Weiss v. Campbell

Filing 25

MEMORANDUM AND ORDER, the Court GRANTS Campbells motion to dismiss Count II (Doc. 9 ); DISMISSES Count II with prejudice; and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 12/11/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DESIREE WEISS,
Plaintiff,
v.

Case No. 15-cv-542-JPG-DGW

BENJAMIN R. CAMPBELL,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on defendant Benjamin R. Campbell’s motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) Count II of plaintiff Desiree Weiss’s
complaint, a claim under the Illinois Animal Control Act, 510 ILCS 5/16 (Doc. 9). Weiss has
responded to the motion (Doc. 17), and Campbell has replied to that response (Doc. 18).
I.

Standard for Dismissal
When reviewing a Rule 12(b)(6) motion to dismiss, the Court accepts as true all allegations

in the complaint. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007)). To avoid dismissal under Rule 12(b)(6) for failure to state a claim, a
complaint must contain a “short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). This requirement is satisfied if the complaint (1)
describes the claim in sufficient detail to give the defendant fair notice of what the claim is and the
grounds upon which it rests and (2) plausibly suggests that the plaintiff has a right to relief above a
speculative level. Bell Atl., 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Bell Atl., 550 U.S. at 556).
This standard, however, will not prevent dismissal of a complaint that pleads too much. A
case can be dismissed because a complaint pleads facts establishing that the defendant is entitled to
prevail. Bennett v. Schmidt, 153 F.3d 516, 519 (7th Cir. 1998); Soo Line R.R. Co. v. St. Louis S.W.
Ry. Co., 125 F.3d 481, 483 (7th Cir. 1997); see Hecker v. Deere & Co., 556 F.3d 575, 588 (7th Cir.
2009) (dismissal appropriate when party pleads facts establishing defense to his claim). That is
what Weiss has done with respect to Count II in this case.
II.

Alleged Facts
Accepting all Weiss’s allegations as true, the complaint establishes the following relevant

facts.
Late in the evening of May 15, 2013, Weiss was driving her car northbound on Illinois
State Road 159. Around the same time, a horse owned by Campbell was running at large on the
highway. At some point, the horse lay down on the road and died, possibly because it had been
struck by another driver. When Weiss reached the portion of the road where the horse had died,
she collided with the horse, causing her car to overturn and skid on its roof along the roadway.
Weiss suffered substantial injuries and damage to her car, as well as other losses as a result of the
collision. Weiss had had no contact or interaction with the horse prior to the collision, and was
lawfully on the road at the time of the accident.
On May 13, 2015, Weiss filed this lawsuit against Campbell alleging a cause of action
under the Illinois Animals Running at Large statute, 510 ILCS 55/1 (Count I), a cause of action
under the Illinois Animal Control Act, 510 ILCS 5/16 (Count II), a cause of action for negligence
(Count III), and one count labeled “severe emotional distress” (Count IV). Campbell now asks

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the Court to dismiss Count II because, as a matter of law, Weiss cannot prevail under the Animal
Control Act.
III.

Analysis
Campbell argues that as a matter of law, the Animal Control Act does not apply to injuries

suffered by drivers who collide with domestic animals running at large. The Animal Control Act,
he argues, only applies to attacks or overt acts attributable to the animal, not to the mere presence
of an animal as an obstruction on a roadway. Weiss counters that she has adequately pled the
necessary elements of a cause of action under the Animal Control Act and that Campbell’s horse
acted by escaping from its confines and was clearly the cause of her injuries.
This case involves the relationship between the Animal Control Act and the Animals
Running at Large statute. In examining this relationship, the Court keeps in mind that when it is
sitting in diversity, as it is in this case, it must apply the state substantive law as it believes the
highest court of the state would apply it if it were hearing the issues. State Farm Mut. Auto. Ins.
Co. v. Pate, 275 F.3d 666, 669 (7th Cir. 2001). When the highest state court has not spoken on an
issue, the Court must give great weight to decisions of intermediate appellate courts unless there
are persuasive reasons to believe the highest court would rule differently. Id.
Turning to the statutes at issue in this case, the Animal Control Act states:
§ 16. Animal attacks or injuries. If a dog or other animal, without provocation,
attacks, attempts to attack, or injures any person who is peaceably conducting
himself or herself in any place where he or she may lawfully be, the owner of such
dog or other animal is liable in civil damages to such person for the full amount of
the injury proximately caused thereby.
510 ILCS 5/16. The elements of a cause of action under the Animal Control Act are: “(1) an
injury caused by an animal owned by the defendant; (2) lack of provocation; (3) the peaceable

