Galloway v. Kuhl

• Decision Date: 02 March 2004
• Docket Number: No. 5-03-0041.,5-03-0041.
• Citation: 282 Ill.Dec. 276,806 N.E.2d 251,346 Ill. App.3d 844
• Parties: Lloyd GALLOWAY, Plaintiff-Appellant and Cross-Appellee, v. Raymond KUHL, Individually, Kuhl Farms, a Partnership, and its Partners, Raymond Kuhl, Mike Kuhl, Fred Kuhl, John Kuhl, and Henry Kuhl, Defendants-Appellees and Cross-Appellants.
• Court: United States Appellate Court of Illinois

806 N.E.2d 251

346 Ill. App.3d 844

282 Ill.Dec. 276

Lloyd GALLOWAY, Plaintiff-Appellant and Cross-Appellee, v. Raymond KUHL, Individually, Kuhl Farms, a Partnership, and its Partners, Raymond Kuhl, Mike Kuhl, Fred Kuhl, John Kuhl, and Henry Kuhl, Defendants-Appellees and Cross-Appellants.

No. 5-03-0041.

Appellate Court of Illinois, Fifth District.

March 2, 2004.

Robert L. Douglas, Law Offices of Robert L. Douglas, Robinson, for Appellant.

Douglas A. Enloe, Gosnell, Borden, Enloe & Sloss, Ltd., Lawrenceville, for Appellees.

Justice HOPKINS delivered the opinion of the court:

After a trial involving the Illinois Domestic Animals Running at Large Act (510 ILCS 55/1 et seq. (West 2000)), the jury returned a verdict in favor of the plaintiff, Lloyd Galloway, and against the defendants, Raymond Kuhl, Kuhl Farms, Mike Kuhl, Fred Kuhl, John Kuhl, and Henry Kuhl, and reduced the plaintiff's damages by 50% for the plaintiff's comparative negligence. Although the jury awarded the plaintiff damages for disfigurement and pain and suffering, it failed to award damages for the plaintiff's medical expenses. After the parties filed posttrial motions, the trial court determined that the jury's award was irreconcilably inconsistent, and upon the defendants' request, the trial court entered an additur for the plaintiff's claimed medical expenses, reduced by half for the plaintiff's comparative negligence.

On appeal, the plaintiff asserts that the trial court improperly allowed the jury to consider the plaintiff's comparative negligence. On cross-appeal, the defendants assert that the trial court improperly determined that the jury's verdict was inconsistent.

We affirm.

FACTS

On February 6, 2001, the plaintiff filed his complaint against the defendants, alleging that the defendants' cattle had strayed onto the highway, in violation of the Illinois Domestic Animals Running at Large Act (510 ILCS 55/1 et seq. (West 2000)), and collided with the plaintiff's vehicle, causing him injury. On May 18, 2001, the defendants filed their answer, asserting, as an affirmative defense, that the plaintiff had negligently operated his vehicle. On June 7, 2001, the plaintiff filed a motion to strike the defendants' affirmative defenses, which the trial court denied. Over the plaintiff's objections at the trial, the trial court instructed the jury concerning the plaintiff's comparative negligence.

At the trial, the plaintiff testified to the following:

"Q. And I ask you if this is a correct summary of all of your medical bills?

* * *

A. Like I [said] before, I never saw any of my medical bills.

Q. They are all paid for?

A. By Cox [B]rothers.

* * *

Q. Is this the full amount [$18,501.49] that you verify as accurate as to what your medical bills are?

A. As far as I know, yes."

The jury returned a verdict for the plaintiff and allocated to the plaintiff $4,400 for disfigurement, $20,000 for pain and suffering, and $5,600 for the value of salaries lost. The jury awarded the plaintiff $0 for the reasonable expenses of necessary medical treatment and services received. The jury found the plaintiff 50% negligent and assessed the plaintiff's recoverable damage as $15,000.

On September 25, 2002, the plaintiff filed his posttrial motion, asserting that the jury had improperly considered the plaintiff's comparative fault and that the jury's verdict was inconsistent because the jury had failed to award the reasonable expenses of necessary medical care. On October 8, 2002, the defendants filed their response to the plaintiff's posttrial motion and, alternatively, a motion for an additur. With relation to their alternative motion for an additur, the defendants requested that the trial court enter an additur, in the amount of $9,250.75, to correct the jury's alleged mistake of failing to award the plaintiff medical expenses.

At the posttrial hearing, on December 20, 2002, the trial court held that the jury's verdict was inconsistent, and it entered an additur increasing the jury's award by $9,250.75, which was 50% of the total medical expenses in evidence.

On January 16, 2003, the plaintiff filed his notice of appeal, and on January 22, 2003, the defendants filed their notice of cross-appeal.

