{ "id": 1336137, "name": "JUDY CARL, Plaintiff-Appellant, v. SHELLY RESNICK, Defendant-Appellee", "name_abbreviation": "Carl v. Resnick", "decision_date": "1999-03-31", "docket_number": "No. 1-97-3627", "first_page": "453", "last_page": "465", "citations": [ { "type": "official", "cite": "306 Ill. App. 3d 453" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "579 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "plaintiffs mere presence on private property does not constitute provocation regardless of how the animal may interpret the plaintiffs movements" } ], "opinion_index": 0 }, { "cite": "219 Ill. App. 3d 152", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5800110 ], "year": 1991, "pin_cites": [ { "page": "154", "parenthetical": "plaintiffs mere presence on private property does not constitute provocation regardless of how the animal may interpret the plaintiffs movements" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/219/0152-01" ] }, { "cite": "615 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "greeting or petting an animal does not generally constitute provocation" } ], "opinion_index": 0 }, { "cite": "244 Ill. App. 3d 453", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5101961 ], "year": 1993, "pin_cites": [ { "page": "457-58", "parenthetical": "greeting or petting an animal does not generally constitute provocation" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/244/0453-01" ] }, { "cite": "694 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "296 Ill. App. 3d 528", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222568 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "534" }, { "page": "533", "parenthetical": "the Animal Control Act \"applies to legal owners as well as anyone who keeps or harbors a dog\"" }, { "page": "534-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0528-01" ] }, { "cite": "634 N.E.2d 411", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "\"While we recognize that the assumption of risk is a strong underlying theme in these decisions (as expressed particularly in Harris" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 141", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2850303 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "149", "parenthetical": "\"While we recognize that the assumption of risk is a strong underlying theme in these decisions (as expressed particularly in Harris" }, { "page": "150" }, { "page": "147" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0141-01" ] }, { "cite": "689 N.E.2d 332", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "pin_cites": [ { "parenthetical": "refusing to apply assumption of risk analysis to minor plaintiff who was taking care of defendant's dog at the time of his injury, since plaintiff was clearly an \"owner\" of dog under Animal Control Act" } ], "opinion_index": 0 }, { "cite": "293 Ill. App. 3d 892", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 847604 ], "year": 1997, "pin_cites": [ { "page": "897", "parenthetical": "refusing to apply assumption of risk analysis to minor plaintiff who was taking care of defendant's dog at the time of his injury, since plaintiff was clearly an \"owner\" of dog under Animal Control Act" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/293/0892-01" ] }, { "cite": "665 N.E.2d 878", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "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": "1070-71" }, { "page": "1069" }, { "page": "1069-70" } ], "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", "year": 1993, "opinion_index": 0 }, { "cite": "243 Ill. App. 3d 398", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5108881 ], "weight": 5, "year": 1993, "pin_cites": [ { "page": "399" }, { "page": "400-01" }, { "page": "401" }, { "page": "401" } ], "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": 2, "year": 1988, "opinion_index": 0 }, { "cite": "174 Ill. App. 3d 541", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3517278 ], "weight": 6, "year": 1988, "pin_cites": [ { "page": "542" }, { "page": "543" }, { "page": "543" }, { "page": "542" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0541-01" ] }, { "cite": "521 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "plaintiff, an experienced cattleman, assumed risk of being trampled when he volunteered to help neighbor round up a herd of cattle" } ], "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 209", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472356 ], "year": 1988, "pin_cites": [ { "page": "211", "parenthetical": "plaintiff, an experienced cattleman, assumed risk of being trampled when he volunteered to help neighbor round up a herd of cattle" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0209-01" ] }, { "cite": "598 N.E.2d 416", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "parenthetical": "no cause of action under Animal Control Act for a plaintiff who was thrown from a friend's horse and injured" } ], "opinion_index": 0 }, { "cite": "232 Ill. App. 3d 