THIRD DIVISION
November 5, 2008
Nos. 1-06-2759; 1-07-0029 (Consolidated)
No. 1-06-2759
PATRICIA JOHNSON and LINNEA JOHNSON, a ) Appeal from the
Minor, by PATRICIA JOHNSON, her Mother and ) Circuit Court of
Next Friend, ) Cook County.
)
Plaintiffs-Appellees, )
)
v. ) No. 03 L 65023
)
WILLIAM JOHNSON, RAMONA JOHNSON, and )
TOP BRASS HORSE FARMS, INC, )
a Corporation, )
)
Defendants-Appellants )
)
(David Johnson, ) The Honorable
) Carol Pearce McCarthy,
Third-Party Defendant-Appellee). ) Judge Presiding.
______________________________________________________________________________
No. 1-07-0029
PATRICIA JOHNSON and LINNEA JOHNSON, a ) Appeal from the
Minor, by PATRICIA JOHNSON, her Mother and ) Circuit Court of
Next Friend, ) Cook County.
)
Plaintiffs-Appellants, )
)
v. ) No. 03 L 65023
)
WILLIAM JOHNSON and RAMONA JOHNSON, ) The Honorable
) Carol Pearce McCarthy,
Defendants-Appellees. ) Judge Presiding.
JUSTICE GREIMAN delivered the opinion of the court:
Following trial, a jury returned a verdict against plaintiffs Linnea Johnson and her mother
Nos. 1-06-2759; 1-07-0029 (Consolidated)
and next friend Patricia Johnson on their claim against defendants Ramona and William Johnson
brought pursuant to the Animal Control Act (Act or Animal Control Act) (510 ILCS 5/16 (West
2002)). Both parties have appealed, contesting various rulings made by the trial court.
Specifically, plaintiffs contend that the trial court erred when it: (1) allowed defendants to assert
comparative negligence as an affirmative defense to their claim brought under the Act; (2)
instructed the jury on comparative negligence; (3) allowed defendants’ expert to testify; and (4)
declined to grant plaintiffs’ motion for a directed verdict on the issue of liability. Alternatively,
plaintiffs assert that the jury’s verdict was against the manifest weight of the evidence. On cross-
appeal, defendants maintain that the trial court erred in finding that the settlement agreement
reached between plaintiffs and David Johnson, Linnea’s father, who was named as a third-party
defendant, was reached in good faith as required by the provisions of the Illinois Joint Tortfeasor
Contribution Act (Contribution Act) (740 ILCS 100/1 et seq. (West 2002)). We affirm in part
and reverse in part and remand for a new trial.
On March 15, 2003, seven-year-old Linnea Johnson accompanied her father, David
Johnson, to Top Brass Horse Farms (Top Brass), where she was kicked in the back by Gambler, a
horse that at the time of the accident was owned by defendant Ramona Johnson but was in the
immediate control of Ramona’s husband, defendant William Johnson.1 On August 7, 2003,
Linnea, by her mother and next friend, Patricia, filed a complaint against Top Brass and William
and Ramona Johnson, seeking to recover monetary damages pursuant to the provisions of the
Animal Control Act (510 ILCS 5/16 (West 2002)) and the Rights of Married Persons Act,
1
The Johnson defendants are of no relation to the Johnson plaintiffs.
2
Nos. 1-06-2759; 1-07-0029 (Consolidated)
commonly know as the “Family Expense Act” (750 ILCS 65/15 (West 2002)).
In pertinent part, the complaint alleged that at the time of the accident, Linnea was
lawfully on defendant Top Brass’s premises, where defendants William and Ramona Johnson
boarded their horse Gambler, and was conducting herself peaceably when Gambler kicked her in
the back without provocation, thereby causing permanent damage to one of her kidneys. The
defendants filed answers denying that Linnea and her mother were entitled to relief under the
provisions of the Animal Control Act or the Family Expense Act. On October 12, 2004,
defendants William and Ramona Johnson filed a third-party complaint for contribution against
Linnea’s father, David Johnson, and an amended third-party complaint on March 17, 2005. In
the amended third-party complaint, the Johnson defendants alleged that David “[f]ailed to
properly supervise [Linnea] when he knew of the dangerous propensities and unpredictability of
horses” and “[f]ailed to properly instruct and train [Linnea] about the dangerous propensities and
unpredictability of horses” and, accordingly, his actions directly and proximately caused Linnea’s
injuries. Thus, in the event they were found liable for Linnea’s injuries, the Johnson defendants
contended that they were entitled to contribution from David pursuant to the provisions of the
Contribution Act (740 ILCS 100/1 et seq. (West 2002)). On February 4, 2005, defendant Top
Brass also filed a third-party complaint for contribution against David Johnson as well as a
counterclaim for contribution against the Johnson defendants.
Thereafter, the parties engaged in discovery and each of the parties was deposed. The
parties then engaged in settlement negotiations. Ultimately, plaintiffs reached settlement
agreements with third-party defendant David Johnson and defendant Top Brass. The trial court
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conducted a hearing to determine whether the settlement agreements were made in good faith as
required by the Contribution Act. At the hearing, the Johnson defendants did not contest the
propriety of the $82,500 settlement reached between plaintiffs and Top Brass, but they did
dispute the good faith of the $7,500 settlement reached between plaintiffs and David Johnson.
Specifically, at the hearing, defense counsel argued: “Here we have an issue where certainly what
could be more collusive than the father and mother to benefit the case that they’re bringing and
entering into this settlement for a fraction of 1 percent of what they’re demanding in this case.”
Counsel noted that Top Brass settled for a much higher amount even though “Top Brass Farms
didn’t own the horse, wasn’t even present, didn’t control the horse in any fashion, was just the
owner of the stable where they kept horses.” David Johnson’s counsel responded, noting that the
“fact that two settling parties have a friendly or close relationship in and of itself doesn’t show
collusion” and that the size of the settlement alone is not indicative of the existence or lack
thereof of good faith. At the conclusion of the hearing, the trial court rejected the Johnson
defendants’ arguments, stating, “I certainly don’t find fraud, and I don’t find that there’s
collusion here.” Accordingly, on August 10, 2006, the trial court entered two orders finding that
the settlement agreements reached between plaintiffs and Top Brass and plaintiffs and David
Johnson were made in good faith as required by the Contribution Act. Accordingly, the trial
court ordered that all claims against third-party defendant David Johnson and defendant Top
Brass were dismissed with prejudice.
Thereafter, on August 11, 2006, plaintiffs filed their third amended complaint, naming
William and Ramona Johnson as the sole defendants. As with the prior complaints, plaintiffs
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sought to recover damages under the Animal Control Act and the Family Expense Act. In
response, the Johnson defendants advanced several affirmative defenses, which they asserted
effectively barred plaintiffs from obtaining the requested relief. Specifically, the Johnson
defendants alleged that: Linnea assumed the risk of injury when she and her parents placed her in
the presence of horses where there was a foreseeable risk of injury; Linnea was guilty of
contributory negligence when she “approached and/or touched the horse Gambler from behind
without first announcing and making known to Gambler her presence” and her negligence was
the proximate cause of her injury; and David Johnson was guilty of contributory negligence
because he “failed to watch and supervise his daughter, and by his actions placed her at risk,
while she wandered around the horse barn,” and his negligence proximately caused Linnea’s
injuries.2
Plaintiffs moved to strike defendants’ affirmative defenses arguing, in pertinent part, that
contributory negligence was not a valid defense to an action brought under the Animal Control
Act. After hearing arguments from the parties, the trial court denied plaintiffs’ motion, finding
that the case law “allow[s] for both assumption of the risk and for contributory negligence.”
Thereafter, the parties proceeded to trial. At trial, defendant William Johnson testified
that his wife Ramona purchased Gambler, a palomino quarter horse, in 2003 from a family farm
2
Although defendants phrased their affirmative defense in terms of contributory
negligence, the parties disputed, and the jury was subsequently instructed on the defense of
comparative negligence, as it is set forth in section 2-1116 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-1116 (West 2002)).
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
in Wisconsin. Because the previous owners had children, Gambler was accustomed to the
presence of children. Ramona also owned another horse, Guy, and boarded both horses at Top
Brass, located in Cook County. William explained that Top Brass is located on 15 acres of land
and contains multiple buildings. The horses are boarded in a round barn, and a hay barn is
located to the north of the round barn. William was familiar with other people who boarded their
horses at Top Brass, including David Johnson, Linnea’s father.
On March 15, 2003, William and his wife were at Top Brass tacking their horses,
preparing to ride them, when he saw David and Linnea arrive in the round barn. David led his
horse Freebucks out of the barn intending to wash him. When William finished tacking
Gambler, he led the horse by the reins out of the barn and encountered David and Linnea, who
were brushing Freebucks in the thoroughfare leading out of the round barn. William stated that
the thoroughfare was not an area for grooming horses. Because Freebucks was blocking the
thoroughfare, and William could not safely lead Gambler around Freebucks, he stopped and
conversed with David. He stood parallel with Gambler’s front legs and held Gambler’s reins.
While they conversed, Linnea began to walk toward the round barn. Shortly thereafter, as he was
holding Gambler’s reins, William felt Gambler shuffle and shift his weight from his right leg to
his left leg. He then heard Linnea cry out. When he looked back, he saw Linnea on the ground.
William also saw a horse grooming brush on the ground as well, located approximately 18 inches
away from the wall of the hay barn. William did not see Gambler kick Linnea nor did he see
Linnea provoke Gambler in any manner. William indicated that it is unsafe for a person to pass
behind the back of a horse, explaining “[t]hey are totally blind there. They are totally vulnerable
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and they’re going to kick.” William classified Gambler as a calm horse and denied that there had
been any prior incidents involving Gambler causing injury to another person.
