Douglass v. Dolan

No. 2--96--0076
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
__________________________________________________________________

DANIEL DOUGLASS, ) Appeal from the Circuit Court
) of McHenry County.
Plaintiff-Appellant, )
) No. 93--LA--224
v. )
)
MICHAEL DOLAN, JANET DOLAN, )
and CAROL DOLAN, a Minor, by )
Michael Dolan and Janet Dolan, )
her Parents and Next Friends, )
Indiv.; MICHAEL DOLAN and JANET )
DOLAN, d/b/a Misty Meadows )
Stable, )
)
Defendants )
)
(Barbara Peterson, Indiv., and )
Thomas Durnan and Karen Durnan, )
Indiv., Defendants-Appellees )
(Edward J. Domalik, Intervening )
Plaintiff and Separate )
Appellant; Daniel Douglass; )
Michael Dolan, Janet Dolan, and )
Carol Dolan, a Minor, by )
Michael Dolan and Janet Dolan, )
her Parents and Next Friends, )
Indiv., and Michael Dolan and )
Janet Dolan, d/b/a Misty )
Meadows Stable, Defendants; ) Honorable
Barbara Peterson, Responding ) James C. Franz,
Defendant-Appellee)). ) Judge, Presiding.
__________________________________________________________________

JUSTICE BOWMAN delivered the opinion of the court:

Pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)),
plaintiff Daniel Douglass and plaintiff-intervenor Edward J.
Domalik appeal the trial court's order granting the separate
summary judgment motions of defendants Barbara Peterson and Thomas
and Karen Durnan (the Durnans). We affirm.
On May 5, 1993, Douglass was injured when "Lady," a horse
which had escaped from her pasture and was running at large,
collided with his motorcycle. Douglass filed a complaint against
Peterson, the Durnans, and Michael Dolan, Janet Dolan, and Carol
Dolan (the Dolans). Domalik, a passenger on the motorcycle,
intervened in the case and filed a complaint against Douglass,
Peterson, and the Dolans. The Dolans are not parties to this
appeal.
Counts I and II of Douglass' complaint were directed against
the Dolans. Count I alleged that the Dolans were the owners and/or
keepers of Lady and that they violated the Illinois Domestic
Animals Running At Large Act (Act) (510 ILCS 55/1 et seq. (West
1992)) by allowing Lady to run at large on May 5, 1993. Count II
alleged that the Dolans acted negligently.
Counts III and IV of Douglass' complaint were directed against
Peterson. Count III alleged that Peterson violated the Act because
she was an owner and/or keeper of Lady. Count IV alleged that
Peterson acted negligently.
Count V of Douglass' complaint was directed against the
Durnans and was based on a claim of negligence. It alleged that
the Durnans owned, maintained, and controlled the property from
which Lady escaped and that they had a duty to ensure that Lady
could not gain access to public highways from the property. It
further alleged that the Durnans breached this duty by failing to
keep Lady on the property and by failing to construct, erect, and
maintain a fence which could have prevented Lady from wandering off
the property.
Count I of Domalik's complaint was directed against Douglass
and was based on a claim of negligence. Counts II and III of the
complaint were directed against the Dolans. Counts I, II, and III
are not at issue on appeal. Counts IV and V were directed against
Peterson. Count IV was based on the Act and mirrored count III of
Douglass' complaint; count V was based on common-law negligence and
mirrored count IV of Douglass' complaint.
The following uncontested facts are from the various
depositions and affidavits of the parties taken during discovery.
Peterson had Lady "foaled" in 1987. At Lady's birth, Peterson
obtained a "Certificate of Foal Registration" from the Jockey Club,
which certified her ownership of Lady. The bottom of the
certificate contains the following statements: "Certificate to be
preserved and transferred to purchaser gratis if this horse is
sold. Possession and presentation of this certificate is a
requirement to race or breed the horse it identifies."
On September 1, 1992, Peterson sold Lady to Carol Dolan, the
minor daughter of Janet and Michael Dolan, for $700. Carol Dolan
gave Peterson $50 as a down payment and agreed to pay the remaining
$650 in installments. Carol Dolan also agreed to pay the full
amount owed to Peterson if she resold Lady. On the day of the
sale, Peterson prepared and signed the following handwritten "bill
of sale":
"I have sold to Carol Dolan one bay mare, thoroughbred,
registered name Lady Coopersteen, for the sum of $700.00.