1061", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499648 ], "year": 1992, "pin_cites": [ { "page": "1066", "parenthetical": "no cause of action under Animal Control Act for a plaintiff who was thrown from a friend's horse and injured" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/1061-01" ] }, { "cite": "403 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "plaintiff assumed risk of getting kicked by a horse when he agreed to work as horseshoer" } ], "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 158", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5556686 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "162-63", "parenthetical": "plaintiff assumed risk of getting kicked by a horse when he agreed to work as horseshoer" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0158-01" ] }, { "cite": "541 N.E.2d 178", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "finding doctrine of assumption of risk inapplicable to plaintiff injured by her parents' dog in parents' house, since there was no evidence of a contractual or employment relationship between the parties" } ], "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2649127 ], "year": 1989, "pin_cites": [ { "page": "272", "parenthetical": "finding doctrine of assumption of risk inapplicable to plaintiff injured by her parents' dog in parents' house, since there was no evidence of a contractual or employment relationship between the parties" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0266-01" ] }, { "cite": "519 N.E.2d 917", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "plaintiff who fell off horse rented from defendant and who had signed exculpatory agreement found to have no cause of action under the Animal Control Act" } ], "opinion_index": 0 }, { "cite": "119 Ill. 2d 542", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3193584 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "547-48", "parenthetical": "plaintiff who fell off horse rented from defendant and who had signed exculpatory agreement found to have no cause of action under the Animal Control Act" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/119/0542-01" ] }, { "cite": "484 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 591", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3638849 ], "weight": 5, "year": 1985, "pin_cites": [ { "page": "594" }, { "page": "594" }, { "page": "593", "parenthetical": "noting that \"the keeper of an animal as well as its owner can be held liable under the [Animal Control] Act\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0591-01" ] }, { "cite": "619 N.E.2d 137", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "156 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777560 ], "year": 1993, "pin_cites": [ { "page": "9" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0001-01" ] }, { "cite": "221 Ga. App. 672", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 858134 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "plaintiff kicked by another participant's horse during fox hunt" }, { "parenthetical": "plaintiff kicked by another participant's horse during fox hunt" } ], "opinion_index": 0, "case_paths": [ "/ga-app/221/0672-01" ] }, { "cite": "672 So. 2d 262", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7426128 ], "weight": 2, "year": 1996, "pin_cites": [ { "parenthetical": "plaintiff kicked by another participant's horse during horse show" }, { "page": "265", "parenthetical": "finding availability of assumption of risk defense in similarly worded Louisiana statute not limited to \"equine activity sponsors\" and \"equine professionals\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/672/0262-01" ] }, { "cite": "Conn. Gen. Stat. \u00a7 52", "category": "laws:leg_statute", "reporter": "Conn. Gen. Stat.", "opinion_index": 0 }, { "cite": "Wis. Stat. Ann. \u00a7 895.481", "category": "laws:leg_statute", "reporter": "Wis. Stat. Ann.", "year": 1997, "pin_cites": [ { "page": "(5)", "parenthetical": "\"equine activity\" includes \"Hiding, training or driving an equine or being a passenger on an equine\"" } ], "opinion_index": 0 }, { "cite": "Wyo. Stat. Ann. \u00a7 1", "category": "laws:leg_statute", "reporter": "Wyo. Stat. Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 16", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "83 Ky. L.J. 157", "category": "journals:journal", "reporter": "Ky. L.J.", "year": 1994, "opinion_index": 0 }, { "cite": "62 Tenn. L. Rev. 997", "category": "journals:journal", "reporter": "Tenn. L. Rev.", "year": 1995, "opinion_index": 0 } ], "analysis": { "cardinality": 1125, "char_count": 29642, "ocr_confidence": 0.718, "pagerank": { "raw": 9.677256396328939e-08, "percentile": 0.5291314281257324 }, "sha256": "66080bfe5fb2cc7686c6e56f3e8df88c324497887bf3c383b77686395a6d7776", "simhash": "1:1a3c1a563f84f68f", "word_count": 4919 }, "last_updated": "2023-07-14T19:16:55.452164+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "GORDON and BURKE, JJ., concur." ], "parties": [ "JUDY CARL, Plaintiff-Appellant, v. SHELLY RESNICK, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE McBRIDE\ndelivered the opinion of the court:\nOn November 19, 1995, plaintiff Judy Carl was riding her horse on a trail in the Cook County Forest Preserve. Defendant Shelly Resnick and her friend, Kathy Paddock, both on horses owned by defendant, were riding in the opposite direction. All three riders stopped to talk when they passed along the trail. At some point, the horse upon which Paddock was riding pinned its ears back, turned its body toward plaintiffs horse, and kicked plaintiff and her horse. One hoof struck plaintiffs leg, causing her injury.