{ "id": 847604, "name": "DAVID B. DOCHERTY, as Father and Next Friend of Philip M. Docherty, a Minor, et al., Plaintiffs-Appellants, v. ROGER L. SADLER, Defendant-Appellee", "name_abbreviation": "Docherty v. Sadler", "decision_date": "1997-12-31", "docket_number": "No. 4\u201497\u20140229", "first_page": "892", "last_page": "897", "citations": [ { "type": "official", "cite": "293 Ill. App. 3d 892" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "634 N.E.2d 411", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "416", "parenthetical": "finding one who voluntarily assumes control of an animal places himself in the position of the owner" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850303 ], "year": 1994, "pin_cites": [ { "page": "149", "parenthetical": "finding one who voluntarily assumes control of an animal places himself in the position of the owner" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0141-01" ] }, { "cite": "665 N.E.2d 878", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1996, "pin_cites": [ { "page": "879" }, { "page": "880" }, { "page": "880" } ], "opinion_index": 0 }, { "cite": "279 Ill. App. 3d 1067", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 75231 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "1068-69" }, { "page": "1070-71" }, { "page": "1070-71" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/279/1067-01" ] }, { "cite": "612 N.E.2d 64", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1993, "pin_cites": [ { "page": "64-65" }, { "page": "66" }, { "page": "66" }, { "page": "66" } ], "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108881 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "399" }, { "page": "402" }, { "page": "402" }, { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/243/0398-01" ] }, { "cite": "528 N.E.2d 1104", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1988, "pin_cites": [ { "page": "1105" }, { "page": "1106" }, { "page": "1106" }, { "page": "1106" }, { "page": "1106" } ], "opinion_index": 0 }, { "cite": "501 N.E.2d 1263", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "1266", "parenthetical": "absentee landlord who allowed tenant to have a pet on the premises was not an owner because he was not a harborer or a keeper, and therefore not subject to liability under the Act" }, { "page": "1266" } ], "opinion_index": 0 }, { "cite": "114 Ill. 2d 496", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542239 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "502", "parenthetical": "absentee landlord who allowed tenant to have a pet on the premises was not an owner because he was not a harborer or a keeper, and therefore not subject to liability under the Act" }, { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0496-01" ] }, { "cite": "519 N.E.2d 917", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "918" }, { "page": "919" }, { "page": "919" } ], "opinion_index": 0 }, { "cite": "119 Ill. 2d 542", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193584 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "547" }, { "page": "547" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0542-01" ] }, { "cite": "615 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "51" }, { "page": "51" } ], "opinion_index": 0 }, { "cite": "245 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5385376 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "583" }, { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/245/0580-01" ] } ], "analysis": { "cardinality": 605, "char_count": 11460, "ocr_confidence": 0.773, "pagerank": { "raw": 8.11466995427655e-08, "percentile": 0.4680269004100239 }, "sha256": "adb6175deed80f9069d1732787e8cb9e4af8c3f86e780c973557dbbca5287a38", "simhash": "1:9bb8127afbe4a884", "word_count": 1968 }, "last_updated": "2023-07-14T15:37:50.535591+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DAVID B. DOCHERTY, as Father and Next Friend of Philip M. Docherty, a Minor, et al., Plaintiffs-Appellants, v. ROGER L. SADLER, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nMinor plaintiff, Philip Docherty, was injured when defendant\u2019s dog collided with him. Minor plaintiff\u2019s father brought a complaint under the Animal Control Act (Act) (510 ILCS 5/1 et seq. (West 1996)). Defendant moved to dismiss, stating minor plaintiff was an \"owner\u201d for purposes of the Act and thereby exempt from protection under the Act. The trial court granted defendant\u2019s motion and dismissed the complaint with prejudice. Plaintiffs appeal, arguing minor plaintiff was not clearly aware of the risks that ultimately produced the injury and could not have assumed the risk of injury.\nI. BACKGROUND\nIn November 1996, plaintiffs and defendant were neighbors. Defendant made arrangements for 10-year-old minor plaintiff Philip Docherty and his 12-year-old sister to care for defendant\u2019s dog. Defendant was to be out of town for five days.\nMinor plaintiff was taken to defendant\u2019s home and shown the location of the items necessary to care for the dog. Minor plaintiff was to feed the dog and provide it with water. Later that evening, after defendant had left his residence, minor plaintiff and his sister returned, letting the dog out into the backyard. The dog ran around the corner of the house and, on its return, collided with minor plaintiff. Plaintiffs alleged severe and permanent injuries.