American Family Mutual Insurance Company v. Albers
943 N.E.2d 791
Ill. App. Ct.2011Background
- Plaintiff American Family Mutual Insurance, as subrogee of Juday, sued Defendant Albers under the Illinois Domestic Animals Running at Large Act for damages from a collision with a cow on Route 39.
- Trial evidence showed the cow escaped through a downed fence section the night of October 31, 2003, causing Juday's property damage and rental costs.
- The State of Illinois maintained the fence along Route 39; the defendant had historically relied on the fence to restrain cattle.
- Defendant testified daily inspection of the fence and yearly spring repairs by IDOT, with no prior incidents involving this fence, and no knowledge that the fence could not restrain cattle.
- The jury returned a verdict for the defendant; the court denied JNOV, and plaintiff appeals on liability, manifest weight of evidence, and pleading of reasonable care as an affirmative defense.
- The court ultimately affirmed, holding that the defendant’s reliance on the fence and lack of knowledge of escape satisfied the affirmative defense requirements under the Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether JNOV was properly denied. | Juday argues the weight of the evidence favored plaintiff; JNOV should have been granted. | Albers contends the verdict is supported by the evidence showing reasonable care and lack of knowledge. | No reversible error; JNOV affirmed. |
| Whether the defendant properly pleaded reasonable care as an affirmative defense. | Plaintiff asserts defendant failed to plead reasonable care as an affirmative defense. | Defendant contends reasonable care is an affirmative defense under the Act. | Affirmative defense required; plaintiff waived objection due to trial conduct. |
| Whether the verdict was against the manifest weight of the evidence. | Juday asserts the evidence supports a finding of carelessness and liability. | Albers argues the evidence shows reasonable care and lack of knowledge. | Verdict not against manifest weight; evidence supports defendant’s due-care defense. |
Key Cases Cited
- Nevious v. Bauer, 281 Ill. App. 3d 911 (1996) (innocent owner relief when reasonable care shown; shifting burden to defendant)
- Corona v. Malm, 315 Ill. App. 3d 692 (2000) (affirmative defense must be pled and proved)
- Christenson v. Rincker, 288 Ill. App. 3d 185 (1997) (affirmative defense components; burden shifting under the Act)
- Vanlandingham v. Ivanow, 246 Ill. App. 3d 348 (1993) (test for whether a defense is affirmative defense; color and new matter)
- Worner Agency, Inc. v. Doyle, 121 Ill. App. 3d 219 (1984) (pleading and trial conduct can waive objections to pleading)
- Fitzpatrick v. City of Chicago, 112 Ill. 2d 211 (1986) (waiver of objection to failure to plead asserted by conduct at trial)
- Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494 (1967) (standard for granting JNOV when evidence overwhelmingly favors movant)
- Smith v. Marvin, 377 Ill. App. 3d 562 (2007) (standard for new trial when verdict against weight of the evidence)