\nOn February 13, 1997, plaintiff filed her first amended complaint alleging both a violation of the Animal Control Act (510 ILCS 5/16 (West 1996)) and negligence. Both parties filed motions for summary judgment. The trial court denied plaintiffs motion for summary judgment on the Animal Control Act count and granted defendant\u2019s motion for summary judgment, based upon the Equine Activity Liability Act (Equine Act) (745 ILCS 47/1 et seq. (West 1996)), on both counts. Plaintiff now appeals.\nSince the trial court found both counts of plaintiffs complaint barred by the Equine Act, we will first address the applicability of that act to the instant cause of action. We recognize this is an issue of first impression, no Illinois court having interpreted the Equine Act since it became effective on July 7, 1995. Section 5 of the Equine Act sets forth the Act\u2019s purposes:\n\u201cThe General Assembly recognizes that persons who participate in equine activities may incur injuries as a result of the risks involved in those activities. The General Assembly also finds that the State and its citizens derive numerous economic and personal benefits from equine activities. Therefore, it is the intent of the General Assembly to encourage equine activities by delineating the responsibilities of those involved in equine activities.\u201d 745 ILCS 47/5 (West 1996).\nThe \u201cequine activities\u201d sought to be \u201cencourage [d]\u201d are enumerated in section 10(c) of the Act:\n\u201c(c) \u2018Equine activity\u2019 means:\n(1) Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including, but not limited to, dressage, hunter and jumper horse shows, grand prix jumping, 3 day events, combined training, rodeos, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding and western games, and hunting.\n(2) Equine training activities, teaching activities, or both.\n(3) Boarding equines.\n(4) Riding, inspecting, or evaluating an equine belonging to another, whether or not the owner has received some monetary consideration or other thing of value for the use of the equine or is permitting a prospective purchaser of the equine to ride, inspect, or evaluate the equine.\n(5) Rides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor.\n(6) Placing or replacing horseshoes on an equine.\u201d 745 ILCS 47710(c) (West 1996).\nThe Equine Act encourages these \u201cequine activities\u201d by providing an assumption of risk defense to defendants sued by plaintiffs injured while engaging in one of the above-listed activities. Section 15 sets forth this defense:\n\u201cEach participant who engages in an equine activity expressly assumes the risk of and legal responsibility for injury, loss, or damage to the participant or the participant\u2019s property that results from participating in an equine activity ***.\u201d 745 ILCS 47/15 (West 1996).\nIn her motion for summary judgment, defendant did not argue that plaintiff was engaged in one of the six categories of activities listed in section 10(c) of the Equine Act at the time of her injury. Rather, she argued plaintiff was \u201cengage[d] in an equine activity\u201d as defined in section 10(a). Compare 745 ILCS 47/10(a) (West 1996) (defining \u201cEngages in an equine activity\u201d) with 745 ILCS 47/10(c) (West 1996) (defining \u201cEquine activity\u201d). Section 10(a) defines \u201cEngages in equine activity\u201d as \u201criding, training, assisting in medical treatment of, driving, or being a passenger upon an equine, whether mounted or unmounted, or assisting a participant.\u201d 745 ILCS 47/10(a) (West 1996). It is true, as defendant asserts, that plaintiff falls within this definition, inasmuch as plaintiff was \u201criding *** an equine\u201d when she was injured. Nevertheless, we believe that section 10(a) was clearly intended to be read in conjunction with section 10(c) \u2014 only those \u201criding *** an equine\u201d (745 ILCS 47/10(a) (West 1996)) while participating in one of the six statutory categories of activities (745 ILCS 47/10(c) (West 1996)) assume the risk of their injuries. Thus, in the present case plaintiffs complaint against defendant was not barred by the Equine Act unless plaintiffs recreational riding of her own horse on a public trail was one of the limited activities sought to be encouraged by the Act.\nIn her brief on appeal, defendant discusses only one of the categories of activities enumerated in section 10(c): \u201cHiding, inspecting, or evaluating an equine belonging to another.