                                No. 2—09—0814
                           Opinion filed March 10, 2011
______________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

DEBORAH JANIS,                         ) Appeal from the Circuit Court
                                       ) of Kane County.
      Plaintiff-Appellant,             )
                                       )
v.                                     ) No. 08—L—500
                                       )
SCOTT GRAHAM, DONNA GRAHAM,            )
PHILLIP WARNER, and SANDI WARNER, ) Honorable
                                       ) Stephen Sullivan,
      Defendants-Appellees.            ) Judge, Presiding.
______________________________________________________________________________

          JUSTICE McLAREN delivered the judgment of the court, with opinion.
          Justices Zenoff and Burke concurred in the judgment and opinion.

                                               OPINION

          Plaintiff, Deborah Janis, appeals from the trial court’s order dismissing with prejudice count

II of her third amended complaint and denying her leave to file a fourth amended complaint. We

affirm.

          On September 2, 2008, Janis filed a two-count complaint in the circuit court of Kane County,

seeking damages in excess of $50,000 for injuries sustained when she was allegedly knocked to the

ground by dogs owned by defendants, Scott and Donna Graham and Phillip and Sandi Warner. The

dogs were allegedly “running loose and without restraint or supervision.” Count I was brought under

section 16 of the Animal Control Act (Act) (510 ILCS 5/16 (West 2006)). Count II alleged a
No. 2—09—0814


violation of section 90.03(B) of chapter 90 of title IX of the South Elgin Code of Ordinances, which

provided:

               “No dog or other animal shall be permitted to run at large in the village [at] any time.

       It shall be the duty of the owner or any other person who has in his custody or control a dog

       or other animal to keep the same safely and securely tied or confined at all times.” South

       Elgin Code of Ordinances §90.03(B) (passed Nov. 7, 1983).

On January 22, 2009, the trial court granted the Grahams’ motion to dismiss count II pursuant to

section 2—615 of the Code of Civil Procedure (Code) (735 ILCS 5/2—615 (West 2008)). The court

also granted Janis time to file an amended complaint.

       The court subsequently granted the Grahams’ motion to dismiss the amended complaint

without prejudice. The court directed Janis to replead count I to allege that she had been injured

“without provocation.” As to count II, the court held that the Village of South Elgin (Village)

ordinance that Janis cited “does not create a private cause of action.” If Janis wished to replead

count II, it “shall be pled as a negligence action, and plaintiff must allege that the animals at issue

had a dangerous propensity and that their owner(s) were aware of such propensity.”

       Janis filed her second amended complaint on April 15, 2009. Count II alleged that the

“Village Code of South Elgin creates a duty on dog owners and those who have custody of dogs to

keep them safely and securely tied at all times.” As a “direct and proximate result” of defendants’

violating section 90.03(B) by letting their dogs run at large, Janis was injured. Defendants filed

separate motions to dismiss pursuant to section 2—615 of the Code. Janis was granted leave to file

a third amended complaint, and the motions to dismiss, as they related to count II, were “converted”

to motions to dismiss count II of the third amended complaint, which now included the allegation



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that defendants’ dogs, in addition to running loose without restraint or supervision, ran into Janis

“without provocation,” thereby causing her injuries. On May 24, 2009, Janis sought leave to file a

fourth amended complaint that would add a separate count III alleging negligence. On July 30, 2009,

the trial court dismissed count II of the third amended complaint with prejudice, finding that Janis

“has failed to state, and cannot state, a cause of action under the facts alleged in Count II of the Third

Amended Complaint, for negligence based on the Village of South Elgin, Illinois Ordinance, Chapter

90.” The court also denied Janis’s motion for leave to file a fourth amended complaint and found

no just reason for delaying the enforcement or appeal of the order. This appeal followed.

        Janis contends that the trial court erred in dismissing count II of her third amended complaint.