I have received $50.00 cash down payment with the rest of
the amount to be made in payments. The balance is due
immediately if the horse is transferred or sold by her to
any other party."
At the time of the sale, Peterson recorded the transfer of
ownership of Lady in the appropriate space on the "Certificate of
Foal Registration." Peterson retained possession of the
certificate "for security," although she intended to give it to
Carol Dolan after she had been paid in full for Lady. After the
sale, Carol Dolan took possession of Lady, and Peterson neither
housed Lady on her property nor incurred any expenses associated
with Lady's maintenance. As of the date of the accident, Carol
Dolan still owed Peterson $170.
On August 5, 1994, Peterson filed a motion for summary
judgment regarding counts III and IV of Douglass' complaint and
counts IV and V of Domalik's complaint. Peterson argued that she
was not an owner or keeper of Lady at the time of the accident. On
May 22, 1995, the Durnans filed a motion for summary judgment
regarding count V of Douglass' complaint. The Durnans argued that
count V failed to state a cause of action because they did not owe
a duty to Douglass.
On July 27, 1995, the trial court entered an order granting
Peterson's and the Durnans' motions for summary judgment. Douglass
appeals the trial court's order granting both motions; Domalik
appeals only that part of the order which granted Peterson summary
judgment on counts IV and V of his complaint.
There are two issues on appeal: (1) whether the Durnans owed
Douglass a duty of care; (2) whether a genuine issue of material
fact exists as to whether Peterson was an owner of Lady at the time
of the accident. We note that the first issue relates solely to
count V of Douglass' complaint against the Durnans, whereas the
second issue relates to count III and IV of Douglass' complaint and
counts IV and V of Domalik's complaint.
This is an appeal of summary judgments entered pursuant to
section 2--1005 of the Code of Civil Procedure (Code) (735 ILCS
5/2--1005 (West 1994)). Summary judgment is appropriate where
there is no genuine issue of material fact and the moving party's
right to judgment is clear and free from doubt. Espinoza v. Elgin,
Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). To aid in
this determination, the trial court must consider the affidavits,
depositions, admissions, exhibits, and pleadings on file and
construe them strictly against the movant and liberally in favor of
the nonmovant. Allstate Insurance Co. v. Smiley, 276 Ill. App. 3d
971, 976 (1995). Where reasonable persons could draw divergent
inferences from the undisputed material facts or where there is a
dispute as to a material fact, summary judgment should be denied,
and the issue decided by the trier of fact. Smiley, 276 Ill. App.
3d at 977. In cases involving summary judgment, we conduct a de
novo review of the evidence in the record. Espinoza, 165 Ill. 2d
at 113.
The first issue on appeal is whether the Durnans owed Douglass
a duty of care. Douglass argues that the Durnans owed him such a
duty because they owned, maintained, and controlled the property
from which Lady escaped. The Durnans respond that only the owners
or keepers of estray animals have a duty to guard against injuries
caused by their estray animals. After reviewing the Act and the
relevant case law, we conclude that the Durnans did not owe a duty
to Douglass.
Initially, we note that Douglass argues that we should review
the order granting the Durnans' motion for summary judgment under
the standard of review for section 2--615 motions to dismiss (see
735 ILCS 5/2--615 (West 1994)) because the motion argued that the
complaint failed to state a cause of action. Although a section
2--615 motion is the proper method to dismiss a complaint for
failure to state a cause of action (see Barber-Colman Co. v. A&K
Midwest Insulation Co., 236 Ill. App. 3d 1065, 1068 (1992) ("A
motion to dismiss under section 2--615 attacks only the legal
sufficiency of the complaint"), a court may enter summary judgment
where there is no showing of the existence of a duty on the part of
the defendant to the plaintiff (Lewis v. Royal Globe Insurance Co.,
170 Ill. App. 3d 516, 523 (1988)). In any event, the dispute
between which standard of review to apply is immaterial in this
case. Even under the section 2--615 standard of review, we would
conclude that the Durnans did not owe a duty to Douglass.