\u201d See 745 ILCS 47/10(c)(4) (West 1996). We fail to see how the activity in which plaintiff was engaged prior to her injury in the instant case falls within this description. While defendant\u2019s companion, Kathy Paddock, may have been \u201cHiding *** an equine belonging to another\u201d (745 ILCS 47/ 10(c)(4) (West 1996)) at the time of the incident (she was riding a horse owned by defendant), there is no question that the plaintiff was riding her own horse at the time of her injury.\nSection 10(c)(4) illustrates why we must reject defendant\u2019s assertion that the Equine Act was intended to bar any cause of action brought by a plaintiff injured while \u201criding *** an equine\u201d as defined in section 10(a). Such a broad interpretation of the Equine Act would render section 10 internally inconsistent. As previously mentioned, section 10(c)(4) bars only those causes of action brought by plaintiffs injured while \u201cHiding *** an equine belonging to another.\u201d (Emphasis added.) 745 ILCS 47/10(c)(4) (West 1996). Similarly, section 10(c)(5) permits the assumption of risk defense to be raised against a plaintiff injured while riding an equine, but only in the event that the ride was \u201csponsored by an equine activity sponsor.\u201d See 745 ILCS 47/10(e)(5) (West 1996) (equine activities include \u201cHides, trips, hunts, or other equine activities of any type however informal or impromptu that are sponsored by an equine activity sponsor\u201d) (emphasis added); see also 745 ILCS 47/10(d) (West 1996) (defining \u201cequine activity sponsor\u201d). Only by ignoring these two provisions could we adopt the expansive interpretation of the Equine Act urged by defendant.\nOur Equine Act is very similar to other \u201cEquine Activity Liability Acts\u201d (EALAs) which have been enacted in many states. See generally McEvoy, The Rise of Equine Activity Liability Acts, 3 Animal L. 201 (1997); T. Centner, The New Equine Liability Statutes, 62 Tenn. L. Rev. 997 (1995); K. Carmel, The Equine Activity Liability Acts: A Discussion of Those in Existence and Suggestions for a Model Act, 83 Ky. L.J. 157 (1994-95). The vast majority of these EALAs would not apply to the recreational riding at issue here. See 83 Ky. L.J. at 177 (noting only a small number of states have EALAs which encompass recreational horseback riding). Had our legislature intended to give our Equine Act such a broad reach, it could have easily done so. North Carolina\u2019s EALA defines \u201cequine activity\u201d as \u201cany activity involving an equine.\u201d N.C. Gen. Stat. \u00a7 99E \u2014 1(3) (1997). In Arkansas, \u201cequine activity\u201d includes \u201cHides, hunts, or other equine activities of any type, however informal or impromptu\u201d (Ark. Code Ann. \u00a7 16 \u2014 120\u2014 201(2)(E) (Michie Supp. 1997); see also Wyo. Stat. Ann. \u00a7 1 \u2014 1\u2014 122(a)(IV)(F) (Michie 1998)), while Vermont\u2019s EALA is even more succinct (see Vt. Stat. Ann. tit. 12 \u00a7 1039(a)(2)(C) (1996) (\u201cequine activity\u201d includes \u201cHides, trips, or hunts\u201d)). See also Wis. Stat. Ann. \u00a7 895.481(5) (West 1997) (\u201cequine activity\u201d includes \u201cHiding, training or driving an equine or being a passenger on an equine\u201d); Conn. Gen. Stat. \u00a7 52 \u2014 557p (1997) (\u201cEach person engaged in recreational equestrian activities shall assume the risk and legal responsibility for any injury ***\u201d). In the two cases we have found where plaintiffs were kicked by horses ridden by others and brought suit under an EALA identical to ours, both plaintiffs were engaged in \u201cequine activities\u201d as defined in section 10(c). See Gautreau v. Washington, 672 So. 2d 262 (La. Ct. App. 1996) (plaintiff kicked by another participant\u2019s horse during horse show); Muller v. English, 221 Ga. App. 672, 472 S.E.2d 448 (1996) (plaintiff kicked by another participant\u2019s horse during fox hunt). In sum, we find that plaintiff in the present case was not engaged in an \u201cequine activity,\u201d as defined in our Equine Act, at the time of her injury and that her complaint, therefore, was not barred by that Act. Since we have found the Equine Act inapplicable to plaintiff, we do not address plaintiffs contention that only \u201cequine activity sponsors\u201d and \u201cequine professionals\u201d (defendant admittedly not being either) are insulated from liability by the Act. But cf. 745 ILCS 47/20(b) (West 1996) (listing exceptions whereby \u201can equine activity sponsor, an equine professional, or any other person\u201d can still be held liable under the Act) (emphasis added); Gautreau, 672 So. 2d at 265 (finding availability of assumption of risk defense in similarly worded Louisiana statute not limited to \u201cequine activity sponsors\u201d and \u201cequine professionals\u201d).