Goennenwein v. Rasof

No. 2--97--0721
________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

LAUREN GOENNENWEIN, a Minor, by ) Appeal from the Circuit Court
her Guardian, Father, and Next ) of Lake County.
Friend, Harry Goennenwein, )
)
Plaintiff-Appellant, ) No. 95--L--1974
)
v. )
)
MADELYN RASOF, )
)
Defendant-Appellee )
) Honorable
(Jeffrey Rasof and Steven Rasof,) Charles F. Scott,
Defendants). ) Judge, Presiding.
________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:

Plaintiff, Lauren Goennenwein, by her father, Harry
Goennenwein, appeals the entry of summary judgment for defendant,
Madelyn Rasof, in plaintiff's personal injury action. On appeal,
plaintiff raises two issues: whether the trial court erred in
finding that defendant was not an owner of the dog that injured
plaintiff; and whether issues of fact existed concerning whether
plaintiff knew or should have known of the dog's allegedly dangerous
propensities. According to the second amended complaint,
defendant's sons, Jeffrey and Steven Rasof, owned a Rottweiler that
bit plaintiff on the face at defendant's home. Defendant allegedly
was an owner of the dog under the Animal Control Act (Act) (see
510 ILCS 5/2.16 (West 1996)) because she harbored it in her home.
In the alternative, the second amended complaint alleged that
defendant was negligent in that she kept or harbored a vicious dog,
acted as a custodian of a vicious dog, knowingly permitted a vicious
dog to remain on the premises, failed to warn plaintiff of the
presence of the dog, failed to control the dog, allowed the vicious
dog to be present, and allowed the dog to attack and bite plaintiff.
Defendant moved for summary judgment, arguing that she was not
the owner of the dog and she had no knowledge of its vicious
propensities. The undisputed facts from the depositions revealed the
following.
The dog, Buddy, was purchased by two of defendant's sons,
Jeffrey and Steven. Steven had given up his interest in the dog to
Jeffrey. Defendant lived in Buffalo Grove, and Jeffrey resided in
an apartment in Chicago. Defendant invited her four sons and their
dates to a Passover dinner at her house. Four-year-old plaintiff
and her mother Lissette were guests of defendant's son Alan.
According to Lissette, when she talked on the phone with defendant
before the dinner, defendant indicated that she would confine her
own dogs, a toy poodle and a female Rottweiler.
About an hour before the other guests arrived for the dinner,
Jeffrey came to defendant's house with Buddy. Defendant was not
aware that Jeffrey was going to bring the dog, but she did not tell
Jeffrey to take the dog home. When Alan, Lissette, and plaintiff
arrived, Buddy jumped on Alan in a friendly greeting. For about an
hour before dinner, Buddy wandered around the house and did not
growl, snarl, or threaten anyone. Someone provided him with water,
and Jeffrey gave him food during dinner. After dinner, plaintiff
got up from the table and, as she was walking past Buddy, he lunged
at her, knocked her down, and bit her face.
In her deposition, Lissette testified to an incident in which
Buddy jumped on her when she was hugging Alan. However, defendant
was not present for the incident, and there was no evidence that
defendant was aware of it. Lissette also testified that Alan told
her that his grandmother was not coming to the dinner because a
couple of weeks earlier Buddy had nipped her hand and she did not
want to be around the dog. By contrast, both defendant and Steven
testified that the grandmother was not coming to the dinner because
she was spending the holiday with another one of her children.
Defendant testified that she did not know Buddy would be at the
dinner until Jeffrey showed up with the dog. While Lissette stated
that plaintiff did not have food when she walked by the dog,
Lissette admitted that she did not see the attack.
Defendant testified that Buddy was at her house during an
earlier dinner party which was uneventful. Defendant denied that
either Alan or Lissette asked her to confine Buddy. According to
defendant, plaintiff threw food to Buddy during dinner. Defendant
was not aware that Buddy had bitten anyone before this incident.
According to Steven, Buddy was a friendly dog who had never
bitten anyone. He did not growl at people but did display
aggression with other dogs. Steven's grandmother is afraid of large
dogs, but he did not hear that she had been bitten by Buddy. Steven
further testified that he saw plaintiff feeding Buddy pieces of
turkey. When plaintiff tried to squeeze past Buddy, she was
carrying a piece of turkey up by her mouth, and Buddy growled and
went for it. Steven jumped up and pulled the dog off of plaintiff.
At the time of the incident, Buddy was about a year old and weighed
over 100 pounds.
Plaintiff, who was six years old at the time of her deposition,
could not recall much about the incident. She denied that she was
holding any food when the dog bit her, but she could not remember
what she was doing at the time other than walking towards the
kitchen. She also denied that the dog growled at her before it bit
her or that she had given it any food.
The trial court granted summary judgment to defendant on those
counts of the complaint that were against her, and it made a Supreme
Court Rule 304(a) (155 Ill. 2d R. 304(a)) finding. Plaintiff timely
appealed.
Summary judgment is proper when the pleadings, affidavits, and
other documents on file, construed in favor of the nonmovant, show
that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law. Espinoza v. Elgin, Joliet
& Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995). Summary judgment
is a drastic means of resolving litigation and should be allowed
only when the right of the moving party to judgment is clear and
free from doubt. Espinoza, 165 Ill. 2d at 113. While a plaintiff
need not prove her case at the summary judgment stage, she must
come forward with some facts that would arguably entitle her to
judgment. Jones v. Minster, 261 Ill. App. 3d 1056, 1059 (1994).
We review the entry of summary judgment de novo. In re Estate of
