No. 2--96--0380
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
A.M., a Minor, by ) Appeal from the Circuit Court
J.M. and E.M., her ) of Du Page County.
Parents and Next Friends, )
) No. 92--L--582
Plaintiffs-Appellants, )
)
v. )
)
NAPERVILLE MANNER, INC., ) Honorable
) Edward R. Duncan, Jr.,
Defendant-Appellee. ) Judge, Presiding.
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JUSTICE RATHJE delivered the opinion of the court:
The plaintiff, Alicia Meyer, a minor, filed an amended two-
count complaint against the defendant, Naperville Manner, Inc.,
seeking damages suffered when she fell from a horse at the
defendant's horseback riding academy. Count I of the amended
complaint alleged a cause of action under the Animal Control Act
(510 ILCS 5/16 (West 1992)). Count II alleged a common-law
negligence cause of action. Pursuant to the defendant's motion
for summary judgment, the trial court dismissed count I of the
amended complaint. On appeal, this court affirmed the dismissal of
count I but remanded the cause for further proceedings on the
negligence claim alleged in count II. Meyer v. Naperville Manner,
Inc., 262 Ill. App. 3d 141 (1994).
In count II of her amended complaint, the plaintiff alleged
the following acts of negligence by the defendant:
"(a) Failed to warn the Plaintiff that the riding
technique she had previously learned was dangerous to use with
Defendant's horses;
(b) Promoted the Plaintiff from the status of 'beginner'
through 'advanced' when she had not safely learned to manage
Defendant's horses.
(c) Entrusted the safety of its child students to a 17-
year-old instructor who had no training or instruction in
teaching and no prior teaching experience."
The plaintiff further alleged that, as a result the above acts
of negligence, the horse the plaintiff was riding ran away, causing
her to fall and injure herself.
The defendant filed a motion for summary judgment on the
basis, inter alia, that plaintiff had failed to plead that the
horse in this cause had a dangerous propensity to injure the
plaintiff about which the defendant knew or should have known. The
trial court granted the defendant's motion. This appeal followed.
On appeal the plaintiff raises the following issues: whether
the amended complaint states a cause of action under Illinois law;
and whether the pleadings and depositions on file reveal an issue
of fact.
The plaintiff contends that she need not have alleged the
dangerous propensities of the horse because her cause of action is
based upon the negligence of the defendant in providing her with
inadequate instruction, not upon the behavior of the horse. The
plaintiff suggests that this court determine that a cause of action
exists where a defendant is entrusted to teach and care for
children safely and negligently fails to do so.
In support of her argument, the plaintiff relies on two out-
of-state cases, Fantini v. Alexander, 172 N.J. Super. 105, 410 A.2d
1190 (1980), and Noland v. Colorado School of Trades, Inc., 386
P.2d 358 (Colo. 1963). Both cases involved suits based upon
injuries suffered as the result of inadequate instruction.
However, neither case involved a challenge as to the existence of
the cause of action nor did it involve an animal as does the
present case.
Because the trial court based its decision solely on the
failure of the plaintiff to allege that the defendant was aware
that the horse in question had a dangerous propensity to commit
such an injury as suffered by the plaintiff, we will limit our
discussion to the necessity to plead and prove that element in
order to state a cause of action for negligence. In order to
resolve this issue, we will review a number of prior decisions.
In Beckert v. Risberg, 50 Ill. App. 2d 100 (1964), the minor
plaintiff sought damages for a dog bite, alleging a statutory cause
of action and a common-law negligence cause of action. The jury
returned a verdict in favor of the plaintiff. The defendant
appealed arguing that the jury should not have been instructed on
negligence. On review, the court noted that the plaintiff's
failure to allege the defendant's knowledge of the vicious
propensities of his dog was fatal to his common-law cause of
action. The court went on to state as follows:
"The common-law rule is set forth in Domm v. Hollenbeck, 259
Ill 382, 102 N.E. 782, where the court said at page 385:
'The owner of an animal is bound to take notice of the
general propensities of the class to which it belongs,
but he is under no obligation to guard against injuries
which he has no reason to expect on account of some
disposition of the individual animal different from the
species generally, unless he has notice of such
disposition. The owner or keeper of a domestic animal of
a species not inclined to mischief, such as dogs, horses
and oxen, is not liable for any injury committed by it to
the person of another, unless it can be shown that the
animal had a mischievous propensity to commit such an
injury and the owner had notice of it or that the injury
was attributable to some other neglect on his part.' "
(Emphasis added.) Beckert, 50 Ill. App. 2d at 106.
