Johnson v. Johnson

• Decision Date: 05 November 2008
• Docket Number: No. 1-06-2759.,No. 1-07-0029.,1-06-2759.,1-07-0029.
• Citation: 898 N.E.2d 145
• Parties: Patricia JOHNSON and Linnea Johnson, a Minor, by Patricia Johnson, her Mother and Next Friend, Plaintiffs-Appellees, v. William JOHNSON, Ramona Johnson, and Top Brass Horse Farms, Inc., a Corporation, Defendants-Appellants (David Johnson, Third-Party Defendant-Appellee). Patricia Johnson and Linnea Johnson, a Minor, by Patricia Johnson, her Mother and Next Friend, Plaintiffs-Appellants, v. William Johnson and Ramona Johnson, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

898 N.E.2d 145

Patricia JOHNSON and Linnea Johnson, a Minor, by Patricia Johnson, her Mother and Next Friend, Plaintiffs-Appellees, v. William JOHNSON, Ramona Johnson, and Top Brass Horse Farms, Inc., a Corporation, Defendants-Appellants (David Johnson, Third-Party Defendant-Appellee).

Patricia Johnson and Linnea Johnson, a Minor, by Patricia Johnson, her Mother and Next Friend, Plaintiffs-Appellants, v. William Johnson and Ramona Johnson, Defendants-Appellees.

No. 1-06-2759.

No. 1-07-0029.

Appellate Court of Illinois, First District, Third Division.

November 5, 2008.

Carlson Law Offices, Chicago (Keith G. Carlson, of counsel), for Appellants/Appellees.

Frank Celani, Mokena, for Appellees/Appellants.

Smith Amundsen LLC, Chicago (Michael Resis and Larry A. Schechtman, of counsel), for Third Party Defendant/Appellee.

Justice GREIMAN delivered the opinion of the court:

Following trial, a jury returned a verdict against plaintiffs Linnea Johnson and her mother and next friend Patricia Johnson on their claim against defendants Ramona and William Johnson brought pursuant to the Animal Control Act (Act or Animal Control Act) (510 ILCS 5/16 (West 2002)). Both parties have appealed, contesting various rulings made by the trial court. Specifically, plaintiffs contend that the trial court erred when it: (1) allowed defendants to assert comparative negligence as an affirmative defense to their claim brought under the Act; (2) instructed the jury on comparative negligence; (3) allowed defendants' expert to testify; and (4) declined to grant plaintiffs' motion for a directed verdict on the issue of liability. Alternatively, plaintiffs assert that the jury's verdict was against the manifest weight of the evidence. On cross-appeal, defendants maintain that the trial court erred in finding that the settlement agreement reached between plaintiffs and David Johnson, Linnea's father, who was named as a third-party defendant, was reached in good faith as required by the provisions of the Illinois Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/1 et seq. (West 2002)). We affirm in part and reverse in part and remand for a new trial.

On March 15, 2003, seven-year-old Linnea Johnson accompanied her father, David Johnson, to Top Brass Horse Farms (Top Brass), where she was kicked in the back by Gambler, a horse that at the time of the accident was owned by defendant Ramona Johnson but was in the immediate control of Ramona's husband, defendant William Johnson.¹ On August 7, 2003, Linnea, by her mother and next friend, Patricia, filed a complaint against Top Brass and William and Ramona Johnson, seeking to recover monetary damages pursuant to the provisions of the Animal Control Act (510 ILCS 5/16 (West 2002)) and the Rights of Married Persons Act, commonly know as the "Family Expense Act" (750 ILCS 65/15 (West 2002)).

In pertinent part, the complaint alleged that at the time of the accident, Linnea was lawfully on defendant Top Brass's premises, where defendants William and Ramona Johnson boarded their horse Gambler, and was conducting herself peaceably when Gambler kicked her in the back without provocation, thereby causing permanent damage to one of her kidneys. The defendants filed answers denying that Linnea and her mother were entitled to relief under the provisions of the Animal Control Act or the Family Expense Act. On October 12, 2004, defendants William and Ramona Johnson filed a third-party complaint for contribution against Linnea's father, David Johnson, and an amended third-party complaint on March 17, 2005. In the amended third-party complaint, the Johnson defendants alleged that David "[f]ailed to properly supervise [Linnea] when he knew of the dangerous propensities and unpredictability of horses" and "[f]ailed to properly instruct and train [Linnea] about the dangerous propensities and unpredictability of horses" and, accordingly, his actions directly and proximately caused Linnea's injuries. Thus, in the event they were found liable for Linnea's injuries, the Johnson defendants contended that they were entitled to contribution from David pursuant to the provisions of the Contribution Act (740 ILCS 100/1 et seq. (West 2002)). On February 4, 2005, defendant Top Brass also filed a third-party complaint for contribution against David Johnson as well as a counterclaim for contribution against the Johnson defendants.

