dissenting:
I respectfully dissent. The evidence appearing in the record plainly demonstrates that, at the time of the accident, the plaintiffs were not in a place where they had a lawful right to be. Even assuming that the accident occurred in the public right-of-way, there is no question that the plaintiffs were utilizing the right-of-way in an illegal manner. Section 11 — 1426(a) of the Illinois Vehicle Code provides that it is “unlawful for any person to drive or operate any all-terrain vehicle or off-highway motorcycle upon any street, highway or roadway in this State.” 625 ILCS 5/11 — 1426(a) (West 1996). As it was unlawful for the plaintiffs to be upon the public right-of-way while operating an ATV I do not believe that the plaintiffs were in a place they could lawfully be for purposes of the Animal Control Act. 510 ILCS 5/16 (West 1996).
The majority attempts to circumvent this conclusion by explaining that, although the plaintiffs were violating a traffic law at the time of the accident, they were nonetheless upon a public way and therefore were in a place they could lawfully be. Such a conclusion is not supported by authority. The use of public ways is not unlimited and may be regulated by the General Assembly. See People v. Warren, 11 Ill. 2d 420, 424-25 (1957). Here, the legislature has chosen to impose a specific limitation upon the use of public ways by prohibiting the operation of ATVs. There is no dispute that the plaintiffs’ use of the public way in question was not in conformity with this requirement. I therefore fail to understand how their presence on the public right-of-way could be considered lawful.
Rather, I believe that the undisputed evidence establishes that the plaintiffs were not in a place where they had a lawful right to be and that they cannot recover under the Animal Control Act. I would therefore affirm the order of the circuit court granting summary judgment.