dissenting:
The plaintiff in his brief specifically states that “[he] does not dispute the fact that as a general rule exculpatory contracts are validly enforceable contracts and do generally insulate a party from liability. There exists in this case, however, a distinction ***. The distinction is that in the previously decided cases the cause of action asserted was a common law negligence claim. Here we are dealing not with a common law claim, but with a cause of action created by the Illinois Legislature and imposed pursuant to a validly enacted statute.”
The plaintiff specifically pinpoints the issue in this appeal as to whether the release or exculpatory contract executed by him violates the settled public policy of the statute and is therefore not a bar to the plaintiff’s claim for compensation for injuries sustained due to defendant’s negligence. It is plaintiff’s contention that the legislature, by enactment of section 16 (Ill. Rev. Stat. 1983, ch. 8, par. 366) declared it to be public policy to hold owners of animals to be liable for injuries caused by such animals.
The plaintiff is correct when he designated this case as one of first impression. The statute in question states as follows:
“Sec. 16. If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of injury sustained.” Ill. Rev. Stat. 1983, ch. 8, par. 366.
While factually different, I nevertheless deem the case of Vanderlei v. Heideman (1980), 83 Ill. App. 3d 158, 403 N.E.2d 756, to be of considerable importance in interpreting the statute in question. In Vanderlei the plaintiff was injured by a horse and he argued that he should be allowed recovery since the language of the statute is absolute except for the defenses set forth in its language. He argued that the legislature clearly intended to abolish any other defense. The appellate court, second district, held that it could not conclude that the legislature intended to abolish all common law defenses other than provocation by one peaceably and lawfully on the premises. The court concluded:
“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.’ (Bailey v. Bly (1967), 87 Ill. App. 2d 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.” 83 Ill. App. 3d 158, 161-62, 403 N.E.2d 756, 758.
Neither party to this appeal cites a case, nor do we know of one, which discusses the enforcement of exculpatory contracts in relation to the statute. However, in the light of the discussion set forth in Vanderlei, the statute does not appear to be intended to protect the person who voluntarily encounters a known risk and agrees in writing to assume the risk.
For the foregoing reasons I differ with the reasoning and result reached by my colleagues.