According to Janis, count II set forth a cause of action for negligence based on a breach of the

Village ordinance requiring dogs to be fenced or otherwise restrained. The trial court dismissed

count II pursuant to motions to dismiss brought under section 2—615 of the Code. A section 2—615

motion takes as true all well-pleaded facts alleged in the complaint. King v. Senior Services

Associates, Inc., 341 Ill. App. 3d 264, 266 (2003). On review of a section 2—615 dismissal, this

court must determine whether the allegations contained in the complaint, when interpreted in the

light most favorable to the plaintiff, sufficiently set forth a cause of action on which relief may be

granted. King, 341 Ill. App. 3d at 266. A section 2—615 motion should be granted only if the

plaintiff can prove no set of facts to support the alleged cause of action. King, 341 Ill. App. 3d at

266. This process does not require the trial court to determine credibility or weigh findings of fact;

therefore, we are not required to defer to the trial court’s judgment, and we review the matter de

novo. King, 341 Ill. App. 3d at 266.




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       Janis styled count II of her third amended complaint “NEGLIGENCE BASED ON BREACH

OF ORDINANCE.” According to Janis, local regulation and control of dogs and other animals is

provided for in section 24 of the Act, which provides:

       “Nothing in the Act shall be held to limit in any manner the power of any municipality or

       other political subdivision to prohibit animals from running at large, nor shall anything in

       this Act be construed to, in any manner, limit the power of any municipality or other political

       subdivision to further control and regulate dogs, cats or other animals in such municipality

       or other political subdivision provided that no regulation or ordinance is specific to breed.”

       510 ILCS 5/24 (West 2006).

Thus, according to Janis, the Village had the authority to enact section 90.03(B), which provides:

               “No dog or other animal shall be permitted to run at large in the village [at] any time.

       It shall be the duty of the owner or any other person who has in his custody or control a dog

       or other animal to keep the same safely and securely tied or confined at all times.” South

       Elgin Code of Ordinances §90.03(B) (passed Nov. 7, 1983).

       The purpose of chapter 90 is to “promote a harmonious relationship between man and animal

through the establishment of defined procedures when man and animal interact,” so as to, among

other things, “[p]rovide security of residents from annoyance, intimidation, injury and rabies by

animals.” South Elgin Code of Ordinances §§90.01(A), (B)(2) (passed Nov. 17, 2003). Section

90.03(B), according to Janis, “creates a legal duty on dog owners and those who have custody of

dogs to keep them safely and securely tied at all times” such that a violation of the ordinance can be

the basis of a cause of action in negligence. Janis alleged that defendants violated the ordinance by

letting their dogs run at large. As a “direct and proximate result” of the ordinance violation, the



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“unsupervised and unrestrained by leash” dogs knocked Janis to the ground as she stood in her

driveway, “greatly injuring her.” She also alleged that she was “peaceably conducting herself” and

did not provoke the dogs.

       At common law, a plaintiff allegedly injured by an animal was required to prove in a

negligence action that “the animal had a mischievous propensity to commit such injuries and that

the owner had knowledge of the propensity.” Beckert v. Risberg, 33 Ill. 2d 44, 46 (1965). One of

the purposes of the Act was to “eliminate the requirement that an injured party must plead and prove

that the animal owner knew or should have known about the animal’s dangerous propensities.”

Beggs v. Griffith, 393 Ill. App. 3d 1050,1054 (2009). Section 16 of the Act provides for civil

damages for injuries caused by dogs and other animals, whether running at large or not:

       “If a dog or other animal, without provocation, attacks, attempts to attack, or injures any

       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).

This cause of action provided in the Act is not negligence based, nor does it impose strict liability

on an owner. Beggs, 393 Ill. App. 3d at 1054.

       Janis argues that safety statutes and ordinances “provide a standard of conduct the breach of

which supports an action for negligence.” In general, this is true. See Bier v. Leanna Lakeside

Property Ass’n, 305 Ill. App. 3d 45, 58 (1999) (“[T]he defendant’s claim that a violation of a statute

cannot create a duty where none exists at common law is at odds with a long line of Illinois cases

holding to the contrary.”). The violation of such a statute or ordinance designed to protect human

life or property is prima facie evidence of negligence. Bier, 305 Ill. App. 3d at 58. A party that is



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No. 2—09—0814


injured as a result of a violation of such a statute or ordinance may recover upon a showing that (1)

the violation proximately caused the injury; (2) the statute or ordinance was intended to protect the

class of persons to which the party belongs; and (3) the injury suffered was of the type that the statute

or ordinance was designed to protect against. Bier, 305 Ill. App. 3d at 58.

