Rule 23 order filed                   NO. 5-10-0403
April 12, 2011;
Motion to publish granted                IN THE
May 25, 2011, corrected
June 10, 2011.              APPELLATE COURT OF ILLINOIS

                                    FIFTH DISTRICT


JAMES F. KINDEL,                                        )      Appeal from the
                                                        )      Circuit Court of
       Plaintiff-Appellant,                             )      Wabash County.
                                                        )
v.                                                      )      No. 08-L-12
                                                        )
LOUIS TENNIS, JASON TENNIS, and TENNIS                  )
DAIRY FARM S, L.P.,                                     )      Honorable
                                                        )      Christopher L. Weber,
       Defendants-Appellees.                            )      Judge, presiding.


       JUSTICE SPOMER delivered the judgment of the court, with opinion.
       Justices Donovan and Wexstten concurred in the judgment and opinion.

                                      OPINION

       The plaintiff, James F. Kindel, appeals the orders of the circuit court of Wabash

County that (1) granted the motion of the defendants, Louis Tennis, Jason Tennis, and Tennis

Dairy Farms, L.P., to dismiss three counts of the plaintiff's lawsuit against them and (2)

denied the plaintiff's request that the court reconsider the dismissal. For the reasons that

follow, we reverse the trial court's orders and remand for further proceedings.

                                          FACTS

       On October 16, 2008, the plaintiff filed an amended complaint for damages in the

present action, in which he alleged that on August 9, 2007, he was injured, while working

for the defendants, by a bull owned and controlled by the defendants. Counts I, II, and III

alleged claims under the Illinois Animal Control Act (the Act) (510 ILCS 5/1 et seq. (West

2006)), and counts IV and V alleged claims of common-law negligence. On November 14,

2008, the defendants filed a motion to dismiss all five counts of the complaint pursuant to


                                             1
section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West

2008)). A hearing was held on the motion on February 19, 2009, and on April 16, 2009, the

judge entered an order in which he dismissed counts I, II, and III because he believed that

the Illinois General Assembly "did not intend for the Animal Control Act to apply to the class

of persons [of which] [the plaintiff], an employee of [the defendants], is a part."

       The case proceeded on counts IV and V, and following discovery related to those

counts, the plaintiff filed, on January 13, 2010, a motion in which he asked the judge to

reconsider, on the basis of information obtained via discovery, his dismissal of counts I, II,

and III. A hearing on the motion to reconsider was held on May 27, 2010, and on July 30,

2010, the judge entered an order in which he upheld his dismissal of the counts, finding that

the Illinois Supreme Court's holding in Harris v. Walker, 119 Ill. 2d 542, 547 (1988)–that the

General Assembly "intended only to provide coverage under the statute for plaintiffs who,

by virtue of their relationship to the owner of the dog or other animal or the lack of any such

relationship, may not have any way of knowing or avoiding the risk that the animal poses to

them"–barred a recovery under the Act for the plaintiff in the present case because the

plaintiff could not argue "that he had no way of knowing that the bull posed a risk to him"

and because the Act could not be extended to "an employee who did not have control of, but

was working near a farm animal, which injured him." The judge found no reason for

delaying the appeal of his order, and this timely appeal–of both the April 16, 2009, order

dismissing the counts and the July 30, 2010, order upholding the dismissal–followed. We

note that counts IV and V are not at issue in this appeal and that additional facts necessary

for the disposition of this appeal will be provided throughout the remainder of this opinion.

                                         ANALYSIS

       On appeal, the plaintiff contends that the allegations in his complaint were sufficient

to withstand a motion to dismiss pursuant to section 2-615 of the Code. We agree. To


                                              2
prevail on a claim under the Act, a plaintiff must prove the following: " '(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 v. Lane, 358 Ill. App. 3d 1126, 1135 (2005) (quoting Meyer v.

Naperville Manner, Inc., 262 Ill. App. 3d 141, 147 (1994)). We review de novo the dismissal

of a complaint pursuant to section 2-615. Smith, 358 Ill. App. 3d at 1128. When so doing,

we accept all well-pleaded facts and inferences as true, and we interpret the allegations in the

complaint in a light most favorable to the plaintiff. Smith, 358 Ill. App. 3d at 1135. That is

because a motion to dismiss pursuant to section 2-615 "attacks the legal sufficiency of the

complaint based upon defects appearing on the face of the complaint." Compton v. Country

Mutual Insurance Co., 382 Ill. App. 3d 323, 325-26 (2008). Accordingly, a dismissal should

be granted only where " 'it is clearly apparent that the plaintiffs could prove no set of facts

that would entitle them to relief.' " Compton, 382 Ill. App. 3d at 326 (quoting Guinn v.

