Dzierwa v. Ori

2020 IL App (2d) 190722

171 N.E.3d 570

446 Ill.Dec. 753

Jamie DZIERWA, Plaintiff-Appellant,

v.Joseph ORI, Elisabeth Ori, and Brad Hoebel, Defendants

(Joseph Ori and Elisabeth Ori, Defendants-Appellees).

No. 2-19-0722

Appellate Court of Illinois, Second District.

Opinion filed October 7, 2020

Joseph LaRocco, of Law Offices of Francis J. Discipio, Ltd., of Oak Brook, for appellant.

Andrea R. Zenker, of Higgins & Burke, P.C., of St. Charles, for appellees.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Jamie Dzierwa, brought suit against defendants, Joseph Ori, Elisabeth Ori, and Brad Hoebel, seeking recovery for injuries sustained when the Oris' dog, a 105-pound cane corso named Fiona, bit her. Dzierwa asserted claims under a theory of negligence and under the Animal Control Act (Act) ( 510 ILCS 5/1 et seq. (West 2018)). The Oris moved for summary judgment on the claims against them. The trial court granted the motion, and Dzierwa brought this appeal.¹ We affirm.

¶ 2 I. BACKGROUND

¶ 3 Dzierwa's injury occurred at the Oris' home on July 25, 2015. The Oris were out of town and Hoebel, who is Elisabeth's brother, was house-sitting and taking care of Fiona. According to depositions submitted in support of the Oris' summary judgment motion, before leaving town, Elisabeth instructed Hoebel to "feed [Fiona] and walk her and give her love." Hoebel had taken care of Fiona on a few prior occasions. Dzierwa and several others were visiting the Oris' home at Hoebel's invitation. At her deposition, Elisabeth testified that she was aware that Hoebel had friends over at the Oris' home on prior occasions. On the other hand, Joseph testified that Hoebel was told not to have anyone visit the home other than Hoebel's girlfriend.

¶ 4 Fiona had never bitten anyone or exhibited aggressive behavior prior to biting Dzierwa. She did not typically jump on visitors to the Oris' home. As of March 2018, when Elisabeth gave her deposition, the Oris had owned Fiona for seven years. Some children were fearful of Fiona and the Oris would keep Fiona and those children apart. Otherwise, the Oris did not generally keep Fiona away from guests. Elisabeth testified that Fiona would growl at people "[f]rom the car, through the window." Joseph testified that Fiona would growl through the window when strangers approached the Oris' home. Fiona did not like other dogs and would bark at them. On one occasion in 2015, prior to injuring Dzierwa, Fiona got into a fight with another dog at a dog park.

¶ 5 II. ANALYSIS

¶ 6 We first consider whether the trial court erred in entering summary judgment for the Oris on Dzierwa's common-law negligence claim. Summary judgment will be entered "if 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 2018). "A genuine issue of material fact precluding summary judgment exists where the material facts are disputed, or, if the material facts are undisputed, reasonable persons might draw different inferences from the undisputed facts." Adames v. Sheahan , 233 Ill. 2d 276, 296, 330 Ill.Dec. 720, 909 N.E.2d 742 (2009). Rulings on summary judgment motions are subject to de novo review. Lewis v. Lead Industries Ass'n , 2020 IL 124107, ¶ 15.

¶ 7 The elements of a cause of action for negligence are "the existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by that breach." Marshall v. Burger King Corp. , 222 Ill. 2d 422, 430, 305 Ill.Dec. 897, 856 N.E.2d 1048 (2006). In a negligence action arising from an injury caused by a dog, the plaintiff must prove that the defendant "knew or had reason to know the dog would be dangerous." (Internal quotation marks omitted.) Sedlacek v. Belmonte Properties, LLC , 2014 IL App (2d) 130969, ¶ 21, 384 Ill.Dec. 485, 16 N.E.3d 878.