        We conclude that count II is nothing more than a reiteration of count I except that plaintiff

appears to be claiming that a lesser quantum of proof is necessary to sustain the action. We first take

judicial notice that the Village is a non-home-rule unit of government. This court may take judicial

notice of easily verifiable matters, including a municipality’s status vis-a-vis home rule powers. See

City of Wheaton v. Loerop, 399 Ill. App. 3d 433, 434 n.1 (2010). As a non-home-rule unit, the

Village is governed by Dillon’s Rule. Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 694

(2004). Dillon’s Rule states that non-home-rule units possess only those powers specifically

conveyed by the constitution or by statute; thus, such a unit may regulate in a field occupied by state

legislation only when the constitution or a statute specifically conveys such authority. Village of

Sugar Grove, 347 Ill. App. 3d at 694. However, even when a non-home-rule unit is conveyed the

authority to regulate in a particular field, it may not adopt an ordinance that infringes upon the spirit

of the state law or is repugnant to the general policy of this state. Village of Sugar Grove, 347 Ill.

App. 3d at 694-95. An ordinance enacted under those powers that conflicts with the spirit and

purpose of a state statute is preempted by the statute. Hawthorne v. Village of Olympia Fields, 204

Ill. 2d 243, 259 (2003). “ ‘[W]here there is a conflict between a statute and an ordinance, the

ordinance must give way.’ ” Hawthorne, 204 Ill. 2d at 259 (quoting Village of Mundelein v. Hartnett,

117 Ill. App. 3d 1011, 1015 (1983)).




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        Here, it is clear that the legislature has conveyed to all municipalities, whether home rule or

non-home-rule, the authority to regulate dogs and prohibit their running at large. However, the

legislature has also “occupied” the field by passing the Act and has provided a series of remedies for

violations of the Act, including its prohibition of dogs running at large. Except as otherwise

provided, violations of any section of the Act may result in misdemeanor criminal charges. See 510

ILCS 5/26(a) (West 2006). A dog running at large that is apprehended may be impounded, and the

dog’s owner shall pay a “public safety fine” of $25. 510 ILCS 5/9 (West 2006). Furthermore,

section 16 of the Act provides for civil damages for injuries caused by dogs and other animals,

whether running at large or not.

        The state has specifically provided a cause of action for the type of situation that Janis alleged

in count II of her third amended complaint. Indeed, count I of Janis’s third amended complaint

sought recovery pursuant to this statutory remedy. While section 24 of the Act grants municipalities

the authority to regulate animals and prohibit them from running at large, nowhere does the Act

provide that a municipality may regulate civil liability for incidents involving animals running at

large. By creating this statutory route of recovery that is not based on negligence or strict liability,

the state has set a general policy for recovery for injuries caused by animals (in particular, dogs).

        Janis is attempting to use a Village ordinance to impose liability under a negligence standard

in a field in which the state has determined that negligence shall not apply. Although Janis alleged

negligence in count II, it would be more accurate to call the cause of action strict liability for any

injury caused by a dog not on a leash or held by its owner or a third party when the dog is not on the

owner’s property. However, neither negligence nor strict liability is contemplated by the Act. See

Beggs, 393 Ill. App. 3d at 1054. Such a use of the ordinance is unsupported by any specific



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No. 2—09—0814


conveyance in the constitution or the Act and would infringe upon the spirit of the Act and the

general policy of this state. Therefore, it would run afoul of Dillon’s Rule and cannot be the basis

for a cause of action.

        Furthermore, a common-law cause of action for negligence involving injuries caused by an

animal already exists, and that cause of action includes the requirements that the animal had a

mischievous propensity to commit such injuries and that the owner had knowledge of the propensity.

See Beckert, 33 Ill. 2d at 46. Here, Janis failed to allege either of those requirements.