\nHaving found that defendant\u2019s motion for summary judgment was erroneously granted, we next turn to plaintiffs argument that her motion for summary judgment on the Animal Control Act count should have been granted. The Animal Control Act provides, in relevant part:\n\u201cIf 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).\nDefendant contends it is \u201cobvious\u201d that \u201c[t]he Animal Control Act ceased to apply to equine injury cases on and after July 7, 1995, when the Illinois Legislature enacted the Equine Liability Act.\u201d We disagree. While the Equine Act will undoubtedly bar some actions which, prior to the Equine Act\u2019s enactment, would have been permitted under the Animal Control Act (i.e., those in which the plaintiff was engaged in an \u201cequine activity\u201d at the time an injury contemplated by the Equine Act occurred), that does not render the Animal Control Act inapplicable to every equine injury case. As one commentator has noted about EALAs and their relationship to preexisting law:\n\u201cEALAs by definition apply only to incidents involving someone engaged in an equine activity. Accordingly, cases involving the \u2018vicious propensity\u2019 of a horse to bite or to kick someone not engaged in some form of equine activity will continue to be litigated under the common law, completely unaffected by enactment of an EALA. There is an abundance of cases involving people of all sizes and ages getting bitten or lacked by horses with which they have come into contact in a purely passive or accidental fashion ***. Since such persons would not fall into the class of being a \u2018participant,\u2019 their cause of action would in no way be affected by the existence of an EALA, but would arise under common law.\u201d 83 Ky. L.J. at 159.\nThus, it follows that the Animal Control Act remains applicable in equine injury cases not governed by the Equine Act. Where there is an alleged conflict between two legislative enactments, we must construe those statutes in a manner which avoids an inconsistency and gives effect to both enactments, where such a construction is reasonably possible. Lily Lake Road Defenders v. County of McHenry, 156 Ill. 2d 1, 9, 619 N.E.2d 137 (1993).\nHaving found the Animal Control Act not preempted by the Equine Act on the facts now before us, we turn to the merits of plaintiffs Animal Control Act count. Defendant argues plaintiff assumed the risk of her injury, suggesting Clark v. Rogers, 137 Ill. App. 3d 591, 484 N.E.2d 867 (1985), is dispositive. In Clark, the plaintiff agreed to help the defendant Rogers train stallions for horseshows. The plaintiff was thrown from one of Rogers\u2019 stallions and injured. The Clark court held that the plaintiff had assumed the risk of such injuries when she accepted employment with Rogers. Clark, 137 Ill. App. 3d at 594.\nClark, in our opinion, is not dispositive. Essential to the court\u2019s holding in Clark was the employer-employee relationship between the plaintiff and the defendant:\n\u201cA different situation is presented when the plaintiff voluntarily enters into some relationship with the defendant knowing that the defendant will not protect him against future risks which arise from the relationship. In such a case, the risk of harm is not created by the defendant but is inherent in the activity which the plaintiff has agreed to undertake. The plaintiff is regarded as tacitly or impliedly agreeing to take his own chances such as where he accepts employment knowing that he is expected to work with a dangerous horse. This form of the doctrine is generally referred to as \u2018primary\u2019 assumption of the risk.\u201d Clark, 137 Ill. App. 3d at 594.\nSuch a relationship is entirely absent here. Plaintiff appears to have had no prior relationship with either defendant or Paddock; the record suggests plaintiff met both women for the first time on the trail the day of the accident.\nPlaintiff argues that the doctrine of primary assumption of risk has no application outside employment and other contractual settings. We note that cases interpreting the Animal Control Act appear to be inconsistent on this issue. Compare Harris v. Walker, 119 Ill. 2d 542, 547-48, 519 N.E.2d 917 (1988) (plaintiff who fell off horse rented from defendant and who had signed exculpatory agreement found to have no cause of action under the Animal Control Act), and Guthrie v. Zielinski, 185 Ill. App. 3d 266, 272, 541 N.E.2d 178 (1989) (finding doctrine of assumption of risk inapplicable to plaintiff injured by her parents\u2019 dog in parents\u2019 house, since there was no evidence of a contractual or employment relationship between the parties), and Vanderlei v. Heideman, 83 Ill. App. 3d 158, 162-63, 403 N.E.2d 756 (1980) (plaintiff assumed risk of getting kicked by a horse when he agreed to work as horseshoer), with Ennen v. White, 232 Ill. App. 3d 1061, 1066, 598 N.E.2d 416 (1992) (no cause of action under Animal Control Act for a plaintiff who was thrown from a friend\u2019s horse and injured), and Malott v. Hart, 167 Ill. App. 3d 209, 211, 521 N.E.2d 137 (1988) (plaintiff, an experienced cattleman, assumed risk of being trampled when he volunteered to help neighbor round up a herd of cattle).