Frost v. Robave, Inc.

Second Division
April 21, 1998

No. 1-97-2105

KENNETH V. FROST, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
ROBAVE, INC., )
)
Defendant-Appellee )
)
(Jeffrey Roberts; Nicholas Cave; )
Central National Bank of Chicago, )
as Trustee Under Trust No. 16638, )
Subsequently Known As Exchange )
National Bank, now known as )
LaSalle National Bank; American )
National Bank and Trust Company of )
Chicago, as Trustee Under Trust )
No. 46532; Kenneth Goldberg, )
Indiv. and doing business as )
C.M.C. MGR Company and C.M.C ) Honorable
MGR. Company, ) Gary L. Brownfield,
) Philip L. Bronstein,
Defendants). ) Judges Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:

An owner-employee of a business occasionally takes his dog
with him to work. During these visits, the dog is given food and
water. Under these circumstances, is the business entity a
harborer or keeper of the dog and, therefore, liable for a dog
attack occurring off the business premises after the business has
closed for the day? The trial court said no and entered summary
judgment in favor of the business. We agree.
Because the dog did not regularly stay or spend nights at
the business, the employee took the dog to work for his personal
convenience, the business did not in any way benefit from the
dog's presence, and the business entity did not have care,
custody, or control of the dog at the time of the attack, it is
neither a keeper nor a harborer of the dog and is not liable at
common law or under the Illinois Animal Control Act (510 ILCS 5/1
et seq. (West 1996) (Act)).
BACKGROUND
Sometime around 8 p.m. on January 3, 1994, plaintiff,
Kenneth Frost, took his German shepherd, Tristan, for an evening
walk. He returned to the four-story mixed-use building at 1347
South Michigan Avenue, Chicago, Illinois, where he lived. He
entered the building and started up a common stairwell to his
third-floor loft apartment. At the same time, another third-
floor tenant, Jeffrey Roberts, decided to go down to the lobby
and check for mail. As Roberts opened his apartment door, his
Akita, Jake, ran out and down the stairwell. According to
Roberts, he attempted to get Jake back into the apartment, but to
no avail. As plaintiff reached the second-floor landing, Jake
attacked, and the dogs began to scuffle. Plaintiff attempted to
break up the fight, was bitten by Jake and severely injured.
Defendant Robave, Inc., is located on the second-floor
landing where plaintiff was attacked. Robave is a clothing
manufacturing business owned and operated by Roberts and his
roommate, Nicholas Cave. At the time of the attack, Robave was
closed for the day.
Roberts had purchased Jake and considered himself to be
Jake's owner. Jake was initially purchased as a show dog but due
to hocking of his legs he was unable to compete. At the time of
the attack, Jake was a pet and lived with Roberts and Cave in
their apartment. Roberts paid all expenses relating to Jake,
including City of Chicago license, rabies license, food bills,
pet supplies and toys, vet bills, boarding fees, and grooming
bills. Robave did not in any way contribute to Jake's
maintenance.
At times, Roberts would take Jake along when he worked at
Robave. Although the parties dispute how often this would occur,
it is undisputed that Jake was neither regularly housed nor did
he regularly stay over night at Robave. It is also undisputed
that Jake was not used to guard the Robave premises.
Plaintiff testified that he had seen Jake on the business
premises on more than a 100 occasions at various times of the day
and night. Plaintiff also submitted affidavits from several
other tenants stating the dog was often seen on the business
premises and that water and food bowls, and a cage, were present.
Plaintiff also offered evidence that Jake had an unpredictable
nature and had attacked other people in the past.
PROCEDURE BELOW
Alleging negligence and violation of the Illinois Animal
Control Act, plaintiff filed suit against Robave, Inc., Roberts,
Cave, Central National Bank of Chicago, American National Bank
and Trust Company of Chicago, Kenneth Goldberg, and C.M.C. Mgr.
