Coe v. Lewsader
2016 IL App (4th) 150841
Ill. App. Ct.2016Background
- On Sept. 26, 2009, Ryan Coe was riding a motorcycle at 2:00 a.m., intoxicated and at 90 mph, when he collided with defendants’ dog, which was stipulated to be passively lying in the middle of the roadway.
- Plaintiffs sued under the Animal Control Act (510 ILCS 5/16) seeking damages for Ryan’s injuries and Hillary’s loss of consortium; negligence counts were voluntarily dismissed before appeal.
- The trial court denied cross-motions for summary judgment and certified four interlocutory questions under Illinois Supreme Court Rule 308 about application of the Act to these facts.
- The certified questions asked whether (a) a person intoxicated and speeding on a public highway is in a place where he may lawfully be; (b) a dog lying in the road is an "overt action" under the Act; (c) comparative negligence can be an affirmative defense under the Act; and (d) whether an intoxicated motorcyclist is "peaceably conducting himself."
- The parties stipulated the material facts for appeal: at collision time the dog was passively lying in the road and Ryan was intoxicated and speeding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a dog lying in the middle of the road constitutes an "overt action" under the Act | The dog must have traveled from the owner’s property to the road, and that movement (or the dog’s presence in the road) is an overt act sufficient for liability | A dog passively lying in the road is an inert, passive force and not an overt act to trigger Act liability | Held: No — passive lying in the road is not the affirmative conduct required by the Act |
| Whether the Act applies given plaintiff was intoxicated and speeding ("place where he may lawfully be") | Impliedly argues Act still applies despite intoxication/speeding | Argues intoxicated, speeding rider may not be "peaceably conducting" or in a lawful place, potentially defeating recovery | Not reached — court declined to answer after resolving the overt-action issue |
| Whether comparative negligence is a valid affirmative defense under the Act | Argues comparative negligence should apply in appropriate fact scenarios | Defendant urges comparative negligence or other defenses may bar recovery | Not reached — court declined to answer |
| Whether an intoxicated, speeding motorcyclist is "peaceably conducting himself" under the Act | Plaintiff implies the rider may still be peaceful for Act purposes | Defendant contends intoxication and high speed negate "peaceable" conduct | Not reached — court declined to answer |
Key Cases Cited
- Bailey v. Bly, 87 Ill. App. 2d 259 (1967) (dog passively lying on steps was not an overt act under the Act)
- King v. Ohren, 198 Ill. App. 3d 1098 (1990) (animal that stands still or moves predictably is a passive force and cannot be proximate cause under the Act)
- Taylor v. Hull, 7 Ill. App. 3d 218 (1972) (dog walking/trotting across highway can be an overt act raising triable issue under the Act)
- McEvoy v. Brown, 17 Ill. App. 2d 470 (1958) (dog running between plaintiff’s legs held an overt act)
- Forsyth v. Dugger, 169 Ill. App. 3d 362 (1988) (elements required for recovery under section 16 of the Animal Control Act)