Hoover, 155 Ill. 2d 402, 411 (1993).
Plaintiff first contends that the trial court erred in granting
summary judgment on the count alleging that defendant was the owner,
under the Act, of the dog that bit plaintiff. Under section 16 of
the Act, an owner is liable if a dog, without provocation, attacks
a person in a place where he may be lawfully. 510 ILCS 5/16 (West
1996). The Act defines an owner in the following manner:
[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).
Whether the defendant is an owner of the animal normally is a
question of fact; however, where the undisputed facts show no
genuine issue, the court may grant summary judgment. See Eyrich v.
Johnson, 279 Ill. App. 3d 1067, 1070 (1996).
Plaintiff claims that because defendant knowingly permit[ted]
the dog to be on her property, she should be considered an owner.
We disagree. Although the primary goal of the Act is to encourage
tight control of animals for the protection of the public, there
must be a factual and reasonable basis to impose liability. Meyer
v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 148 (1994).
Plaintiff asserts that the Act creates three separate categories of
liability: one who cares for an animal, one who acts as its
custodian, and one who knowingly permits it to remain on his or her
premises. However, [r]ather than being separate and distinct, it
would appear that these three categories are examples of keeper or
harborer. Frost v. Robave, Inc., No. 1--97--2105, slip op. at ___
(1st Dist. April 21, 1998). Merely allowing an animal to be
temporarily on one's premises does not make the landowner a keeper
or harborer of the animal. Frost, slip op. at ___.
Severson v. Ring, 244 Ill. App. 3d 453 (1993), which defendant
cites, is factually on point. In Severson, the owner of the dog
left it tied to a tree in the defendant's yard while the owner went
to cut the grass at the defendant's mother's house. This was the
second time the defendant had permitted the dog to be on her
property. The defendant did not care for the dog or give it food
or water. About a half hour after the dog was left on the
defendant's property, it bit a child. The appellate court ruled
that the defendant was not an owner of the dog, as the term
'owner' has been consistently construed to involve some measure of
care, custody or control. Severson, 244 Ill. App. 3d at 457. As
the defendant did not control or have custody of the dog, the court
determined that the defendant was not an owner.
The facts here are even less compelling for ownership, as
Buddy's owner remained on the premises and was taking care of the
dog at the time of the attack. We believe that, where the owner of
the animal is present and in control of it, the property owner
cannot be considered an owner under the Act merely because the
property owner has permitted the animal to be on the premises.
Plaintiff's interpretation of section 16 is diametrically opposed
to that of our supreme court. In Steinberg v. Petta, 114 Ill. 2d 496 (1986), the court interpreted this section as extending
liability only to one who harbors an animal. Steinberg, 114 Ill. 2d at 500. The court further explained that harboring an animal
involves some measure of care, custody, or control. Steinberg,
114 Ill. 2d at 501. The court determined that an absentee landlord,
who permitted a dog to be present on his property, was not an owner
under the statute. Steinberg, 114 Ill. 2d at 502. Because
defendant exercised no degree of care, custody, or control over
Buddy, as a matter of law, she was not Buddy's owner.
Plaintiff next contends that the court erred in granting
summary judgment on the count alleging common-law negligence against
defendant. Plaintiff asserts that there were issues of fact whether
defendant knew or should have known that Buddy presented a danger
to plaintiff.
It is presumed that a dog is tame, docile, and harmless absent
evidence that the dog has demonstrated vicious propensities. Lucas
v. Kriska, 168 Ill. App. 3d 317, 320 (1988). To impose a duty on
defendant, plaintiff needed to establish that defendant knew or had
reason to know that the dog would be dangerous to children. See
Lucas, 168 Ill. App. 3d at 320. Because a dog ordinarily is not a
danger to children (see Lucas, 168 Ill. App. 3d at 320), plaintiff
needed to come forward with evidence to show that defendant knew
that Buddy was a danger to children. This plaintiff has failed to
do. Instead, she argues that, merely because Buddy is a young, male
Rottweiler, defendant should have known there was a danger.
We disagree with plaintiff's assertion that it is common
knowledge that the Rottweiler breed is dangerous. We will not
malign a breed on the basis of hysteria or rumor, and under Illinois
law, each dog is to be evaluated individually and is not to be
classified as 'vicious' merely because of its breed or type.
People v. Riddle, 258 Ill. App. 3d 253, 260-61 (1994).
Moreover, that defendant confined her own Rottweiler is
indicative of nothing, as she also confined her toy poodle.
Similarly, the evidence plaintiff cites to support her assertion
that Buddy was at a stage of adolescence associated with aggressive
behavior also fails to raise an issue of fact as to defendant's
knowledge. There is no evidence that defendant ever saw the
documents to which plaintiff refers, and, in any event, these
statements describe dog development in general, not just the
development of the Rottweiler, and defendant's dog was younger than
Buddy.
The undisputed facts show that Buddy was friendly or at worst
indifferent to the guests. He did not growl, snarl, or threaten
anyone in the two hours prior to the attack. He did not chase or
bother plaintiff at any time before that. At a prior dinner party
at defendant's residence when Buddy was present, he caused no
problems. We conclude that plaintiff failed to come forward with
evidence to raise an issue of fact as to defendant's knowledge of
the dog's alleged dangerousness.
We therefore affirm the judgment of the circuit court of Lake
County.
Affirmed.
GEIGER, P.J., and McLAREN, J., concur.