Raab v. Frank
2019 IL 124641
Ill.2020Background
- Kenneth Frank leased Parcel B for cattle; neighbors David and Virginia Grossen owned adjacent Parcel A separated by a common fence and were parties to a predecessor fence agreement.
- Frank inspected and repeatedly repaired the fence (after storms in 2009–2011) without notifying the Grossens; in November 2011 one of Frank’s cattle escaped and collided with driver Kirk Raab.
- Raab sued Frank under the Animals Running at Large Act; Frank settled with Raab for $225,000.
- Frank filed a third-party contribution claim against the Grossens alleging common-law negligence, breach of the Fence Act, and breach of the fence contract.
- The circuit court granted summary judgment to the Grossens on negligence and the Fence Act (Frank had not given statutory notice); it later dismissed the contract claim on contribution grounds. The appellate court reversed as to negligence and contract but affirmed the Fence Act ruling; the Supreme Court granted review.
Issues
| Issue | Frank's Argument | Grossens' Argument | Held |
|---|---|---|---|
| Whether Contribution Act allows contribution against nonowners/nonkeepers based on common-law negligence | Common law liability exists for nonowners/nonkeepers; Animals Running Act is only an affirmative defense, so potential tort liability supports contribution | No common-law tort liability for nonowners/nonkeepers; liability for estray damage is governed by the Animals Running Act and limited to owners/keepers | No — nonowners/nonkeepers are not potentially liable in tort at common law, so Contribution Act claim fails |
| Whether the Animals Running Act functions as an affirmative defense/immunity or creates liability for nonowners/nonkeepers | Act merely provides an immunity/defense for owners/keepers and does not preclude common-law liability of nonowners unless asserted | Statute’s plain text and precedent limit duty to owners/keepers; it does not impose duties on nonowners/nonkeepers | The Act’s plain language limits liability to owners/keepers; it is not a source of duty for nonowners/nonkeepers |
| Whether breach of the fence contract gives rise to "liability in tort" (thus supporting contribution) | The fence agreement ran with the land and its breach can create equitable responsibility to contribute; Raab was an incidental third‑party beneficiary | Breach of contract is a nontort theory and cannot alone create tort liability necessary for contribution | No — breach of contract alone does not create the potential tort liability required for contribution |
| Whether Frank could recover under the Fence Act against the Grossens | Fence Act liability could support contribution | Frank failed to give the 10‑day statutory notice required before repairing an adjoining fence | Courts below correctly rejected the Fence Act claim for lack of required notice |
Key Cases Cited
- J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill. 2d 447 (Ill. 1987) (contributor’s obligation rests on liability in tort)
- Doyle v. Rhodes, 101 Ill. 2d 1 (Ill. 1984) (potential tort liability assessed at time of initial injury)
- People v. Brockman, 143 Ill. 2d 351 (Ill. 1991) (no contribution absent tort liability)
- Vroegh v. J & M Forklift, 165 Ill. 2d 523 (Ill. 1995) (bases for contributors’ liability need not be identical)
- Giordano v. Morgan, 197 Ill. App. 3d 543 (Ill. App. 1990) (no contribution when underlying liability is not tort)
- Cosey v. Metro-East Sanitary Dist., 221 Ill. App. 3d 205 (Ill. App. 1991) (contribution is predicated on tort, not mere contract breach)
- Bulpit v. Matthews, 145 Ill. 345 (Ill. 1893) (historical treatment of Animals Running Act and common-law rule)
- Moreno v. Beckwith, 77 Ill. App. 2d 443 (Ill. App. 1967) (Animals Running Act applied to bailees/keepers)
- Heyen v. Willis, 94 Ill. App. 2d 290 (Ill. App. 1968) (lessor of pasture not treated as keeper)