GROUND ACCIDENTS

Illinois Court of Appeals (2008) Kick may have been provoked

 

Johnson v. Johnson

Kick may have been provoked

 

Johnson v. Johnson

Illinois Court of Appeals

2008 WL 4830822 (Ill.App. 1 Dist.)

Nov. 5, 2008

 

Summary of the Case

 

A seven-year-old visited a horse farm accompanied by her father, where she was kicked by a horse under the immediate control of the owner’s husband.  Plaintiffs allege that the young girl was acting peaceably; Defendants allege that she touched the horse without making her presence known, and that the girl’s father failed to adequately supervise her.  The Court found that comparative negligence was not an affirmative defense under the Animal Control Act, and that it was an issue of fact for the jury to decide whether the horse was provoked. 

 

Text of the Case

Appellate Court of Illinois, First District, Third Division.

Patricia JOHNSON and Linnea Johnson, a Minor, by Patricia Johnson, her Mother and Next Friend, Plaintiffs-Appellees,

v.

William JOHNSON, Ramona Johnson, and Top Brass Horse Farms, Inc, a Corporation, Defendants-Appellants (David Johnson, Third-Party Defendant-Appellee).

Patricia Johnson and Linnea Johnson, a Minor, by Patricia Johnson, her Mother and Next Friend, Plaintiffs-Appellants,

v.

William Johnson and Ramona Johnson, Defendants-Appellees.

Nos. 1-06-2759, 1-07-0029.

 

Nov. 5, 2008.

 

 

 

Justice GREIMAN delivered the opinion of the court:

Following trial, a jury returned a verdict against plaintiffs Linnea Johnson and her mother and next friend Patricia Johnson on their claim against defendants Ramona and William Johnson brought pursuant to the Animal Control Act (Act or Animal Control Act) (510 ILCS 5/16 (West 2002)). Both parties have appealed, contesting various rulings made by the trial court. Specifically, plaintiffs contend that the trial court erred when it: (1) allowed defendants to assert comparative negligence as an affirmative defense to their claim brought under the Act; (2) instructed the jury on comparative negligence; (3) allowed defendants' expert to testify; and (4) declined to grant plaintiffs' motion for a directed verdict on the issue of liability. Alternatively, plaintiffs assert that the jury's verdict was against the manifest weight of the evidence. On cross-appeal, defendants maintain that the trial court erred in finding that the settlement agreement reached between plaintiffs and David Johnson, Linnea's father, who was named as a third-party defendant, was reached in good faith as required by the provisions of the Illinois Joint Tortfeasor Contribution Act (Contribution Act) (740 ILCS 100/1 et seq. (West 2002)). We affirm in part and reverse in part and remand for a new trial.

 

On March 15, 2003, seven-year-old Linnea Johnson accompanied her father, David Johnson, to Top Brass Horse Farms (Top Brass), where she was kicked in the back by Gambler, a horse that at the time of the accident was owned by defendant Ramona Johnson but was in the immediate control of Ramona's husband, defendant William Johnson.^FN1On August 7, 2003, Linnea, by her mother and next friend, Patricia, filed a complaint against Top Brass and William and Ramona Johnson, seeking to recover monetary damages pursuant to the provisions of the Animal Control Act (510 ILCS 5/16 (West 2002)) and the Rights of Married Persons Act, commonly know as the “Family Expense Act” (750 ILCS 65/15 (West 2002)).

 

In pertinent part, the complaint alleged that at the time of the accident, Linnea was lawfully on defendant Top Brass's premises, where defendants William and Ramona Johnson boarded their horse Gambler, and was conducting herself peaceably when Gambler kicked her in the back without provocation, thereby causing permanent damage to one of her kidneys. The defendants filed answers denying that Linnea and her mother were entitled to relief under the provisions of the Animal Control Act or the Family Expense Act. On October 12, 2004, defendants William and Ramona Johnson filed a third-party complaint for contribution against Linnea's father, David Johnson, and an amended third-party complaint on March 17, 2005. In the amended third-party complaint, the Johnson defendants alleged that David “[f]ailed to properly supervise [Linnea] when he knew of the dangerous propensities and unpredictability of horses” and “[f]ailed to properly instruct and train [Linnea] about the dangerous propensities and unpredictability of horses” and, accordingly, his actions directly and proximately caused Linnea's injuries. Thus, in the event they were found liable for Linnea's injuries, the Johnson defendants contended that they were entitled to contribution from David pursuant to the provisions of the Contribution Act (740 ILCS 100/1 et seq. (West 2002)). On February 4, 2005, defendant Top Brass also filed a third-party complaint for contribution against David Johnson as well as a counterclaim for contribution against the Johnson defendants.