William’s wife, Ramona, confirmed that she is the “proprietary owner” of Gambler. On
March 15, 2003, she was in the barn tacking up her other horse, Guy, when Linnea came into the
barn and asked Ramona for a scraping tool. Approximately one minute later, after she had given
Linnea the requested tool, Ramona heard a scream. She exited the barn and saw William and
David standing by their horses and Linnea lying on the ground. Prior to the accident, Ramona
had seen Gambler interact favorably with children and he had never before caused injury to a
child. Because she had been around horses since she was a child, Ramona knew that it was
unsafe for a person to walk behind a horse without alerting the horse to the person’s presence.
David Johnson testified that he visited Top Brass, where he boarded his horse Freebucks,
approximately three to four times per week. Because Top Brass permitted children to be on the
premises, his daughter Linnea would frequently accompany him to the farm. On March 15,
2003, he and his daughter arrived at Top Brass at approximately 12 noon because Linnea had a
riding lesson that afternoon. In the barn, he noticed William and Ramona Johnson tacking their
horses, preparing them to be ridden. Because it had rained the previous day, Freebucks was
covered in mud. Accordingly, David obtained a brush container and led Freebucks out of the
round barn to a wash rack located outside. He placed the brush container on the ground near the
hay barn. After washing Freebucks, he led the horse to the wall of the hay barn to “let the heat
off of the barn warm the horse.” As David and Linnea waited for Freebucks to dry, William
exited the round barn with Gambler. David then instructed Linnea to return a tool to the brush
7
Nos. 1-06-2759; 1-07-0029 (Consolidated)
box that he had left on the ground near the south wall of the hay barn. William stopped with
Gambler and the two men conversed. David noticed Gambler shuffle his front legs and
immediately thereafter he heard his daughter scream. He saw Linnea on the ground crying and
complaining of pain. David noted that the helmet that she had been wearing was cracked. He
drove Linnea to Palos Hospital, where she was examined. Thereafter, Linnea was transported by
helicopter to Loyola Hospital.
Because he had been around horses since he was a child, David knew that a person should
not walk behind or approach a horse from the rear because there is the possibility that the horse
may kick. David never saw Linnea move behind Gambler nor did he see Gambler actually strike
his daughter.
Linnea confirmed that she was present at Top Brass on March 15, 2003, because she had
a riding lesson. She testified that she had been riding horses almost daily since the age of four
and that her father had instructed her about horse safety. In particular, he informed her that she
should avoid walking behind horses and that if she were to find herself in the back of a horse, she
should “tell the horse that [she was] there” to avoid startling the horse. Upon their arrival at Top
Brass, Linnea and her father discovered that Freebucks was dirty, so they took him out of the
round barn to an outdoor wash rack to clean him. She was carrying the brush box and put it
down by the hay barn wall before she and her father started washing Freebucks. After they
washed Freebucks, Linnea and her father led Freebucks to the hay barn wall to allow him to dry.
At that point, William exited the round barn with Gambler, stopped several feet away, and began
conversing with her father. Linnea walked over to the hay barn wall to get a brush from the
8
Nos. 1-06-2759; 1-07-0029 (Consolidated)
brush box. As she was kneeling by the box, she heard Gambler shuffle his feet and then she was
kicked. The kick propelled her into the barn wall and cracked the riding helmet that she had been
wearing. She denied that she had walked behind Gambler prior to being injured. After receiving
medical treatment, Linnea began riding horses again approximately six months after her accident.
Patricia Johnson testified that on March 15, 2003, her husband called her and informed
her that Linnea had been injured. After Linnea was transported to Loyola Hospital, she
underwent surgery and stayed in the hospital until March 23, 2003. Following Linnea’s
discharge, however, she complained of pain when urinating. On April 12, 2003, Linnea was
readmitted to Loyola because she suffered from a fever and an infection. Doctors installed a
drain on Linnea’s right side to drain her urine. Later, doctors inserted a catheter and a
nephrostomy tube to drain Linnea’s urine. During this time, Linnea was essentially bedridden.
Thereafter, Linnea underwent a second surgery, which she “tolerated very well.” Prior to March
15, 2003, Linnea had been in good health and had not had any problems with her kidneys.
The parties stipulated that the total cost of the medical care that Linnea received in
connection with the accident totaled $79,137.49.
Dr. Carl Blond, an internal medicine and nephrology (kidney disease) specialist, testified
as plaintiffs’ retained medical expert. Upon review of Linnea’s medical records, Dr. Blond
opined that Linnea suffered damage to her right kidney. Specifically, there was a “loss of blood
supply to the lower part of her right kidney,” which he classified as “permanent damage.” In
particular, a renal scan taken on January 6, 2004, that compared the functioning capabilities of
both kidneys showed that Linnea’s right kidney functioned at 29% while her left kidney
9
Nos. 1-06-2759; 1-07-0029 (Consolidated)
functioned at 71%. Dr. Bond testified that a renal scan of “two normal kidneys would be 50/50,
each kidney does approximately half the work.” He explained that due to the damage to Linnea’s
right kidney, her left kidney was required to do a “higher percentage of the total work.” Based on
his knowledge, training, experience, and review of Linnea’s medical records, Dr. Bond opined
that Linnea’s kidney injury put her at risk for future medical problems. In particular, he indicated
that “there is a substantial risk *** that she’ll develop hypertension in the future.” Specifically,
he stated that Linnea had a 30% chance of developing hypertension within 20 years, whereas a
healthy 30-year-old’s chance of developing hypertension was less than 1%. In addition, Dr.
Bond opined that there was an additional risk to Linnea’s left kidney, “which has already
hypertrophied to some degree to make up for the damage that was done in the initial insult.” Dr.
Bond acknowledged that he formed his opinions without personally examining Linnea or
conferring with her treating physician.
Dr. Bruce Lindgren, a pediatric urologist, was one of the physicians who treated Linnea
following her accident. When she was admitted to the hospital on March 15, 2003, Linnea had a
laceration to her right kidney as well as several hematomas surrounding her kidney. He
classified the laceration as a “Grade IV” laceration, with “I being the least and V the worst.” In
addition, Linnea’s kidney was leaking, such that “the urine wasn’t going in the direction it was
supposed to, but was kind of leaking out around the kidney.” To fix the leak, Dr. Lindgren
inserted a stent into Linnea’s bladder, which acted as “internal drain.” Linnea was released on
March 23, 2003. She was readmitted to the hospital on April 3, 2003, because she was
experiencing a fever, which was the result of an infection. Linnea was prescribed antibiotics and
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
the radiologist installed a perinephric drain around her kidney to drain the infected area. She was
released from the hospital shortly thereafter, but was readmitted on April 23, 2003. Because
Linnea still had urine leakage as a result of her injury, doctors installed a Foley catheter in her
bladder to drain her urine. On May 6, 2003, Linnea was still suffering from leakage, which
doctors attempted to treat with a nephrostomy tube. Because none of these efforts were able to
completely stop the leakage, Linnea underwent surgery on June 16, 2003, which successfully
repaired the leak. Ultimately, however, a renal scan performed after the surgery showed that
Linnea had lost some function in her right kidney, which Dr. Lindgren deemed to be
“permanent.” He acknowledged that Linnea’s injuries were consistent with being kicked by a
horse. Following her treatment, Dr. Lindgren did not place any restrictions on Linnea’s
activities and was aware that she had resumed riding horses.
Jessica Jahiel, a certified riding instructor, publisher of the Horse Sense newsletter, and
author of over 1,500 books and articles on horses, testified as an expert for the defendants. After
reviewing the deposition transcripts taken in the case, she formed various opinions about
Linnea’s accident. Familiar with horse safety, Jahiel opined that “[y]ou never try to approach [a
horse] from behind” because “[a] horse cannot see directly behind it.” To safely approach a
horse from the rear, Jahiel explained that a person should “[t]ry to communicate first, and you
would somehow approach from as much of an angle as you could. You would not come directly
up behind the horse towards its tail.” Jahiel classified horses as “prey animals. They’re very
nervous, sensitive animals.” When startled, a horse reacts reflexively and “may jump forward,
run, kick out, leap to the side. It’s going to show its dismay in some way, and it’s going to make
11
Nos. 1-06-2759; 1-07-0029 (Consolidated)
an instinctive effort to get away from whatever startled it.” Approaching a horse from its blind
spot in the rear “would probably provoke a reaction.” She explained that when a person
approaches a horse from behind without alerting the horse to her presence, it is “very frightening
to a horse because it’s predator behavior.” Jahiel further opined that a person’s failure to alert a
horse to her presence is “a very common–altogether too common way of provoking a horse to
kick out,” but indicated that in the “majority of cases,” a person who walks behind a horse will
not get kicked.
Jahiel indicated that all horses have a “kick zone,” an “area in which the horse will kick
out most forcefully, most easily, and most readily.” The size of the kick zone is dependant upon
the size of the horse, but “by and large, the kick zone is anywhere up to four feet or so behind the
horse.” Generally, “[t]he greatest range and the strongest kick would be straight back. At a little
angle–not much of an angle at all, a horse could still kick a person; but it wouldn’t have
anywhere near the same impact because it wouldn’t be as strong.” Jahiel described the reaction
as “instinctive.” She further explained that it is unlikely that a horse would kick to the side and
stated that “[i]f it could do anything at all [to the side] it would be much less forceful.” Based on
her review of the relevant deposition testimony, Jahiel opined that Gambler’s reaction was the
result of provocation, explaining: “Anything that stimulates a horse to react suddenly and
instinctively I would term provocation. I wouldn’t put an interpretation of the action being
thought out or deliberate or anything like that. It could be almost anything.” In this case, Jahiel
believed that Linnea entered Gambler’s kick zone without alerting him to her presence and “may
have touched the horse.”
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Thereafter, the parties delivered closing arguments. The trial court then provided the
jurors with the relevant jury instructions, including instructions on negligence and comparative
negligence. Following deliberations, the jury returned with a verdict in favor of defendants.
