Kindel v. Tennis
949 N.E.2d 1119
Ill. App. Ct.2011Background
- Plaintiff amended complaint asserting injury from a bull on the defendants' farm (Aug. 9, 2007).
- Counts I–III allege violations of the Illinois Animal Control Act; Counts IV–V allege common-law negligence.
- Defendants moved to dismiss all five counts under 735 ILCS 5/2-615 (Nov. 14, 2008).
- Trial court dismissed counts I–III (Apr. 16, 2009) on ownership/relationship grounds.
- Plaintiff moved to reconsider after discovery; trial court upheld the dismissals (July 30, 2010).
- Plaintiff appeals the dismissals of counts I–III; appellate court reverses and remands for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counts I–III survive 2-615 dismissal under the Animal Control Act. | Kindel argues the Act claims are pled with sufficient facts. | Tennis argues ownership/employee status bars Act coverage. | Counts I–III survive; ownership is a factual question for the trier of fact. |
| Is ownership/employee relationship the determinative bar to recovery under the Act? | Kindel disputes per se bar based on ownership/relationship. | Tennis contends Harris v. Walker precludes recovery for employees. | Not dispositive; ownership/relationship questions are factual and not per se barred. |
| Did the court err in applying Harris v. Walker to an employer–employee context? | Harris does not control employer–employee scenarios. | Harris governs ownership-type limitations. | Harris is inapposite; appellate court reverses on the dismissed counts. |
Key Cases Cited
- Smith v. Lane, 358 Ill. App. 3d 1126 (2005) (de novo review; elements of Animal Control Act claim; standard for 2-615 dismissal)
- Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141 (1994) (elements of Act claim and standards for liability)
- Compton v. Country Mutual Insurance Co., 382 Ill. App. 3d 323 (2008) (dismissal under 2-615 requires clear showing no relief possible)
- Guinn v. Hoskins Chevrolet, 361 Ill. App. 3d 575 (2005) (standard for affirming dismissal under 2-615)
- Harris v. Walker, 119 Ill. 2d 542 (1988) (limits recovery under Act based on relationship to owner)
- Steinberg v. Petta, 114 Ill. 2d 496 (1986) (ownership typically question of fact for the trier of fact)