Section 1 of the Act, which was first enacted in the 1870s,
provides that no person or owner of livestock shall allow livestock
to run at large in the State. 510 ILCS 55/1 (West 1992). Section
1 further provides:
"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 1992).
Section 1.1 defines "owner" as "any person who (a) has a right of
property in an animal, (b) keeps or harbors an animal, (c) has an
animal in his care, or (d) acts as custodian of an animal." 510
ILCS 55/1.1 (West 1992).
Under Illinois decisional law, liability for injuries caused
by estrays must be predicated on the Act. See Smith v. Gleason,
152 Ill. App. 3d 346, 348 (1987); Heyen v. Willis, 94 Ill. App. 2d
290, 296 (1968). Thus, unless a landowner is an owner or keeper of
livestock as contemplated by the Act, the landowner has no common-
law duty to guard against injuries to persons caused by livestock
which escaped from the landowner's property. Smith, 152 Ill. App.
3d at 348; Heyen, 94 Ill. App. 2d at 296-97.
In this case, count V of Douglass' complaint is a claim based
on common-law negligence. Count V alleges that the Durnans owned,
maintained, and controlled the property from which Lady escaped and
that the Durnans had a duty to ensure that Lady could not gain
access to public highways. Count V is not predicated on the Act,
and it does not allege that the Durnans were Lady's "owners," as
that word is used by the Act. As such, count V fails to allege
that the Durnans owed a duty to Douglass. The trial court
therefore properly granted the Durnans' motion for summary
judgment. See Smith, 152 Ill. App. 3d at 348; Heyen, 94 Ill. App.
2d at 296-97.
Douglass maintains that Smith and Heyen wrongly held that
liability for injuries caused by estrays must be predicated on the
Act. According to Douglass, the Act does not preempt common-law
actions against landowners.
We disagree. The issue is not one of "preemption," but rather
whether Illinois law has ever imposed liability on landowners for
injuries caused by livestock which escaped from the landowners'
property. If Illinois law does not impose liability in such a
situation and if the Act does not apply, then count V of Douglass'
complaint fails to state a cause of action.
Under English common law, every owner of livestock was bound
to keep them from trespassing on the close of another. Bulpit v.
Matthews, 145 Ill. 345, 349 (1893). Our supreme court, however,
has expressly held that an owner of livestock is not liable for
injuries or damages caused by his estray. See, e.g., Bulpit, 145
Ill. at 350-51; Illinois Central R.R. Co. v. Arnold, 47 Ill. 173,
174 (1868); Seeley v. Peters, 10 Ill. 130, 142-43 (1848). As
explained in Seeley:
"However well adapted the rule of the common law may be to
a densely populated country like England, it is surely but
ill adapted to a new country like ours. *** This State is
unlike any of the eastern States in their early settlement,
because, from the scarcity of timber, it must be many years
yet before our extensive prairies can be fenced, and their
luxuriant growth sufficient for thousands of cattle must be
suffered to rot and decay where it grows, unless the
settlers upon their borders are permitted to turn their
cattle upon them.
* * *
*** Settlers have located themselves contiguous to
prairies for the very purpose of getting the benefit of the
range. The right of all to pasture their cattle upon
uninclosed ground is universally conceded." Seeley, 10 Ill. at 142.
As noted, Smith and Heyen held that a landowner also has no
common-law duty to guard against injuries to persons caused by
livestock which escaped from the landowner's property. See Smith,
152 Ill. App. 3d at 348; Heyen, 94 Ill. App. 2d at 296. Outside of
Smith and Heyen, the parties have not cited, and we have not
located, any case which dealt with whether a landowner was liable
for injuries caused by an estray which escaped from the landowner's
property. Nonetheless, we believe, as the Smith and Heyen courts
apparently believed, that if an owner of an estray is not liable
for injuries caused by the estray, then a landowner, who generally
exercises less control over an estray than the owner, also is not
liable for injuries caused by the estray. Absent case law to the
contrary, we hold that Smith and Heyen were properly decided and
are applicable to the case at bar. Of course, liability may still
be imposed on a landowner under the Act if the landowner is an
"owner or keeper" of the livestock.
Douglass also distinguishes Smith and Heyen on the ground that
the landowners in those cases leased the property to the livestock
owners, whereas in this case he alleged that the Durnans owned,
maintained, and controlled the property from which Lady escaped.