 

Thereafter, the parties engaged in discovery and each of the parties was deposed. The parties then engaged in settlement negotiations. Ultimately, plaintiffs reached settlement agreements with third-party defendant David Johnson and defendant Top Brass. The trial court conducted a hearing to determine whether the settlement agreements were made in good faith as required by the Contribution Act. At the hearing, the Johnson defendants did not contest the propriety of the $82,500 settlement reached between plaintiffs and Top Brass, but they did dispute the good faith of the $7,500 settlement reached between plaintiffs and David Johnson. Specifically, at the hearing, defense counsel argued: “Here we have an issue where certainly what could be more collusive than the father and mother to benefit the case that they're bringing and entering into this settlement for a fraction of 1 percent of what they're demanding in this case.”Counsel noted that Top Brass settled for a much higher amount even though “Top Brass Farms didn't own the horse, wasn't even present, didn't control the horse in any fashion, was just the owner of the stable where they kept horses.”David Johnson's counsel responded, noting that the “fact that two settling parties have a friendly or close relationship in and of itself doesn't show collusion” and that the size of the settlement alone is not indicative of the existence or lack thereof of good faith. At the conclusion of the hearing, the trial court rejected the Johnson defendants' arguments, stating, “I certainly don't find fraud, and I don't find that there's collusion here.”Accordingly, on August 10, 2006, the trial court entered two orders finding that the settlement agreements reached between plaintiffs and Top Brass and plaintiffs and David Johnson were made in good faith as required by the Contribution Act. Accordingly, the trial court ordered that all claims against third-party defendant David Johnson and defendant Top Brass were dismissed with prejudice.

 

Thereafter, on August 11, 2006, plaintiffs filed their third amended complaint, naming William and Ramona Johnson as the sole defendants. As with the prior complaints, plaintiffs sought to recover damages under the Animal Control Act and the Family Expense Act. In response, the Johnson defendants advanced several affirmative defenses, which they asserted effectively barred plaintiffs from obtaining the requested relief. Specifically, the Johnson defendants alleged that: Linnea assumed the risk of injury when she and her parents placed her in the presence of horses where there was a foreseeable risk of injury; Linnea was guilty of contributory negligence when she “approached and/or touched the horse Gambler from behind without first announcing and making known to Gambler her presence” and her negligence was the proximate cause of her injury; and David Johnson was guilty of contributory negligence because he “failed to watch and supervise his daughter, and by his actions placed her at risk, while she wandered around the horse barn,” and his negligence proximately caused Linnea's injuries.^FN2

 

Plaintiffs moved to strike defendants' affirmative defenses arguing, in pertinent part, that contributory negligence was not a valid defense to an action brought under the Animal Control Act. After hearing arguments from the parties, the trial court denied plaintiffs' motion, finding that the case law “allow[s] for both assumption of the risk and for contributory negligence.”

 

Thereafter, the parties proceeded to trial. At trial, defendant William Johnson testified that his wife Ramona purchased Gambler, a palomino quarter horse, in 2003 from a family farm in Wisconsin. Because the previous owners had children, Gambler was accustomed to the presence of children. Ramona also owned another horse, Guy, and boarded both horses at Top Brass, located in Cook County. William explained that Top Brass is located on 15 acres of land and contains multiple buildings. The horses are boarded in a round barn, and a hay barn is located to the north of the round barn. William was familiar with other people who boarded their horses at Top Brass, including David Johnson, Linnea's father.

