{ "id": 1209172, "name": "BARBARA ZARAGOZA, Plaintiff-Appellee, v. TRACY EBENROTH, Defendant-Appellant (Deb Arnold et al., Defendants)", "name_abbreviation": "Zaragoza v. Ebenroth", "decision_date": "2002-05-31", "docket_number": "No. 3\u201401\u20140856", "first_page": "139", "last_page": "144", "citations": [ { "type": "official", "cite": "331 Ill. App. 3d 139" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "759 N.E.2d 99", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "108" } ], "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 955", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570841 ], "year": 2001, "pin_cites": [ { "page": "966" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/0955-01" ] }, { "cite": "496 N.E.2d 1262", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "1267" }, { "page": "1267" }, { "page": "1267" } ], "opinion_index": 0 }, { "cite": "146 Ill. App. 3d 489", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3571645 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "496" }, { "page": "496" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/146/0489-01" ] }, { "cite": "366 N.E.2d 1111", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "1113" }, { "page": "1113" } ], "opinion_index": 0 }, { "cite": "51 Ill. App. 3d 613", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3383204 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "615" }, { "page": "615" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/51/0613-01" ] }, { "cite": "559 N.E.2d 779", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "788", "parenthetical": "concluding that when certain statements lack sufficient indicia of reliability, application of an exception to the general rule against hearsay is not warranted" }, { "page": "788" } ], "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 69", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2587795 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "83", "parenthetical": "concluding that when certain statements lack sufficient indicia of reliability, application of an exception to the general rule against hearsay is not warranted" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0069-01" ] }, { "cite": "727 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "400", "parenthetical": "indicating that any statement made by a party or on his behalf that is relevant to a trial issue may generally be admitted into evidence as an admission by a party opponent" } ], "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411693 ], "year": 2000, "pin_cites": [ { "page": "547", "parenthetical": "indicating that any statement made by a party or on his behalf that is relevant to a trial issue may generally be admitted into evidence as an admission by a party opponent" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0544-01" ] }, { "cite": "643 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "665", "parenthetical": "stating that admissions are admissible when made by a party opponent" }, { "page": "665" } ], "opinion_index": 0 }, { "cite": "162 Ill. 2d 314", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477550 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "374-75", "parenthetical": "stating that admissions are admissible when made by a party opponent" }, { "page": "374-75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0314-01" ] }, { "cite": "614 N.E.2d 1194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "1198-99" } ], "opinion_index": 0 }, { "cite": "155 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4810354 ], "year": 1993, "pin_cites": [ { "page": "314" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/155/0305-01" ] } ], "analysis": { "cardinality": 561, "char_count": 10648, "ocr_confidence": 0.767, "pagerank": { "raw": 6.681612525460697e-08, "percentile": 0.4065474473608307 }, "sha256": "7a2663ffd134b03bd4ba4fe487c44a11b4aad2e15a5a245376ac99bf426a7ce9", "simhash": "1:a2b739687ebe2d76", "word_count": 1747 }, "last_updated": "2023-07-14T14:37:46.779771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BARBARA ZARAGOZA, Plaintiff-Appellee, v. TRACY EBENROTH, Defendant-Appellant (Deb Arnold et al., Defendants)." ], "opinions": [ { "text": "JUSTICE HOMER\ndelivered the opinion of the court:\nPlaintiff Barbara Zaragoza sued defendants Tracy Ebenroth, Deb Arnold, and Joshua Keehn for negligence , and violation of the Illinois Animal Control Act (510 ILCS 5/1 et seq. (West 2000)) after sustaining injuries during a dog attack. The jury returned a verdict for plaintiff against defendants Ebenroth and Keehn in the amount of $12,110.13. The jury found in favor of defendant Arnold. Only defendant Ebenroth appeals the jury verdict. We affirm.\nBACKGROUND\nZaragoza was riding her bicycle in rural Port Byron, Illinois. As she pedaled by Arnold\u2019s house, Ebenroth (Arnold\u2019s daughter) was watching four dogs: Ebenroth\u2019s black Labrador retriever, Arnold\u2019s two black Labrador retrievers, and Keehn\u2019s Rottweiler. Before Ebenroth could react, the dogs chased Zaragoza. One of the dogs bit Zaragoza on the buttocks causing her to fall to the ground and to injure her shoulder. Ebenroth was able to restrain the dogs before they attacked Zaragoza any further. Ebenroth then drove Zaragoza to her home. At the time of the attack, Arnold was in Michigan and Keehn was inside Arnold\u2019s house.