defense counsel's references to insurance during voir dire and in closing argument constituted reversible error; and (3) whether the trial court erred in granting defendant's motion for leave to file a late jury demand. We reverse and remand for new trial based on our disposition of issue one.
Since we reverse and remand on the basis of issue one, the burden of proof problem, the following statement of facts will deal with the factual basis necessary for dealing with the burden of proof argument and the argument concerning the jury demand. We presume that any reference to insurance will not recur upon retrial.
Plaintiffs contend that the court committed prejudicial error in its choice of a burden of proof instruction. Specifically, they argue that the trial court improperly placed upon plaintiffs the burden of disproving the affirmative defenses of defendant rather than properly treating them as affirmative defenses on which defendant had the burden. Defendant argues that the trial court properly apportioned the burden of proof, and that even if said apportionment was improper, the evidence so overwhelmingly favored defendant that such error would be harmless. We agree with plaintiffs.
The statute under which this case was tried is the Illinois Domestic Animals Running at Large Act (Act) (510 ILCS 55/1 et seq. (West 1994)), which provides, in pertinent part:
The history of this statute and its evolution to its present form provides an essential background to the determination of this appeal.
Our supreme court in McKee v. Trisler, 311 Ill. 536, 143 N.E. 69 (1924), traced the history of the Act up to a point prior to the 1931 amendment. Our supreme court noted:
McKee, 311 Ill. at 542, 143 N.E. at 71.
The Illinois General Assembly in 1871 prohibited domestic animals from running at large but also provided for local option on the subject. Laws 1871-1872, p. 118. In 1895 the General Assembly eliminated the local option provision and provided in section 1 "hereafter it shall be unlawful for any animal of the species of horse, ass, mule, cattle, sheep, goat, swine or geese to run at large in the State of Illinois." Laws 1895, p. 4. The effect of this act was to restore the common law rule in Illinois requiring the owner of domestic animals to keep them off the lands of another and making the owner liable for any trespasses.
In 1931 the General Assembly amended the statute from one of strict liability for damages caused by animals running at large. That statute was subsequently analyzed in Estes v. Maddrell, 208 Ill.App.3d 813, 153 Ill.Dec. 66, 566 N.E.2d 916 (1991), in which a vehicle collided with the defendant's bull. The trial court granted summary judgment for the defendant. In modification of the strict liability nature of the prior statute, the effect of the 1931 amendment and the Estes court's construction of the present act is:
"[A]n owner or keeper of livestock will not be held liable if he meets a two-part test: (1) if he is able to establish that he used reasonable care in restraining his livestock; and (2) that he did not have knowledge that the animal was running at large." Estes, 208 Ill.App.3d at 816, 153 Ill.Dec. at 68, 566 N.E.2d at 918.
In application of this standard the court noted:
(Emphasis in original.) Estes, 208 Ill.App.3d at 817, 153 Ill.Dec. at 69, 566 N.E.2d at 919.
As indicated by the clear language of the statute in its present form and as noted in the analysis of the statute by the Estes court, the animal owner must establish these two points in order to escape liability.
The Fifth District Appellate Court has similarly construed the Act in O'Gara v. Kane, 38 Ill.App.3d 641, 348 N.E.2d 503 (1976). O'Gara brought suit for personal injuries suffered when the automobile in which he was a passenger collided with a horse owned by defendant. In discussing the Act, the court noted:
"The statute was amended by the addition of the proviso that an owner would not be held liable if able to prove that he used reasonable care in restraining his animals and if he was without knowledge that they were running at large." O'Gara, 38 Ill.App.3d at 643, 348 N.E.2d at 506.
At this point some confusion comes into the analysis of this statute, starting with the court decision in Guay v. Neel, 340 Ill.App. 111, 91 N.E.2d 151 (1950), cited by the O'Gara court. The Guay court stated:
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