{ "id": 5770434, "name": "DEBORAH JANIS, Plaintiff-Appellant, v. SCOTT GRAHAM et al., Defendants-Appellees", "name_abbreviation": "Janis v. Graham", "decision_date": "2011-03-10", "docket_number": "No. 2\u201409\u20140814", "first_page": "898", "last_page": "905", "citations": [ { "type": "official", "cite": "408 Ill. App. 3d 898" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "402 Ill. App. 3d 62", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5767952 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "75" }, { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/402/0062-01" ] }, { "cite": "285 Ill. App. 3d 187", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295573 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "188" }, { "page": "189" }, { "page": "191" }, { "page": "192" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0187-01" ] }, { "cite": "117 Ill. App. 3d 1011", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3483226 ], "year": 1983, "pin_cites": [ { "page": "1015" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/1011-01" ] }, { "cite": "204 Ill. 2d 243", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609704 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "259" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0243-01" ] }, { "cite": "347 Ill. App. 3d 689", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3948941 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "694" }, { "page": "694" }, { "page": "694-95" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0689-01" ] }, { "cite": "399 Ill. App. 3d 433", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4300732 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/ill-app-3d/399/0433-01" ] }, { "cite": "305 Ill. App. 3d 45", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208079 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "58", "parenthetical": "\"[T]he defendant's claim that a violation of a statute cannot create a duty where none exists at common law is at odds with a long line of Illinois cases holding to the contrary.\"" }, { "page": "58" }, { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0045-01" ] }, { "cite": "393 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4290337 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "1054" }, { "page": "1054" }, { "page": "1054" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/393/1050-01" ] }, { "cite": "33 Ill. 2d 44", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2885228 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "46" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0044-01" ] }, { "cite": "341 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5572467 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "266" }, { "page": "266" }, { "page": "266" }, { "page": "266" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/341/0264-01" ] } ], "analysis": { "cardinality": 763, "char_count": 19231, "ocr_confidence": 0.787, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.16995257252449852 }, "sha256": "871c6be4285fe9ccf749c268f62c41b73609a0ce82e06a53725419b1c853d850", "simhash": "1:cfbbb534730e5c73", "word_count": 3304 }, "last_updated": "2023-07-14T17:25:24.186889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DEBORAH JANIS, Plaintiff-Appellant, v. SCOTT GRAHAM et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McLAREN\ndelivered the judgment of the court, with opinion.\nJustices Zenoff and Burke concurred in the judgment and opinion.\nOPINION\nPlaintiff, Deborah Janis, appeals from the trial court\u2019s order dismissing with prejudice count II of her third amended complaint and denying her leave to file a fourth amended complaint. We affirm.\nOn September 2, 2008, Janis filed a two-count complaint in the circuit court of Kane County, seeking damages in excess of $50,000 for injuries sustained when she was allegedly knocked to the ground by dogs owned by defendants, Scott and Donna Graham and Phillip and Sandi Warner. The dogs were allegedly \u201crunning loose and without restraint or supervision.\u201d Count I was brought under section 16 of the Animal Control Act (Act) (510 ILCS 5/16 (West 2006)). Count II alleged a violation of section 90.03(B) of chapter 90 of title IX of the South Elgin Code of Ordinances, which provided:\n\u201cNo dog or other animal shall be permitted to run at large in the village [at] any time. It shall be the duty of the owner or any other person who has in his custody or control a dog or other animal to keep the same safely and securely tied or confined at all times.\u201d South Elgin Code of Ordinances \u00a790.03(B) (passed Nov. 7, 1983).