                          NO. 4-06-0394           Filed 5/24/07

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

FRED FILE,                                )   Appeal from
          Plaintiff-Appellant,            )   Circuit Court of
          v.                              )   Morgan County
RAYMOND DUEWER,                           )   No. 03L35
          Defendant-Appellee.             )
                                          )   Honorable
                                          )   Tim P. Olson,
                                          )   Judge Presiding.
_________________________________________________________________

           JUSTICE KNECHT delivered the opinion of the court:

           Plaintiff, Fred File, brought suit against defendant,

Raymond Duewer, seeking damages for injuries caused by a heifer

owned by defendant.   The trial court granted summary judgment

against plaintiff on his amended complaint seeking relief under

the Animal Control Act (510 ILCS 5/16 (West 2002)) and granted

plaintiff leave to refile under the Illinois Domestic Animals

Running at Large Act (Running at Large Act) (510 ILCS 55/1 (West

2002)).   After plaintiff did so, the trial court again granted

summary judgment against plaintiff.   Plaintiff appeals, contend-

ing his suit is properly brought under the Animal Control Act and

he stated a cause of action under that statute.   We agree and

reverse the trial court's grant of summary judgment.

                           I. BACKGROUND

           On September 27, 2001, plaintiff and Richard Releford

were engaged in carpentry work on defendant's property.   Defen-
dant, who was in the business of raising cattle, had approxi-

mately 70 head of cattle break out of their enclosure, which were

roaming at large in neighboring cornfields.     Plaintiff, who also

had experience raising cattle, and Releford were asked to assist

in helping round up the cattle.

          Plaintiff rode in a pickup truck with defendant to find

the cattle.   While driving near the cattle, plaintiff noticed a

nervous heifer and pointed it out to defendant.     The roundup was

going well using pickup trucks to guide the cattle until they

were spooked by farm machinery in a nearby field.     The cattle

scattered.    Defendant dropped plaintiff off in a field near some

of the cattle and left to round up the others.     Plaintiff was

joined in the field by defendant's daughter, Pat, who had driven

her own truck to the field to assist in the roundup.     While

plaintiff and Pat were on foot attempting to get the cattle

headed back to defendant's farm, plaintiff and Pat both noticed a

heifer that looked "awful nervous."     Plaintiff then started

walking toward Pat's truck, to give the nervous heifer a wide

berth, when it charged him, knocking him to the ground.     Plain-

tiff suffered a broken shoulder and a knee injury.

          On July 7, 2003, plaintiff filed a complaint against

defendant alleging negligence and violation of the Running at

Large Act (510 ILCS 55/1 (West 2002)).     On April 26, 2004, this

complaint was amended but still alleged common-law negligence and

a violation of the Running at Large Act.     On October 26, 2004,



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defendant was granted leave to file affirmative defenses: (1) he

exercised reasonable care in restraining his livestock; (2)

assumption of the risk; and (3) comparative fault.

          On December 12, 2005, plaintiff filed a third amended

complaint that abandoned both the negligence allegations and the

Running at Large Act allegations and instead alleged a violation

of the Animal Control Act (510 ILCS 5/16 (West 2002)).      On

February 24, 2006, defendant filed a motion for summary judgment

arguing the Animal Control Act did not apply to the facts of this

case.

          On April 13, 2006, the trial court granted summary

judgment, finding

          "[t]he cattle in question escaped their pen

          and were in the process of being rounded up

          when the injuries complained of occurred.    At

          the time the cattle escaped from their enclo-

          sure, they did so without the knowledge of

          defendant.   This set of facts clearly places

          this situation under the purview of the [Run-

          ning at Large Act], not the Animal Control

          Act."

The court then allowed plaintiff leave to file an amended com-

plaint under the Running at Large Act.

          On April 21, 2006, plaintiff filed his fourth amended

complaint and alleged violations of the Running at Large Act.