\nWe believe these cases can be reconciled by examining, not the relationship between the plaintiff and the defendant in each case, but rather the relationship between the plaintiff and the injury-causing animal. In all of these cases, the plaintiff can be viewed as having taken control or custody of the animal prior to being injured, thereby making the plaintiff an \u201cowner\u201d of the animal under the Animal Control Act. As an \u201cowner,\u201d the plaintiff would then no longer be a member of the class of persons protected by the Act, and the relationship between the plaintiff and the defendant becomes irrelevant.\nThis analysis was first applied in Wilcoxen v. Paige, 174 Ill. App. 3d 541, 528 N.E.2d 1104 (1988). In Wilcoxen, the plaintiff operated a dog boarding and grooming business. While under the plaintiff\u2019s control and care, the defendant\u2019s dog attacked and seriously injured the plaintiff. When sued by the plaintiff under the Animal Control Act, the defendant argued that the plaintiff, by accepting care and control over the defendant\u2019s dog, had become an \u201cowner\u201d of the dog and was, therefore, precluded from bringing suit. Wilcoxen, 174 Ill. App. 3d at 542.\nThe appellate court in Wilcoxen agreed. The court looked to section 2.16 of the Animal Control Act, which defines \u201cowner\u201d:\n\u201c \u2018Owner\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 510 ILCS 5/2.16 (West 1996).\nBy voluntarily accepting responsibility for controlling the defendant\u2019s dog, the plaintiff, according to the Wilcoxen court, placed herself within the definition of an \u201cowner\u201d under the Animal Control Act and, therefore, could not recover from the dog\u2019s legal owner. Wilcoxen, 174 Ill. App. 3d at 543.\nThis court applied the same analysis in Hassell v. Wenglinski, 243 Ill. App. 3d 398, 612 N.E.2d 64 (1993). In Hassell, the plaintiff was employed to care for the defendant\u2019s mother in the defendant\u2019s home. One day, as a favor to the defendant, the plaintiff agreed to walk the defendant\u2019s dogs. While walking the dogs, plaintiff tripped and fell after being yanked forward by the dogs. The Hassell court focused on the relationship between the plaintiff and the dogs in framing the issue: \u201cwhether a person having control over an animal may maintain a cause of action under the Animal Control Act [citation] against the animal\u2019s legal owner for injuries sustained while the person has such control.\u201d Hassell, 243 Ill. App. 3d at 399.\nThe court began by discussing older cases which focused on the contractual or employment relationship between the plaintiff and the defendant (e.g., Harris, 119 Ill. 2d 542 (plaintiff rented horse from defendant); Clark, 137 Ill. App. 3d 591 (defendant employed plaintiff); Vanderlei, 83 Ill. App. 3d 158 (plaintiff employed as horseshoer)). Hassell, 243 Ill. App. 3d at 400-01. The Hassell court then noted the shift in focus which occurred in Wilcoxen \u2014 despite a contractual relationship between the plaintiff and the defendant in that case, the Wilcoxen court emphasized that the plaintiffs relationship with the defendant\u2019s dog made her an \u201cowner\u201d under, and therefore unprotected by, the Animal Control Act. Hassell, 243 Ill. App. 3d at 401; Wilcoxen, 174 Ill. App. 3d at 543; see also Eyrich v. Johnson, 279 Ill. App. 3d 1067, 1070-71, 665 N.E.2d 878 (1996) (where farmhand sued employer after he was bitten by a boar owned by employer but under farmhand\u2019s care, summary judgment in employer\u2019s favor properly granted since farmhand was an \u201cowner\u201d under the Act and therefore \u201cclearly not the type of plaintiff that the legislature intended to protect\u201d).\nUnlike the situation in Wilcoxen, there was no contractual relationship in Hassell between the plaintiff and the defendant involving the animal which caused the plaintiff\u2019s injuries. Nevertheless, the Hassell court refused to limit Wilcoxen\u2019s \u201cowner\u201d analysis to employment or contractual settings:\n\u201c[Nleither the legislative history of the Animal Control Act nor the reasoning of the Wilcoxen decision persuades us that it was incorrectly decided or that its rationale should be limited to cases in which the plaintiff and defendant have entered into a contractual relationship involving the animal causing the injury.\u201d Hassell, 243 Ill. App. 3d at 401.