\nOn January 22, 2009, the trial court granted the Grahams\u2019 motion to dismiss count II pursuant to section 2\u2014615 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014615 (West 2008)). The court also granted Janis time to file an amended complaint.\nThe court subsequently granted the Grahams\u2019 motion to dismiss the amended complaint without prejudice. The court directed Janis to replead count I to allege that she had been injured \u201cwithout provocation.\u201d As to count II, the court held that the Village of South Elgin (Village) ordinance that Janis cited \u201cdoes not create a private cause of action.\u201d If Janis wished to replead count II, it \u201cshall be pled as a negligence action, and plaintiff must allege that the animals at issue had a dangerous propensity and that their owner(s) were aware of such propensity.\u201d\nJanis filed her second amended complaint on April 15, 2009. Count II alleged that the \u201cVillage Code of South Elgin creates a duty on dog owners and those who have custody of dogs to keep them safely and securely tied at all times.\u201d As a \u201cdirect and proximate result\u201d of defendants\u2019 violating section 90.03(B) by letting their dogs run at large, Janis was injured. Defendants filed separate motions to dismiss pursuant to section 2\u2014615 of the Code. Janis was granted leave to file a third amended complaint, and the motions to dismiss, as they related to count II, were \u201cconverted\u201d to motions to dismiss count II of the third amended complaint, which now included the allegation that defendants\u2019 dogs, in addition to running loose without restraint or supervision, ran into Janis \u201cwithout provocation,\u201d thereby causing her injuries. On May 24, 2009, Janis sought leave to file a fourth amended complaint that would add a separate count III alleging negligence. On July 30, 2009, the trial court dismissed count II of the third amended complaint with prejudice, finding that Janis \u201chas failed to state, and cannot state, a cause of action under the facts alleged in Count II of the Third Amended Complaint, for negligence based on the Village of South Elgin, Illinois Ordinance, Chapter 90.\u201d The court also denied Janis\u2019s motion for leave to file a fourth amended complaint and found no just reason for delaying the enforcement or appeal of the order. This appeal followed.\nJanis contends that the trial court erred in dismissing count II of her third amended complaint. According to Janis, count II set forth a cause of action for negligence based on a breach of the Village ordinance requiring dogs to be fenced or otherwise restrained. The trial court dismissed count II pursuant to motions to dismiss brought under section 2\u2014615 of the Code. A section 2\u2014615 motion takes as true all well-pleaded facts alleged in the complaint. King v. Senior Services Associates, Inc., 341 Ill. App. 3d 264, 266 (2003). On review of a section 2\u2014615 dismissal, this court must determine whether the allegations contained in the complaint, when interpreted in the light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be granted. King, 341 Ill. App. 3d at 266. A section 2\u2014615 motion should be granted only if the plaintiff can prove no set of facts to support the alleged cause of action. King, 341 Ill. App. 3d at 266. This process does not require the trial court to determine credibility or weigh findings of fact; therefore, we are not required to defer to the trial court\u2019s judgment, and we review the matter de novo. King, 341 Ill. App. 3d at 266.\nJanis styled count II of her third amended complaint \u201cNEGLIGENCE BASED ON BREACH OF ORDINANCE.\u201d According to Janis, local regulation and control of dogs and other animals is provided for in section 24 of the Act, which provides:\n\u201cNothing in the Act shall be held to limit in any manner the power of any municipality or other political subdivision to prohibit animals from running at large, nor shall anything in this Act be construed to, in any manner, limit the power of any municipality or other political subdivision to further control and regulate dogs, cats or other animals in such municipality or other political subdivision provided that no regulation or ordinance is specific to breed.\u201d 510 ILCS 5/24 (West 2006).\nThus, according to Janis, the Village had the authority to enact section 90.03(B), which provides:\n\u201cNo dog or other animal shall be permitted to run at large in the village [at] any time. It shall be the duty of the owner or any other person who has in his custody or control a dog or other animal to keep the same safely and securely tied or confined at all times.