Howle v. Aqua Illinois, Inc.
2012 IL App (4th) 120207
| Ill. App. Ct. | 2012Background
- Howle sued Aqua Illinois, Inc. and Robert Chitwood for injuries from Sage the dog; count II alleged violation of the Animal Control Act, and count IV alleged common-law negligence; the incident occurred on Aqua’s rental property at the Plant premises during a family gathering; Chitwood rented the residence from Aqua, which owned the home and could terminate tenancy; Aqua warned Chitwood to restrain dogs and later terminated tenancy after incidents; the trial court granted summary judgment for Aqua on count IV and dismissed count II under 2-619(a)(9); on appeal, the appellate court affirmed, treating count II as adjudicated on summary-judgment standard; the central issue is whether Aqua’s ownership/control over Sage satisfies the Act and whether Aqua owed a duty in negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Aqua qualifies as the dog’s owner under the Act | Howle argues Aqua kept/controlled the dog | Aqua asserts no ownership or control over Sage | No ownership/control by Aqua for Sage under the Act |
| Whether Aqua owed a duty to Howle in the negligence claim | Aqua’s control over the premises created a duty | Landlord duty ends when property is leased and control is relinquished | No duty owed by Aqua; no control over the leased premises related to the dog |
| Whether Aqua’s 2-619.1 motion was properly used | 2-619.1 motion improperly treated as summary judgment | Motion addressed ownership; should be summary judgment | Approach treated as summary judgment; affirmed |
| Whether material facts existed about Aqua’s knowledge of the dogs’ propensities | Aqua knew Sage was aggressive | No evidence Aqua knew about Sage’s propensities; no duty | No genuine issue; no duty based on lack of control |
Key Cases Cited
- Steinberg v. Petta, 114 Ill. 2d 496 (1986) (ownership requires care, custody, and control)
- Klitzka v. Hellios, 348 Ill. App. 3d 594 (2004) (landlord-tenant control not sufficient to impose duty over animal)
- Lucas v. Kriska, 168 Ill. App. 3d 317 (1988) (knowledge of propensities required when non-owner allows dog on land)
- Gilley v. Kiddel, 372 Ill. App. 3d 271 (2007) (landlord not liable for tenant’s animal injuries absent retained control)
- Goennenwein v. Rasof, 296 Ill. App. 3d 650 (1998) (general presumption dog is tame absent vicious-propensity evidence)
- Smith v. Waukegan Park District, 231 Ill. 2d 111 (2008) (affirmative matter must defeat claim; not mere denial of allegations)
- Winters v. Wangler, 386 Ill. App. 3d 788 (2008) (2-619 vs 2-615 explained; ‘Yes, but’ vs ‘So what’ standard)