 

On March 15, 2003, William and his wife were at Top Brass tacking their horses, preparing to ride them, when he saw David and Linnea arrive in the round barn. David led his horse Freebucks out of the barn intending to wash him. When William finished tacking Gambler, he led the horse by the reins out of the barn and encountered David and Linnea, who were brushing Freebucks in the thoroughfare leading out of the round barn. William stated that the thoroughfare was not an area for grooming horses. Because Freebucks was blocking the thoroughfare, and William could not safely lead Gambler around Freebucks, he stopped and conversed with David. He stood parallel with Gambler's front legs and held Gambler's reins. While they conversed, Linnea began to walk toward the round barn. Shortly thereafter, as he was holding Gambler's reins, William felt Gambler shuffle and shift his weight from his right leg to his left leg. He then heard Linnea cry out. When he looked back, he saw Linnea on the ground. William also saw a horse grooming brush on the ground as well, located approximately 18 inches away from the wall of the hay barn. William did not see Gambler kick Linnea nor did he see Linnea provoke Gambler in any manner. William indicated that it is unsafe for a person to pass behind the back of a horse, explaining “[t]hey are totally blind there. They are totally vulnerable and they're going to kick.”William classified Gambler as a calm horse and denied that there had been any prior incidents involving Gambler causing injury to another person.

 

William's wife, Ramona, confirmed that she is the “proprietary owner” of Gambler. On March 15, 2003, she was in the barn tacking up her other horse, Guy, when Linnea came into the barn and asked Ramona for a scraping tool. Approximately one minute later, after she had given Linnea the requested tool, Ramona heard a scream. She exited the barn and saw William and David standing by their horses and Linnea lying on the ground. Prior to the accident, Ramona had seen Gambler interact favorably with children and he had never before caused injury to a child. Because she had been around horses since she was a child, Ramona knew that it was unsafe for a person to walk behind a horse without alerting the horse to the person's presence.

 

David Johnson testified that he visited Top Brass, where he boarded his horse Freebucks, approximately three to four times per week. Because Top Brass permitted children to be on the premises, his daughter Linnea would frequently accompany him to the farm. On March 15, 2003, he and his daughter arrived at Top Brass at approximately 12 noon because Linnea had a riding lesson that afternoon. In the barn, he noticed William and Ramona Johnson tacking their horses, preparing them to be ridden. Because it had rained the previous day, Freebucks was covered in mud. Accordingly, David obtained a brush container and led Freebucks out of the round barn to a wash rack located outside. He placed the brush container on the ground near the hay barn. After washing Freebucks, he led the horse to the wall of the hay barn to “let the heat off of the barn warm the horse.”As David and Linnea waited for Freebucks to dry, William exited the round barn with Gambler. David then instructed Linnea to return a tool to the brush box that he had left on the ground near the south wall of the hay barn. William stopped with Gambler and the two men conversed. David noticed Gambler shuffle his front legs and immediately thereafter he heard his daughter scream. He saw Linnea on the ground crying and complaining of pain. David noted that the helmet that she had been wearing was cracked. He drove Linnea to Palos Hospital, where she was examined. Thereafter, Linnea was transported by helicopter to Loyola Hospital.

 

Because he had been around horses since he was a child, David knew that a person should not walk behind or approach a horse from the rear because there is the possibility that the horse may kick. David never saw Linnea move behind Gambler nor did he see Gambler actually strike his daughter.

 

Linnea confirmed that she was present at Top Brass on March 15, 2003, because she had a riding lesson. She testified that she had been riding horses almost daily since the age of four and that her father had instructed her about horse safety. In particular, he informed her that she should avoid walking behind horses and that if she were to find herself in the back of a horse, she should “tell the horse that [she was] there” to avoid startling the horse. Upon their arrival at Top Brass, Linnea and her father discovered that Freebucks was dirty, so they took him out of the round barn to an outdoor wash rack to clean him. She was carrying the brush box and put it down by the hay barn wall before she and her father started washing Freebucks. After they washed Freebucks, Linnea and her father led Freebucks to the hay barn wall to allow him to dry. At that point, William exited the round barn with Gambler, stopped several feet away, and began conversing with her father. Linnea walked over to the hay barn wall to get a brush from the brush box. As she was kneeling by the box, she heard Gambler shuffle his feet and then she was kicked. The kick propelled her into the barn wall and cracked the riding helmet that she had been wearing. She denied that she had walked behind Gambler prior to being injured. After receiving medical treatment, Linnea began riding horses again approximately six months after her accident.

 

Patricia Johnson testified that on March 15, 2003, her husband called her and informed her that Linnea had been injured. After Linnea was transported to Loyola Hospital, she underwent surgery and stayed in the hospital until March 23, 2003. Following Linnea's discharge, however, she complained of pain when urinating. On April 12, 2003, Linnea was readmitted to Loyola because she suffered from a fever and an infection. Doctors installed a drain on Linnea's right side to drain her urine. Later, doctors inserted a catheter and a nephrostomy tube to drain Linnea's urine. During this time, Linnea was essentially bedridden. Thereafter, Linnea underwent a second surgery, which she “tolerated very well.” Prior to March 15, 2003, Linnea had been in good health and had not had any problems with her kidneys.