Plaintiffs filed a timely posttrial motion, which the trial court denied. Plaintiffs then filed a
timely notice of appeal. Defendants also filed a timely notice of cross-appeal disputing the trial
court’s finding that the settlement agreement reached between plaintiffs and third-party defendant
David Johnson was reached in good faith.
We will first address the issues raised by plaintiffs on appeal. Specifically, plaintiffs
assert that the trial court committed a number of errors, which entitle them to a new trial.
Plaintiffs first contend that the trial court committed reversible error when it allowed defendants
to advance the affirmative defense of comparative negligence at trial because it is not a proper
defense to a claim brought pursuant to the Animal Control Act. Initially, defendants contend that
plaintiffs have waived review of this issue and all other issues that they raise on appeal, and they
assert two alternative bases for waiver. First, defendants contend that plaintiffs waived their
appellate arguments because they failed to adequately raise them in their posttrial motion.
As a general rule, both a timely trial objection and a written posttrial motion are necessary
to preserve an error for appellate review. Bauer v. Memorial Hospital, 377 Ill. App. 3d 895, 910
(2007). An appellant’s posttrial motion “must contain a ‘simple, succinct statement of the
factual or legal basis’ for the litigant’s belief that the trial court erred.” Lopez v. Northwestern
Memorial Hospital, 375 Ill. App. 3d 637, 647 (2007), quoting Brown v. Decatur Memorial
Hospital, 83 Ill. 2d 344, 350 (1980). An appellant’s motion must be sufficiently specific to allow
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for meaningful review. Webber v. Wight & Co., 368 Ill. App. 3d 1007 (2006). This requirement
“is based on ‘the sound policy of affording a trial judge the opportunity to reconsider and correct
his rulings or otherwise take such action as may be indicated prior to appeal.’ ” Lewis v.
Beckman, 57 Ill. App. 3d 482, 484 (1978), quoting Hammer v. Plontke, 98 Ill. App. 2d 235, 237
(1968).
Defendants acknowledge that each of the arguments raised by plaintiffs on appeal was
included in their posttrial motion; however, defendants contend that plaintiffs’ posttrial motion
was insufficient. Specifically, defendants argue that plaintiffs’ motion “offer[s] merely a blanket
statement that the trial court committed error, which is sometimes followed with a case citation.
In no instance is the case analyzed, or is the trial court advised why [p]laintiffs believed it erred.
This is insufficient ***.” Our review of plaintiffs’ posttrial motion does not reveal any
deficiencies precluding review, and we thus find defendants’ waiver argument to be without
merit
As an alternative basis, defendants contend that plaintiffs’ brief fails to comply with the
requirements of Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7))3 because it does not
contain citations to the pages of the record on appeal and, accordingly, defendants urge us to
strike plaintiffs’ appellate brief.
Supreme Court Rule 341 sets forth the requirements for appellate briefs. In pertinent
part, Rule 341(h)(7) requires the appellant to support his or her argument with “citation of the
3
Defendants cite to Supreme Court Rule 341(e)(7); however, it is apparent from the
substance of defendants’ argument itself, that they are relying on Rule 341(h)(7).
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authorities and the pages of the record relied upon.” (Emphasis added.) 210 Ill. 2d R. 341(h)(7).
Failure to cite to the pages in the record relied upon is thus a violation of Supreme Court Rule
341 and results in waiver of that argument. See, e.g., Gomez v. Finishing Co., 369 Ill. App. 3d
711, 723 (2006); Mikrut v. First Bank of Oak Park, 359 Ill. App. 3d 37, 61 (2005).
In this case, defendants are correct that plaintiffs’ brief contains few citations to the
record on appeal. However, because the doctrine of waiver is a limitation on the parties, not the
reviewing court (Redelmann v. K.A. Steel Chemicals, Inc., 377 Ill. App. 3d 971, 976 (2007),
citing Illinois State Chamber of Commerce v. Filan, 216 Ill. 2d 653, 664 (2005)), we will address
the merit of plaintiffs’ appeal.
Plaintiffs advance several reasons as to why the doctrine of comparative negligence is not
a valid affirmative defense to an action brought pursuant to the Animal Control Act. Initially,
plaintiffs assert that the plain language of the Act precludes application of the affirmative defense
of comparative negligence to actions brought under its parameters.
The interpretation of a statute presents a question of law, which we review de novo.
Kankakee County Board of Review v. Property Tax Appeal Board, 226 Ill. 2d 36, 51 (2007);
SMRJ, Inc. v. Russell, 378 Ill. App. 3d 563, 578 (2007). When engaging in statutory
interpretation, the primary goal is to ascertain the legislature’s intent and the best indication of
that intent is the plain language of the statute. MD Electrical Contractors, Inc. v. Abrams, 228
Ill. 2d 281, 287 (2008). Accordingly, when the plain language of a statute “is unambiguous, it
must be enforced as enacted, and a court cannot depart from its plain language by reading into it
exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent.”
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In re Marriage of Braunling, 381 Ill. App. 3d 1097, 1102 (2008). Pursuant to the statutory
maxim expressio unius est exclusio alterius, “ ‘[w]here a statute lists the things to which it refers,
there is an inference that all omissions should be understood as exclusions.’ ” Application of the
County Treasurer & ex-officio County Collector, 378 Ill. App. 3d 842, 850-51 (2007), quoting
Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 151-52 (1997).
The Act, in its current form, provides:
“If a dog or other animal, without provocation, attacks, attempts to attack, or
injures a 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.” 510 ILCS 5/16
(West 2006).
Plaintiffs correctly observe that the Act does not specifically provide for or reference a
comparative negligence defense. Accordingly, plaintiffs invoke the statutory maxim expressio
unius est esclusio alterius and contend that pursuant to the plain language of the Act, a defendant
is confined to disputing whether the plaintiff’s conduct at the time of the injury met the
requirements of the Act. Specifically, plaintiffs assert that “[t]he Act expressly sets forth the
conduct that it requires of the plaintiff, to wit: that he or she conduct himself or herself
peaceably,” and accordingly, that the animal’s attack occurred “without provocation,” and thus a
defendant is limited to disputing those elements.
Initially, we disagree that a statute’s failure to specifically provide for an affirmative
defense necessarily precludes the availability and application of that defense. Indeed, reviewing
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courts have held that the Act, which is in derogation of common law (Harris v. Walker, 119 Ill.
2d 542, 546-47 (1988)), is not a strict liability statute and thus does not impose strict liability on
animal owners whose animals inflict injuries upon others. See Smith v. Lane, 358 Ill. App. 3d
1126, 1135 (2005) (recognizing that “courts have not construed the Animal Control Act to
impose strict liability”); Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141, 143 (1994)
(same). Accordingly, in light of the fact that the Act has not been held to impose strict liability,
the Second District in Vanderlei v. Heideman, 83 Ill. App. 3d 158 (1980), found that the Act did
not preclude application of the common law affirmative defense of assumption of risk, despite
the fact that the defense “did not appear as a defense in the statute in any form,” reasoning:
“To preclude a common law defense such as assumption of risks would, in
practical effect, impose strict liability without a factual and reasonable basis ‘other than
as a pure penalty for [horse] ownership.’ (Baily v. Bly, (1967), 87 Ill. App. 3d 259, 262.)
Nothing in the language of the statute or in the history of the legislation makes it appear
that the intent of the statute is to impose strict liability and to abolish the defense of
assumption of risk.” Vaderlei, 83 Ill. App. 3d at 161-62.
Thereafter, our supreme court confirmed that one who assumes the risk of injury is not entitled to
recover under the Act (see Harris v. Walker, 119 Ill. 2d 542, 547-48 (1988)) and it is now well-
accepted that “[a] plaintiff who invites the risk that the animal will injure him, or one who
explicitly assumes that risk *** may not recover under the Act” (Garcia v. Nelson, 326 Ill. App.
3d 33, 40 (2001)).
Accordingly, in light of the fact that the common law defense of assumption of the risk
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has been recognized as a valid affirmative defense to an action brought pursuant to the Animal
Control Act despite the Act’s failure to specifically provide for that defense, we disagree that the
Act’s failure to specifically provide for the affirmative defense of comparative negligence
necessarily precludes application of that defense. However, in contrast to the defense of
assumption of risk, the defense of comparative negligence is not a common law defense. See
generally Barthel v. Illinois Central Gulf R.R. Co., 74 Ill. 2d 213, 221 (1978) (recognizing that
statutes in derogation of common law will not be found to abrogate common law affirmative
defenses “unless it plainly appears that the intent of the statute is to impose strict liability”).
Indeed, while the defense of contributory negligence existed at common law, our supreme court
in Alvis v. Ribar, 85 Ill. 2d 1, 28 (1981) abolished the common law defense of contributory
negligence, which barred a plaintiff from recovering for her injuries if her negligence contributed
to the accident, and adopted the doctrine of comparative negligence, which serves to reduce a
plaintiff’s damages by the percentage of fault attributed to her. Thereafter, the legislature
modified and codified the comparative negligence defense. See Gratzle v. Sears, Roebuck &
Co., 245 Ill. App. 3d 292, 295 (1993). Section 2-1116 of the Illinois Code of Civil Procedure
(735 ILCS 5/2-1116 (West 1994)) sets forth the defense and provides:
“In all actions on account of bodily injury or death or physical damage to property,
based on negligence, or product liability based on strict tort liability, the plaintiff shall be
barred from recovering damages if the trier of fact finds that the contributory fault on the
part of the plaintiff is more than 50% of the proximate cause of the injury or damage for
which recovery is sought. The plaintiff shall not be barred from recovering damages if
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
the trier of fact finds that the contributory fault on the part of the plaintiff is not more than
50% of the proximate cause of the injury or damage for which recovery is sought, but any
damages allowed shall be diminished in the proportion to the amount of fault attributable
to the plaintiff.” 735 ILCS 5/2-1116 (West 1994).
