Bethany Krajelis Mar. 25, 2013, 3:09pm

A split panel of the Fifth District Appellate Court last week affirmed a Madison County ruling in a family dispute over an injury caused by a dog’s leash.

In an unpublished order, the majority of the appeals panel determined that Circuit Judge William Mudge did not err when he granted summary judgment to Kathy Schilling, who sued her son, Benjamin, and Jennifer Schilling to recover more than $50,000 for the fractured wrist she sustained after tripping over their dog’s leash.

Justice Thomas Welch delivered the court’s judgment. Justice Richard Goldenhersh concurred and Justice Stephen Spomer dissented.

Schilling’s suit sought damages of more than $50,000 under section 16 of the Animal Control Act, which states the owner of an animal that “without provocation, attacks, attempts to attack, or injuries any person who is peacefully conducting himself or herself in a place where he or she may lawfully be” is liable in civil damages for the full amount of the injury.

In May 2011, Schilling and her husband went to the defendants’ residence to mow their lawn while they were out of town. The defendants’ dog was in the yard at the time on a 20-foot leash attached to a chain-link fence.

The plaintiff’s husband moved the dog across the yard after mowing part of the lawn, and re-hooked its leash to the fence. Schilling followed him with the dog’s water bucket.

As Schilling walked away, the dog, according to the appellate court order, “unexpectedly darted in front of” her, creating a “trip wire” that struck her above the ankle and caused her to fall, fracturing her wrist.

The order notes that Schilling was not afraid of the dog, which was described as a “very playful” animal that “got excited around people.” It also states that the dog did not make contact with her during the incident.

Following a June 2012 hearing on the matter, Mudge determined that Schilling “was lawfully upon the premises, peacefully conducting herself, and did not provoke the dog” and granted summary judgment in favor of plaintiff Schilling.

On appeal, the defendants argued that Mudge “erred in granting summary judgment where a genuine issue of fact existed as to whether the action of the dog was the proximate cause of the plaintiff's injuries or whether the plaintiff herself caused the accident.”

To bolster support for their argument, the defendants pointed to Taylor v. Hull (1972). The plaintiff in that case sued the owner of a dog under the ACA after he was injured after the vehicle he was driving hit the dog, causing his car to go out of control and overturn.

The circuit court in Taylor entered summary judgment in favor of the defendant, a ruling that the appellate court reversed.

On behalf of the majority of the appeals panel, Welch wrote “we find Taylor to be of limited application to the case at bar” because “there were questions of fact as to whether it was the plaintiff's driving, rather than the actions of the dog, which caused the plaintiff to strike the dog, thereby losing control of the car.”

“To the contrary, in the case at bar, the evidence is undisputed that the dog unexpectedly darted in front of the plaintiff as she was walking across the yard, stretching its leash at ankle level across the plaintiff's path, causing her to trip and fall,” Welch wrote.

Noting that “the principles of contributory or comparative negligence have no relevance to a claim under section 16 of the Act,” Welch wrote, “The defendants point to no facts which indicate that the plaintiff's fall may have been the result of her own actions, and not those of the dog.”

Spomer, however, dissented, saying he believes “that reasonable minds could differ as to whether the actions of the dog in this case, or the plaintiff and/or her husband in moving the location of the dog and its chain, were the proximate cause of the plaintiff’s injuries.”

And although it was not raised on appeal, Spomer pointed out in his dissent that “this issue would be obviated by the requirement that a plaintiff, in order to recover, must not have accepted a responsibility to control the animal who caused the injury.”

“Accordingly, I would find further issues of fact regarding whether the plaintiff and her husband, in taking upon themselves to move the animal, exercised control over the animal such that recovery is precluded,” Spomer wrote.

He wrote that he would have reversed Mudge’s order and remanded for further proceedings.

According to the clerk’s office of the Fifth District Appellate Court, Alton attorney Michael Glisson represented Schilling and Edwardsville attorney Michael Bedesky represented the defendants.

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