 

The parties stipulated that the total cost of the medical care that Linnea received in connection with the accident totaled $79,137.49.

 

Dr. Carl Blond, an internal medicine and nephrology (kidney disease) specialist, testified as plaintiffs' retained medical expert. Upon review of Linnea's medical records, Dr. Blond opined that Linnea suffered damage to her right kidney. Specifically, there was a “loss of blood supply to the lower part of her right kidney,” which he classified as “permanent damage.” In particular, a renal scan taken on January 6, 2004, that compared the functioning capabilities of both kidneys showed that Linnea's right kidney functioned at 29% while her left kidney functioned at 71%. Dr. Bond testified that a renal scan of “two normal kidneys would be 50/50, each kidney does approximately half the work.”He explained that due to the damage to Linnea's right kidney, her left kidney was required to do a “higher percentage of the total work.”Based on his knowledge, training, experience, and review of Linnea's medical records, Dr. Bond opined that Linnea's kidney injury put her at risk for future medical problems. In particular, he indicated that “there is a substantial risk * * * that she'll develop hypertension in the future.”Specifically, he stated that Linnea had a 30% chance of developing hypertension within 20 years, whereas a healthy 30-year-old's chance of developing hypertension was less than 1%. In addition, Dr. Bond opined that there was an additional risk to Linnea's left kidney, “which has already hypertrophied to some degree to make up for the damage that was done in the initial insult.”Dr. Bond acknowledged that he formed his opinions without personally examining Linnea or conferring with her treating physician.

 

Dr. Bruce Lindgren, a pediatric urologist, was one of the physicians who treated Linnea following her accident. When she was admitted to the hospital on March 15, 2003, Linnea had a laceration to her right kidney as well as several hematomas surrounding her kidney. He classified the laceration as a “Grade IV” laceration, with “I being the least and V the worst.”In addition, Linnea's kidney was leaking, such that “the urine wasn't going in the direction it was supposed to, but was kind of leaking out around the kidney.”To fix the leak, Dr. Lindgren inserted a stent into Linnea's bladder, which acted as “internal drain.” Linnea was released on March 23, 2003. She was readmitted to the hospital on April 3, 2003, because she was experiencing a fever, which was the result of an infection. Linnea was prescribed antibiotics and the radiologist installed a perinephric drain around her kidney to drain the infected area. She was released from the hospital shortly thereafter, but was readmitted on April 23, 2003. Because Linnea still had urine leakage as a result of her injury, doctors installed a Foley catheter in her bladder to drain her urine. On May 6, 2003, Linnea was still suffering from leakage, which doctors attempted to treat with a nephrostomy tube. Because none of these efforts were able to completely stop the leakage, Linnea underwent surgery on June 16, 2003, which successfully repaired the leak. Ultimately, however, a renal scan performed after the surgery showed that Linnea had lost some function in her right kidney, which Dr. Lindgren deemed to be “permanent.” He acknowledged that Linnea's injuries were consistent with being kicked by a horse. Following her treatment, Dr. Lindgren did not place any restrictions on Linnea's activities and was aware that she had resumed riding horses.

 

Jessica Jahiel, a certified riding instructor, publisher of the Horse Sense newsletter, and author of over 1,500 books and articles on horses, testified as an expert for the defendants. After reviewing the deposition transcripts taken in the case, she formed various opinions about Linnea's accident. Familiar with horse safety, Jahiel opined that “[y]ou never try to approach [a horse] from behind” because “[a] horse cannot see directly behind it.”To safely approach a horse from the rear, Jahiel explained that a person should “[t]ry to communicate first, and you would somehow approach from as much of an angle as you could. You would not come directly up behind the horse towards its tail.”Jahiel classified horses as “prey animals. They're very nervous, sensitive animals.”When startled, a horse reacts reflexively and “may jump forward, run, kick out, leap to the side. It's going to show its dismay in some way, and it's going to make an instinctive effort to get away from whatever startled it.”Approaching a horse from its blind spot in the rear “would probably provoke a reaction.” She explained that when a person approaches a horse from behind without alerting the horse to her presence, it is “very frightening to a horse because it's predator behavior.”Jahiel further opined that a person's failure to alert a horse to her presence is “a very common-altogether too common way of provoking a horse to kick out,” but indicated that in the “majority of cases,” a person who walks behind a horse will not get kicked.

