Ennen v. White

• Court: Appellate Court of Illinois
• Writing for the Court: KNECHT
• Citation: Ennen v. White, 598 N.E.2d 416, 232 Ill.App.3d 1061 (Ill. App. 1992)
• Decision Date: 13 August 1992
• Docket Number: No. 4-92-0069,4-92-0069
• Parties: , 174 Ill.Dec. 219 Tammy ENNEN, Plaintiff-Appellant, v. Wes WHITE and Linda White, Defendants-Appellees.

Page 416

598 N.E.2d 416

232 Ill.App.3d 1061, 174 Ill.Dec. 219

Tammy ENNEN, Plaintiff-Appellant, v. Wes WHITE and Linda White, Defendants-Appellees.

No. 4-92-0069.

Appellate Court of Illinois Fourth District.

Aug. 13, 1992.

Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., Alton, for plaintiff-appellant.

David A. Bloch, Bernard & Davidson, Granite City, for defendants-appellees.

Justice KNECHT delivered the opinion of the court:

Plaintiff Tammy Ennen appeals from the Jersey County circuit court's dismissal of her four-count complaint against defendants, Wes and Linda White. She argues the trial court erred by concluding her amended complaint failed to state a cause of action under the Animal Control Act (Act) (Ill.Rev.Stat.1989, ch. 8, par. 366) and by not granting her leave to amend her counts based on common law negligence. We disagree and affirm.

I. FACTS

Plaintiff sought compensation for alleged injuries she sustained when defendants' horse named "Coke" threw her from its back while she was riding the horse and while the horse was on defendants' property. Her initial complaint was based solely on the Act. In response to defendants' motion to dismiss for failure to state a cause of action, the trial court granted plaintiff time to amend her complaint. It suggested perhaps the complaint could be replied under a negligence theory. Plaintiff filed her amended complaint in September 1991. It included allegations based on the Act and common law negligence. The pertinent allegations in count I were as follows:

"4. That [in July 1989] the plaintiff was peac[e]ably conducting herself on [defendants' property] * * * where she had a lawful right to be, having come on said property at the invitation of defendant, Wes White.

5. As plaintiff was peac[e]ably conducting herself where she had a lawful right to be, the horse named Coke * * * [w]ithout provocation, injure[d] the plaintiff by throwing the plaintiff from its back.

6. That a horse is an animal which has a natural propensity to jolt and buck and attempt to throw its rider.

7. That the defendant is charged with knowledge of the natural propensities of animals of a particular class to which animals belong.

8. That the defendant is charged with knowledge of the natural propensity of horses to attempt to throw individuals from their back."

Counts I and II were alleged against defendant Wes White. Liability under count I was based on section 16 of the Act, which states:

"If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained." Ill.Rev.Stat.1989, ch. 8, par. 366.

Liability under count II was based on common law negligence and repeated the allegations in count I, but added the following claim:

"[T]he defendant failed to exercise a reasonable degree of care to prevent a foreseeable injury, by allowing the plaintiff to ride his horse when he knew or should have known that the plaintiff could be injured."

Counts III and IV were identical to the preceding two except they were lodged against Linda White. In October 1991, defendants sought dismissal of plaintiff's complaint pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill.Rev.Stat.1991, ch. 110, par. 2-615). At the December 1991 hearing, the trial judge dismissed counts II and IV, the claims based on common law negligence, and took under advisement the additional claims based on the Act. He later dismissed the additional counts against defendants.

II. ANIMAL CONTROL ACT

Plaintiff argues her complaint adequately pled the requisite elements to state a claim under the Act. Defendants contend the trial judge correctly concluded the Act is not applicable to plaintiff's allegations. They contend the Act does not apply to injuries sustained when a rider is thrown from a horse. They also argue plaintiff assumed the risk of injury by voluntarily mounting the horse.

Defendants reason that the language "attacks or injures" (emphasis added) should be read as "attacks and injures," thereby relieving defendants of liability because Coke did not attack plaintiff, but merely bucked as horses naturally do at times. We reject this interpretation of the language of section 16 of the Act. (Ill.Rev.Stat.1989, ch. 8, par. 366.) We agree with the ruling in Chittum v. Evanston Fuel & Material Co. (1980), 92 Ill.App.3d 188, 48 Ill.Dec. 110, 416 N.E.2d 5, that the language should be given its plain and ordinary meaning. A cause of action can exist when an attack or an injury occurs. ( Chittum, 92 Ill.App.3d at 190, 48 Ill.Dec. at 112, 416 N.E.2d at 7; see also McEvoy v. Brown (1958), 17 Ill.App.2d 470, 477-78, 150 N.E.2d 652, 655.) Plaintiff could benefit from the protections of the Act although Coke did not attack her. Whether protection is afforded her depends on additional factors.