Co. Both banks have been dismissed pursuant to orders not
relevant to this appeal. As best we can tell from the record,
Roberts, Cave, Goldberg, and C.M.C. Mgr. Co. remain as
defendants. This appeal only involves the entry of summary
judgment in favor of Robave. We have jurisdiction pursuant to
Rule 304(a). 155 Ill. 2d R. 304(a) (as amended, effective
February 1, 1994).
STANDARD OF REVIEW
The purpose of summary judgment is to determine whether any
issues of fact exist, not to try any issues of fact. Pyne v.
Witmer, 129 Ill. 2d 351, 357-58 (1989). Summary judgment is
properly granted when "the pleadings, depositions, and admissions
on file, together with the affidavits, if any, show that there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." 735 ILCS
5/2-1005(c) (West 1996). In deciding whether summary judgment is
proper, all documents on file are to be strictly construed
against the movant and liberally construed in favor of the
nonmovant. Only when the moving party's right to judgment is
clear and free from doubt should summary judgment be granted.
Tersavich v. First National Bank & Trust, 143 Ill. 2d 74, 80-81
(1991); Rumford v. Countrywide Funding Corp., 287 Ill. App. 3d
330, 334 (1997). "If, upon examination of the record it can be
fairly said that there does exist a triable issue of fact then
the motion for summary judgment should be denied." Ray v. City
of Chicago, 19 Ill. 2d 593, 599 (1960). If there is no dispute
as to the material facts and the undisputed facts support only
one inference, the only question is the legal effect of the
facts. Davies v. Grauer, 291 Ill. App. 3d 863, 867 (1997). We
review the grant of summary judgment de novo, and may affirm on
any basis evident in the record even though it is not the ground
the trial court based its ruling on. Smith v. Neumann, 289 Ill.
App. 3d 1056, 1063 (1997).
I. ILLINOIS ANIMAL CONTROL ACT
A. IN GENERAL
Plaintiff contends that summary judgment was improper
because a reasonable inference could be drawn that Robave was a
keeper or harborer of Jake and, therefore, an "owner" within the
meaning of the Act. The Act provides:
"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." 510 ILCS 5/16 (West
1996).
"Owner" is defined as:
"[A]ny person having a right of property
in a dog or other animal, or who keeps or
harbors a dog or other animal, or who has it
in his care, or acts as its custodian, or who
knowingly permits a dog or other domestic
animal to remain on or about any premise
occupied by him." 510 ILCS 5/2.16 (West
1996).
"Person" is defined as:
"[A]ny person, firm, corporation, [or]
partnership ***." 510 ILCS 5/2.17 (West
1996).
Statutes dealing with the liability of keepers or harborers
of dogs for injury or damage done by them are some of the oldest
statutes enacted in the United States, extending back to the
eighteenth century. Annotation, Who "Harbors" or "Keeps" Dog
Under Animal Liability Statute, 64 A.L.R.4th 963, 969 (1988).
Similar to statutes and municipal ordinances from around the
country, the Illinois Act applies to legal owners as well as
anyone who keeps or harbors a dog. The Act also includes three
other categories of liability under the Act: one who has the dog
in his care; one who acts as a custodian of the dog; and one who
knowingly permits the dog to remain on premises occupied by him.
Rather than being separate and distinct, it would appear that
these three categories are examples of keeper or harborer or, at
the least, usually would be encompassed within the term "keeping"
or "harboring."
It has been stated that:
"The thrust of the Act is to encourage
tight control of animals in order to protect
the public from harm. The statutorily
mandated liability provides first a strong
incentive to prevent one's animals from
harming others. Thus, the Act imposes
penalties against not only an animal's legal
owner, but also against anyone who places
himself in a position of control akin to an
owner. Only secondarily does the Act offer
recompense to those injured." Wilcoxen v.
Paige, 174 Ill. App. 3d 541, 543 (1988).
The question of ownership is often for the trier of fact.
However, in appropriate cases, summary judgment is proper.
