Perkinson v. Courson, 4–17–0364

CourtUnited States Appellate Court of Illinois
Citation2018 IL App (4th) 170364,97 N.E.3d 574
Docket NumberNO. 4–17–0364,4–17–0364
Parties Deanna L. PERKINSON, Plaintiff–Appellant, v. Sarah COURSON, Defendant–Appellee.
Decision Date12 March 2018

2018 IL App (4th) 170364
97 N.E.3d 574

Deanna L. PERKINSON, Plaintiff–Appellant,
Sarah COURSON, Defendant–Appellee.

NO. 4–17–0364

Appellate Court of Illinois, Fourth District.

FILED March 12, 2018

Timothy J. Chartrand, of Williamson, Webster, Falb & Glisson, of Alton, for appellant.

Amy L. Jackson and Samantha Dudzinski, of Rammelkamp Bradney, P.C., of Jacksonville, for appellee.


PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 In August 2014, plaintiff, Deanna L. Perkinson, was kicked by a horse and injured. In December 2015, she filed a two-count complaint against the horse's owner, defendant Sarah Courson, alleging a violation of the Illinois Animal Control Act ( 510 ILCS 5/1 to 35 (West 2014) ) (count I) and negligence (count II). Although plaintiff and defendant are Illinois residents, the incident at issue occurred in Missouri and the trial court determined Missouri law controlled the conflict. Following that determination, the court granted defendant's motion to dismiss count I of plaintiff's complaint and her motion for summary judgment as to count II. Plaintiff appeals, arguing the court erred in (1) ruling on defendant's motion to dismiss count I of the complaint because the motion was brought pursuant to the wrong statutory section, (2) finding Missouri law applied to the parties' controversy, and (3) finding defendant was entitled to summary judgment on count II of the complaint. We affirm.


¶ 3 In her December 2015 complaint, plaintiff alleged that both she and defendant were Illinois residents. On August 29, 2014, they were horseback riding alongside one another on a public trail when plaintiff was kicked by the horse defendant was riding, which defendant owned. Plaintiff maintained she sustained permanent and disfiguring injuries to her right leg as a result of being kicked. In connection with count I of her complaint, alleging a violation of the Animal Control Act, plaintiff also asserted that at the time and place of her injury, she did not provoke defendant's horse, had been conducting herself peaceably, and was in a location where she had a legal right to be. Relative to count II, alleging negligence, plaintiff asserted defendant owed her a duty of care but breached that duty by (1) failing to warn plaintiff of the horse's violent propensity to kick others, (2) failing to properly train the

97 N.E.3d 581

horse, (3) riding too close to plaintiff and plaintiff's horse when knowing that her horse had a violent propensity to kick others, and (4) riding her horse contrary to industry and practice norms. Plaintiff further alleged that as a direct and proximate result of defendant's negligence, she was kicked by defendant's horse without provocation and injured.

¶ 4 In January 2016, defendant filed a motion to dismiss plaintiff's complaint. She first sought dismissal of count I pursuant to section 2–615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2–615 (West 2014) ). Specifically, defendant argued that the incident at issue occurred while the parties were on a horseback riding trip in Eminence, Missouri, and, as a result, Missouri law governed "the pending litigation." She further maintained that because count I of plaintiff's complaint was based entirely on Illinois statutory law, that count necessarily failed to state a claim upon which any relief could be granted and had to be dismissed. Defendant further sought dismissal of both count I and count II under section 2–619(a)(9) of the Code ( 735 ILCS 5/2–619(a)(9) (West 2014) ). She argued plaintiff signed a " ‘Release of Liability’ " (Release) prior to horseback riding, which, under Missouri law, barred her claims.

¶ 5 In February 2016, plaintiff responded to defendant's motion, arguing Illinois law applied to both counts of her complaint. Further, she argued the Release referenced by defendant should be disregarded because defendant failed to attach a sworn or certified copy of the Release to her motion to dismiss. Plaintiff alternatively argued the Release was against Illinois public policy, vague, ambiguous, overbroad, and could not be relied upon by defendant who was "a non-party outside of the Release."