\u201d South Elgin Code of Ordinances \u00a790.03(B) (passed Nov. 7, 1983).\nThe purpose of chapter 90 is to \u201cpromote a harmonious relationship between man and animal through the establishment of defined procedures when man and animal interact,\u201d so as to, among other things, \u201c[p]rovide security of residents from annoyance, intimidation, injury and rabies by animals.\u201d South Elgin Code of Ordinances \u00a7\u00a790.01(A), (B)(2) (passed Nov. 17, 2003). Section 90.03(B), according to Janis, \u201ccreates a legal duty on dog owners and those who have custody of dogs to keep them safely and securely tied at all times\u201d such that a violation of the ordinance can be the basis of a cause of action in negligence. Janis alleged that defendants violated the ordinance by letting their dogs run at large. As a \u201cdirect and proximate result\u201d of the ordinance violation, the \u201cunsupervised and unrestrained by leash\u201d dogs knocked Janis to the ground as she stood in her driveway, \u201cgreatly injuring her.\u201d She also alleged that she was \u201cpeaceably conducting herself\u2019 and did not provoke the dogs.\nAt common law, a plaintiff allegedly injured by an animal was required to prove in a negligence action that \u201cthe animal had a mischievous propensity to commit such injuries and that the owner had knowledge of the propensity.\u201d Beckert v. Risberg, 33 Ill. 2d 44, 46 (1965). One of the purposes of the Act was to \u201celiminate the requirement that an injured party must plead and prove that the animal owner knew or should have known about the animal\u2019s dangerous propensities.\u201d Beggs v. Griffith, 393 Ill. App. 3d 1050, 1054 (2009). Section 16 of the Act provides for civil damages for injuries caused by dogs and other animals, whether running at large or not:\n\u201cIf 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.\u201d 510 ILCS 5/16 (West 2006).\nThis cause of action provided in the Act is not negligence based, nor does it impose strict liability on an owner. Beggs, 393 Ill. App. 3d at 1054.\nJanis argues that safety statutes and ordinances \u201cprovide a standard of conduct the breach of which supports an action for negligence.\u201d In general, this is true. See Bier v. Leanna Lakeside Property Ass\u2019n, 305 Ill. App. 3d 45, 58 (1999) (\u201c[T]he defendant\u2019s claim that a violation of a statute cannot create a duty where none exists at common law is at odds with a long line of Illinois cases holding to the contrary.\u201d). The violation of such a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. Bier, 305 Ill. App. 3d at 58. A party that is injured as a result of a violation of such a statute or ordinance may recover upon a showing that (1) the violation proximately caused the injury; (2) the statute or ordinance was intended to protect the class of persons to which the party belongs; and (3) the injury suffered was of the type that the statute or ordinance was designed to protect against. Bier, 305 Ill. App. 3d at 58.\nWe conclude that count II is nothing more than a reiteration of count I except that plaintiff appears to be claiming that a lesser quantum of proof is necessary to sustain the action. We first take judicial notice that the Village is a non-home-rule unit of government. This court may take judicial notice of easily verifiable matters, including a municipality\u2019s status vis-\u00e1-vis home rule powers. See City of Wheaton v. Loerop, 399 Ill. App. 3d 433, 434 n.1 (2010). As a non-home-rule unit, the Village is governed by Dillon\u2019s Rule. Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 694 (2004). Dillon\u2019s Rule states that non-home-rule units possess only those powers specifically conveyed by the constitution or by statute; thus, such a unit may regulate in a field occupied by state legislation only when the constitution or a statute specifically conveys such authority. Village of Sugar Grove, 347 Ill. App. 3d at 694. However, even when a non-home-rule unit is conveyed the authority to regulate in a particular field, it may not adopt an ordinance that infringes upon the spirit of the state law or is repugnant to the general policy of this state. Village of Sugar Grove, 347 Ill. App. 3d at 694-95. An ordinance enacted under those powers that conflicts with the spirit and purpose of a state statute is preempted by the statute. Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 259 (2003). \u201c \u2018[W]here there is a conflict between a statute and an ordinance, the ordinance must give way.