Harris v. Walker
| Decision Date | 17 February 1987 |
| Docket Number | No. 3-85-0234,3-85-0234 |
| Citation | 152 Ill.App.3d 384,504 N.E.2d 526 |
| Parties | , 105 Ill.Dec. 426 Ronald K. HARRIS, Jr., Plaintiff-Appellant, v. Al WALKER, d/b/a Ky-Wa Acres, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Louis L. Bertrand (argued), Anthony C. Raccuglia & Associates, Peru, for Ronald K. Harris.
Gary S. Schwab (argued), Heyl, Royster, Voelker & Allen, Peoria, for Al Walker and Ky-Wa Acres.
Plaintiff, Ronald K. Harris, Jr., filed a two-count personal injury action in the circuit court of Bureau County to recover for injuries sustained in a fall from a horse which he rented from a riding stable, known as Ky-Wa Acres, and operated by the defendant, Al Walker. Count I of plaintiff's amended complaint sought recovery based upon the statutory remedy provided in section 16 of the Animal Control Act (Ill.Rev.Stat.1983, ch. 8, par. 366). Count II of the complaint was based on common law negligence.
When the horse was rented, the plaintiff signed a document which purported to release Ky-Wa Acres and its employees from any injuries which the plaintiff might incur while on the premises or for any injury which might result from horseback riding. The plaintiff does not deny that he read and fully understood the terms of the document.
The defendant filed a motion for summary judgment predicated upon the foregoing release. The trial court granted summary judgment, and this appeal ensued.
The plaintiff claims that the release, or exculpatory contract, executed by him violates the settled public policy of this State declared by the Animal Control Act and is, therefore, not a bar to his claim for compensation for injuries sustained due to defendant's negligence. It is the plaintiff's contention that the legislature. by enactment of section 16 of the Act (Ill.Rev.Stat.1983, ch. 8, par. 366), declared it to be the public policy of the State to hold owners of animals liable for injuries caused by such animals, and that his complaint stated a valid cause of action.
The statute in question 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 injury sustained." Ill.Rev.Stat.1983, ch. 8, par. 366.
This legislative declaration has been recognized to include liability for horseback-riding injuries. (Chittum v. Evanston Fuel & Material Co. (1st Dist.1980), 92 Ill.App.3d 188, 48 Ill.Dec. 110, 416 N.E.2d 5.) Notably, Chittum is a case of injury caused by a horse without any conduct that could be characterized as an "attack." Other Illinois appellate opinions have made clear that the statutory liability is not absolute--i.e., not strict liability--but qualified. Vanderlei v. Heideman (2d Dist.1980), 83 Ill.App.3d 158, 38 Ill.Dec. 525, 403 N.E.2d 756, Nelson v. Lewis (5th Dist.1976), 36 Ill.App.3d 130, 344 N.E.2d 268.
In the instant case, plaintiff alleged that the injury was caused by an animal owned or harbored, that there was a lack of provocation by plaintiff, that plaintiff was peaceably conducting himself, and that he was in a place where he had a legal right to be. Plaintiff clearly pleaded the four necessary elements of his statutory cause of action. Chittum; Nelson.
Owen v. Vic Tanny's Enterprises (1st Dist.1964), 48 Ill.App.2d 344, 199 N.E.2d 280, 8 A.L.R.3d 1388, provides further guidance for our disposition of this appeal. In the Vic Tanny case, plaintiff, a member of defendant's gymnasium, was injured when she slipped and fell in a shower room. The appellate court held that her suit was barred by an exculpatory clause in the membership contract, and found no overriding public interest that should render the exculpatory clause ineffectual. The court said:
* * *." 48 Ill.App.2d at 348, 199 N.E.2d at 282, 8 A.L.R.3d at 1391. See also Lohman v. Morris (3d Dist.1986), 146 Ill.App.3d 357, 100 Ill.Dec. 263, 497 N.E.2d 143.
By contrast to Vic Tanny, in the instant case there has been appropriate legislative action. Clearly then we are confronted with conflicting policies--an exculpatory clause that normally is given effect as a proper exercise of freedom of competent parties to contract, and a strong public policy of protecting persons from injury by animals which militates against recognition of the exculpatory clause. It seems obvious that, while the legislature meant to eliminate as much as possible any inquiry into subjective considerations of the injured's intent, the legislature did not intend to eliminate inquiry into whether an animal might be diseased, whether a dangerous propensity was undisclosed, whether the horse was properly saddled, whether there was any attempt to match the rider with the horse, etc. We further note that the legislation at issue contains no business purpose limitation. In our opinion, this expresses our State's public policy and that such public policy should control under these facts as a recognized exception to the right to contract. See Lohman.
Guided by the precedents of Chittum, Vanderlei and Nelson, all of which were tried before a fact finder, we hold that the instant case should be remanded for trial to determine whether the defendant violated any duty owed to the plaintiff.
Reversed and remanded.
I concur in Justice Barry's decision to reverse and remand but for an altogether different reason.
The plaintiff's appellate argument which is grounded in the so-called dangerous animal statute is misplaced. The horse in this case did not, after all, bite or otherwise attack the plaintiff. In simple language, that is what the statute is all about. Ill.Rev.Stat.1983, ch. 8, par. 366.
Plaintiff rented a horse from a riding stable. As part and parcel of the rental transaction, plaintiff signed an up-front release to excuse the defendant stable owner from any liability if the plaintiff fell off the horse. Plaintiff then fell off the horse and sued the defendant stable owner. Defendant filed a motion for summary judgment based on the release. Summary judgment was granted in favor of the defendant and the plaintiff appealed.
Reference to the complaint discloses that the plaintiff pleaded that the plaintiff was injured because although defendant knew or in the exercise of ordinary care should have known that the rental horse in question had a propensity to become "sideshocked," thereby creating an unreasonably dangerous condition to the person riding said horse, that defendant nonetheless failed to warn the plaintiff.
That is, in essence, an allegation of fraud. It is an allegation of concealment of a hidden material defect. As such, if proven, it is sufficient to vitiate what would...
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Harris v. Walker
...protect the person who voluntarily encounters a known risk and agrees in writing to assume the risk." (152 Ill.App.3d 384, 388, 105 Ill.Dec. 426, 504 N.E.2d 526 (Scott, J., dissenting).) This split decision is in conflict with Clark v. Rogers (1985), 137 Ill.App.3d 591, 92 Ill.Dec. 136, 484......
- Harris v. Walker