Defendants correctly note the primary purpose of section 16 of the Act was to eliminate the common law requirement that the victim prove the owner knew the animal had a vicious propensity. (Harris v. Walker (1988), 119 Ill.2d 542, 547, 116 Ill.Dec. 702, 703-04, 519 N.E.2d 917, 918-19; Forsyth v. Dugger (1988), 169 Ill.App.3d 362, 365, 119 Ill.Dec. 948, 950, 523 N.E.2d 704, 706.) A statute which represents a departure from the common law should be narrowly construed in favor of those against whom it is directed. Harris, 119 Ill.2d at 547, 116 Ill.Dec. at 704, 519 N.E.2d at 919; In re W.W. (1983), 97 Ill.2d 53, 57, 73 Ill.Dec. 347, 349, 454 N.E.2d 207, 209.

No Illinois case has addressed whether a claim exists under the Act when the allegations are based only on a horse's natural propensity to buck, throwing its rider, and when the rider did not sign an exculpatory agreement. Other cases which have addressed injuries sustained from a horse have considered whether the horse was provoked before the injury was sustained, or whether people who work with or care for horses assume the risk of injury from the horse. See Forsyth, 169 Ill.App.3d at 364, 119 Ill.Dec. at 949, 523 N.E.2d at 705 (horse provoked when a second person jumped onto it); Chittum, 92 Ill.App.3d at 190, 48 Ill.Dec. at 112, 416 N.E.2d at 7 (complaint adequately alleged injury sustained from horse absent provocation); Clark v. Rogers (1985), 137 Ill.App.3d 591, 595, 92 Ill.Dec. 136, 139, 484 N.E.2d 867, 870 (horse trainer assumed risk of fall); Vanderlei v. Heideman (1980), 83 Ill.App.3d 158, 163, 38 Ill.Dec. 525, 528, 403 N.E.2d 756, 759 (horseshoer assumed risk of injury).

In addition, injuries from horses running at large have not been actionable under the Act. (See McQueen v. Erickson (1978), 61 Ill.App.3d 859, 864, 19 Ill.Dec. 113, 117, 378 N.E.2d 614, 618.) Injuries are actionable when plaintiff was an innocent bystander when injured. In Moore v. Roberts (1990), 193 Ill.App.3d 541, 140 Ill.Dec. 405, 549 N.E.2d 1277, we concluded a bystander adequately stated a cause of action under the Act when she was injured by two horses which broke through a racetrack enclosure and threw their jockeys. ( Moore, 193 Ill.App.3d at 542-43, 140 Ill.Dec. at 406, 549 N.E.2d at 1278.) In that instance plaintiff could not have known of the risk or avoided the injury. Each of these cases is distinct from plaintiff's.

The Act was not designed to protect her from the injuries she incurred after voluntarily mounting Coke. Previous case law supports this conclusion. Plaintiff contends the Illinois Supreme Court's ruling in Harris is distinct from these facts because the party who was injured while riding a horse had signed a waiver of liability provided by the defendant, an operator of a horse rental business. However, the court's language is compelling. In Harris the supreme court indicated the intent of section 16 of the Act is:

"[T]o provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them." Harris, 119 Ill.2d at 547, 116 Ill.Dec. at 704, 519 N.E.2d at 919.

The court also stated: "We believe that only the most inexperienced of horseback riders would not understand that under certain circumstances a horse may become spooked * * * and cause a rider to fall from the horse." (Harris, 119 Ill.2d at 549, 116 Ill.Dec. at 705, 519 N.E.2d at 920.) Plaintiff in this case does not characterize herself as inexperienced. She alleged defendants are charged with knowledge of horses' natural propensity to throw persons from their backs. She does not, however, explain why she, too, should not be charged with the knowledge about horses' propensity to buck. Her allegations include the observation that horses have a natural tendency to throw riders.

Plaintiff should have recognized her conduct involved a risk, she should have known the qualities and habits of animals, and capacities of things and forces insofar as they are matters of common knowledge in the community. This applies even if she was ignorant of the possibility Coke might throw her. See Restatement (Second) of Torts § 290, comment g, at 50 (1965).

Plaintiff cites Guthrie v. Zielinski (1989), 185 Ill.App.3d 266, 133 Ill.Dec. 341, 541 N.E.2d 178, in arguing the doctrine of assumption of the risk does not apply to actions brought under the Act. Guthrie refused to find plaintiff assumed the risk that her parents' dog would seriously maul her leg when she entered her parents' home as she customarily did. During prior visits to the home the dog was in a dog-run outside. The day plaintiff was injured, however, the dog was in the home. (Guthrie, 185 Ill.App.3d at 268, 133 Ill.Dec. at 342, 541 N.E.2d at 179.) The Guthrie court further concluded assumption of the risk should apply only when it is expressly assumed, or when a...