\nThus, a plaintiff who assumes the role of an \u201cowner\u201d under the Animal Control Act loses the protections afforded by that act regardless of any relationship to the defendant. See Docherty v. Sadler, 293 Ill. App. 3d 892, 897, 689 N.E.2d 332 (1997) (refusing to apply assumption of risk analysis to minor plaintiff who was taking care of defendant\u2019s dog at the time of his injury, since plaintiff was clearly an \u201cowner\u201d of dog under Animal Control Act); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 149, 634 N.E.2d 411 (1994) (\u201cWhile we recognize that the assumption of risk is a strong underlying theme in these decisions (as expressed particularly in Harris), it is evident that the plaintiffs were also not held in the class of persons protected by the Act because, in assuming control of the animal, they could no longer be realistically viewed as innocent bystanders who have in no way provoked the animals. Alternatively, it can be said that *** one who voluntarily assumes control of the animal places himself in the position of the owner\u201d).\nIn any event, plaintiff would not lose the protections of the Animal Control Act under either framework of analysis. Plaintiff had neither the relationship with defendant (\u201cassumption of risk\u201d analysis) nor the relationship with the animal that injured her (\u201cowner\u201d analysis) necessary to justify judgment in defendant\u2019s favor under the Animal Control Act. As earlier mentioned, plaintiff had no prior relationship with defendant, contractual or otherwise, which could have given rise to assumption of risk. And as plaintiff never exercised care, control, or custody of the horse Paddock was riding prior to being kicked by it, plaintiff in no way falls within the definition of an \u201cowner\u201d under section 2.16. See 510 ILCS 5/2.16 (West 1996).\nHaving found no basis for granting summary judgment in defendant\u2019s favor on the Animal Control Act count, we next examine whether plaintiff\u2019s motion for summary judgment under that Act should have been granted. Summary judgment should be granted when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. Meyer, 262 Ill. App. 3d at 150. We review de novo the trial court\u2019s ruling on a motion for summary judgment. Eyrich, 279 Ill. App. 3d at 1069.\nAs previously stated, in order to prevail under section 16 of the Animal Control Act, a plaintiff must prove four things: (1) an injury caused by an animal owned by the defendant; (2) lack of provocation; (3) the peaceable conduct of the injured person; and (4) the presence of the injured person in a place where he has a legal right to be. Eyrich, 279 Ill. App. 3d at 1069-70; Meyer, 262 Ill. App. 3d at 147. Defendant, relying on Wilcoxen, 174 Ill. App. 3d 541, 528 N.E.2d 1104, argues that Kathy Paddock, who was riding the defendant\u2019s horse at the time plaintiff was injured, was the sole \u201cowner\u201d of that horse for purposes of liability under the Animal Control Act. In her petition for rehearing, defendant argues that this court has imposed liability upon her based solely on her status as the legal owner of the horse.\nInitially we observe that, defendant\u2019s assertions to the contrary, the Wilcoxen court did not hold that at any given time there can be only one \u201cowner\u201d of an animal for liability purposes under the Animal Control Act. In fact, it appears the court was operating with the opposite assumption in mind \u2014 that multiple individuals can be \u201cowners\u201d of an animal. The Wilcoxen court noted the defendant\u2019s position that the plaintiff could not bring suit since \u201cat the time of her alleged injuries she too was an \u2018owner\u2019 of the dog.\u201d (Emphasis added.) Wilcoxen, 174 Ill. App. 3d at 542. Moreover, the court in Wilcoxen interpreted section 2.16 as authorizing joint liability \u2014 \u201cthe 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 (Emphasis added.) Wilcoxen, 174 Illl. App. 3d at 543. Nothing in Wilcoxen suggests that, had a third party been injured by the defendant\u2019s dog while in the plaintiffs care, he could not have sued both the defendant and the plaintiff as \u201cowners\u201d under the Animal Control Act.\nBecause there can be more than one owner under the Animal Control Act, we need not determine whether or not Paddock was an \u201cowner\u201d under the Act at the time of the incident. Paddock was never made a party to this lawsuit by either the plaintiff or defendant. Consequently, the only question before us is whether or not defendant was liable as an \u201cowner\u201d within the meaning of the Animal Control Act despite the fact that another person, Paddock, was riding the defendant\u2019s horse at the time of the incident. As someone who had a \u201cright of property\u201d in the horse, defendant was clearly within the definition of \u201cowner\u201d found in the Animal Control Act. See 510 ILCS 5/2.16 (West 1996).\nFurther, defendant was more than the mere legal owner of the horse at the time of the incident. Although Paddock was riding defendant\u2019s horse, not only was defendant present when the incident occurred, but she testified in her deposition that she would never let anybody ride her horse without her being present. When asked why not, she responded \u201c[b]ecause she\u2019s mine. I wouldn\u2019t ever send my horse out with anybody else besides me.\u201d Defendant\u2019s testimony, in conjunction with her presence at the time of the incident and her legal ownership of the horse, clearly established that she maintained care, custody, and control of her horse to bring her within the definition of \u201cowner\u201d found in the Animal Control Act.