No. 3--09--0839
Opinion filed February 10, 2011
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2011
AMERICAN FAMILY MUTUAL ) Appeal from the Circuit Court
INSURANCE COMPANY as subrogee of) of the 13th Judicial Circuit,
BENJAMIN DAVID JUDAY, ) La Salle County, Illinois,
)
Plaintiff-Appellant, )
)
v. ) No. 05--LM--808
)
DAVID ALBERS, ) Honorable
) James A. Lanuti,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
PRESIDING JUSTICE CARTER delivered the judgment of the court,
with opinion.
Justices Holdridge and Wright concurred in the judgment.
_________________________________________________________________
OPINION
The plaintiff, American Family Mutual Insurance Company as
subrogee of Benjamin David Juday, filed complaint against the
defendant, David Albers, under the Illinois Domestic Animals
Running at Large Act (Act) (510 ILCS 55/1 (West 2002)) for
damages sustained when Juday's vehicle collided with the
defendant's cow. After a jury trial, a judgment was entered in
favor of the defendant. The plaintiff filed a motion for
judgment not withstanding the verdict (JNOV), which the trial
court denied. On appeal, the plaintiff argues that: (1) the
trial court erred by denying his motion for JNOV; (2) the finding
for the defendant was against the manifest weight of the
evidence; and (3) the defendant failed to plead reasonable care
as an affirmative defense. We affirm.
FACTS
On October 31, 2003, at 10:45 p.m., Juday was driving
northbound on Route 39, approaching mile marker 75, in a pickup
truck insured by the plaintiff when he collided with a cow owned
by the defendant. Juday incurred property damage and car rental
expenses. On November 4, 2005, the plaintiff filed a complaint
alleging a violation of the Act.
At trial, the plaintiff's attorney indicated in his opening
statement that the defendant would not be able to show "that what
he did in any way was actually reasonable for restraining his
cattle." In his opening statement the defendant's attorney
indicated that the case would turn on whether the defendant
"exercise[d] reasonable care in harboring the animals." He
stated, "What this case is going to come down to is *** you are
going to have to decide whether or not what [the defendant] did
in restraining his cattle was quote, unquote, reasonable." He
also stated, "[w]e believe the evidence is going to show that
[the defendant] was exercising reasonable care."
Following opening statements, the plaintiff's attorney
called the defendant to testify as part of its case-in-chief.
The plaintiff's attorney questioned the defendant about the type
of fencing surrounding his farm, the condition of the fencing,
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and repairs and maintenance done to the fencing. The plaintiff's
attorney also questioned the defendant as to whether he could
have taken measures to make the section of fence that failed in
this incident more secure and whether he could have built another
fence, ditch, or wall on his property to restrain his cattle.
In responding to the plaintiff's direct examination, the
defendant testified that on the date of the incident his family
owned a 120-acre farm that was divided by Route 39 and located
near mile marker 75 in La Salle County. On the farm, the
defendant grew crops and raised cows. At the time of the
incident, the defendant had 50 head of cattle, with each cow
weighing approximately 1,100 to 1,200 pounds. The defendant's
farm was surrounded by fencing. Some of the fencing was owned,
erected, and maintained by the defendant. The fencing involved
in this incident paralleling Route 39 was owned and maintained by
the State of Illinois, which was a woven wire fence with two
strands of barbed wire along the top.
Prior to leaving for a Halloween event on the day of the
incident, the defendant put the cows out to pasture. Before
moving the cows, the defendant checked the fence. While the
defendant was at the Halloween event, he received a telephone
call informing him that his cattle escaped. He went home and saw
that his cattle had escaped onto Route 39. The cattle escaped
through a 15-foot section of fence that appeared to have been
knocked down from the cattle smashing it forward. The
defendant's cattle had escaped in the past but never onto Route
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39. The defendant testified that a fence cannot be built to hold
cows because they can knock down anything in their way, similar
to a car crashing through a fence.
The defendant also testified that the State of Illinois was
responsible for the section of fence involved in this matter.
Over the course of the winter, the same section of fence would
become crushed by snow and water. Each spring, the defendant
called the State of Illinois to inspect the fence and make any
necessary repairs to its fence along Route 39.