Plaintiffs correctly observe that the defense of comparative negligence, as codified in
section 2-1116 of the Code, does not explicitly apply to actions brought pursuant to the Act;
rather, it specifically applies to “actions on account of bodily injury or death or physical damage
to property, based on negligence, or product liability based on strict tort liability.” 735 ILCS 5/2-
1116 (West 1994).
Defendants neither dispute that the Animal Control Act does not specifically provide for a
comparative negligence defense nor that section 2-1116 of the Code does not explicitly apply to
actions brought pursuant to the Act. Rather, defendants contend that because the Act permits
recovery for an injury caused by an “animal, without provocation” (510 ILCS 5/16 (West 2002))
their comparative negligence affirmative defense was proper because it “went entirely towards
provocation.”
We find defendants’ attempt to equate provocation with negligence unavailing. Indeed,
in VonBehren v. Bradley, 266 Ill. App. 3d 446, 449 (1994), the Fourth District rejected the claim
that “provocation [under the Animal Control Act] is the equivalent of contributory negligence,”
explaining:
“Each presents a separate origin of causation and is defined differently. Provocation is
defined as follows:
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
‘The act of inciting another to do a particular deed. That which arouses,
moves, calls forth, causes, or occasions. Such conduct or actions on the part of
one person towards another as tend to arouse rage, resentment, or fury in the latter
against the former, and thereby cause him to do some illegal act against or in
relation to the person offering the provocation.’ (Black’s Law Dictionary 1103
(5th ed. 1979).)
Contributory negligence is defined as:
‘Conduct for which plaintiff is responsible amounting to a breach of duty
which law imposes on persons to protect themselves from injury, and which,
concurring and cooperating with actionable negligence for which defendant is
responsible, contributes to injury complained of as a proximate cause.’ Black’s
Law Dictionary 931 (5th ed. 1979).
Provocation instigates or initiates the acts resulting in harm; in contrast,
contributory negligence, by its terms, combines with the actionable negligence of
defendant.” VonBehren, 266 Ill. App. 3d at 449-50.
See also Gilman v. Kessler, 192 Ill. App. 3d 630, 642 (1989) (recognizing that “the concepts of
provocation and contributory negligence are separate and distinct doctrines”).
Like the common law defense of contributory negligence, the defense of comparative
fault as set forth in section 2-1116 of the Code (735 ILCS 5/2-1116 (West 1994)) involves
consideration of any actionable negligence of the part of the defendant, and is thus similarly
distinguishable from provocation.
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
Defendants’ argument similarly ignores case law that recognizes that a child under the
age of seven is incapable of being negligent but is capable of provocation under the Animal
Control Act. Compare Appelhans v. McFall, 325 Ill. App. 232, 236 (2001) (finding that under
the tender years doctrine, which states that a child is incapable of negligence if she is younger
than seven years old because it is believed that children under the age of seven are incapable of
recognizing and appreciating risk, the five-year-old defendant was incapable of negligence) with
Nelson v. Lewis, 36 Ill. App. 3d 130, 133-34 (1976) (holding that the 2 1/2-year-old plaintiff
who was scratched in the eye by the defendant’s dog was not entitled to recover under the
Animal Control Act because she provoked the dog when she either fell or stepped on the dog’s
tail, finding that in Illinois “a young child is not exempted from responsibility for his or her acts
which provoke a dog under this statute”).
In addition to failing to accord with Illinois case law, we find that defendants’ argument
fails because equating the defense of comparative negligence with provocation would ultimately
lead to an absurd and illogical interpretation of the Act, which permits a plaintiff to recover for
the injuries inflicted by the defendant’s animal only if the animal attacked “without provocation.”
510 ILCS 5/16 (West 2002). If provocation, as used in the Act, were equated with comparative
negligence as defendants suggest, then a plaintiff would be afforded an opportunity to recover so
long as the plaintiff’s provocation did not amount to 51% or more of the proximate cause of her
injuries, despite the Act’s clear pronouncement that recovery is permitted only in the complete
absence of provocation. See generally Navistar International Transportation Corp. v. Industrial
Comm’n, 315 Ill. App. 3d 1197, 1207 (2000), quoting People v. Liberman, 228 Ill. App. 3d Ill.
21
Nos. 1-06-2759; 1-07-0029 (Consolidated)
App. 3d 639, 647 (1992) (recognizing that when engaging in statutory interpretation, a court
should “ ‘select an interpretation of the statute which leads to logical results and avoids that
which would be absurd’ ”).
Accordingly, we agree that an analysis of the plain language of the Act in combination
with the plain language of section 2-1116 of the Code supports plaintiffs’ contention that
comparative negligence is not a valid defense to actions brought pursuant to the Illinois Animal
Control Act. Moreover, we note that plaintiffs’ contention that comparative negligence is not a
valid defense under the Act finds further support upon reviewing common law causes of action
as well as the legislative history of the Act.
The Act was initially passed in 1949 and permitted recovery only for injuries caused by
dogs.4 Harris v. Walker, 119 Ill. 2d 542 (1988); File v. Duewer, 373 Ill. App. 3d 304, 307
(2007). The Act substantially eased the burden on plaintiffs seeking to recover for injuries
inflicted by animals. Harris, 119 Ill. 2d at 547; Robinson v. Meadows, 203 Ill. App. 3d 706, 711
(1990). Indeed, at common law, a plaintiff injured by an animal could only recover for her
injuries if she showed that the animal had a dangerous disposition of which the owner was aware.
Stumps v. Kelley, 22 Ill. 140, 142-43 (1859) (common law case reciting the common law rule
that “ ‘the owner of domestic or other animals not naturally inclined to commit mischief, as dogs,
4
The original version of the Act provided: “ ‘If a dog, without provocation, attacks or
injures any person who is peaceably conducting himself in any place where he may lawfully be’ ”
then the owner of the dog was liable for the injuries inflicted on that person. Beckert v. Risberg,
33 Ill. 2d 44, 46 (1965), quoting Ill. Rev. Stat. 1959, ch. 8, par. 12(d).
22
Nos. 1-06-2759; 1-07-0029 (Consolidated)
horses, and oxen, is not liable for any other injury committed by them to the person or personal
property; unless it can be shown that he previously had notice of the animal’s mischievous
propensity, or that the injury was attributable to some other neglect on his part ***.’
[Citation.]”); Vanderlei, 83 Ill. App. 3d at 162. Because a plaintiff had to prove that an animal
owner either knew or was negligent in failing to know that his animal had a propensity to inflict
injury upon others, the common law defense of contributory negligence was a valid affirmative
defense. See Chicago & Alton R.R. Co. v. Kuckkuck, 197 Ill. 304, 309-10 (1902) (explaining
that under common law, “[i]t is undoubtedly the rule in this State that if the party injured has
been guilty of heedlessly placing himself in the way of a vicious dog with knowledge of its
propensities, or has brought the injury upon himself by his own conduct, or his fault has
proximately contributed to his injury, such facts will constitute a good defense. This defense,
however, depends upon knowledge, and it is only after notice that the public are required to be on
their guard to avoid injury”); see also Vanderlei, 83 Ill. App. 3d at 162.
Accordingly, when the Act was initially passed in 1949 its purpose “was modest: to
reduce the burden on dog-bite plaintiffs by eliminating the ‘one-bite rule’–the common law
requirement that a plaintiff must plead and prove that a dog owner either knew or was negligent
not to know that his dog had a propensity to injure people.” Harris, 119 Ill. 2d at 547.
Thereafter, in 1973, the legislature amended the “dog-bite statute” to permit recovery for injuries
caused by “other animals.” Harris, 119 Ill. 2d at 547. Currently, to recover under the Act for an
injury caused by a dog or other animal, a “plaintiff must prove four elements: ‘(1) an injury
caused by an animal owned by the defendant; (2) lack of provocation; (3) the peaceable conduct
23
Nos. 1-06-2759; 1-07-0029 (Consolidated)
of the injured person; and (4) the presence of the injured person in a place where he has a legal
right to be.’ ” Smith v. Lane, 358 Ill. App. 3d 1126, 1135 (2005), quoting Meyer v. Naperville
Manner, Inc., 262 Ill. App. 3d 141, 147 (1994). Courts have interpreted the Act “to provide
coverage *** [only to] plaintiffs who, by virtue of their relationship to the owner of an animal or
lack of any such relationship, may not have any way of knowing or avoiding the risk the animal
poses to them. This is consistent with the emphasis the statute places on lack of provocation and
the plaintiff’s peaceable conduct in a place where he is legally entitled to be.” File, 373 Ill. App.
3d at 307, citing Harris, 119 Ill. 2d at 547.
Because the Act eliminated the requirement that a plaintiff prove that the animal had a
vicious disposition, of which the owner was aware, Illinois courts recognized that the Act
essentially “made irrelevant questions of the injured person’s contributory negligence (other than
provocation).” Nelson v. Lewis, 36 Ill. App. 3d 130, 133 (1976); see also Beckert v. Risberg, 33
Ill. 2d 44, 47 (1965) (holding that the trial court erred in instructing the jury on contributory
negligence in the plaintiff’s action, which was based in part on the Act, because “negligence was
not in issue”); Vanderlei, 83 Ill. App. 3d at 162 (recognizing that “[u]nder the common law
negligence action freedom from contributory negligence and assumption of risk were available
defenses,” but that it could be argued that the Act’s “reference to ‘provocation’ indicated a
legislative intent to restrict the proof that defendant [sic] was not contributorily negligent”).
We find that under the Act, considerations of comparative fault principles are similarly
inapplicable. Accordingly, a plaintiff’s contributory fault is only relevant to the extent that it
relates to the element of provocation. It is not a defense in and of itself. We thus find that the
24
Nos. 1-06-2759; 1-07-0029 (Consolidated)
trial court erred in allowing defendants to assert a comparative negligence defense.
We note that our finding that comparative negligence is not a valid defense under the Act
is consistent with the holdings of other jurisdictions interpreting similar statutes that require the
absence of provocation to recover for injuries sustained by an animal. For example, in Hill v.