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Defendant filed a motion for summary judgment to which he at-

tached both his and plaintiff's discovery depositions.      Defendant

argued (1) there was no issue of material fact that the fence

enclosing his cattle prior to their escape was in reasonable and

adequate condition for enclosing them and (2) the trial court

ruled in its order on April 13, 2006, that when the cattle

escaped, they did so without defendant's knowledge.      Both of

these facts were defenses to liability under the Running at Large

Act provided within the statute itself.      510 ILCS 55/1 (West

2002).

            On May 5, 2006, the trial court granted defendant

summary judgment, finding both parties agreed no recovery was

available to plaintiff if defendant used reasonable care to

prevent the animals from getting loose.      The court dismissed the

case.    This appeal followed.

                            II. ANALYSIS

            The statutes at issue here relate to the same subject:

liability for injuries received from animals.      Therefore, they

must be construed together.      See Zears v. Davison, 154 Ill. App.

3d 408, 411, 506 N.E.2d 1041, 1043 (1987).

            The Animal Control Act states:

                 "If a dog or other animal, without prov-

            ocation, attacks or injures any person who is

            peaceably conducting himself in any place

            where he may lawfully be, the owner of such



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          dog or other animal is liable in damages to

          such person for the full amount of the injury

          sustained."   510 ILCS 5/16 (West 2002).

          The original version of this statute applied only to

dogs and its purpose was to reduce the burden on dog-bite plain-

tiffs by eliminating the "one-bite rule"--the requirement the

plaintiff plead and prove the dog owner knew or should have known

the dog had a propensity to injure people.      Harris v. Walker, 119

Ill. 2d 542, 546-47, 519 N.E.2d 917, 918 (1988).     The statute was

amended in 1973 to include "other animals."      Harris, 119 Ill. 2d

at 547, 519 N.E.2d at 918-19.   The legislature intended only to

provide coverage under the statute for plaintiffs who, by virtue

of their relationship to the owner of an animal or lack of any

such relationship, may not have any way of knowing or avoiding

the risk the animal poses to them.      This is consistent with the

emphasis the statute places on lack of provocation and the

plaintiff's peaceable conduct in a place where he is legally

entitled to be.   Harris, 119 Ill. 2d at 547, 519 N.E.2d at 919.

          The elements of a cause of action under the Animal

Control Act are (1) injury caused by an animal owned by defen-

dant; (2) lack of provocation; (3) peaceable conduct of the

plaintiff; and (4) a legal right on the part of the plaintiff to

be in the place where he was injured.      Chittum v. Evanston Fuel &

Material Co., 92 Ill. App. 3d 188, 190, 416 N.E.2d 5, 7 (1980).

An available defense to a cause of action brought under this



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statute is assumption of the risk.       Harris, 119 Ill. 2d at 547-

48, 519 N.E.2d at 919; Malott v. Hart, 167 Ill. App. 3d 209, 211,

521 N.E.2d 137, 138 (1988).

          The Running at Large Act states:

               "No person or owner of livestock shall

          allow livestock to run at large in the State

          of Illinois.   All owners of livestock shall

          provide the necessary restraints to prevent

          such livestock from so running at large and

          shall be liable in civil action for all dam-

          ages occasioned by such animals running at

          large; [p]rovided, that no owner or keeper of

          such animals shall be liable for damages in

          any civil suit for injury to the person or

          property of another caused by the running at

          large thereof, without the knowledge of such

          owner or keeper, when such owner or keeper

          can establish that he used reasonable care in

          restraining such animals from so running at

          large."   510 ILCS 55/1 (West 2002).