On cross-examination, the defendant testified that in 1977,
the State of Illinois erected the fence that paralleled Route 39.
He had been using the fence to restrain cattle since that time.
The section of fence from which the cows had escaped had been
repaired in the past. The defendant never had any problems with
that section of fence in the fall or summer seasons.
After the plaintiff rested its case, the defendant's
attorney called the defendant to testify. The defendant
testified that he had been working on the farm for over 50 years.
Prior to the incident in this case, cattle had escaped from the
defendant's property through his five-strand barbed wire fence
that he erected elsewhere on the property, but never through the
State's fencing involved in this case. Each spring, the
defendant would contact the Illinois Department of Transportation
(IDOT) to send someone to inspect the fence and to make any
necessary repairs to the fence along Route 39 before releasing
his cattle into open pasture. The defendant would also call IDOT
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at other times if repairs were necessary. IDOT was prompt at
attending to the fence and did a good job of fixing it. The
defendant or one of his four sons would inspect the pasture fence
along Route 39 every day. The defendant had never been informed
by the State of Illinois that the fence should not be used to
restrain cattle, but the State did not ever indicate to him that
the fence could be used to restrain his cattle. His cattle
roamed near the fence since it was erected in 1977.
The plaintiff moved for a directed verdict on the issue of
liability. The plaintiff's attorney argued that the defendant
provided no evidence that his reliance on the fence was
reasonable. The defendant's attorney argued that the defendant's
reliance on the fence was reasonable. The trial court denied
both motions, indicating that it was for the jury to decide the
issue of whether the defendant used reasonable care to restrain
his cattle.
In discussing jury instructions, the plaintiff's attorney
did not object to the defendant's jury instruction number 11,
regarding an owner or keeper of an animal, which included
language that "defendant contends that at all relevant times he
used reasonable care to restrain his cow and that he did not know
the cow was running at large." The plaintiff's attorney did not
object to the defendant's jury instruction number 12 regarding
reasonable care. The plaintiff's attorney did not object to the
defendant's jury instruction number 6 indicating that if the jury
found that the defendant proved that he was unaware that his cow
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was running at large and that he used reasonable care to restrain
his cow, then the jury's verdict should be for the defendant.
The jury found in favor of the defendant. The trial court
denied the plaintiff's JNOV motion. The plaintiff appealed.
ANALYSIS
On appeal, the plaintiff argues that: (1) the trial court
erred by denying his JNOV motion; (2) the finding for the
defendant was against the manifest weight of the evidence; and
(3) the trial court erred by allowing the defendant to argue
reasonable care because the defendant failed to affirmatively
plead reasonable care as an affirmative defense.
We agree with the plaintiff that the defendant was required
to plead and prove the issue of his exercise of reasonable care
as an affirmative defense. The test for whether a defense is an
affirmative defense is whether the defense gives color to the
opposing party's claim and then asserts new matter by which the
apparent right is defeated. Vanlandingham v. Ivanow, 246 Ill.
App. 3d 348 (1993); Worner Agency, Inc. v. Doyle, 121 Ill. App.
3d 219 (1984).
In this case, reasonable care on the part of the defendant
constituted an affirmative defense. Pursuant to the Act:
"No person or owner of livestock shall allow livestock
to run at large in the State of Illinois. All owners of
livestock shall provide the necessary restraints to prevent
such livestock from so running at large and shall be liable
in civil action for all damages occasioned by such animals
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running at large; Provided, that no owner or keeper of such
animals shall be liable for damages in any civil suit for
injury to the person or property of another caused by the
running at large thereof, without the knowledge of such
owner or keeper, when such owner or keeper can establish
that he used reasonable care in restraining such animals
from so running at large." 510 ILCS 55/1 (West 2002).
The Act provides innocent owners relief from harsh consequences
of strict liability by providing the exception where an owner
acted with reasonable care in restraining the animal and did not
know of the animal's escape. Nevious v. Bauer, 281 Ill. App. 3d
911 (1996). Once the plaintiff establishes a prima facie case
that damage was caused by the defendant's livestock running at
large, the burden of proof shifts to the defendant to prove the
exercise of due care in restraining the livestock and lack of
knowledge that it had escaped. Nevious, 281 Ill. App. 3d 911.