We have emphasized the above language, for it is supportive of
the plaintiff's position that, as her injury was allegedly caused
by the inadequate instruction on the part of the defendant, she
would not have to allege the defendant's knowledge of the
propensity of the horse to injure her. The Beckert court addressed
a similar argument, stating as follows:
"Although the language of the above quoted rule indicates
that liability might be predicated on some neglect of the
owner other than the owning or keeping of a domestic animal
with knowledge of its mischievous propensity to commit injury,
the cases have uniformly held that where a common-law count is
based upon an injury committed by a dog, it is necessary that
the defendant's knowledge of the animal's vicious propensity
be alleged and proven. Certainly the failure to keep a dog
secured was not in itself sufficient to establish liability at
common law for damages caused by such animal. Beckert, 50
Ill. App. 2d at 106.
Although the court reversed and remanded the cause for a new trial
on the basis that the negligence instructions should not have been
given, on further appeal, our supreme court reversed the appellate
court decision and reinstated the verdict for the plaintiff,
concluding that the defendant was not prejudiced by the giving of
the instructions. Beckert v. Risberg, 33 Ill. 2d 44 (1965). As to
the common-law count, the supreme court stated as follows:
"At the trial no evidence was introduced that the dog had
vicious propensities, nor was the evidence in other respects
sufficient to prove a common-law cause of action." (Emphasis
added.) Beckert, 33 Ill. 2d at 46.
Recent cases have refused to allow recovery under a theory of
common-law negligence where there was no allegation as to the
defendant's knowledge of the animal's mischievous propensity. See
Ennen v. White, 232 Ill. App. 3d 1061 (1992) (plaintiff did not
state a common-law negligence cause of action where she alleged
that the defendant did not exercise reasonable care when he allowed
plaintiff to ride a horse knowing she would be injured but failed
to allege that the horse was predisposed to cause such an injury);
Abadie v. Royer, 215 Ill. App. 3d 444, 452 (1991) (summary judgment
proper where there was no evidence of the horse's " 'mischievous
propensity' or defendants' awareness of same").
We note that each of the above cases relied in part on Forsyth
v. Dugger, 169 Ill. App. 3d 362 (1988). In that cause, the
plaintiff was riding a horse when a friend of his jumped on the
back of the horse to ride with him. When the plaintiff ducked to
miss a tree branch, the branch struck his companion, who grabbed
the plaintiff and pulled him off the horse, whereupon the plaintiff
was injured. The trial court granted summary judgment to the
defendants, inter alia, on the common-law negligence count because
the plaintiff had failed to allege or prove the horse's
predisposition to causing injury.
On appeal, the reviewing court upheld the granting of summary
judgment. After reciting the language from Domm, which we cited
earlier in this disposition, the court stated as follows:
"Plaintiff argues that the last clause of the quoted
language in Domm allows for recovery based on simple
negligence. However, we do not so read Domm, and no other
cases so holding have been brought to our attention. In
Beckert [50 Ill. App. 2d at 106], the plaintiff alleged a
common law count for recovery asserting defendant was
negligent in not keeping his dog secured. The court
acknowledged the last clause indicates liability might be
predicated on some other neglect, but it observed that the
cases have uniformly held that in a common law count alleging
injury by a dog, it is necessary to allege and prove the
owner's knowledge of the animal's mischievous propensity.
This necessity of alleging and proving this knowledge was
affirmed by the supreme court. [Citation.] In the present
case, the allegation and proof of this mischievous propensity
is clearly missing." Forsyth, 169 Ill. App. 3d at 367-68.
Moreover, even assuming that the language in Domm permitted
recovery based upon simple negligence, the court found that the
plaintiff's allegation that he was conducting himself peaceably
when the horse, without provocation, became excited and ran away,
causing the plaintiff injury clearly shows that count was based on
the common-law animal injury provision of Domm and not on simple
negligence. 169 Ill. App. 3d at 368.
Based upon our reading of Domm and both the appellate and
supreme court decisions in Beckert, we are of the opinion that,
properly 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. In the above cases where such an element has
been required, the allegations of negligence suggest that the
animal was the cause of the injury and not merely the instrument by
which the injury occurred as the result of another's negligence.
Just because an animal, without a prior "reputation," is the means
by which an injury is caused does not foreclose a negligence cause
of action based upon the actual cause of the injury. In the cause
before us, the plaintiff has alleged that 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 plaintiff's negligence cause of action in this case if the
cause of action is otherwise pleaded properly.
The trial court granted summary judgment based solely on the
failure of the plaintiff to allege the dangerous propensity of the
horse in this cause. In light of our determination that such an
allegation is not "automatically" required to state a negligence
cause of action where an animal is involved, we remand this cause
to the trial court for further proceedings with regard to the
defendant's motion for summary judgment.
The judgment of the circuit court is reversed, and the cause
is remanded for further proceedings consistent with the views
expressed in this opinion.
Reversed and remanded.
BOWMAN and DOYLE, JJ., concur.