¶ 8 Dzierwa argues that summary judgment was improper because the deposition testimony shows that the Oris knew or had reason to know of Fiona's vicious propensities. She points to the testimony that Fiona had gotten into a fight with another dog at a dog park. However, fights between dogs do not presage attacks on humans. See Keightlinger v. Egan , 65 Ill. 235, 237 (1872) ("To charge the defendant, he must have had knowledge of the dog's propensity to do similar mischief—that is, to bite mankind, and not animals only."); Klitzka v. Hellios , 348 Ill. App. 3d 594, 601, 284 Ill.Dec. 599, 810 N.E.2d 252 (2004) (altercations with unfamiliar dogs did not indicate that dog was a danger to children). Dzierwa also points to testimony that Fiona growled when people came to the door. Dzierwa cites no Illinois case law holding that the owner of a dog who growls at people is on notice that the dog poses a threat to humans, and we have found none. However, we agree with courts in other jurisdictions that have declined to so hold. See, e.g. , Hiner v. Mojica , 271 Mich.App. 604, 722 N.W.2d 914, 919 (2006) ("While the evidence indicated that defendant's dog was barking, snarling, and jumping toward * * * plaintiff [and a coworker], the evidence did not establish that the dog was abnormally vicious, or that the dog had unusually dangerous propensities of which defendant knew or should have known."); Fontanas v. Wilson , 300 A.D.2d 808, 751 N.Y.S.2d 656, 657 (2002) (evidence "establish[ing] nothing more than the fact that defendants own a large dog who barks or growls when strangers approach his owners or his property" was insufficient to establish vicious propensities). Because there is no evidence that the Oris knew or had reason to know that Fiona was dangerous, they were entitled to judgment as a matter of law on Dzierwa's common-law negligence claim.

¶ 9 We next consider whether it was error to enter summary judgment on Dzierwa's claim under the Act. Section 16 of the Act provides:

"If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby." 510 ILCS 5/16 (West 2018).

"Owner" means "any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog to remain on any premises occupied by him or her." Id. § 2.16.

¶ 10 Although it would seem from the Act's language that it would impose strict liability on anyone with a property interest in the dog, courts have read the Act to " ‘require a factual or reasonable basis for liability.’ " Hayes v. Adams , 2013 IL App (2d) 120681, ¶ 13, 369 Ill.Dec. 775, 987 N.E.2d 402 (quoting Wilcoxen v. Paige , 174 Ill. App. 3d 541, 543, 124 Ill.Dec. 213, 528 N.E.2d 1104 (1988) ). Thus, the Act "has been held not to apply in several situations where the plaintiff has brought himself or herself within its express terms." Id. ¶ 14.

¶ 11 In Hayes , we held that the legal owner of a dog could not be held liable for an injury it caused where "she was not in a position to control the dog or prevent the injury." Id. ¶ 20. In Hayes , the defendant brought the dog to a veterinary clinic for a surgical procedure. A clinic employee took the dog for a walk before the procedure, using a leash owned by the clinic. The dog escaped from the leash, ran away, and bit the plaintiff, who was trying to catch the dog. Because the defendant "relinquished care, custody, and control to the veterinary clinic, and there was nothing to indicate that she had any reason to believe that the clinic would allow the dog to escape or that the dog would bite someone" ( id. ), there was no reasonable basis for imposing liability. Similarly, the Oris relinquished care, custody, and control of Fiona to Hoebel, and, as explained in connection with Dzierwa's common-law negligence claim, the Oris had no reason to believe that Fiona would pose a danger to Hoebel's guests.

¶ 12 In an effort to distinguish Hayes , Dzierwa argues that, unlike the defendant in Hayes , the Oris "controlled the human traffic to which the dog would be exposed." The argument is unpersuasive. The Oris relinquished full control over Fiona, giving Hoebel broad discretion to make decisions as to how to care for her and protect others from violent encounters with her. That discretion extended to determining whether and how to limit Fiona's contact with other people. Dzierwa's argument seems to be that the Oris had control over Fiona because they had control over how much discretion to give Hoebel to control Fiona. That sort of indirect control is not sufficient to impose liability under the Act. One of the principal cases upon which Hayes relied— Carl v. Resnick , 306 Ill. App. 3d 453, 239 Ill.Dec. 443, 714 N.E.2d 1 (1999) —supports our conclusion. In Carl , Judy Carl (the plaintiff), Shelly Resnick (the defendant), and a third woman, Kathy Paddock, were riding horses. Resnick owned the horses that Carl and Paddock were riding. Carl was injured when the horse that Paddock was riding kicked her. The Carl court concluded that, for purposes of liability under the Act,...