ANALYSIS

Comparative Negligence and the Illinois Domestic Animals Running at Large Act

The plaintiff asserts that because his cause of action involved the Illinois Domestic Animals Running at Large Act (510 ILCS 55/1 et seq. (West 2000)), the trial court improperly allowed the jury to consider the plaintiff's comparative negligence. Whether comparative negligence principles apply to the Illinois Domestic Animals Running at Large Act is a question of law that we review de novo. See Lepkowski v. Laukemper, 317 Ill.App. 304, 45 N.E.2d 979 (1943).

The Illinois Domestic Animals Running at Large Act provides:

"No person or owner of livestock shall allow livestock to run at large in the State of Illinois. All owners of livestock shall provide the necessary restraints to prevent such livestock from so running at large and shall be liable in civil action for all damages occasioned by such animals running at large; Provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large." 510 ILCS 55/1 (West 2002).

The Illinois Domestic Animals Running at Large Act provides the livestock owner an opportunity to avoid strict liability if he can prove that he had no knowledge his animal was running at large and that he used reasonable care in restraining such animal. Corona v. Malm, 315 Ill. App.3d 692, 697, 248 Ill.Dec. 818, 735 N.E.2d 138 (2000); Christenson v. Rincker, 288 Ill.App.3d 185, 191, 223 Ill.Dec. 727, 680 N.E.2d 460 (1997) (this interpretation of the statute "clearly reflects the intent of the General Assembly in amending what would otherwise be a strict liability statute").

Illinois courts have applied the doctrine of contributory negligence in cases involving the Illinois Domestic Animals Running at Large Act. See Guffey v. Gale, 332 Ill.App. 207, 74 N.E.2d 730 (1947) (the court reversed a judgment for the plaintiff, whose truck turned over after attempting to avoid the defendant's pig that was running at large on the highway, because the question of contributory negligence was not fairly left to the determination of the jury); De Buck v. Gadde, 319 Ill.App. 609, 49 N.E.2d 789 (1943) (the plaintiff's violation of the Domestic Animals Running at Large Act and the defendant's negligent driving were matters to be determined by the jury); Fugett v. Murray, 311 Ill.App. 323, 35 N.E.2d 946 (1941) (the court considered the contributory negligence of the passenger of the vehicle, which collided with a horse, whose owner was in violation of the Domestic Animals Running at Large Act); Weide v. Thiel, 9 Ill.App. 223 (1881) (because it was the plaintiff's fault that the defendant's bull had escaped the pasture, she materially contributed to her own injury and cannot recover); Ewing v. Chicago & Alton R.R. Co., 72 Ill. 25, 1874 WL 8751 (1874) (although a violation of the statute preventing animals from running at large is evidence of negligence, the negligence of the plaintiff must be compared with the negligence of the defendant to determine its effect in preventing recovery).

In Beiter v. Erb, 259 F.2d 911, 912 (7th Cir.1958), the Seventh Circuit Court of Appeals rejected the plaintiff's contention that contributory negligence was not a defense to an action for negligence based upon the Domestic Animals Running at Large Act (Ill.Rev.Stat.1957, ch. 8, par. 1 et seq.). The court in Beiter held that despite the defendants' violation of the statute, the plaintiff must prove that he was exercising due care and caution for his own safety, i.e., that he was free from contributory negligence. Beiter, 259 F.2d at 913. In particular, the court in Beiter noted:

"[I]n an extended argument [the plaintiff] cites and discusses many cases in an attempt to demonstrate that mere contributory negligence is not a defense to an action for negligence based upon a statutory violation. We need not cite or discuss such cases because we are convinced there is no case in Illinois which sustains plaintiff's contention. * * *

More important is the fact that the [a]ppellate [c]ourts of Illinois in not fewer than five cases have either held or recognized that contributory negligence is a defense to an action for negligence predicated upon the statute relied upon on the instant case." Beiter, 259 F.2d at 912-13.

In holding that contributory negligence was not a defense to claims brought under other safety statutes, the Illinois Supreme Court held that the legislature's use of the wilfulness standard of liability indicated an intention to foreclose the use of contributory negligence, fixing a broad and distinct exception from the general rule of contributory negligence. Simmons v. Union Electric Co., 104 Ill.2d 444, 458, 85 Ill.Dec. 347, 473 N.E.2d 946 (1984); Vegich v. McDougal Hartmann Co., 84 Ill.2d 461, 50 Ill.Dec. 650, 419 N.E.2d 918 (1981) (when the safety statute's purpose of prevention is frustrated by a wilful violation and an accident follows, the full burden of the loss must be laid on the wrongdoer, even if the victim was himself negligent); Rost v. F.H. Noble & Co., 316 Ill. 357, 147 N.E. 258 (1925) (contributory negligence does not apply to injuries wilfully or intentionally inflicted); Schultz v. Henry Ericsson Co., 264 Ill. 156, 106 N.E. 236 (1914) (the reason for casting aside contributory negligence applies equally to all safety statutes that limit violations of the statute to wilful acts). Unlike these safety statutes, the Illinois Domestic Animals Running at Large Act is not a safety statute...