\nDefendant\u2019s reliance on Frost v. Robave, Inc., 296 Ill. App. 3d 528, 694 N.E.2d 581 (1998), is misplaced. In Frost, not only was the legal owner named as a defendant in the lawsuit, but the owner\u2019s company, which was located in the same building where the incident occurred, was also named as a defendant. There, the court examined whether the defendant business, which was not the legal owner of a dog which had caused injury, had sufficient control over the dog to become a \u201ckeeper,\u201d and thus an owner, under the Animal Control Act. A \u201ckeeper\u201d is a person, other than the legal owner of an animal, who has an animal in his care, custody or control. See Frost, 296 Ill. App. 3d at 534. Status as a keeper thus provides a basis for liability under the Animal Control Act in addition to liability for the legal owner. Frost, 296 Ill. App. 3d at 533 (the Animal Control Act \u201capplies to legal owners as well as anyone who keeps or harbors a dog\u201d); see also Clark, 137 Ill. App. 3d at 593 (noting that \u201cthe keeper of an animal as well as its owner can be held liable under the [Animal Control] Act\u201d). The court in Frost, 296 Ill. App. 3d at 534-36, found that the defendant business was not an \u201cowner\u201d or \u201ckeeper\u201d of the dog where the injury did not occur on business premises and ho one who worked for the business, aside from the dog\u2019s legal owner, exercised custody or control over the dog. There is nothing in the court\u2019s reasoning in Frost that is at odds with our decision in the instant cause, where defendant was both the legal owner of the horse and retained care, custody, and control sufficient to place her within the definition of \u201cowner\u201d under the Animal Control Act.\nThe only possible factual question which might remain would be whether plaintiff provoked Paddock\u2019s horse. See 510 ILCS 5/16 (West 1996) (\u201cIf a dog or other animal, without provocation, attacks or injures any person ***\u201d). Plaintiff points to defendant\u2019s deposition testimony, where defendant was asked whether plaintiff did anything to provoke Paddock\u2019s horse, to which defendant responded, \u201cNo.\u201d While defendant did suggest numerous things which may have provoked her horse (the smell, color, etc. of plaintiffs horse), all such testimony was purely speculative. See generally Severson v. Ring, 244 Ill. App. 3d 453, 457-58, 615 N.E.2d 1 (1993) (greeting or petting an animal does not generally constitute provocation); Smith v. Pitchford, 219 Ill. App. 3d 152, 154, 579 N.E.2d 24 (1991) (plaintiffs mere presence on private property does not constitute provocation regardless of how the animal may interpret the plaintiffs movements). Defendant apparently concedes the issue, not responding to this argument in her appellate brief. Not only does she fail to argue the issue, but she acknowledges in her brief that \u201c[t]he relevant facts in this case are not in dispute.\u201d With such a concession, we find there was no genuine issue of material fact in this case that could have precluded the trial court from granting plaintiffs motion for summary judgment on the question of liability because we have found that defendant was an \u201cowner\u201d of an animal that injured plaintiff, that plaintiff did not provoke the defendant\u2019s horse, and that plaintiff was peaceably conducting herself in a place where she had a legal right to be.\nAccordingly, we reverse the trial court\u2019s order denying plaintiffs motion for summary judgment and enter summary judgment for plaintiff on count I as to liability under the Animal Control Act (510 ILCS 5/16 (West 1996)). We also reverse the order granting defendant\u2019s motion for summary judgment on count II. We hold that under the facts of this case, the Equine Activity Liability Act (745 ILCS 47/1 et seq. (West 1996)) does not apply. Count I is remanded for a trial on the issue of damages. Count II, the negligence count, is remanded for a trial on liability and damages.\nReversed and remanded with directions.\nGORDON and BURKE, JJ., concur.\nJustice McBride is participating in this decision in place of Justice Marvin Leavitt, who retired from the Appellate Court on December 4, 1998.", "type": "majority", "author": "JUSTICE McBRIDE" } ], "attorneys": [ "Demos & Burke, of Chicago (Lawrence E Devens, of counsel), for appellant.", "James E Newman, of Newman & Felafas, of Chicago, for appellee." ], "corrections": "", "head_matter": "JUDY CARL, Plaintiff-Appellant, v. SHELLY RESNICK, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1\u201497\u20143627\nOpinion filed March 31, 1999.\nModified on denial of rehearing July 28, 1999.\nDemos & Burke, of Chicago (Lawrence E Devens, of counsel), for appellant.\nJames E Newman, of Newman & Felafas, of Chicago, for appellee." }, "file_name": "0453-01", "first_page_order": 471, "last_page_order": 483 }