Sacka, 256 Mich. App. 443, 666 N.W.2d 282 (2003), the Michigan Court of Appeals found that
comparative fault was not a valid defense to an action brought under the Michigan dog-bite
statute, which like the Illinois Animal Control Act, places a similar emphasis on lack of
provocation. The Michigan statute, in pertinent part, provides:
“ ‘If a dog bites a person, without provocation while the person is on public
property, or lawfully on private property *** of the owner of the dog, the owner of the
dog shall be liable for any damages suffered by the person bitten, regardless of the former
viciousness of the dog or the owner’s knowledge of such viciousness.’ ” Hill, 256 Mich.
App. at 448, 666 N.W.2d at 287, quoting Mich. Comp. Laws Ann. §287.351 (West
2003).
After reviewing the plain language of the Michigan dog-bite statute, the Hill court
concluded:
“[The] statute does not allow for consideration of any comparative negligence on
the part of the dog-bite victim, excluding possibly where the negligence may relate to the
defense of provocation. The dog-bite statute by its clear and unequivocal language does
not allow consideration of any negligence or fault, as that term is generally used, on the
part of the owner of the dog. If the other considerations contained in the dog-bite statute
25
Nos. 1-06-2759; 1-07-0029 (Consolidated)
are satisfied, there is no liability where provocation exists, and there is liability where
provocation is lacking. ***
Fault, outside the context of provocation, is simply not relevant in a dog-bite
action pursued under M.C.L. § 287.351.” Hill, 256 Mich. App. at 451, 666 N.W.2d at
289.
After finding that fault was irrelevant except to the extent where “fault is intertwined with
provocation,” the Hill court further explained that “even in that sense, any allocation of fault
[pursuant to Michigan’s comparative fault statute] would be immaterial and simply not relevant
because, if provocation exists, there would be zero liability, and if provocation is lacking, there
would be absolute liability.” Hill, 256 Mich. App. at 454, 666 N.W.2d at 290.
Similar findings were reached by the Minnesota Supreme Court and the Arizona appellate
court when called upon to interpret their respective statutes. See Seim v. Garavalia, 306 N.W.2d
806, 808, 812 (Minn. 1981) (finding that the defense of comparative fault did not apply to actions
brought pursuant to the Minnesota dog-bite statute,5 which allowed a plaintiff to recover for
injuries caused by a dog that acted “without provocation”); Toney v. Bouthillier, 129 Ariz. 402,
631 P.2d 557 (1981) (finding that any consideration of fault was irrelevant in action brought
5
The Minnesota dog-bite statute in effect at the time of the opinion, provided: “ ‘If a
dog, without provocation, attacks or injures any person who is peaceably conducting himself in
any place where he may lawfully be, the owner of the dog is liable in damages to the person so
attacked or injured to the full amount of the injury sustained.’ ” Siem, 306 N.W.2d at 808,
quoting Minn. Stat. §347.22 (1980).
26
Nos. 1-06-2759; 1-07-0029 (Consolidated)
pursuant to the Arizona dog-bite statute,6 which explicitly provided for the defense of
provocation).
Accordingly, based on our review of the plain language and legislative history of the Act
as well as relevant case law from Illinois and other jurisdictions, we thus agree with plaintiffs
that the trial court erred in allowing defendants to assert comparative negligence as an affirmative
defense.
In a related claim, plaintiffs assert that the trial court further erred in instructing the jury
on defendants’ comparative negligence defense. Defendants, however, suggest that even if the
trial court’s decision to permit them to assert a comparative negligence defense and to instruct
the jury on that defense was erroneous, that error was necessarily harmless.
“In Illinois, the parties are entitled to have the jury instructed on the issues presented,
principles of law to be applied, and the necessary facts to be proved to support its verdict.”
Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002); Fetzer v. Wood, 211 Ill. App. 3d 70,
74-75 (1991). It is within the discretion of the trial court to determine whether the evidence
supports a specific instruction and whether it should be provided to the jury. Schultz v.
6
The Arizona dog-bite statute at the time of the opinion provided, in pertinent part: “
‘The owner of a dog, which bites a person when the person is in or on a public place *** is liable
for damages suffered by the person bitten, regardless of the former viciousness of the dog or the
owner’s knowledge of its viciousness,’ ” and that “ ‘[p]roof of provocation of the attack by the
person injured shall be a defense to the action for damages.’ ” Toney, 129 Ariz. at 404, 631 P.2d
at 559, quoting Ariz. Rev. Stat. Ann. §§24-521, 24-523 (West).
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 283 (2002); Webber, 368 Ill.
App. 3d at 1020-21. The trial court abuses its discretion when it provides unclear and misleading
instructions or the instructions do not fairly and accurately state the law. Dillon, 199 Ill. 2d at
505. However, even if the trial court erred in providing the jury with erroneous instructions, we
will not reverse the judgment unless we can conclude that the error resulted in prejudice to the
appellant. Knight v. Chicago Tribune Co., No. 1-06-0957, slip op. at 17-18 (September 10,
2008); Mackey v. Daddio, 139 Ill. App. 3d 604, 608 (1985), quoting Brooks v. City of Chicago,
106 Ill. App. 3d 459, 466 (1982) (“ ‘A liberal application of the harmless error doctrine to jury
instruction issues is favored when it appears that the rights of the complaining party have in no
way been prejudiced’ ”).
In this case, the trial court instructed the jury as follows:
“When I use the word ‘negligence’ in these instructions, I mean the failing of
doing something which a reasonably careful person would do or the doing of something
which a reasonably careful person would not do under circumstances similar to those
shown by the evidence. The law does not say how a reasonably careful person would act
under those circumstances. That is for you to decide.
When I use the expression ‘contributory negligence,’ I mean negligence on the
part of the Plaintiff that proximately contributed to the injury. It was the duty of the
Plaintiff Linnea Johnson before and at the time of the occurrence to use ordinary care for
her own safety. A Plaintiff is contributorily negligent if, one, she fails to use ordinary
care for her own safety; and, two, her failure to use such ordinary care is a proximate
28
Nos. 1-06-2759; 1-07-0029 (Consolidated)
cause of the injury. The Plaintiff’s contributory negligence, if any, which is 50 percent or
less of the total proximate cause of the injury or damage for which recovery is sought,
does not bar her recovery; however, the total amount of damages to which she would
otherwise be entitled is reduced in proportion to the amount of that negligence. This is
known as comparative negligence. If the Plaintiff’s contributory negligence is more than
50 percent of the total proximate cause of the injury or damage for which recovery is
sought, the Defendants shall be found not liable.”
The court further instructed the jury that it need only consider defendants’ claim that Linnea was
negligent if she met her burden of proof under the Act and that defendants bore the burden of
proving their affirmative defense. Specifically, the court instructed:
“If you find from all–find from your consideration of all the evidence that the
Plaintiff has proved all of the propositions required of the Plaintiff and Defendant has
proved–has not proved both of the propositions required of the Defendant, then your
verdict should be for the Plaintiff and you will not reduce Plaintiff’s damages. If you find
from your consideration of all of the evidence that the Defendants have proved both of
the propositions required of the Defendants and if you find that the Plaintiff’s
contributory negligence was more than 50 percent of the total proximate cause of the
injury or damage for which recovery is sought, then your verdict should be for the
Defendants. If you find from your consideration of all of the evidence that the Plaintiff
has proved all the propositions required of the Plaintiff, Defendants have proved both of
the propositions required of the Defendants, and if you find that the Plaintiff’s
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
contributory negligence was 50 percent or less of the total proximate cause of the injury
or damage for which recovery is sought, then your verdict should be for the Plaintiff and
you will reduce the Plaintiff’s damages in the manner stated to you in these instructions.”
Because we find that the defense of comparative negligence is not a valid defense to a
claim brought pursuant to the Act, it thus follows that the trial court erred in instructing the jury
on that defense. Nonetheless, because such an error can be harmless, we must determine whether
plaintiffs were prejudiced by the instruction.
In this case, the record reflects that both the parties as well as the trial court evidenced
confusion as to the distinction between negligence and provocation as well as the relationship
between the two defenses. As a result, the jury received instructions in accordance with the Act,
including an instruction on the element of provocation, as well as an instruction on the defense of
comparative negligence. In pertinent part, the jury was informed that any negligence on the part
of Linnea that was deemed to have contributed to more than 51% of her accidence would
completely bar recovery.
Indeed, based on the instructions provided to the jury by the trial court, the jury could
have delivered a verdict in favor of defendants because it found that plaintiffs failed to prove one
of the essential elements of their cause of action under the Act or because plaintiffs did prove
their case, but defendants proved that Linnea acted negligently and her negligence constituted
more than 50% of the proximate cause of her injury and thus barred her from recovery. See, e.g.,
Fetzer, 211 Ill. App. 3d at 81 (finding that the giving of an erroneous comparative negligence
instruction in the plaintiffs’ action under the Illinois Wrongful Death Act and Survival Act was
30
Nos. 1-06-2759; 1-07-0029 (Consolidated)
prejudicial to the plaintiffs because it precluded recovery once it found the deceased 51%
negligent). Neither of the parties requested the jury to complete a special interrogatory. See
Hudson v. City of Chicago, 378 Ill. App. 3d 373, 394-95 (2007), quoting Sommese v. Maling
Brothers, Inc., 36 Ill. 2d 263, 267 (1966) (explaining that “ ‘the function of a special
interrogatory is to require the jury’s determination as to one or more specific issues of ultimate
fact and is a check upon the deliberations of the jury. “Special interrogatories are used for the
purpose of testing the general verdict against the jury’s conclusions as to the ultimate controlling
facts.” [Citation.]’ ”). Accordingly, based on the instructions provided and the lack of a special
interrogatory, defendants correctly acknowledge “one can only speculate as to why the jury
rendered the verdict that it did.” However, the record is clear that the concept of comparative
negligence permeated the trial. Consequently, we are unable to conclude that the comparative
negligence instruction did not mislead the jury or that the instruction did not result in prejudice to
plaintiffs. Accordingly, we reverse and remand for a new trial.