¶ 6 In March 2016, the trial court conducted a hearing on defendant's motion to dismiss. At the hearing, defendant withdrew the portion of her motion that sought dismissal pursuant to section 2–619 and proceeded only with the portion of her motion that sought dismissal of count I under section 2–615. Ultimately, the court granted defendant's motion to dismiss count I, holding as follows:

"[I]n conflict of law cases the courts must determine which forum has the most significant contacts with the litigation. Further, there is a legal presumption that the law of the state where the injury occurred applies in determining the rights and liabilities of the parties unless Illinois has a more significant relation to the conflict. This court finds that * * * plaintiff has failed to establish that Illinois has a more significant relationship to the conflict. As such, Count I, which is based on the [Illinois] Animal Control Act, is hereby dismissed."

¶ 7 In April 2016, plaintiff filed a motion to reconsider the trial court's ruling as to count I of her complaint. She argued the court erred in its application of existing law as the case authority cited by both parties heavily favored application of Illinois law rather than Missouri law. Additionally, plaintiff maintained the court erred by placing the burden on her to establish that Illinois had a more significant relationship to the matter, rather than on defendant, the moving party.

¶ 8 In June 2016, a hearing was conducted on plaintiff's motion to reconsider. In its written order, the trial court stated it had considered both plaintiff's motion and defendant's response and "noted, for the first time," that the question of which state's law to apply involved factual determinations regarding the nature of the parties' relationship, the planning of their trip to Missouri, and the training of defendant's horse while in Illinois. The court

97 N.E.3d 582

pointed out that no affidavits or deposition testimony had been presented by the parties and elected to "keep plaintiff's Motion to Reconsider under advisement until the[ ] facts or issues [could] be fleshed out during the discovery process."

¶ 9 In September 2016, plaintiff filed a supplemental brief to her motion to reconsider, and defendant filed a supplemental response. Plaintiff attached the depositions of both parties to her filing.

¶ 10 During her deposition, plaintiff testified she resided in Dow, Illinois, both at the time of the incident at issue and at the time of her deposition. She had known defendant since 2003. They met through mutual friends and were brought together through the activity of horseback riding. Plaintiff and her husband had also purchased defendant's house.

¶ 11 Plaintiff testified she engaged in horseback riding on and off since the age of five. She and her husband owned nine horses and were part of a group of friends that rode horses together. Plaintiff estimated that 20 to 25 people were in their group, including defendant. She further estimated that she and defendant went horseback riding together approximately five or six times a year. Within plaintiff's group of horseback riding friends, there were people that plaintiff was closer to and whom she would talk with about going on horseback riding trips. Plaintiff testified she was not close friends with defendant. She denied that they spent time socially at one another's homes or that they participated in any activities together other than horseback riding.

¶ 12 On examination by her own counsel, plaintiff testified that prior to August 2014, she considered defendant her friend. They had ridden horses together in Illinois and "hung out" at the home of a mutual friend. Also, they had each other's telephone numbers and were Facebook friends.

¶ 13 In August 2014, individuals from plaintiff's horseback riding group went on a trip to Cross Country Trail Ride, LLC (Cross Country), in Eminence, Missouri. According to plaintiff, each year, Cross Country organized a trail ride event during Labor Day weekend. She had previously attended the event approximately six times. Plaintiff testified Cross Country provided its paying guests with a campsite, stalls for horses, entertainment, and food.

¶ 14 On August 28, 2014, plaintiff arrived at Cross Country with her husband, daughter, and stepdaughter. The family took four of their own horses and met up with other individuals from plaintiff's group of friends. Plaintiff stated she had not known whether defendant would be on the trip but saw defendant at Cross Country on the evening of her arrival.

¶ 15 Plaintiff acknowledged signing certain documents upon her arrival at Cross Country on August 28, 2014. She identified her signature on forms that were submitted as exhibits during her deposition and recalled signing similar forms during her previous visits to Cross Country. Plaintiff acknowledged that part of the form she signed was titled "Release of Liability" and instructed her to read before signing; however, plaintiff testified she did not read the form because she had driven a long distance to get to Cross Country and...

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