\nThe Act states, in relevant part:\n\"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.\u201d 510 ILCS 5/16 (West 1996).\nAdditionally, the Act provides:\n\" 'Owner\u2019 means any 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.\u201d (Emphasis added.) 510 ILCS 5/2.16 (West 1996).\nThe trial court found minor plaintiff to be an \"owner\u201d of the dog and thereby unprotected by the Act: \"He was neither an innocent bystander nor a person within the class of persons protected by the [A]ct. His relationship to the animal objectively excludes him from the protected class.\u201d\nII. ANALYSIS\nOn appeal, plaintiffs argue \"the injury to the [10-]year[-]old plaintiff was the result of a freak occurrence which was not a risk appreciated by or knowingly assumed by the [10-]year[-]old plaintiff.\u201d Plaintiffs contend the minor\u2019s status as \"owner\u201d under the Act ought not exempt him from protection. Defendant responds \"plaintiff [minor] was not an innocent bystander at the time of his injury. He does not, therefore, fall within the class of persons that the Act was designed to protect.\u201d\nIn considering a motion to dismiss under section 2 \u2014 619 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 619 (West 1996)), the trial court must view all pleadings and supporting documents in the light most favorable to the nonmoving party. \"The court should grant the motion only if plaintiff can prove no set of facts that would support a cause of action.\u201d Toombs v. City of Champaign, 245 Ill. App. 3d 580, 583, 615 N.E.2d 50, 51 (1993). As this process involves no determination of weight of facts or credibility, reviewing courts need not defer to the trial court\u2019s judgment, but will review the matter de nova. Toombs, 245 Ill. App. 3d at 583, 615 N.E.2d at 51.\nThe purpose of the Act was to eliminate the \"one-bite rule\u201d which, at common law, required a plaintiff to plead and prove a dog owner either knew or was negligent in not knowing a dog had a propensity to injure people. Harris v. Walker, 119 Ill. 2d 542, 547, 519 N.E.2d 917, 918 (1988).\nNarrowly construing the Act in favor of those subject to its operation, the court in Harris stated the legislature intended to provide protection through the Act \"for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them.\u201d Harris, 119 Ill. 2d at 547, 519 N.E.2d at 919. Harris involved a plaintiff who was injured when he fell off a horse he rented from riding stables owned and operated by the defendant. The plaintiff had signed an exculpatory agreement. The trial court granted defendant\u2019s motion for summary judgment. Because the plaintiff had claimed to fully understand and accept the risks of horseback riding, the appellate court found the plaintiff had taken himself out of the class of persons the legislature intended to protect. The supreme court held \"where a person rents a horse and understands and expressly accepts the risks of using the horse, he cannot recover damages from the person who rented the horse\u201d under the Act. Harris, 119 Ill. 2d at 548, 519 N.E.2d at 919.\nAn \"owner\u201d is 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 domestic animal to remain on or about any premises occupied by him. 510 ILCS 5/2.16 (West 1996). \"[T]he Act contemplates some degree of care, custody, or control.\u201d Steinberg v. Petta, 114 Ill. 2d 496, 502, 501 N.E.2d 1263, 1266 (1986) (absentee landlord who allowed tenant to have a pet on the premises was not an owner because he was not a harborer or a keeper, and therefore not subject to liability under the Act).\nIn Wilcoxen v. Paige, 174 III. App. 3d 541, 542, 528 N.E.2d 1104, 1105 (1988), plaintiff, owner and operator of a dog boarding and grooming business, agreed to board defendant\u2019s dog for a fee. While under plaintiff\u2019s control and care, defendant\u2019s dog seriously injured plaintiff. The trial court granted defendant\u2019s motion for summary judgment. The court articulated the purpose of the Act as to encourage tight control of animals in order to protect the public from harm. \"[T]he Act imposes penalties against not only an animal\u2019s legal owner, but also against anyone who places himself in a position of control akin to an owner.\u201d Wilcoxen, 174 Ill. App. 3d at 543, 528 N.E.2d at 1106. Thus, where one accepts responsibility for controlling an animal, she may not maintain a cause of action for injuries resulting from her own failure to control the animal. The court held plaintiff, by voluntarily accepting responsibility for control of defendant\u2019s dog, placed herself within the Act\u2019s definition of owner; therefore, the trial court correctly ruled she could not recover from the dog\u2019s legal owner since her injuries resulted from her own failure to control the dog. Wilcoxen, 174 Ill. App. 3d at 543, 528 N.E.2d at 1106.