          Throughout Illinois history, various statutes have

governed animals running at large.       In 1895, the statute imposed

strict liability on a defendant for damages caused by domestic

animals running at large.     McQueen v. Erickson, 61 Ill. App. 3d

859, 862, 378 N.E.2d 614, 616 (1978).      In 1931, the statute was



                                 - 6 -
amended to provide the owner or keeper of such animals was not

liable for damages if he is able to establish he used reasonable

care in restraining the animals and he did not know his animals

were running at large.    McQueen, 61 Ill. App. 3d at 862, 378

N.E.2d at 616.   Illinois courts have consistently held the

statute is designed to provide redress for injuries caused by

animals grazing at pasture beyond the control and supervision of

their owners.    Zears, 154 Ill. App. 3d at 411, 506 N.E.2d at

1043.   To recover damages under this statute, the plaintiff must

prove only he was injured by an animal running at large owned or

kept by the defendant.   To avoid strict liability, the defendant

must then affirmatively plead and prove (1) he exercised due care

in restraining his animal and (2) he lacked knowledge it had

escaped.   Corona v. Malm, 315 Ill. App. 3d 692, 697, 735 N.E.2d

138, 142 (2000).

           The Animal Control Act, since its 1973 amendment,

covers all animals owned by someone and provides the owner is

liable for attacks or injuries caused by their animal.    The more

specific Running at Large Act has been held to be an exception to

the more general Animal Control Act since its amendment to

include other animals besides dogs.     See Zears, 154 Ill. App. 3d

at 411, 506 N.E.2d at 1043; McQueen, 61 Ill. App. 3d at 864, 378

N.E.2d at 617-18; Moore v. Roberts, 193 Ill. App. 3d 541, 543,

549 N.E.2d 1277, 1279 (1990).

           Although the Running at Large Act applies specifically



                                - 7 -
to livestock such as the cattle in this case, at the time of the

injury here, the cattle were no longer running at large.     The

legislative history of the statute indicates it is designed to

provide redress for injuries caused by animals grazing at pasture

that are beyond the control and supervision of their owners.       The

statute was primarily aimed at situations where animals were

turned out to graze and wandered.    See DeBuck v. Gadde, 319 Ill.

App. 609, 613, 49 N.E.2d 789, 791 (1943).     "Running at large"

traditionally implied knowledge, consent, or willingness of the

owner that an animal be at large or such negligent conduct as is

equivalent thereto.   But it did not embrace cases where, through

some untoward circumstance, the owner was unable to watch and

care for an animal in a particular instance, or where, notwith-

standing precautions taken to restrain them, animals escaped

without the negligence of the owner and who made immediate and

suitable efforts to recover them.    See Blakley v. Glass, 342 Ill.

App. 90, 95 N.E.2d 128 (1950) (abstract of op.) (animal is not

"running at large" where, without negligence on part of owner, it

escapes from pasture and owner goes in pursuit thereof); DeBuck,

319 Ill. App. at 612-13, 49 N.E.2d at 790.

          At the time of plaintiff's injury, defendant was

asserting control over his cattle.     This is not a case where

cattle had been let out to pasture and then wandered onto a

roadway where they were hit by a car.     The latter is often the

circumstance in cases alleging violations of the Running at Large



                               - 8 -
Act.   See Corona, 315 Ill. App. 3d at 693, 735 N.E.2d at 139;

Zears, 154 Ill. App. 3d at 409, 506 N.E.2d at 1042; McQueen, 61

Ill. App. 3d at 860, 378 N.E.2d at 615.     Instead, they were the

objects of a roundup to bring them back to defendant's property.

Further, plaintiff was attacked by the charging heifer and

suffered injuries.   These injuries were not of a nature exclusive

to cattle running at large but easily could also have occurred in

the cattle enclosure on defendant's property.    We note an almost

identical factual scenario existed in Malott, and the plaintiff

brought his suit under the Animal Control Act, apparently without

challenge by defendant or dismissal by the trial court.    See

Malott, 167 Ill. App. 3d at 209, 521 N.E.2d at 137-38.

           This case should be decided under the Animal Control

Act.   As discovery seems to have been completed, the parties on

remand can file any motions or pleadings appropriate to a case

brought under the Animal Control Act.

                          III. CONCLUSION

           For the foregoing reasons, we reverse both of the trial

court's findings of summary judgment and remand for disposition

of this case pursuant to the Animal Control Act.

           Reversed and remanded.

           STEIGMANN, P.J., and APPLETON, J., concur.




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