 

Jahiel indicated that all horses have a “kick zone,” an “area in which the horse will kick out most forcefully, most easily, and most readily.”The size of the kick zone is dependent upon the size of the horse, but “by and large, the kick zone is anywhere up to four feet or so behind the horse.”Generally, “[t]he greatest range and the strongest kick would be straight back. At a little angle-not much of an angle at all, a horse could still kick a person; but it wouldn't have anywhere near the same impact because it wouldn't be as strong.”Jahiel described the reaction as “instinctive.” She further explained that it is unlikely that a horse would kick to the side and stated that “[i]f it could do anything at all [to the side] it would be much less forceful.”Based on her review of the relevant deposition testimony, Jahiel opined that Gambler's reaction was the result of provocation, explaining: “Anything that stimulates a horse to react suddenly and instinctively I would term provocation. I wouldn't put an interpretation of the action being thought out or deliberate or anything like that. It could be almost anything.”In this case, Jahiel believed that Linnea entered Gambler's kick zone without alerting him to her presence and “may have touched the horse.”

 

Thereafter, the parties delivered closing arguments. The trial court then provided the jurors with the relevant jury instructions, including instructions on negligence and comparative negligence. Following deliberations, the jury returned with a verdict in favor of defendants. Plaintiffs filed a timely posttrial motion, which the trial court denied. Plaintiffs then filed a timely notice of appeal. Defendants also filed a timely notice of cross-appeal disputing the trial court's finding that the settlement agreement reached between plaintiffs and third-party defendant David Johnson was reached in good faith.

 

We will first address the issues raised by plaintiffs on appeal. Specifically, plaintiffs assert that the trial court committed a number of errors, which entitle them to a new trial. Plaintiffs first contend that the trial court committed reversible error when it allowed defendants to advance the affirmative defense of comparative negligence at trial because it is not a proper defense to a claim brought pursuant to the Animal Control Act. Initially, defendants contend that plaintiffs have waived review of this issue and all other issues that they raise on appeal, and they assert two alternative bases for waiver. First, defendants contend that plaintiffs waived their appellate arguments because they failed to adequately raise them in their posttrial motion.

 

As a general rule, both a timely trial objection and a written posttrial motion are necessary to preserve an error for appellate review. Bauer v. Memorial Hospital, 377 Ill.App.3d 895, 910, 316 Ill.Dec. 411, 879 N.E.2d 478 (2007). An appellant's posttrial motion “must contain a ‘simple, succinct statement of the factual or legal basis' for the litigant's belief that the trial court erred.”  Lopez v. Northwestern Memorial Hospital, 375 Ill.App.3d 637, 647, 313 Ill.Dec. 796, 873 N.E.2d 420 (2007), quoting Brown v. Decatur Memorial Hospital, 83 Ill.2d 344, 350, 47 Ill.Dec. 332, 415 N.E.2d 337 (1980). An appellant's motion must be sufficiently specific to allow for meaningful review. Webber v. Wight & Co., 368 Ill.App.3d 1007, 306 Ill.Dec. 782, 858 N.E.2d 579 (2006). This requirement “is based on ‘the sound policy of affording a trial judge the opportunity to reconsider and correct his rulings or otherwise take such action as may be indicated prior to appeal.’”  Lewis v. Beckman, 57 Ill.App.3d 482, 484, 15 Ill.Dec. 243, 373 N.E.2d 589 (1978), quoting Hammer v. Plontke, 98 Ill.App.2d 235, 237, 240 N.E.2d 429 (1968).

 

Defendants acknowledge that each of the arguments raised by plaintiffs on appeal was included in their posttrial motion; however, defendants contend that plaintiffs' posttrial motion was insufficient. Specifically, defendants argue that plaintiffs' motion “offer[s] merely a blanket statement that the trial court committed error, which is sometimes followed with a case citation. In no instance is the case analyzed, or is the trial court advised why [p]laintiffs believed it erred. This is insufficient * * *.” Our review of plaintiffs' posttrial motion does not reveal any deficiencies precluding review, and we thus find defendants' waiver argument to be without merit

 

As an alternative basis, defendants contend that plaintiffs' brief fails to comply with the requirements of Supreme Court Rule 341(h)(7) (210Ill.2dR. 341(h)(7))^FN3 because it does not contain citations to the pages of the record on appeal and, accordingly, defendants urge us to strike plaintiffs' appellate brief.

