specially concurring:
I concur in Justice Barry’s decision to reverse and remand but for an altogether different reason.
The plaintiff’s appellate argument, which is grounded in the so-called dangerous-animal statute, is misplaced. The horse in this case did not, after all, bite or otherwise attack the plaintiff. In simple language, that is what the statute is all about. Ill. Rev. Stat. 1983, ch. 8, par. 366.
Plaintiff rented a horse from a riding stable. As part and parcel of the rental transaction, plaintiff signed an up-front release to excuse the defendant stable owner from any liability if the plaintiff fell off the horse. Plaintiff then fell off the horse and sued the defendant stable owner. Defendant filed a motion for summary judgment based on the release. Summary judgment was granted in favor of the defendant and the plaintiff appealed.
Reference to the complaint discloses that the plaintiff pleaded that the plaintiff was injured because although defendant knew or in the exercise of ordinary care should have known that the rental horse in question had a propensity to become “sideshocked,” thereby creating an unreasonably dangerous condition to the person riding the horse, defendant nonetheless failed to warn the plaintiff.
That is, in essence, an allegation of fraud. It is an allegation of concealment of a hidden material defect. As such, if proven, it is sufficient to vitiate what would otherwise be a valid release. Larsen v. Vic Tanny International (1984), 130 Ill. App. 3d 574. See also Ainsworth Corp. v. Cenco, Inc. (1982), 107 Ill. App. 3d 435 (fraud in the inducement vitiates all contracts); Rudolph v. Santa Fe Park Enterprises, Inc. (1984), 122 Ill. App. 3d 372 (a release may be set aside if there is fraud).
Although inartfully drafted, I believe that the complaint sets forth a sufficient claim and a sufficient justification for abrogation of the release.
Accordingly, and for that reason, the summary judgment entered in this case should be reversed and the cause remanded for trial.