Eyrich v. Johnson, 279 Ill. App. 3d 1067, 1071 (1996); Severson
v. Ring, 244 Ill. App. 3d 453, 457 (1993); Papesh v. Matesevac,
223 Ill. App. 3d 189, 191 (1991); Gahm v. Cave, 194 Ill. App. 3d
954, 956 (1990).
The terms
" 'Keeping' or 'harboring' are sometimes
used interchangeably, and there is some
authority that they are equivalent terms ***,
but they are more frequently distinguished,
and it has been said that keeping is more
than limited-time or limited-purpose
harboring ***.
Keeping has a proprietary aspect.
Reference is sometimes made to the keeper's
'dominion' over the dog. Keeping is often
defined in terms of the three Cs-that is,
that keeping is exercising some measure of
care, custody, or control over a dog ***.
Harboring seems to lack the proprietary
aspect of keeping. It is usually defined as
sheltering or giving refuge to a dog ***."
Annotation, Who "Harbors" or "Keeps" Dog
Under Animal Liability Statute, 64 A.L.R.4th
963, 969 (1988).
In Steinberg v. Petta, 114 Ill. 2d 496 (1986), the Illinois
Supreme Court addressed these classifications. "Harbor" is
defined as " '[t]o afford lodging to, to shelter, or to give a
refuge to.' " Steinberg, 114 Ill. 2d at 501, quoting Black's Law
Dictionary 646 (5th ed. 1979). "Keeper" is defined as:
"A harborer of a dog. [Citation.] Any person,
other than owner, harboring or having in his
possession any dog. [Citation.] One who, either
with or without owner's permission, undertakes to
manage, control, or care for it as dog owners in
general are accustomed to do." Steinberg, 114 Ill. 2d at 501, quoting Black's Law Dictionary
780.
Although the Steinberg court did not draw a clear
distinction between keeping and harboring, the opinion does
emphasize that both require some level of care, custody, or
control: "[h]arboring or keeping an animal therefore involves
some measure of care, custody, or control, and it is in those
senses that the terms 'harbor' and 'keep' have been construed."
Steinberg, 114 Ill. 2d at 501.
Regarding an employer's liability for a dog at the work
place, the following is particularly applicable to the instant
case:
"When an employee brings his or her dog
onto the employer's premises, the first
question is whether the dog is there for the
employee's convenience or for the employer's
benefit. If for the employer's benefit, the
employer is probably the dog's keeper ***.
If for the employee's convenience, the
employer is probably not the dog's keeper
***." Annotation, Who "Harbors" or "Keeps"
Dog Under Animal Liability Statute, 64
A.L.R.4th 963, 971 (1988).
B. KEEPER
To establish that one is a keeper of an animal it must be
shown that the person had control over the animal at the time of
the injury or immediately prior to the injury. In describing
this necessary element of control, courts have also used the
terms "custody," "dominion," and "management." That the "Act
contemplates some level of care, control, or custody *** is an
effort by the legislature to place the burden on parties who
might best be in a position to prevent the animal from causing
harm. Extending liability to a noncustodial [party] would
seemingly fly in the face of such a policy." Papesh v.
Matesevac, 223 Ill. App. 3d 189, 192 (1991). " 'The statute
should not be extended beyond its reasonable scope to punish one
who is not in control of the animal.' " Heyen v. Willis, 94 Ill.
App. 2d 290, 295 (1968), quoting Reuter v. Swarthout, 182 Wis.
453, 456, 196 N.W. 847, 848 (1924).
Where a legal owner has custody and control over a dog, he
or she is also its keeper. However, when custody and control are
relinquished to another, that person becomes the keeper subject
to the will of the owner. Thus, a nonowner's control over the
dog and resultant status as a keeper are of a temporal nature.
Although not binding on us, we nevertheless find persuasive the
following analysis from the Supreme Court of Wisconsin from its
detailed discussion of "Who is A 'Keeper' of a Dog?":
" 'Where the keeper is not the owner, it may
be assumed, as a general proposition, that
the dominion or authority of the keeper over
the dog is a limited one, subject to be
terminated at any time by the owner ***. The
moment [the owner removes the dog from the
custody of the keeper], the dual authority
*** is merged in the owner, and at that very
moment the keeper's rights and
responsibilities concerning the dog are at an
end.' " (Emphasis in original.) Armstrong
v. Milwaukee Mutual Insurance Co., 202 Wis.