 

Supreme Court Rule 341 sets forth the requirements for appellate briefs. In pertinent part, Rule 341(h)(7) requires the appellant to support his or her argument with “citation of the authorities and the pages of the record relied upon.”(Emphasis added.) 210 Ill.2d R. 341(h)(7). Failure to cite to the pages in the record relied upon is thus a violation of Supreme Court Rule 341 and results in waiver of that argument. See, e.g., Gomez v. Finishing Co., 369 Ill.App.3d 711, 723, 308 Ill.Dec. 124, 861 N.E.2d 189 (2006); Mikrut v. First Bank of Oak Park, 359 Ill.App.3d 37, 61, 295 Ill.Dec. 225, 832 N.E.2d 376 (2005).

 

In this case, defendants are correct that plaintiffs' brief contains few citations to the record on appeal. However, because the doctrine of waiver is a limitation on the parties, not the reviewing court ( Redelmann v. K.A. Steel Chemicals, Inc., 377 Ill.App.3d 971, 976, 316 Ill.Dec. 438, 879 N.E.2d 505 (2007), citing Illinois State Chamber of Commerce v. Filan, 216 Ill.2d 653, 664, 297 Ill.Dec. 471, 837 N.E.2d 922 (2005)), we will address the merit of plaintiffs' appeal.

 

Plaintiffs advance several reasons as to why the doctrine of comparative negligence is not a valid affirmative defense to an action brought pursuant to the Animal Control Act. Initially, plaintiffs assert that the plain language of the Act precludes application of the affirmative defense of comparative negligence to actions brought under its parameters.

 

The interpretation of a statute presents a question of law, which we review de novo. Kankakee County Board of Review v. Property Tax Appeal Board, 226 Ill.2d 36, 51, 312 Ill.Dec. 638, 871 N.E.2d 38 (2007); SMRJ, Inc. v. Russell, 378 Ill.App.3d 563, 578, 318 Ill.Dec. 881, 884 N.E.2d 1152 (2007). When engaging in statutory interpretation, the primary goal is to ascertain the legislature's intent and the best indication of that intent is the plain language of the statute. MD Electrical Contractors, Inc. v. Abrams, 228 Ill.2d 281, 287, 320 Ill.Dec. 837, 888 N.E.2d 54 (2008). Accordingly, when the plain language of a statute “is unambiguous, it must be enforced as enacted, and a court cannot depart from its plain language by reading into it exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent.”  In re Marriage of Braunling, 381 Ill.App.3d 1097, 1102, 320 Ill.Dec. 615, 887 N.E.2d 759 (2008). Pursuant to the statutory maxim expressio unius est exclusio alterius,“ ‘[w]here a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions.’”  Application of the County Treasurer & ex-officio County Collector, 378 Ill.App.3d 842, 850-51, 317 Ill.Dec. 408, 881 N.E.2d 576 (2007), quoting Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill.2d 141, 151-52, 227 Ill.Dec. 753, 688 N.E.2d 90 (1997).

 

The Act, in its current form, provides:

 

“If a dog or other animal, without provocation, attacks, attempts to attack, or injures a 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 (West 2006).

 

Plaintiffs correctly observe that the Act does not specifically provide for or reference a comparative negligence defense. Accordingly, plaintiffs invoke the statutory maxim expressio unius est exclusio alterius and contend that pursuant to the plain language of the Act, a defendant is confined to disputing whether the plaintiff's conduct at the time of the injury met the requirements of the Act. Specifically, plaintiffs assert that “[t]he Act expressly sets forth the conduct that it requires of the plaintiff, to wit: that he or she conduct himself or herself peaceably,” and accordingly, that the animal's attack occurred “without provocation,” and thus a defendant is limited to disputing those elements.

 

Initially, we disagree that a statute's failure to specifically provide for an affirmative defense necessarily precludes the availability and application of that defense. Indeed, reviewing courts have held that the Act, which is in derogation of common law ( Harris v. Walker, 119 Ill.2d 542, 546-47, 116 Ill.Dec. 702, 519 N.E.2d 917 (1988)), is not a strict liability statute and thus does no

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