\u2019 \u201d Hawthorne, 204 Ill. 2d at 259 (quoting Village of Mundelein v. Hartnett, 117 Ill. App. 3d 1011, 1015 (1983)).\nHere, it is clear that the legislature has conveyed to all municipalities, whether home rule or non-home-rule, the authority to regulate dogs and prohibit their running at large. However, the legislature has also \u201coccupied\u201d the field by passing the Act and has provided a series of remedies for violations of the Act, including its prohibition of dogs running at large. Except as otherwise provided, violations of any section of the Act may result in misdemeanor criminal charges. See 510 ILCS 5/26(a) (West 2006). A dog running at large that is apprehended may be impounded, and the dog\u2019s owner shall pay a \u201cpublic safety fine\u201d of $25. 510 ILCS 5/9 (West 2006). Furthermore, section 16 of the Act provides for civil damages for injuries caused by dogs and other animals, whether running at large or not.\nThe state has specifically provided a cause of action for the type of situation that Janis alleged in count II of her third amended complaint. Indeed, count I of Janis\u2019s third amended complaint sought recovery pursuant to this statutory remedy. While section 24 of the Act grants municipalities the authority to regulate animals and prohibit them from running at large, nowhere does the Act provide that a municipality may regulate civil liability for incidents involving animals running at large. By creating this statutory route of recovery that is not based on negligence or strict liability, the state has set a general policy for recovery for injuries caused by animals (in particular, dogs).\nJanis is attempting to use a Village ordinance to impose liability under a negligence standard in a field in which the state has determined that negligence shall not apply. Although Janis alleged negligence in count II, it would be more accurate to call the cause of action strict liability for any injury caused by a dog not on a leash or held by its owner or a third party when the dog is not on the owner\u2019s property. However, neither negligence nor strict liability is contemplated by the Act. See Beggs, 393 Ill. App. 3d at 1054. Such a use of the ordinance is unsupported by any specific conveyance in the constitution or the Act and would infringe upon the spirit of the Act and the general policy of this state. Therefore, it would run afoul of Dillon\u2019s Rule and cannot be the basis for a cause of action.\nFurthermore, a common-law cause of action for negligence involving injuries caused by an animal already exists, and that cause of action includes the requirements that the animal had a mischievous propensity to commit such injuries and that the owner had knowledge of the propensity. See Beckert, 33 Ill. 2d at 46. Here, Janis failed to allege either of those requirements.\nJanis argues that these requirements do not exist \u201cwhen the animal is simply the means of the injury and the cause is something else.\u201d Janis relies in large part on Meyer v. Naperville Manner, Inc., 285 Ill. App. 3d 187 (1996). In Meyer, the minor plaintiff fell from a horse at the defendant\u2019s horseback riding academy. In count II of her amended complaint, the plaintiff alleged negligence in that the defendant: (1) failed to warn her that a riding technique that she had previously learned was dangerous to use with the defendant\u2019s horses; (2) promoted her from the status of beginner through advanced when she had not safely learned to handle the defendant\u2019s horses; and (3) entrusted child students to a 17-year-old instructor who had no training or instruction in teaching and no prior teaching experience; as a result, the horse that she was riding ran away, causing her to fall and injure herself. Meyer, 285 Ill. App. 3d at 188. The plaintiff argued that \u201ca cause of action exists where a defendant is entrusted to teach and care for children safely and negligently fails to do so.\u201d Meyer, 285 Ill. App. 3d at 189. This court held that, \u201cproperly pleaded, there can be recovery under a cause of action for common-law negligence where an animal is involved even in the absence of an allegation that the animal had a predisposition towards mischief.\u201d Meyer, 285 Ill. App. 3d at 191. We found that the plaintiff had alleged \u201cthat the inadequate instruction provided by the defendant was the cause of her injury. Therefore, the fact that the horse in this cause had no predisposition to mischief may have no bearing on the issue of inadequate instruction and thus may not be a necessary element to the plaintiffs negligence cause of action in this case if the cause of action is otherwise pleaded properly.