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conduct of the injured person; and (4) the presence of the injured person in a place where he has a
legal right to be.” Meyer v. Naperville Manner, Inc., 634 N.E.2d 411, 415 (Ill. App. Ct. 1994);
accord Smith v. Lane, 832 N.E.2d 947, 955 (Ill. App. Ct. 2005). Weiss argues that she has
adequately pled each of these elements.
Campbell, on the other hand, argues that the Animal Control Act is inapplicable to harm
caused by domestic animals where the Animals Running at Large statute applies. The Animals
Running at Large statute states:
§ 1. No person or owner of livestock shall allow livestock to run at large in the
State of Illinois. All owners of livestock shall provide the necessary restraints to
prevent such livestock from so running at large and shall be liable in civil action for
all damages occasioned by such animals running at large; Provided, that no owner
or keeper of such animals shall be liable for damages in any civil suit for injury to
the person or property of another caused by the running at large thereof, without the
knowledge of such owner or keeper, when such owner or keeper can establish that
he used reasonable care in restraining such animals from so running at large.
510 ILCS 55/1.
The Illinois Appellate Court has examined the interaction between the Animal Control Act
and the Animals Running at Large statute several times and has concluded that the Animal Control
Act does not apply if the situation is covered by the Animals Running at Large statute. For
example, in McQueen v. Erickson, 378 N.E.2d 614 (Ill. App. Ct. 1978), the court examined
whether the Animal Control Act (called the dog-bite statute, at the time, even though it applied to
other animals as well) applied to injuries caused to a vehicle’s passengers when the vehicle
collided with a horse running at large. Id. at 615. The court noted that the Animals Running at
Large statute historically provided a remedy for damage done by livestock running at large,
including horses, unless the owner used reasonable care to restrain the animal and did not know the
animal was running at large. Id. at 616. The court found that the later-enacted Animal Control
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Act, which eliminated the common law requirement that the owner know of the animal’s
dangerous propensity, did not repeal or change the Animals Running at Large statute as applied to
livestock, id. at 618, but was intended only to apply to harm caused by an animal’s “aggressive,
unprovoked acts,” not by its running at large, id. at 617. The court therefore interpreted the
Animal Control Act as “inapplicable as to other animals of the domestic variety [like horses] who
are running at large and covered under the running at large statute,” and as only applying “to all
animals and instances, exclusive of domestic animals running at large, where the statutory
requirements of the [Animal Control Act] are met.” Id. (emphasis added in second quote).
Under this interpretation, the court affirmed the dismissal of the Animal Control Act claim against
the owner of the horse struck by the vehicle because the claim was covered by the Animals
Running at Large statute. Id.
Again in Zears v. Davison, 506 N.E.2d 1041 (Ill. App. Ct. 1987), the Illinois Court of
Appeals considered liability under the Animal Control Act, this time where a vehicle struck a cow
wandering loose on the highway. Id. at 1042. Citing McQueen, the court again held that the
Animals Running at Large statute is an exception to the Animal Control Act – even where the
Animal Control Act requirements are technically satisfied – and that “the Animal Control Act does
not apply to domestic animals running at large.” Id. at 1043. Similarly, in Abadie v. Royer, 574
N.E.2d 1306 (Ill. App. Ct. 1991), the Illinois Appellate Court found the Animal Control Act did
not apply where a vehicle driver was injured when he collided with a horse running free on a
roadway. Id.at 1309.
The Court believes McQueen, Zears and Abadie reflect the proper interpretation of the
scope of the Animal Control Act and that there is no persuasive indication the Illinois Supreme

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Court would rule any differently should the issue come before it. Accordingly, the Court accepts
the Illinois Appellate Court’s interpretation and finds that, under this view, Weiss cannot succeed
on Count II. While she has technically satisfied the pleading requirements for a cause of action
under the Animal Control Act, she has also pled facts showing that the Animals Running at Large
statute applies: Campbell’s horse was running at large when it lay down on the roadway.
Therefore, it is clear Weiss’s case falls within the exception to Animal Control Act liability, and as
a matter of law she cannot prevail on her Animal Control Act claim.
Weiss’s citations of Chittum v. Evanston Fuel & Material Co., 416 N.E.2d 5 (Ill. App. Ct.
1980), and Kirchgessner v. Tazewell County, 516 N.E.2d 379 (Ill. App. Ct. 1987), do not persuade
the Court to come to a different conclusion.
In Chittum, the Illinois Appellate Court found the Animal Control Act applied where a
horseback rider was injured when the horse on which she was riding bolted onto a roadway and
collided with a cement truck, killing the rider. Chittum, 416 N.E.2d at 6. Chittum stands for the
proposition that an animal attack is not necessary for liability under the Animal Control Act; the
act of the horse’s bolting into the road was sufficient to show injury falling under the act. Id. at 7;
see, e.g., Smith v. Lane, 832 N.E.2d 947, 955-56 (Ill. App. Ct. 2005) (allegations that horse-drawn
carriage went off the road and injured plaintiff sufficiently stated claim under the Animal Control
Act). Chittum is of limited value to Weiss, however, because the court found the Animals
Running at Large statute did not apply; the horse was not running at large because its owner failed
to enclose it.
In Kirchgessner the Illinois Appellate Court found a motorcycle rider who was injured
after hitting a dog that had escaped from a county animal control facility could sue the county

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under the Animal Control Act as the “owner” of the dog. Kirchgessner, 516 N.E.2d at 380-81.
However, the court had no occasion to consider whether the Animals Running at Large statute
applied.
Because neither Chittum nor Kirchgessner addressed the interplay between the Animal
Control Act and the Animals Running at Large statute as discussed in McQueen and later cases,
the Court is not persuaded they require rejecting the logic of McQueen.
IV.

Conclusion
Because Weiss’s claim falls under the Animals Running at Large statute, she can have no

claim under the Animal Control Act. Accordingly, the Court:


GRANTS Campbell’s motion to dismiss Count II (Doc. 9);



DISMISSES Count II with prejudice; and



DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: December 11, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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