Besides mentioning this distinction, however, Douglass fails to
explain why the distinction is relevant. In any case, there is
nothing in Smith and Heyen to suggest that they would have been
decided differently if the plaintiffs had alleged that the
defendants maintained and controlled the property. As such, Smith
and Heyen are applicable in the present case.
Finally, we briefly note Douglass' concern that following
Smith and Heyen in this case "would be to declare open season on
motorists in McHenry County (and elsewhere in the State of
Illinois)." However, as the Heyen court recognized:
"The likelihood of injury or damage from estrays, and the
attendant duty to use care to prevent such injury or damage,
lies not in the place where animals may be kept but in their
propensity to roam, their wanderlust. Thus, the duty to
guard against injury or damage by estrays is cast by law
upon the owner or keeper of the animals, and liability for
injury or damage caused by them must be predicated on [the
Act]." 94 Ill. App. 2d at 296.
We agree with these sentiments and, accordingly, affirm the trial
court's order entering summary judgment in favor of the Durnans on
count V of Douglass' complaint.
The second issue on appeal is whether a genuine issue of
material fact exists as to whether Peterson was an owner of Lady at
the time of the accident. The Act imposes liability on all owners
or keepers of livestock running at large. 510 ILCS 55/1 (West
1992). The Act defines "owner" as "any person who (a) has a right
of property in an animal, (b) keeps or harbors an animal, (c) has
an animal in his care, or (d) acts as custodian of an animal."
(Emphasis added.) 510 ILCS 55/1.1 (West 1992).
Douglass and Domalik argue that a genuine issue of material
fact exists regarding whether Peterson had a "right of property" in
Lady and, thus, whether she was an owner of Lady. In support of
their position, Douglass and Domalik direct our attention to the
following evidence: (1) Carol Dolan only made a $50 down payment on
Lady, with the balance owed to be paid in installments; (2)
Peterson intended to retain the "Certificate of Foal Registration"
until she had been paid in full; (3) the certificate stated that it
was to be transferred to the purchaser if the horse was sold; and
(4) if Carol Dolan sold Lady, any balance owed to Peterson was due
immediately. Douglass and Domalik maintain that this evidence
generates a triable issue of fact.
None of the parties have cited, and we have not located, any
case which defines "right of property" as that phrase is used in
section 1.1 of the Act. Despite this absence of case law, we are
satisfied that no genuine issue of material fact exists regarding
whether Peterson had a "right of property" in Lady at the time of
the accident. The evidence reveals that Carol Dolan agreed to pay
$700 for Lady, that she made a $50 down payment on Lady on the day
of the sale, that she took possession of Lady about two days after
the sale, and that Peterson was not responsible for any of Lady's
expenses after Carol Dolan took possession of her. The evidence
further demonstrates that Carol Dolan had the right to resell or
breed Lady at her discretion after the sale. Finally, Peterson
made a contemporaneous recording of the transfer of ownership to
Carol Dolan in the appropriate place on the certificate. Under
these circumstances, Peterson did not have a "right of property" in
Lady.
The fact that Peterson was still owed part of the purchase
price of Lady, or that she was entitled to be paid if Lady was
resold, is irrelevant. These "rights" were not "rights of
property" in Lady. Rather, they were rights which Peterson could
enforce in a breach of contract action against Carol Dolan if she
failed to pay the entire purchase price.
Similarly, it is irrelevant that Peterson retained the
certificate after the sale. By its terms, as well as Peterson's
deposition testimony, a certificate is only necessary if the horse
is going to be raced or bred. There is no evidence to suggest that
Peterson's possession of the certificate, particularly in light of
the fact that the transfer of ownership was recorded on it, created
an enforceable right in Lady. In fact, the parties do not dispute
that Carol Dolan had the right to resell Lady at her discretion.
As a result, the facts of this case admit of one reasonable
conclusion: Peterson did not have a "right of property" in Lady.
The trial court therefore properly entered summary judgment for
Peterson on counts III and IV of Douglass' complaint and counts IV
and V of Domalik's complaint.
For the foregoing reasons, the judgment of the circuit court
of McHenry County is affirmed.
Affirmed.
GEIGER, P.J., and RATHJE, J., concur.