\u201d Meyer, 285 Ill. App. 3d at 192.\nWe find Meyer to be distinguishable. The plaintiff in Meyer alleged that it was the defendant\u2019s conduct (negligent training), not that of the animal, that caused her to fall from the horse and sustain her injuries. Here, Janis alleged that \u201cdefendants\u2019 dogs *** knocked plaintiff to the ground as she stood in the driveway of her home greatly injuring her.\u201d The actions of the dogs, not those of defendants, caused her to fall to the ground and sustain injuries. The type of recovery discussed in Meyer is not applicable to the facts alleged in this case, because plaintiff has not alleged that defendants were negligent in training their dogs or, more specifically, failing to train the dogs to refrain from knocking persons to the ground.\nExisting causes of action under the common law and under the Act were available to Janis. In count II of her third amended complaint, she attempted a third method of recovery by including \u201cwithout provocation,\u201d which is part of the Act, but excluding \u201cknowledge of the propensity by the owner,\u201d which is part of the common law; however, neither provocation nor propensity is part of the ordinance. Janis was required to plead a cause other than liability pursuant to the Act, which was contained in count I and which took precedence over the ordinance. The only alternative was to plead the common-law claim that the animals had a mischievous propensity to commit such injuries and that defendants had knowledge of the propensity. She failed to do this.\nThus, interpreting the allegations contained in the complaint in the light most favorable to Janis, we find that Janis failed to sufficiently set forth a cause of action on which relief may be granted. Therefore, the trial court did not err in granting the section 2 \u2014 615 motions to dismiss count II of her third amended complaint.\nJanis next asks this court to reverse the trial court\u2019s order denying her motion to file a fourth amended complaint and to direct the court to \u201cconsider whether Plaintiff pleads a private right of action under South Elgin\u2019s Ordinance.\u201d According to Janis, she \u201chas not attempted to plead she was entitled to an implied private right of action, and it is somewhat of a mystery how Count II came to be viewed as such.\u201d Our review of the record shows that Janis never did raise the issue of a private right of action under the Village ordinance in any of her complaints. Janis first mentioned a private right of action in her brief in support of her proposed fourth amended complaint. Confusingly, she argued in that brief that, while she had never attempted to plead an implied private right of action, even in her proposed fourth amended complaint, the trial court should permit her to do so. Whether to allow the amendment of a complaint is a matter left to the discretion of the trial court, and absent an abuse of that discretion, the trial court\u2019s determination will not be overturned. Moore v. People for the Ethical Treatment of Animals, Inc., 402 Ill. App. 3d 62, 75 (2010). We will find an abuse of discretion only where no reasonable person would take the view adopted by the trial court. Moore, 402 Ill. App. 3d at 75. Janis had multiple opportunities to plead a private cause of action under the ordinance, and not once did she allege such a cause of action. We determine that the trial court did not abuse its discretion by denying Janis the opportunity to file a fourth amended complaint that did not contain or contemplate the theory of recovery that she broaches in this court.\nFor these reasons, the judgment of the circuit court of Kane County is affirmed.\nAffirmed.", "type": "majority", "author": "JUSTICE McLAREN" } ], "attorneys": [ "R. Mark Maritote, of Bloomingdale, for appellant.", "Christopher T. Willis, of Busse, Busse & Grasse, of Chicago, for appellees Donna Graham and Scott Graham.", "Stephen A. Rehfeldt, of Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton, for appellees Phillip Warner and Sandi Warner." ], "corrections": "", "head_matter": "DEBORAH JANIS, Plaintiff-Appellant, v. SCOTT GRAHAM et al., Defendants-Appellees.\nSecond District\nNo. 2\u201409\u20140814\nOpinion filed March 10, 2011.\nR. Mark Maritote, of Bloomingdale, for appellant.\nChristopher T. Willis, of Busse, Busse & Grasse, of Chicago, for appellees Donna Graham and Scott Graham.\nStephen A. Rehfeldt, of Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton, for appellees Phillip Warner and Sandi Warner." }, "file_name": "0898-01", "first_page_order": 914, "last_page_order": 921 }