Due to the burden shifting to prove reasonable care and lack of
knowledge, those two provisos constitute affirmative defenses and
must be affirmatively pled and proved. Corona v. Malm, 315 Ill.
App. 3d 692 (2000); Christenson v. Rincker, 288 Ill. App. 3d 185
(1997).
Facts constituting any affirmative defense, which if not
expressly stated in the pleading would be likely to take the
opposite party by surprise, must be plainly set forth in the
answer or reply. See 735 ILCS 5/2--613(d) (West 2008). However,
an objection that an issue was not raised in the pleadings may be
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waived by conduct at trial of the objecting party or by
introduction of evidence on the issue. Vanlandingham, 246 Ill.
App. 3d 348; LaGrange Federal Savings and Loan Ass'n v. Rock
River Corp., 97 Ill. App. 3d 712 (1981). The plaintiff waives
objection to the insufficiency of the defendant pleading an
affirmative defense by failing to object in the trial court.
Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (1986).
Here, the plaintiff has waived any objection to the
defendant's failure to plead reasonable care as an affirmative
defense by failing to object at trial. The record indicates that
the defendant's theory throughout trial was that the plaintiff's
claim would be defeated because he had used reasonable care to
restrain his cattle. The issue of whether the defendant
exercised reasonable care was discussed by both parties in
opening statements and in their closing arguments. Further, the
plaintiff questioned the defendant as part of its own case-in-
chief on the issue of the defendant's use of reasonable care.
Both parties argued the issue in the context of the motions for
directed verdict. Moreover, the plaintiff did not object to the
defendant's proffered jury instructions discussing reasonable
care. There was no surprise in the defendant's assertion of
reasonable care as a defense.
As for the plaintiff's remaining issues on appeal, there was
sufficient evidence to support the trial court's denial of the
plaintiff's JNOV motion, and the finding for the defendant was
not against the manifest weight of the evidence. A JNOV motion
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should be granted if all the evidence, when viewed in a light
most favorable to the opponent, so overwhelmingly favors the
movant that no contrary verdict based on that evidence could ever
stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494
(1967). A motion for new trial shall be granted if the jury
verdict was against the manifest weight of the evidence. Smith
v. Marvin, 377 Ill. App. 3d 562 (2007).
At trial, there was no dispute that the defendant's cows
were running at large and the defendant owned the cow involved in
this case. Sufficient evidence was presented to show that the
defendant did not have knowledge that the cow was running at
large and that he used reasonable care in restraining the cow
from so running at large.
Specifically, the evidence indicated that the fence was
adequate to restrain his cattle for over 30 years since the fence
was installed by the State of Illinois in 1977. The fence was
approximately four feet tall and made of woven wire and barbed
wire. Cattle had never escaped through the fence involved in
this case. The defendant inspected the fence every day. Each
spring, the defendant called IDOT to inspect the fence and make
repairs. Thus, the evidence supports a finding that the
defendant acted reasonably in relying on the fence to restrain
his cattle.
Pursuant to the Act, the plaintiff established that the
defendant's cow was running at large and caused damages to the
plaintiff. At that point, the burden of proof shifted to the
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defendant to establish the exercise of due care in restraining
the cow and lack of knowledge that it had escaped. Under the
Act, when a defendant establishes that he did not have knowledge
that his animal was running at large and that he used reasonable
care in restraining the animal from so running at large, then he
shall not be liable for damages caused by the running at large.
The defendant met his burden of proof and, consequently, cannot
be liable for the plaintiff's damages.
We disagree with the plaintiff's contention that "the trial
court *** should have instructed the jury as to strict liability
based on Illinois Pattern Jury Instruction 110.04, Liability of
Owner or Keeper of Dog or Other Animal." Illinois Pattern Jury
Instruction 110.04 (Illinois Pattern Jury Instructions, Civil,
No. 110.04 (1995)) is based upon the Animal Control Act (510 ILCS
5/16 (West 2008)) and is not applicable in this case, which was
brought pursuant to the Illinois Domestic Animals Running at
Large Act (510 ILCS 55/1 (West 2002)).
CONCLUSION
The judgment of the circuit court of La Salle County in
favor of the defendant is affirmed.
Affirmed.
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