2d 258, 266, 549 N.W.2d 723, 727 (1996),
quoting Janssen v. Voss, 189 Wis. 222, 224,
207 N.W. 279, 280 (1926).
The focal point is on the time of the incident and not on some
other time period. See Armstrong, 202 Wis. 2d at 266, 549 N.W.2d
at 727 ("[I]t is clear that a person's status as keeper can
change over time, with the focal point being the time of the
injury"); Bevin v. Griffiths, 44 Ohio App. 94, 98, 184 N.E. 401,
403 (1932) (focus on time of injury).
In accord with this principal, Illinois courts have
consistently held that a person's status as keeper is dependent
upon control over the animal at the time of the injury. See
Steinberg v. Petta, 114 Ill. 2d 496, 502-03 (1986) (landlord not
liable for injury caused by tenant's dog); Eyrich v. Johnson, 279
Ill. App. 3d 1067, 1070 (1996) (owner of boar not liable for
injury to farmhand whose job was to care and feed the boar);
Hassell v. Wenglinski, 243 Ill. App. 3d 398, 400, 402 (1993) (dog
owner not liable for injuries to person who was walking dog as
favor to the owner); Papesh, 223 Ill. App. 3d at 191-92 (mother
who purchased dog for her son not liable for injuries occurring
after son and dog moved to father's home); Gahm v. Cave, 194 Ill.
App. 3d 954, 956 (1990) (landowner not liable for injuries caused
by heifer that escaped as it was being unloaded from a truck);
Clark v. Rogers, 137 Ill. App. 3d 591, 593 (1985) (owner of horse
and stable owner not liable for injuries to horse trainer
occurring after trainer took the horse from the barn and
attempted to mount it); Heyen, 94 Ill. App. 2d at 295-96
(landowner not liable for injuries caused by tenants bull).
Applying these principles to the instant case, it is clear
that Robave was not Jake's keeper. Other than Roberts, no one
from Robave exercised custody or control over Jake. Roberts took
the dog for his own convenience, and Jake's presence did not in
any way benefit Robave. See Annotation, Who "Harbors" or "Keeps"
Dog Under Animal Liability Statute, 64 A.L.R.4th 963, 979 (1988).
Even assuming, arguendo, that Robave could somehow be
construed to be Jake's keeper when he was on the premises, the
relationship ended when the business closed and Roberts took the
dog back to his apartment. At this time, any responsibility
Robave may have had ended. See Clark, 137 Ill. App. 3d at 593.
Again, the focus is on the time of the injury. Here, Jake had
been in Roberts' apartment for some four hours prior to the
attack.
We also reject plaintiff's respondeat superior contention
that custody and control of Jake can be imputed to Robave because
Roberts was its agent. Plaintiff contends that because Roberts,
Cave, and Robave shared a single, common mail box, Roberts was
acting on behalf of Robave when he went for the mail because he
would retrieve or, at least, check for Robave's mail in addition
to his own. Thus, according to plaintiff, Roberts was Robave's
agent when he opened the door and his custody and control of Jake
is imputed to the principal Robave.
Initially, we note that plaintiff does not cite any
authority for this novel contention. Moreover, we find without
merit plaintiff's conclusion that Roberts was Robave's agent at
the time he opened the door. On the contrary, Roberts was a
private person in his private apartment. The mere fact that
Roberts was leaving his apartment for a business purpose when
Jake escaped does not change the result. Additionally, Roberts
did not intentionally take Jake along. Rather, Jake ran out when
the door was opened.
