Raab v. Frank
124 N.E.3d 544
Ill. App. Ct.2019Background
- Kirk Raab, a sheriff’s deputy, collided with a cow that escaped from land rented and pastured by Kenneth Frank; Raab sued Frank and settled for $225,000.
- Frank had leased Parcel B from the Pintozzi trust and inspected and repaired the division fence between Parcel B and adjacent Parcel A (owned by David and Virginia Grossen), inspecting weekly.
- Frank alleged the Grossens’ portion of the fence was defective and that their failure to maintain it allowed his cattle to escape; he filed a third‑party complaint seeking contribution based on negligence, the Illinois Fence Act, and breach of a fence agreement.
- The Grossens moved for summary judgment: trial court granted judgment for the Grossens on the negligence/Running at Large Act claim and the Fence Act claim, but initially denied (then later granted) summary judgment on the contract claim; the court ultimately granted summary judgment on the contract‑based contribution claim too.
- Frank appealed; the appellate court affirmed summary judgment for the Grossens on the Fence Act count but reversed the dismissals of (1) contribution based on negligence (Running at Large Act issue) and (2) contribution based on breach of the fence agreement, remanding those counts for further proceedings.
Issues
| Issue | Frank's Argument | Grossens' Argument | Held |
|---|---|---|---|
| Whether Running at Large Act bars Frank’s contribution claim | Running at Large Act does not preclude a third‑party tortfeasor from seeking contribution from another culpable party | Raab (injured party) would be barred from suing Grossens under Running at Large Act, so contribution should be barred | Reversed: Running at Large Act does not bar Frank’s contribution claim (Doyle principle) |
| Whether Frank can recover under the Fence Act without prior notice to Grossens | Grossens were liable under Fence Act for failing to maintain fence | Grossens argued Fence Act requires notice and opportunity to repair before liability | Affirmed for Grossens: Fence Act claim fails because Frank did not provide required notice |
| Whether a breach of contract (fence agreement) can support a contribution claim | Contract claim can support contribution because parties may be ‘‘subject to liability in tort’’ and the injury is the same | Grossens argued contract basis cannot be used for contribution and contract benefits were only between parties | Reversed: Contribution allowed on contract theory here; fence agreement supplies the relationship making contribution equitable |
| Whether parties to contract intended to benefit third parties (impact on contribution) | Existence of fence agreement creates sufficient relationship for equitable contribution | Grossens relied on presumption that contract applies only to contracting parties | Court found Ball Corp presumption inapplicable to contribution context; contract supports remand for contribution claim |
Key Cases Cited
- Doyle v. Rhodes, 101 Ill. 2d 1 (1984) (Contribution Act can reach culpable parties even if direct action is barred by another statute)
- Hopkins v. Powers, 113 Ill. 2d 206 (1986) (Dramshop liability is sui generis and not "liability in tort" for Contribution Act purposes)
- Heyen v. Willis, 94 Ill. App. 2d 290 (1968) (Running at Large Act liability limited to owner or keeper of animals)
- Giordano v. Morgan, 197 Ill. App. 3d 543 (1990) (Breach of contract does not automatically preclude contribution; must consider whether injuries are the same)
- McKee v. Trisler, 311 Ill. 536 (1924) (Discusses burden under Fence Act for adjacent landowner; not controlling where plaintiff is animal owner)
- J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill. 2d 447 (1987) (Contribution rests on tort liability; bases among contributors need not be identical)