        Janis argues that these requirements do not exist “when the animal is simply the means of

the injury and the cause is something else.” Janis relies in large part on Meyer v. Naperville Manner,

Inc., 285 Ill. App. 3d 187 (1996). In Meyer, the minor plaintiff fell from a horse at the defendant’s

horseback riding academy. In count II of her amended complaint, the plaintiff alleged negligence

in that the defendant: (1) failed to warn her that a riding technique that she had previously learned

was dangerous to use with the defendant’s horses; (2) promoted her from the status of beginner

through advanced when she had not safely learned to handle the defendant’s horses; and (3) entrusted

child students to a 17-year-old instructor who had no training or instruction in teaching and no prior

teaching experience; as a result, the horse that she was riding ran away, causing her to fall and injure

herself. Meyer, 285 Ill. App. 3d at 188. The plaintiff argued that “a cause of action exists where a

defendant is entrusted to teach and care for children safely and negligently fails to do so.” Meyer,

285 Ill. App. 3d at 189. This court held that, “properly pleaded, there can be recovery under a cause

of action for common-law negligence where an animal is involved even in the absence of an

allegation that the animal had a predisposition towards mischief.” Meyer, 285 Ill. App. 3d at 191.

We found that the plaintiff had alleged “that the inadequate instruction provided by the defendant



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No. 2—09—0814


was the cause of her injury. Therefore, the fact that the horse in this cause had no predisposition to

mischief may have no bearing on the issue of inadequate instruction and thus may not be a necessary

element to the plaintiff’s negligence cause of action in this case if the cause of action is otherwise

pleaded properly.” Meyer, 285 Ill. App. 3d at 192.

        We find Meyer to be distinguishable. The plaintiff in Meyer alleged that it was the

defendant’s conduct (negligent training), not that of the animal, that caused her to fall from the horse

and sustain her injuries. Here, Janis alleged that “defendants’ dogs *** knocked plaintiff to the

ground as she stood in the driveway of her home greatly injuring her.” The actions of the dogs, not

those of defendants, caused her to fall to the ground and sustain injuries. The type of recovery

discussed in Meyer is not applicable to the facts alleged in this case, because plaintiff has not alleged

that defendants were negligent in training their dogs or, more specifically, failing to train the dogs

to refrain from knocking persons to the ground.

        Existing causes of action under the common law and under the Act were available to Janis.

In count II of her third amended complaint, she attempted a third method of recovery by including

“without provocation,” which is part of the Act, but excluding “knowledge of the propensity by the

owner,” which is part of the common law; however, neither provocation nor propensity is part of the

ordinance. Janis was required to plead a cause other than liability pursuant to the Act, which was

contained in count I and which took precedence over the ordinance. The only alternative was to

plead the common-law claim that the animals had a mischievous propensity to commit such injuries

and that defendants had knowledge of the propensity. She failed to do this.

        Thus, interpreting the allegations contained in the complaint in the light most favorable to

Janis, we find that Janis failed to sufficiently set forth a cause of action on which relief may be



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granted. Therefore, the trial court did not err in granting the section 2—615 motions to dismiss

count II of her third amended complaint.

       Janis next asks this court to reverse the trial court’s order denying her motion to file a fourth

amended complaint and to direct the court to “consider whether Plaintiff pleads a private right of

action under South Elgin’s Ordinance.” According to Janis, she “has not attempted to plead she was

entitled to an implied private right of action, and it is somewhat of a mystery how Count II came to

be viewed as such.” Our review of the record shows that Janis never did raise the issue of a private

right of action under the Village ordinance in any of her complaints. Janis first mentioned a private

right of action in her brief in support of her proposed fourth amended complaint. Confusingly, she

argued in that brief that, while she had never attempted to plead an implied private right of action,

even in her proposed fourth amended complaint, the trial court should permit her to do so. Whether

to allow the amendment of a complaint is a matter left to the discretion of the trial court, and absent

an abuse of that discretion, the trial court’s determination will not be overturned. Moore v. People

for the Ethical Treatment of Animals, Inc., 402 Ill. App. 3d 62, 75 (2010). We will find an abuse of

discretion only where no reasonable person would take the view adopted by the trial court. Moore,

402 Ill. App. 3d at 75. Janis had multiple opportunities to plead a private cause of action under the

ordinance, and not once did she allege such a cause of action. We determine that the trial court did

not abuse its discretion by denying Janis the opportunity to file a fourth amended complaint that did

not contain or contemplate the theory of recovery that she broaches in this court.

       For these reasons, the judgment of the circuit court of Kane County is affirmed.

       Affirmed.




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