Raab v. Frank
157 N.E.3d 470
Ill.2019Background
- Kirk Raab was injured in 2011 when his vehicle struck a cow that escaped from land leased and used for pasturing by Kenneth Frank (Parcel B).
- David and Virginia Grossen own the adjacent Parcel A; a common fence divides the parcels and a prior fence agreement allocated repair responsibilities (the alleged escape point was within the Grossens’ contractual responsibility).
- Frank inspected and repaired the fence after storms (2009–2011) without notifying the Grossens; he leased the pasture and was contractually responsible for fence maintenance under his oral lease.
- Raab sued Frank under the Animals Running Act; Frank settled with Raab and then filed a third-party complaint against the Grossens seeking contribution based on negligence, the Fence Act, and breach of the fence agreement.
- The circuit court granted summary judgment to the Grossens on negligence and the Fence Act (Frank failed to give statutorily required notice) and later dismissed the contract claim; the appellate court reversed as to negligence and contract but affirmed on the Fence Act; the Illinois Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (Frank) | Defendant's Argument (Grossens) | Held |
|---|---|---|---|
| Whether common-law negligence or potential tort liability exists for nonowners/nonkeepers of livestock to support contribution | The Animals Running Act is an affirmative defense; common-law duty still exposes nonowners to potential tort liability for estray damage | Illinois common law does not impose liability for estray damage on nonowners/nonkeepers; liability is governed by the Animals Running Act and limited to owners/keepers | No. Common law does not create tort liability for nonowners/nonkeepers for estray damage; they are not potential tortfeasors for contribution purposes |
| Whether the Animals Running Act functions only as an affirmative defense (leaving common-law liability intact) | The Act is an immunity/defense and does not eliminate potential tort liability for nonowners (so contribution still available) | The Act’s plain language and precedent limit duty to owners/keepers; it does not create liability or a duty for nonowners/nonkeepers | The Act does not create a duty for nonowners/nonkeepers; it does not operate to leave intact a common-law tort cause of action against them |
| Whether breach of the fence agreement can supply "liability in tort" (or otherwise support contribution) | The fence contract creates an obligation to third parties (Raab) or at least an equitable basis for contribution against the Grossens | Contribution requires potential tort liability; a pure breach of contract claim is insufficient to support contribution | Breach of contract alone does not establish the "liability in tort" required by the Contribution Act; contract breach cannot alone support contribution |
| Whether the Fence Act claim remained viable despite summary judgment (notice requirement) | The Fence Act could impose liability on the Grossens for failing to maintain the fence | Frank failed to give the 10-day notice required by the Fence Act before repairing the fence, barring statutory liability | The Fence Act claim fails for lack of statutorily required notice; summary judgment for the Grossens on that claim was affirmed |
Key Cases Cited
- J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill. 2d 447 (1987) (contribution obligation rests on liability in tort)
- Doyle v. Rhodes, 101 Ill. 2d 1 (1984) ("liability in tort" means potential tort liability determined at time of the injury)
- People v. Brockman, 143 Ill. 2d 351 (1991) (if underlying claim does not create tort liability, contribution is unavailable)
- Bulpit v. Matthews, 145 Ill. 345 (1893) (historical discussion of Animals Running Act and pre-Act common law)
- Moreno v. Beckwith, 77 Ill. App. 2d 443 (1967) (Animals Running Act may impose liability on a bailee/keeper)
- Heyen v. Willis, 94 Ill. App. 2d 290 (1968) (lessor/landowner not liable as keeper when lessee pastures livestock)
- Cosey v. Metro-East Sanitary District, 221 Ill. App. 3d 205 (1991) (contract-only claims do not support contribution)