Because we reverse and remand for a new trial, we will consider plaintiffs’ argument that
the trial court erred in allowing defendants’ expert, Dr. Jessica Jahiel, to testify about her opinion
that Linnea provoked Gambler. Specifically, plaintiffs contend that Jahiel’s testimony was based
on speculation as well as on a definition of provocation that was contrary to Illinois law.
Defendants initially contend that plaintiffs waived their arguments pertaining to Jahiel’s
testimony because they failed to object on these specific grounds at trial. Moreover, on the
merits, defendants respond that Jahiel’s testimony was not based on speculation nor was it
inconsistent with the legal definition of provocation in Illinois and, accordingly, the trial court
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
committed no error in permitting her to testify.
As a general rule, “[e]xpert testimony is admissible if the proffered expert is qualified by
knowledge, skill, experience, training, or education, and the testimony will assist the trier of fact
in understanding the evidence.” Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003); see also Favia v.
Ford Motor Co., 381 Ill. App. 3d 809, 816 (2008) (“An individual will be allowed to testify as an
expert if his experience and qualifications afford him knowledge that is not common to
laypersons and where such testimony will aid the trier of fact in reaching its conclusions”). The
decision to admit expert testimony is one that lies within the sound discretion of the trial court
and, accordingly, we will uphold the trial court’s ruling absent an abuse of that discretion.
Snelson, 204 Ill. 2d at 24; Noakes v. National R.R. Passenger Corp., 363 Ill. App. 3d 851, 854
(2006).
Because “an expert’s opinion is only as valid as the reasons for that opinion,” “[a] party
must lay a foundation sufficient to establish the reliability of the bases for the expert’s opinion.”
Petraski v. Thedos, 382 Ill. App. 3d 22, 28 (2008). Thus, expert testimony that is based on guess,
speculation, or conjecture is inadmissible. Dyback v. Weber, 114 Ill. 2d 232, 244 (1986); Torres
v. Midwest Development Co., 383 Ill. App. 3d 20, 29 (2008).
Initially, we find that plaintiffs have waived their argument that Jahiel’s testimony was
improperly admitted because it was based on speculation. Plaintiffs asserted five objections
during the course of Jahiel’s testimony. At no time in the trial court did plaintiffs object to
Jahiel’s testimony based on the purported speculative basis of her testimony. See Mikolajczyk v.
Ford Motor Co., 374 Ill. App. 3d 646, 674 (2007), quoting Land & Lakes Co. v. Industrial
32
Nos. 1-06-2759; 1-07-0029 (Consolidated)
Comm’n, 359 Ill. App. 3d 582, 596 (2005) (Donovan, J., specially concurring) (“ ‘[a] party is
required to make specific objections to evidence, based on particular grounds, and the failure to
do so results in waiver of objections as to all other grounds not specified or relied on’ ”).
Although plaintiffs filed a motion in limine seeking to prevent Jahiel from “[d]irectly or
indirectly disclosing, discussing or suggesting in any manner *** that the horse Gambler was
provoked since [she] does not know what the plaintiff was doing at the time of the kick,”
plaintiffs failed to object to Jahiel’s testimony on the grounds of speculation at trial and thus
failed to properly preserve this issue for appeal. See Jones v. Rallos, 384 Ill. App. 3d 73, 83
(2008) (“When a motion in limine is denied, a contemporaneous objection to the evidence at the
time it is offered is required to preserve the issue for review”); see also Illinois State Toll
Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498, 502 (1994) (finding
that the appellants waived their right to challenge evidence on appeal because they failed to
object to the evidence at trial after their motion in limine was denied).
Moreover, on the merits, we do not find that Jahiel’s testimony was improperly admitted
because it was based on speculation. At trial, she indicated that she examined the deposition
transcripts of the Johnson defendants, Linnea and her father, as well as the two owners of Top
Brass, the contents of which she used to formulate her opinions. Based on her review of the
aforementioned materials, Jahiel opined that Linnea provoked Gambler by entering his kick zone
without announcing her presence. She found it especially relevant that both David and William
Johnson testified at their depositions that neither they nor their horses had moved prior to
Linnea’s accident, explaining that their testimony was “important *** because according to their
33
Nos. 1-06-2759; 1-07-0029 (Consolidated)
own testimony, neither gentleman had moved, neither horse had moved; and, yet, a child had
been kicked by the horse that wasn’t previously moving. So at some point the child had to come
into the kick zone, so the child had to move.” Although plaintiffs correctly note that Jahiel did
not know precisely what Linnea was doing at the time of her accident and, accordingly, had no
opinion as to whether Linnea was walking, bending, crouching, or kneeling, at the time of the
kick, we disagree that her ultimate conclusion that Linnea entered the kick zone without
announcing her presence was based on speculation. Accordingly, we find plaintiffs’ argument
that Jahiel’s testimony was improperly admitted because it was based on speculation to be
without merit.
Plaintiffs also contend that the trial court erred in allowing Jahiel to testify and deliver her
opinion that Linnea provoked Gambler by entering the kick zone without alerting Gambler to her
presence because her definition of provocation did not accord with the legal definition of the
term. Initially, we find that plaintiffs have waived their argument that Jahiel’s testimony was
improper because it was based on an erroneous definition of “provocation,” as that term is
defined in Illinois. Plaintiffs never objected to Jahiel’s use of the term “provocation” at trial or to
her opinion that Linnea provoked Gambler by exiting the kick zone without alerting Gambler to
her presence. LaSalle Bank, N.A. v. C/HCA Development Corp., No. 1-06-1859, slip op. at 31
(August 4, 2008) (recognizing that to properly preserve an issue for appeal “a party must object
specifically both at trial and in a posttrial motion,” and that failure to do either waives review of
that issue on appeal). Moreover, although plaintiffs filed a motion in limine to prevent Jahiel
from testifying “that the horse Gambler was provoked since her definition of the term as
34
Nos. 1-06-2759; 1-07-0029 (Consolidated)
disclosed in her deposition testimony does not reflect the law in the State of Illinois as to the
meaning of that term under the Animal Control Act,” their failure to object to her use of the term
“provocation” at trial served to waive review of this issue on appeal. See Illinois State Toll
Highway Authority, 163 Ill. 2d at 502.
Notwithstanding waiver, we do not find that Jahiel’s testimony should have been
excluded because her definition of provocation was inconsistent with the legal definition of that
term.
Illinois Pattern Jury Instructions, Civil, No. 110.04 (2006) (hereinafter IPI Civil (2006)
No. 110.04) defines provocation as follows:
“The term ‘provoked’ means any action or activity, whether intentional or
unintentional,
which would reasonably be expected to cause a normal animal in
similar circumstances to react in a manner similar to that shown by the evidence.”
At trial, Jahiel provided testimony about the nature and instinctive responses of horses,
including their kick response. In pertinent part, she indicated that horses are prey animals that
react instinctively to predator behavior. Jahiel further testified that “an altogether too common
way of provoking a horse to kick out” was for a person to approach the horse in its blind spot
without alerting the horse to her presence. She acknowledged that a horse will not kick out every
time in response to such stimuli, but acknowledged that such a response was reasonably
expected. On cross-examination, plaintiffs counsel asked Jahiel whether she was aware of the
legal definition of the term “provocation,” as that term is defined by IPI Civil (2006) No. 110.04,
and she indicated that she was not. Thereafter, plaintiffs counsel queried: “Would it be fair to
35
Nos. 1-06-2759; 1-07-0029 (Consolidated)
say that your definition of provocation includes any stimulus?” Jahiel responded affirmatively,
indicating that her definition of provocation was “[a]ny stimulus that elicits an instinctive
response on the part of the horse, yes.”
Although Jahiel’s definition of the term “provocation” does not explicitly match the legal
definition, we do not find that the trial court erred in allowing Jahiel to testify. Moreover, we do
not find that her testimony prejudiced plaintiffs as the jury received the pertinent instruction
reflecting the precise legal definition of provocation.
Finally, plaintiffs suggest that the trial court should have excluded Jahiel’s testimony
because her opinion was not adequately disclosed prior to trial as required by Supreme Court
Rule 213 (210 Ill. 2d R. 213).
Supreme Court Rule 213(f)(3) requires parties to disclose, prior to trial, the opinions and
conclusions of their retained expert witnesses. 210 Ill. 2d R. 213(f)(3). Specifically, the rule
requires parties to “identify: (i) the subject matter on which the witness will testify; (ii) the
conclusions and opinions of the witness and bases therefor; (iii) the qualifications of the witness;
and (iv) any reports prepared by the witness about the case.” 210 Ill. 2d R. 213(f)(3). Rule
213(g), in turn, limits the testimony that an expert witness may provide at trial to “[t]he
information disclosed in answer to a Rule 213(f) interrogatory, or at deposition.” 210 Ill. 2d R.
213(g); Foley v. Fletcher, 361 Ill. App. 3d 39, 46 (2005). Rule 213 reflects the supreme court’s
best efforts to “manage the complex and important process of discovery” in a manner that allows
the parties to formulate their trial strategies and avoids surprises and tactical gamesmanship.
Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004); see also Foley, 361 Ill. App. 3d at 46.
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Rule 213's disclosure requirements are mandatory and require strict compliance by the parties.
Sullivan, 209 Ill. 2d at 109; Clayton v. County of Cook, 346 Ill. App. 3d 367, 377 (2003). The
admission of evidence in accordance with Rule 213 lies within the sound discretion of the trial
court and, accordingly, we will uphold the trial court’s ruling absent an abuse of that discretion.
Sullivan, 209 Ill. 2d at 109; Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 10 (2007).