Thereafter, the parties engaged in discovery and each of the parties was deposed. The parties then engaged in settlement negotiations. Ultimately, plaintiffs reached settlement agreements with third-party defendant David Johnson and defendant Top Brass. The trial court conducted a hearing to determine whether the settlement agreements were made in good faith as required by the Contribution Act. At the hearing, the Johnson defendants did not contest the propriety of the $82,500 settlement reached between plaintiffs and Top Brass, but they did dispute the good faith of the $7,500 settlement reached between plaintiffs and David Johnson. Specifically, at the hearing, defense counsel argued: "Here we have an issue where certainly what could be more collusive than the father and mother to benefit the case that they're bringing and entering into this settlement for a fraction of 1 percent of what they're demanding in this case." Counsel noted that Top Brass settled for a much higher amount even though "Top Brass Farms didn't own the horse, wasn't even present, didn't control the horse in any fashion, was just the owner of the stable where they kept horses." David Johnson's counsel responded, noting that the "fact that two settling parties have a friendly or close relationship in and of itself doesn't show collusion" and that the size of the settlement alone is not indicative of the existence or lack thereof of good faith. At the conclusion of the hearing, the trial court rejected the Johnson defendants' arguments, stating, "I certainly don't find fraud, and I don't find that there's collusion here." Accordingly, on August 10, 2006, the trial court entered two orders finding that the settlement agreements reached between plaintiffs and Top Brass and plaintiffs and David Johnson were made in good faith as required by the Contribution Act. Accordingly, the trial court ordered that all claims against third-party defendant David Johnson and defendant Top Brass were dismissed with prejudice.

Thereafter, on August 11, 2006, plaintiffs filed their third amended complaint, naming William and Ramona Johnson as the sole defendants. As with the prior complaints, plaintiffs sought to recover damages under the Animal Control Act and the Family Expense Act. In response, the Johnson defendants advanced several affirmative defenses, which they asserted effectively barred plaintiffs from obtaining the requested relief. Specifically, the Johnson defendants alleged that: Linnea assumed the risk of injury when she and her parents placed her in the presence of horses where there was a foreseeable risk of injury; Linnea was guilty of contributory negligence when she "approached and/or touched the horse Gambler from behind without first announcing and making known to Gambler her presence" and her negligence was the proximate cause of her injury; and David Johnson was guilty of contributory negligence because he "failed to watch and supervise his daughter, and by his actions placed her at risk, while she wandered around the horse barn," and his negligence proximately caused Linnea's injuries.²

Plaintiffs moved to strike defendants' affirmative defenses arguing, in pertinent part, that contributory negligence was not a valid defense to an action brought under the Animal Control Act. After hearing arguments from the parties, the trial court denied plaintiffs' motion, finding that the case law "allow[s] for both assumption of the risk and for contributory negligence."

Thereafter, the parties proceeded to trial. At trial, defendant William Johnson testified that his wife Ramona purchased Gambler, a palomino quarter horse, in 2003 from a family farm in Wisconsin. Because the previous owners had children, Gambler was accustomed to the presence of children. Ramona also owned another horse, Guy, and boarded both horses at Top Brass, located in Cook County. William explained that Top Brass is located on 15 acres of land and contains multiple buildings. The horses are boarded in a round barn, and a hay barn is located to the north of the round barn. William was familiar with other people who boarded their horses at Top Brass, including David Johnson, Linnea's father.

On March 15, 2003, William and his wife were at Top Brass tacking their horses, preparing to ride them, when he saw David and Linnea arrive in the round barn. David led his horse Freebucks out of the barn intending to wash him. When William finished tacking Gambler, he led the horse by the reins out of the barn and encountered David and Linnea, who were brushing Freebucks in the thoroughfare leading out of the round barn. William stated that the thoroughfare was not an area for grooming horses. Because Freebucks was blocking the thoroughfare, and William could not safely lead Gambler around Freebucks, he stopped and conversed with David. He stood parallel with Gambler's front legs and held Gambler's reins. While they conversed, Linnea began to walk toward the round barn. Shortly thereafter, as he was holding Gambler's reins, William felt Gambler shuffle and shift his weight from his right leg to his left leg. He then heard Linnea cry out. When he looked back, he saw Linnea on the ground. William also saw a horse grooming brush on the ground as well, located approximately 18 inches away from the wall of the hay barn. William did not see Gambler kick Linnea nor did he see Linnea provoke Gambler in any manner. William indicated that it is unsafe for a person to pass behind the back of a horse, explaining "[t]hey are totally blind there. They are...