Hoskins Chevrolet, 361 Ill. App. 3d 575, 586 (2005)).

       In the case at bar, the judge based his decisions only on the first element listed above

for stating a claim under the Act, and he specifically focused on the issue of whether the

plaintiff qualified as an "owner" of the bull and therefore was barred from a recovery under

the Act. See Eyrich v. Johnson, 279 Ill. App. 3d 1067, 1070 (1996) (the Act was construed

to deny a recovery to an animal's owner). In his first order, the judge concluded that the

Illinois General Assembly "did not intend for the Animal Control Act to apply to the class

of persons [of which] [the plaintiff], an employee of [the defendants], is a part." In his

second order, the judge concluded that the Illinois Supreme Court's holding in Harris v.

Walker, 119 Ill. 2d 542, 547 (1988)–that the General Assembly "intended only to provide

coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of

the dog or other animal or the lack of any such relationship, may not have any way of


                                               3
knowing or avoiding the risk that the animal poses to them"–barred a recovery under the Act

for the plaintiff in the present case because the plaintiff could not argue "that he had no way

of knowing that the bull posed a risk to him" and because the Act could not be extended to

"an employee who did not have control of, but was working near a farm animal, which

injured him."

       However, it is axiomatic that under the Act, the question of ownership is normally a

question of fact to be determined by the trier of fact. See, e.g., Steinberg v. Petta, 114 Ill. 2d

496, 502 (1986). Moreover, there is no case law that holds that the employee of an owner

of an animal is per se barred from a recovery under the Act. The Illinois Supreme Court's

decision in Harris v. Walker, 119 Ill. 2d 542 (1988), is inapposite to the question, because

it does not deal with an employer-employee relationship. More apposite is Eyrich v.

Johnson, 279 Ill. App. 3d 1067, 1070 (1996), but even in that case, our colleagues in the

Third District recognized that the key questions, when considering the employer-employee

relationship vis-a-vis the questions of ownership and recovery, are whether it was a part of

the plaintiff employee's job to care for the animal in question and whether the animal was in

the care and/or custody of the plaintiff employee at the time of the injury to the plaintiff

employee. Although the defendants contend in the case at bar that it was a part of the

plaintiff's job to care for the bull that attacked him and that the bull was in the plaintiff's

custody and care at the time of the attack, the plaintiff disputes that and has done so from his

first pleading onward. Accordingly, we cannot agree with the circuit court that a dismissal

pursuant to section 2-615 was appropriate in this case. See Compton v. Country Mutual

Insurance Co., 382 Ill. App. 3d 323, 326 (2008) (a dismissal should be granted only where

" 'it is clearly apparent that the plaintiffs could prove no set of facts that would entitle them

to relief' " (quoting Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d 575, 586 (2005))). We note

that we take no position on the merits of the plaintiff's case under the Act; we simply cannot


                                                4
conclude that the counts under the Act were appropriately dismissed pursuant to section 2-

615.

                                      CONCLUSION

       For the foregoing reasons, we reverse the orders of the circuit court of Wabash County

and remand for further proceedings.



       Orders reversed; cause remanded.




                                             5
                                         NO. 5-10-0403

                                            IN THE

                              APPELLATE COURT OF ILLINOIS

                                  FIFTH DISTRICT
___________________________________________________________________________________

      JAMES F. KINDEL,                            )     Appeal from the
                                                  )     Circuit Court of
           Plaintiff-Appellant,                   )     Wabash County.
                                                  )
      v.                                          )     No. 08-L-12
                                                  )
      LOUIS TENNIS, JASON TENNIS, and TENNIS      )
      DAIRY FARM S, L.P.,                         )     Honorable
                                                  )     Christopher L. Weber,
           Defendants-Appellees.                  )     Judge, presiding.
___________________________________________________________________________________

Rule 23 Order Filed:        April 12, 2011
Motion to Publish Granted:  May 25, 2011
Opinion Filed:              May 25, 2011
___________________________________________________________________________________

Justices:          Honorable Stephen L. Spomer, J.

                 Honorable James K. Donovan, J., and
                 Honorable James M. Wexstten, J.,
                 Concur
___________________________________________________________________________________

Attorneys        Brian K. Hetzer, Hefner, Eberspacher & Tapella, L.L.C., P.O. Box 627, Mattoon,
for              IL 61938; Jeffrey Lind, Fleschner, Stark, Tanoos & Newlin, 201 Ohio Street,
Appellant        Terre Haute, IN 47807
___________________________________________________________________________________

Attorneys        Larry N. Sloss, Jr., Derek W. McCullough, Gosnell, Borden, Enloe & Sloss, Ltd.,
for              815-12th Street, P.O. Box 737, Lawrenceville, IL 62439
Appellees
___________________________________________________________________________________