In this case, prior to trial, defendants provided plaintiffs with a written copy of Jahiel’s
opinion. In her opinion, Jahiel discussed the nature of horses, and indicated that “they are
nervous, sensitive, and extremely quick to react to a stimulus.” Specifically, Jahiel indicated that
“[a] horse’s natural, defensive reaction to a perceived danger from behind is to kick. When
someone or something approaches a horse in silence, especially if it approaches from directly
behind where it is in the horse’s ‘blind spot’ and therefore invisible to the horse, that someone or
something is exhibiting predator behavior.” Accordingly, “kicking out in reaction to a perceived
predator is a natural prey behavior, and a natural and predictable expression of the horse’s
surprise and fright.” Jahiel indicated that a horse’s kick response was “very likely,” and that
Gambler’s response in this case “would not surprise anyone familiar with horses and their nature
and instincts.”
Thereafter, at trial, Jahiel provided testimony consistent with her prior disclosed opinion,
explaining that horses were prey animals and that when a person approached a horse from behind
without alerting the horse to her presence, the person exhibited “predator” behavior, which would
“probably provoke a reaction” in the horse. On direct examination, Jahiel was asked: “Okay. So
it could reasonably be expected for a horse to kick out if it had a–there was a stimulus where
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someone came from the blind spot and out of the blind spot.” Plaintiffs’ attorney objected,
arguing that the term “reasonably expected” was “not [in the] phraseology of any [previously
disclosed] opinion.” The court overruled the objection, and Jahiel responded to the question
affirmatively, indicating “Yeah, that’s a likely scenario.”
Plaintiffs, however, contend that the trial court should have sustained their objection
because Jahiel’s opinion that she would “reasonably expect” a horse to kick when someone
approached the horse from behind in its blind spot was not disclosed prior to trial. Although
plaintiffs are correct that the specific term “reasonably expected” was not included in Jahiel’s
written opinion that defendants disclosed prior to trial, the substance of her opinion remained
consistent. Indeed, in her written opinion, she indicated that such a horse’s kick response was “a
natural and predictable expression of the horse’s surprise and flight.” Jahiel’s testimony in no
way constituted a surprise to plaintiffs. Accordingly, we find that the trial court did not abuse its
discretion in overruling plaintiffs’ objection.
Plaintiffs next contend that the trial court erred in failing to grant their motion for a
directed verdict on the issue of liability and, thus, assert that the new trial to which they are
entitled is a trial on the issue of damages alone. Because we are remanding for a new trial, we
will consider this issue.
A motion for a directed verdict is properly granted when “ ‘all of the evidence, when
viewed in its aspect most favorable to the opponent, so overwhelmingly favors [the] movant that
no contrary verdict based on the evidence could ever stand.’ ” Jones v. Rallos, 384 Ill. App. 3d at
82, quoting Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510 (1967). Accordingly, if
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“ ‘there is any evidence, together with reasonable inferences to be drawn therefrom,
demonstrating a substantial factual dispute, or where the assessment of credibility of the
witnesses or the determination regarding conflicting evidence is decisive to the outcome’ ” then a
motion for a directed verdict should be denied. Jones, 384 Ill. App. 3d at 82, quoting Maple v.
Gustafson, 151 Ill. 2d 445, 454 (1992). Our review is de novo. Lisowski v MacNeal Memorial
Hospital Ass’n, 381 Ill. App. 3d 275, 289 (2008).
As previously discussed, for a plaintiff to prevail on her claim brought pursuant to the
Animal Control Act, she must prove: “ ‘(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.’ ” Smith, 358 Ill. App.
3d at 1135, quoting Meyer, 262 Ill. App. 3d at 147. At trial, the only element disputed by the
parties was the presence or lack of provocation. Plaintiffs contend that there is no evidence that
Linnea provoked Gambler and, thus, they were entitled to a directed verdict on liability.
Illinois courts have defined the term “provocation” as “ ‘an act or process of provoking,
stimulation[,] or incitement.’ ” Kirkham v. Will, 311 Ill. App. 3d 787, 791 (2000), quoting
Nelson, 36 Ill. App. 3d at 131. Provocation may be intentional or unintentional. Nelson, 36 Ill.
App. 3d at 133 (“A determination of provocation does not require consideration of the degree of
wilfulness which motivates the provoking cause”). Whether an animal is provoked under the
Animal Control Act is not judged from the perspective of the plaintiff; rather, “it is the
reasonableness of the [animal’s] response to the action in question that actually determines
whether provocation exists.” Kirkham, 311 Ill. App. 3d at 791; see also Meyer, 262 Ill. App. 3d
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at 149 (“a determination of provocation does not depend on the subjective intent of the
plaintiff”).
In this case, although both William and David Johnson were present when Linnea was
kicked by Gambler, neither William nor David saw the actual kick. Similarly, neither man saw
what Linnea was doing immediately preceding the kick. Linnea testified that she went to retrieve
a grooming tool located in tack box next to the hay barn. According to Linnea, the tack box was
not behind Gambler; rather, it was located slightly off to the side of Gambler. As she was getting
the brush, Linnea heard Gambler’s feet shuffle, and immediately thereafter, she was kicked.
Linnea denied that she was behind Gambler at the time of the kick.
Plaintiffs contend that since Linnea’s trial testimony was not impeached, it must have
been accepted as true and that her testimony provides no evidence of provocation and thus they
were entitled to a directed verdict on liability. See Smith v. Pitchford, 219 Ill. App. 3d 152, 155
(1991) (“Where *** the testimony of a witness is neither contradicted, either by positive
testimony or by circumstances, nor inherently improbable, and the witness has not been
impeached, that testimony cannot be disregarded even by a jury”). Plaintiffs, however, ignore
that Linnea was impeached by her prior deposition testimony. Indeed, at her deposition, Linnea
provided a different account of the kick. She originally testified that Gambler had been facing
her when she was kicked; however, the testimony of Dr. Jahiel refuted the possibility of such an
occurrence as she indicated that a horse cannot kick forward, only backward. Moreover,
Linnea’s father confirmed that Linnea had not been in front of the horse when the kick occurred.
In addition, Linnea’s account of where she retrieved the horse grooming brush and what she was
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doing immediately prior to the accident was contradicted by the testimony provided by Ramona
Johnson. While Linnea indicated that she went to retrieve a grooming tool from the tack box
located near the wall of the barn, Ramona testified that shortly before the kick, Linnea had
walked into the barn and Ramona had provided her with the brush. Thereafter, Linnea left the
barn with the grooming tool, and shortly thereafter, she was kicked. Accordingly, based on the
different accounts of the incident, we do not find that the trial court erred in denying plaintiffs’
motion for a directed verdict.
Plaintiffs, nonetheless, citing Smith v. Pitchford, 219 Ill. App. 3d 152 (1991), contend
that even if Jahiel’s testimony was believed and Linnea did walk behind the horse, “walking
behind a horse is not provocation as a matter of law,” and thus they were still entitled to a
directed verdict. In Smith, an eight-year-old boy was petting the defendant’s dog, with whom he
had interacted with on a prior visit to the defendant’s home, when the dog jumped up and bit the
plaintiff in the face, causing permanent facial scarring. Appealing a jury verdict in favor of the
defendant, the plaintiff contended that he was entitled to a judgment notwithstanding the verdict
on the question of liability in part because there was no evidence that he provoked the
defendant’s dog. The Fifth District agreed, finding that the plaintiff’s actions in simply petting
the dog did not constitute provocation, explaining:
“Mere presence on private property does not constitute provocation regardless of how the
animal may interpret the visitor’s movements. [Citation.] Provocation cannot be said to
exist within the meaning of section 16 of the Animal Control Act [citation] where such
unintentional stimuli as greeting or petting a dog result in the dog attacking the plaintiff
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viciously and the attack is ‘out of all proportion to the unintentional acts involved.’
(Robinson v. Meadows, (1990), 203 Ill. App. 3d 706, 713 ***.)” Smith, 219 Ill. App. 3d
at 154.
Plaintiffs contend that based on Smith, “an animals [sic] misinterpretation of a plaintiff’s
peaceable movements cannot in and of itself constitute provocation” and that, in this case, the
kick was necessarily caused by Gambler’s misinterpretation of Linnea’s peaceable movements.
We do not find that Smith supports plaintiffs’ contention that they were entitled to a directed
verdict on the question of liability and that a new trial should be conducted on the issue of
damages alone.
Provocation in this case must be considered from the perspective of a “normal” horse.
Kirkham, 311 Ill. App. 3d at 793-94 (recognizing that Illinois courts “have focused on
provocation from the perspective of the animal. The cases tend to focus on how an average dog
[or other animal], neither unusually aggressive nor unusually docile, would react to an alleged act
of provocation”). In this case, there was ample evidence that entering a horse’s blind spot
without first announcing one’s presence was dangerous and could result in a kick. Jahiel
indicated that horses are prey animals and that a person approaching the horse from behind
without alerting the horse to her presence exhibited predator behavior and, accordingly, a horse
was likely to kick in response to such stimuli. Moreover, William, David, and Linnea all
confirmed that entering a horse’s blind spot without announcing one’s presence was dangerous,
as a horse may kick. Such testimony supports the conclusion that it is normal for a horse to kick
in response to a person entering the horse’s kick zone from its blind spot without first
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announcing her presence. Because the testimony presented at trial showed that a normal horse
would kick in response to being silently approached from behind, such behavior can be found to
constitute provocation under the Animal Control Act. Moreover, it could be disputed whether a
single kick can be considered a vicious attack that is disproportionate to the act involved.
Accordingly, because there was evidence with which a fact finder could find the existence of
provocation, we do not find that the trial court erred in denying plaintiffs’ motion for a directed
verdict, and thus they are not entitled to a new trial on the issue of damages alone.
Ultimately, because we find that plaintiffs are entitled to a new trial, we need not consider
their alternative argument that the jury’s verdict was against the manifest weight of the evidence.
We now address the argument raised in defendants’ cross-appeal. Defendants assert that
the trial court erred when it found that the settlement between plaintiffs and third-party defendant
David Johnson was made in good faith as required by the Contribution Act.