\nZaragoza initially filed a complaint against Ebenroth alleging violations of the Illinois Animal Control Act (the Act) (510 ILCS 5/1 et seq. (West 2000)). In her first amended complaint, Zaragoza added Arnold and Keehn as defendants and alleged negligence and violation of the Act against each of them. After Zaragoza filed her second amended complaint, the court granted Arnold\u2019s motion for summary judgment as to the count of negligence.\nThe parties engaged in arbitration, but defendants rejected the arbitrator\u2019s decision. Before the case proceeded to trial, the court defaulted Keehn because he failed to answer the complaint and failed to appear before the court.\nDuring trial two issues arose which are the subject of this appeal. First, the trial judge barred Arnold from providing hearsay testimony indicating that Keehn\u2019s dog had previously bitten Keehn\u2019s father in the buttocks. Second, Zaragoza, over the defense\u2019s objection, was allowed to introduce an evidence deposition given by Doctor Laura Davies, which provided evidence with regard to the injuries Zaragoza sustained. At the conclusion of the jury trial, the jury verdict held Ebenroth and Keehn liable for $12,110.13 in damages but determined that Arnold was not liable for any damages. The jury verdict forms revealed that the jury determined that Arnold was not an owner of a dog that attacked Zaragoza, whereas Ebenroth was an owner of a dog that attacked Zaragoza. Subsequent to the jury verdict, only Ebenroth filed a notice of appeal.\nANALYSIS\nOn appeal, Ebenroth argues that the trial court abused its discretion by excluding certain portions of Arnold\u2019s testimony as hearsay. Ebenroth also contends that the court abused its discretion by admitting the deposition of Dr. Davies.\n1. Hearsay Testimony\nThe trial court\u2019s decision to bar testimony will be overturned only if it amounts to a clear abuse of discretion. See Boatmen\u2019s National Bank of Belleville v. Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194, 1198-99 (1993). In this instance, Arnold\u2019s offer of proof revealed that she was going to testify that after the incident, Keehn told her that his dog had a history of biting his father\u2019s buttocks. The trial judge sustained Zaragoza\u2019s objection to the hearsay testimony.\nEbenroth argues that Arnold\u2019s testimony should have been permitted as a party admission. For Arnold\u2019s testimony to be admissible, Keehn must have been a party opponent, he must have made an admission, and the testimony must have been reliable. See People v. Cruz, 162 Ill. 2d 314, 374-75, 643 N.E.2d 636, 665 (1994) (stating that admissions are admissible when made by a party opponent); Vojas v. K mart Corp., 312 Ill. App. 3d 544, 547, 727 N.E.2d 397, 400 (2000) (indicating that any statement made by a party or on his behalf that is relevant to a trial issue may generally be admitted into evidence as an admission by a party opponent); In re Marriage of L.R., 202 Ill. App. 3d 69, 83, 559 N.E.2d 779, 788 (1990) (concluding that when certain statements lack sufficient indicia of reliability, application of an exception to the general rule against hearsay is not warranted).\nAlthough Keehn failed to appear and default was entered against him, he remains a party to the suit. See 59 Am. Jur. 2d Parties \u00a7 7 (1987). We must now determine whether Keehn is a party opponent to Arnold. In Cruz, 162 Ill. 2d at 374-75, 643 N.E.2d at 665, our supreme court held that \u201c[rjelevant admissions of a party *** are admissible when offered by the opponent as an exception to the hearsay rule.\u201d Arnold and Keehn were potential adverse parties since the effect of Arnold\u2019s testimony implicated Keehn\u2019s dog as the aggressor and suggested that she and possibly her daughter were not to blame for Zaragoza\u2019s injuries. Thus, although Arnold and Keehn are both defendants, they qualify as party opponents.\nNext, whether a statement constitutes an admission is assessed on a case-by-case basis. Schall v. Forrest, 51 Ill. App. 3d 613, 615, 366 N.E.2d 1111, 1113 (1977). Generally, courts grant wide latitude in construing statements as admissions. Schall, 51 Ill. App. 3d at 615, 366 N.E.2d at 1113. Keehn\u2019s apparent statement that his dog bit his father on the buttocks previous to the incident at bar is relevant evidence. While this evidence is not a clear admission that Keehn\u2019s dog bit Zaragoza, it certainly reveals that Keehn\u2019s dog may have had a propensity to do so and that Keehn was aware of this propensity.\nFinally, we consider the reliability of the testimony. Exceptions to the hearsay rule control only when the subject testimony is so reliable and trustworthy that the statement\u2019s reliability outweighs its hearsay nature. See In re Marriage of L.R., 202 Ill. App. 3d 69, 83, 559 N.E.2d 779, 788 (1990). Statements to be admitted pursuant to a hearsay exception must possess certain indicia of reliability and provide a satisfactory basis for evaluating the truth of the prior statement. In re K.L.M., 146 Ill. App. 3d 489, 496, 496 N.E.2d 1262, 1267 (1986). Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In re K.L.M., 146 Ill. App. 3d at 496, 496 N.E.2d at 1267. While reliability can be inferred where the evidence falls firmly within a hearsay exception, reliability is not automatically assumed. See In re K.L.M., 146 Ill. App. 3d at 496, 496 N.E.2d at 1267. In this case, the indicia of reliability of Arnold\u2019s testimony is harmed by the fact that Arnold is Ebenroth\u2019s mother. Arnold\u2019s testimony could not be verified to any degree and the trial court had no means to determine the truth of the hearsay statement. In such a circumstance we cannot conclude that it was an abuse of discretion for the trial court to keep the testimony from the jury.\n2. Deposition Evidence\nZaragoza\u2019s counsel took the evidence deposition of Dr. Davies three days before trial. Ebenroth\u2019s attorney received notice of the deposition and was present for the deposition. However, Zaragoza did not acquire leave of court to take the deposition. At trial when Zaragoza wished to read the deposition into evidence, Ebenroth objected based on Supreme Court Rule 222(f)(3) (166 Ill. 2d R. 222(f)(3)). The rule states:\n\u201cNo evidence depositions shall be taken except pursuant to leave of court for good cause shown. Leave of court shall not be granted unless it is shown that a witness is expected to testify on matters material to the issues and it is unlikely that the witness will be available for trial, or other exceptional circumstances exist. Motions requesting the taking of evidence depositions shall be supported by affidavit. Evidence depositions shall be taken to secure trial testimony, not as a substitute for discovery depositions.\u201d 166 Ill. 2d R. 222(f)(3).\nGenerally, a valid affidavit for Rule 222(f)(3) purposes would show that the witness is expected to testify on matters material to the issues and it is unlikely that the witness will be available for trial, or other exceptional circumstances exist. However, Supreme Court Rule 212(b) obviates the need for the affidavit to aver the unavailability of the deponent when the deposition is being taken of a physician or surgeon. Rule 212(b) states:\n\u201cThe evidence deposition of a physician or surgeon may be introduced in evidence at trial on the motion of either party regardless of the availability of the deponent, without prejudice to the right of either party to subpoena or otherwise call the physician or surgeon for attendance at trial.\u201d 188 Ill. 2d R. 212(b).\nWhile Rule 212(b) relieves the Rule 222(f)(3) requirement for showing the unavailability of a physician for trial, a party is still required to obtain leave of court to take an evidence deposition and support its motion with an affidavit stating that the physician-deponent is expected to testify to material issues in the case. Therefore, Zaragoza violated Rule 222(f)(3) by failing to obtain leave of court to take Dr. Davies\u2019 evidence deposition supported by the required affidavit. As a result, we must determine whether the trial court erred in admitting the deposition at trial.\nThis court will reverse the trial court\u2019s judgment on the admissibility of evidence only if the trial court abused its discretion. Carillo v. Ford Motor Co., 325 Ill. App. 3d 955, 966, 759 N.E.2d 99, 108 (2001). In this instance, Dr. Davies had been disclosed as a witness and her medical records were provided in discovery. Zaragoza contends that the trial court did not abuse its discretion by allowing the deposition to be read to the jury since Ebenroth was able to cross-examine Dr. Davies during the deposition. We agree. Ebenroth was not unfairly prejudiced by the introduction of Dr. Davies\u2019 deposition. Dr. Davies was adequately cross-examined and the trial court correctly determined that the physician\u2019s testimony was material to the issue of damages. Consequently, the trial court did not abuse its discretion by admitting Dr. Davies\u2019 deposition into evidence.\nCONCLUSION\nBased on the foregoing analysis, the judgment of the circuit court of Rock Island County is affirmed.\nAffirmed.\nBRESLIN and SLATER, JJ., concur.", "type": "majority", "author": "JUSTICE HOMER" } ], "attorneys": [ "Steven E. Balk (argued), of McGehee, Boling, Whitmire, Olson & Pepping, Ltd., of Silvis, for appellant.", "John W Jones (argued), of Winstein, Kavensky & Wallace, of Rock Island, for appellee." ], "corrections": "", "head_matter": "BARBARA ZARAGOZA, Plaintiff-Appellee, v. TRACY EBENROTH, Defendant-Appellant (Deb Arnold et al., Defendants).\nThird District\nNo. 3\u201401\u20140856\nOpinion filed May 31, 2002.\nSteven E. Balk (argued), of McGehee, Boling, Whitmire, Olson & Pepping, Ltd., of Silvis, for appellant.\nJohn W Jones (argued), of Winstein, Kavensky & Wallace, of Rock Island, for appellee." }, "file_name": "0139-01", "first_page_order": 157, "last_page_order": 162 }