Finally, and most importantly, we decline to extend keeper
status to an employer where an employee for his own personal
convenience takes his dog on a business-related errand. Whether
the dog is with the employee on a business errand or taken to the
business premise, the test should be the same: was the dog's
presence merely a personal convenience to the employee or was it
a benefit to the employer? See Annotation, Who "Harbors" or
"Keeps" Dog Under Animal Liability Statute, 64 A.L.R.4th 963,
971, 979 (1988). We believe this interpretation comports with
the notion that because the Act represents a departure from the
common law, it should be narrowly construed in favor of those who
are subject to its operation. Harris v. Walker, 119 Ill. 2d 542,
547 (1988); Docherty v. Sadler, 293 Ill. App. 3d 892 (1997).
C. HARBORER
Unlike keeping, which refers to custody and control,
harboring means to " 'afford lodging to, to shelter, or to give a
refuge to.' " Steinberg v. Petta, 114 Ill. 2d 496, 501 (1986),
quoting Black's Law Dictionary 646 (5th ed. 1979). However,
"merely allowing a dog temporarily on one's premises does not
make the premises owner the dog's keeper or harborer under [the]
statute." Annotation, Who "Harbors" or "Keeps" Dog Under Animal
Liability Statute, 64 A.L.R. 963, 979 (1988). Nor does casual
feeding or watering necessarily equate to harboring. McEvoy v.
Brown, 17 Ill. App. 2d 470, 479 (1958). Rather, harboring is
limited to situations where one " 'provide[s] food and shelter of
at least a semi-permanent nature.' " (Emphasis in original.)
Thompson v. Dawson, 136 Ill. App. 3d 695, 699 (1985), quoting 3A
C.J.S. Animals 205(b), at 710 (1973). An employer that permits
employees to bring dogs onto the employer's premises will only be
found to be a harborer where the dog's presence was for the
employer's benefit rather than the employee's convenience.
Annotation, Who "Harbors" or "Keeps" Dog Under Animal Liability
Statute, 64 A.L.R.4th 963, 991 (1988).
In the instant case, Jake was on the Robave premises solely
as a personal convenience to Roberts. Any food that was given to
Jake was provided by Roberts. Robave did not in any way
contribute to the dog's upkeep. Nor is there any evidence that
Jake's presence benefited Robave. He was not used to guard or
protect the premises. The factual scenario here is dissimilar to
that in Edelstein v. Costelli, 85 Ill. App. 2d 81 (1967)
(abstract of op.), where a building owner was found to be a
harborer. In Edelstein, defendant owned a building and leased
half of it to the dog's owner. Defendant used the other half for
himself. The evidence further showed that the dog was allowed to
roam throughout the building and was used to guard or protect the
entire premises. See also Steinberg, 114 Ill. 2d at 503 (citing
to and distinguishing Edelstein).
It is clear that Robave did not harbor Jake. In ruling as
we do, we reject plaintiff's argument that the close relationship
between Robave and Roberts should result in the entities being
treated as one.
II. COMMON LAW
That Robave is not Jake's legal owner or an "owner" pursuant
to the Act does not necessarily preclude common law tort
liability in negligence or wilful conduct. Severson v. Ring, 244
Ill. App. 3d 453, 458 (1993) (property owner who did not legally
own, keep, or harbor dog could nevertheless be liable in
negligence if aware of dog's vicious propensities). Accord Lucas
v. Kriska, 168 Ill. App. 3d 317, 320 (1988).
However, it is axiomatic that a cause of action in
negligence must allege duty. Facts giving rise to a duty are
where defendant owned, controlled, or otherwise had custody of a
dog, or where defendant is legally responsible for the premises
where the injury occurred. One may also incur liability where he
or she antagonizes or provokes a dog into attacking.
In the instant case, we have concluded that Robave did not
legally own, or have custody or control of Jake. Nor did the
attack occur on Robave's premises. The record is devoid of any
facts that would impose a duty on Robave with respect to Jake.
As such, there can be no liability in negligence or wilful
conduct.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
circuit court of Cook County.
Affirmed.
McNULTY, P.J., and TULLY, J., concur.