The Contribution Act, enacted in 1979, provides for the statutory right of contribution in
actions “where 2 or more persons are subject to liability in tort arising out of the same injury to
person or property, or the same wrongful death.” 740 ILCS 100/2(a) (West 2006). Specifically,
the Contribution Act permits one tortfeasor “who has paid more than his pro rata share of the
common liability” to recover “the amount paid by him in excess of his pro rata share.” 740 ILCS
100/2(b) (West 2006). In addition to providing for contribution, the Contribution Act also
contemplates settlement. See Johnson v. United Airlines, 203 Ill. 2d 121, 133 (2003)
(recognizing that “the Contribution Act seeks to promote two important public policies–the
encouragement of settlements and the equitable apportionment of damages among tortfeasors”).
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Section 2(c) of the Contribution Act provides:
“When a release or covenant not to sue or not to enforce judgment is given in
good faith to one or more persons liable in tort arising out of the same injury or the same
wrongful death, it does not discharge any of the other tortfeasors from liability for the
injury or wrongful death unless its terms so provide but it reduces the recovery on any
claim against the others to the extent of any amount stated in the release or the covenant,
or in the amount of the consideration actually paid for it, whichever is greater.” 740 ILCS
100/2(c) (West 2006).
A tortfeasor who settles in accordance with the requirements of section 2(c) of the Contribution
Act “is discharged from all liability for any contribution to any other tortfeasor.” 740 ILCS
100/2(d) (West 2006). “ ‘[G]ood faith’ *** is the only limitation which the [Contribution Act]
places on the right to settle and it is the good-faith nature of a settlement that extinguishes the
contribution liability of the settling tortfeasor.” Johnson, 203 Ill. 2d at 128. The Contribution
Act, however, does not define the term “good faith.” Johnson, 203 Ill. 2d at 128; Dubina v.
Mesirow Realty Development, Inc., 197 Ill. 2d 185, 191 (2001). Nonetheless, “our supreme
court has noted that a settlement will not be found to be in good faith if it is shown that the
settling parties engaged in wrongful conduct, collusion, or fraud. [Citation.] Nor will a
settlement satisfy the good-faith requirement if it conflicts with the terms of the [Contribution]
Act or is inconsistent with the policies underlying the [Contribution] Act.” Pecoraro v. Balkonis,
383 Ill. App. 3d 1028, 1038 (2008).
The settling parties bear the initial burden of showing the existence of good faith and,
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thus, must show “[a]t a minimum *** the existence of a legally valid settlement agreement.”
Johnson, 203 Ill. 2d at 132. Thereafter, once the settling parties make a preliminary showing of
good faith, the party seeking to challenge the agreement must prove the absence of good faith by
the preponderance of the evidence. Johnson, 203 Ill. 2d at 132. “A settlement will not be found
to be in good faith if it is shown that the settling parties engaged in wrongful conduct, collusion,
or fraud.” Johnson, 203 Ill. 2d at 134. Ultimately, the trial court must examine the totality of the
circumstances to determine whether a settlement agreement complies with the Contribution Act’s
good-faith requirement (Dubina, 197 Ill. 2d at 191), and we will uphold the trial court’s
determination absent an abuse of discretion (Johnson, 203 Ill. 2d at 135; Yoder v. Ferguson, 381
Ill. App. 3d 353, 390 (2008)). An abuse of discretion exists only where we can conclude that the
trial court’s ruling is “arbitrary, fanciful, or unreasonable, or where no reasonable person would
take the same view.” Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 815-16 (2008), citing
People v. Illgen, 145 Ill. 2d 353, 364 (1991).
In this case, David Johnson’s motion for a good-faith finding set forth the existence and
terms of the settlement agreement, including valid consideration. He further represented that
there was no evidence that he negligently supervised his daughter. At this point, the burden
shifted to the Johnson defendants to show that the settlement was not made in good faith. See
Johnson, 203 Ill. 2d at 135; Pierre Condominium Ass’n v. Lincoln Park West Associates, LLC,
378 Ill. App. 3d 770, 779 (2007); Wreglesworth v. Artco, Inc., 317 Ill. App. 3d 628, 634 (2000).
The trial court found that the Johnson defendants failed to meet this burden, and we cannot
conclude that court’s decision was an abuse of discretion.
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On appeal, the Johnson defendants advance the same argument contesting that lack of
good faith as they did in the trial court. Specifically, they contend that the settlement was
“inherently flawed” because it was a “disminimus [sic] settlement among family members.”
The Johnson defendants assert that plaintiffs had originally demanded $650,000 to settle the case
and that third-party defendant David Johnson settled for “a mere nuisance amount of $7,500.”
Initially, we note that the Johnson defendants provide no citation to the record to
substantiate their claim as to plaintiffs’ prior settlement demands. Moreover, there is nothing in
the record pertaining to plaintiffs’ prior settlement demands. As the cross-appellants, the
Johnson defendants bear the burden of providing a sufficiently complete record to allow for
meaningful appellate review of their claim. Cardona v. Del Granado, 377 Ill. App. 3d 379, 386
(2007), citing Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). In the absence of such a record,
we will presume that the trial court’s order was entered in conformity with the law and was
supported by a sufficient factual basis. Cardona, 377 Ill. App. 3d at 386.
Notwithstanding the lack of evidence in the record to support defendants’ claim as to
plaintiffs’ prior settlement demand, we note that the disparity between the settlement amount to
an amount previously sought is “not an accurate measure of the good faith of a settlement.”
Johnson, 203 Ill. 2d at 136-37 (upholding the trial court’s good faith finding as to “nominal”
settlement amount even though the plaintiffs had initially sought to recover millions of dollars of
damages in their complaint). Similarly, the small size of a settlement, alone, is not a indication
of bad faith because it is well established that “ ‘ “settlements may be substantially different from
the results of litigation because damages are often speculative and the probability of liability
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Nos. 1-06-2759; 1-07-0029 (Consolidated)
uncertain.” ’ ” Wreglesworth, 317 Ill. App. 3d at 643, quoting Alvarez v. Fred Hintze
Construction, 247 Ill. App. 3d 811, 816 (1993), quoting Smith v. Texaco, Inc., 232 Ill. App. 3d
463, 469 (1992). Accordingly, rather than looking at the size of the settlement itself, “[t]he
amount of a settlement must be viewed in relation to the probability of recovery, the defenses
raised, and the settling party’s potential legal liability.” Johnson, 203 Ill. 2d at 137.
In this case, the Johnson defendants filed a third-party complaint against David Johnson,
asserting that David negligently supervised and instructed Linnea and that his negligent actions
contributed to her injuries. However, because comparative negligence is not a valid defense
under the Animal Control Act, any consideration of the potential negligence on the part of David,
a third-party defendant, would be irrelevant. See, e.g., Hill, 256 Mich. App. at 451-52, 666
N.W.2d at 289 (finding that because comparative negligence was not a valid defense under the
Michigan dog-bite statute, it was “a necessarily corollary *** that the fault or negligence of a
third person, i.e., not the dog owner or the direct victim of the dog bite, is likewise not relevant.
The statute does not allow for such consideration, nor would it be reasonable to conclude that the
third person’s negligence is relevant where the negligence of the dog-bite victim who is seeking
money damages is not to be considered”). Moreover, there is no evidence that David was
negligent as there is nothing in the record to show a need for him to constantly supervise Linnea.
See Campbell v. Haiges, 152 Ill. App. 3d 246, 252 (1987) (recognizing that parents are under no
duty to supervise their children at all times and are not negligent in failing to do so absent
“specific facts showing a special need for caution”). Accordingly, because any purported
negligence on the part of David is irrelevant and there is no evidence that David acted
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negligently, we do not find that the small $7,500 settlement is indicative of bad faith.
In addition to finding fault with the amount of the settlement, defendants emphasize the
familial relationship between plaintiffs and third-party defendant David Johnson.
Although the relationship between the settling parties is a relevant consideration in
determining whether a settlement was made in good faith (see generally Pierre Condominium
Ass’n v. Lincoln Park West Associates, LLC, 378 Ill. App. 3d 770, 779 (2007); Wreglesworth v.
Arctco, Inc., 317 Ill. App. 3d 628, 634 (2000)), a close relationship itself is not sufficient to show
collusion and establish bad faith. See, e.g., Bryant v. Perry, 154 Ill. App. 3d 790 (1986)
(upholding a mother’s settlement with her daughter where mother was acting as her daughter’s
representative and was named a counterdefendant in the daughter’s personal injury action);
Wasmund v. Metropolitan Sanitary District of Greater Chicago, 135 Ill. App. 3d 926, 930 (1985),
abrogated on other grounds by Johnson, 203 Ill. 2d at 130 (upholding a settlement reached
between a plaintiff and a third-party who was her friend at the time of the settlement and became
her husband at a later date, reasoning “[w]e do not believe that the fact that the two were friends
is sufficient, without more, to taint the settlement with an indicia of collusion”). Although
defendants point to the familial relationship between plaintiffs and David Johnson, they provide
no evidence that the parties engaged in collusion, and, accordingly, we find that their
unsubstantiated claim of collusion has no merit. Indeed, based on the facts in the record, we
cannot conclude that the trial court abused its discretion in finding that the settlement agreement
between plaintiffs and David Johnson was reached in good faith.
For the foregoing reasons, we find that the trial court erred in allowing defendants to
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assert a comparative negligence defense to plaintiffs’ claim brought under the Animal Control
Act and further erred in instructing the jury on that defense. Because we are unable to conclude
that the error was harmless, we reverse and remand for a new trial. However, we affirm the trial
court’s order finding that the settlement agreement reached between plaintiffs and third-party
defendant David Johnson was reached in good faith and, accordingly, David’s contribution
liability is extinguished during the new trial.
Affirmed in part and reversed in part; cause remanded for a new trial.
THEIS, J., and QUINN, J., concur.
49