Kindel v. Tennis

State: Illinois

Court: 5th District Appellate

Docket No: 5-10-0403 Rel

Case Date: 04/12/2011

Preview:Rule 23 order filed April 12, 2011; Motion to publish granted May 25, 2011, corrected June 10, 2011.

NO. 5-10-0403 IN THE APPELLATE COURT OF ILLINOIS FIFTH DISTRICT

JAMES F. KINDEL, Plaintiff-Appellant, v. LOUIS TENNIS, JASON TENNIS, and TENNIS DAIRY FARM S, L.P., Defendants-Appellees.

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Appeal from the Circuit Court of Wabash County. No. 08-L-12 Honorable Christopher L. Weber, Judge, presiding.

JUSTICE SPOMER delivered the judgment of the court, with opinion. Justices Donovan and Wexstten concurred in the judgment and opinion. OPINION The plaintiff, James F. Kindel, appeals the orders of the circuit court of Wabash County that (1) granted the motion of the defendants, Louis Tennis, Jason Tennis, and Tennis Dairy Farms, L.P., to dismiss three counts of the plaintiff's lawsuit against them and (2) denied the plaintiff's request that the court reconsider the dismissal. For the reasons that follow, we reverse the trial court's orders and remand for further proceedings. FACTS On October 16, 2008, the plaintiff filed an amended complaint for damages in the present action, in which he alleged that on August 9, 2007, he was injured, while working for the defendants, by a bull owned and controlled by the defendants. Counts I, II, and III alleged claims under the Illinois Animal Control Act (the Act) (510 ILCS 5/1 et seq. (West 2006)), and counts IV and V alleged claims of common-law negligence. On November 14, 2008, the defendants filed a motion to dismiss all five counts of the complaint pursuant to

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section 2-615 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2008)). A hearing was held on the motion on February 19, 2009, and on April 16, 2009, the judge entered an order in which he dismissed counts I, II, and III because he believed that the Illinois General Assembly "did not intend for the Animal Control Act to apply to the class of persons [of which] [the plaintiff], an employee of [the defendants], is a part." The case proceeded on counts IV and V, and following discovery related to those counts, the plaintiff filed, on January 13, 2010, a motion in which he asked the judge to reconsider, on the basis of information obtained via discovery, his dismissal of counts I, II, and III. A hearing on the motion to reconsider was held on May 27, 2010, and on July 30, 2010, the judge entered an order in which he upheld his dismissal of the counts, finding that the Illinois Supreme Court's holding in Harris v. Walker, 119 Ill. 2d 542, 547 (1988)

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