\nIn Hassell v. Wenglinski, 243 Ill. App. 3d 398, 399, 612 N.E.2d 64, 64-65 (1993), plaintiff, an employee of defendant, agreed to walk defendant\u2019s dogs as a favor to defendant. Plaintiff alleged she was holding the dogs\u2019 leashes when the dogs suddenly pulled forward, causing her to trip, fall, and injure herself. The trial court granted defendant\u2019s motion for judgment on the pleadings. Even though plaintiff\u2019s duties did not normally include exercise of the dogs, because (1) the dogs were in her custody, (2) she had an existing relationship with defendant, (3) she voluntarily assumed care and custody of the dogs as a favor to defendant, and (4) she was injured while exercising control of the dogs, she was an owner and not entitled to recover under the Act. Further, the appellate court noted nothing in the Act requires a person to exercise care or custody of an animal for a set period of time in order to meet the definition of \"owner.\u201d Hassell, 243 Ill. App. 3d at 402, 612 N.E.2d at 66.\nIn Eyrich v. Johnson, 279 Ill. App. 3d 1067, 1068-69, 665 N.E.2d 878, 879 (1996), plaintiff was hired by defendant to feed and water hogs and clean their pens. While the animals, on defendant\u2019s property, were in plaintiff\u2019s care, plaintiff was bitten. The trial court granted defendant\u2019s motion for summary judgment. The appellate court found plaintiff was an \"owner\u201d under the Act because it was his job to take care of the animal and he was doing so at the time of the injury. Therefore, the appellate court concluded plaintiff was not the type of person the legislature intended to protect under the Act. Eyrich, 279 Ill. App. 3d at 1070-71, 665 N.E.2d at 880.\nIn this case, minor plaintiff falls within the statutory definition of an \"owner.\u201d Minor plaintiff did have the dog \"in his care\u201d and was acting \"as its custodian.\u201d See 510 ILCS 5/2.16 (West 1996). The degree of care, custody, or control contemplated by the Act is satisfied here. See Steinberg, 114 Ill. 2d at 502, 501 N.E.2d at 1266. Plaintiff minor placed himself in a position of control akin to an owner and accepted responsibility for control of the animal. See Wilcoxen, 174 Ill. App. 3d at 543, 528 N.E.2d at 1106. He voluntarily assumed care and custody of the dog and was injured while exercising control of the dog. See Hassell, 243 Ill. App. 3d at 402, 612 N.E.2d at 66. He is an \"owner\u201d irrespective of the relatively short period of time he was to care for the dog. See Hassell, 243 Ill. App. 3d at 402, 612 N.E.2d at 66. A plaintiff responsible for the feeding and watering of an animal, if injured while providing such care, is an owner for purposes of the Act. See Eyrich, 279 Ill. App. 3d at 1070-71, 665 N.E.2d at 880. Therefore, plaintiff minor here is an \"owner\u201d for purposes of the statute.\nWith the dog \"in his care,\u201d minor plaintiff was acting \"as its custodian,\u201d placing himself in a position of control akin to an' owner and accepting responsibility for control of the animal. His care was to extend five days; he was not simply asked to hold the leash. Minor plaintiff exercised control over the dog. His responsibilities, in feeding the dog, providing it with water, and letting it into the yard clearly assign him the status of owner.\nWe recognize plaintiffs\u2019 argument is premised upon assumption of the risk. See Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 149, 634 N.E.2d 411, 416 (1994) (finding one who voluntarily assumes control of an animal places himself in the position of the owner). However, as minor plaintiff was an owner of the dog, we decline to apply an assumption of the risk analysis and find no error in the trial court\u2019s dismissal of plaintiffs\u2019 case.\nWe are not unsympathetic to minor plaintiff\u2019s plight. The accident was unfortunate. However, the Act itself and judicial interpretations exclude \"owners\u201d from the Act\u2019s protection. See Wilcoxen, 174 Ill. App. 3d at 543, 528 N.E.2d at 1106. It is for the legislature to determine whether to extend the protection of the Act to those such as the minor plaintiff, who temporarily care for an animal.\nIII. CONCLUSION\nWe affirm the trial court\u2019s judgment dismissing plaintiffs\u2019 complaint with prejudice.\nAffirmed.\nGREEN and STEIGMANN, JJ., concur.", "type": "majority", "author": "JUSTICE KNECHT" } ], "attorneys": [ "John W. Robertson (argued) and John R. Rehn, both of Barash & Stoerzbach, P.C., of Galesburg, for appellant.", "Karen L. Kendall (argued), Craig L. Unrath, and Gary D. Nelson, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellee." ], "corrections": "", "head_matter": "DAVID B. DOCHERTY, as Father and Next Friend of Philip M. Docherty, a Minor, et al., Plaintiffs-Appellants, v. ROGER L. SADLER, Defendant-Appellee.\nFourth District\nNo. 4\u201497\u20140229\nArgued September 23, 1997.\nOpinion filed December 31, 1997.\nJohn W. Robertson (argued) and John R. Rehn, both of Barash & Stoerzbach, P.C., of Galesburg, for appellant.\nKaren L. Kendall (argued), Craig L. Unrath, and Gary D. Nelson, all of Heyl, Royster, Voelker & Allen, of Peoria, for appellee." }, "file_name": "0892-01", "first_page_order": 912, "last_page_order": 917 }