Edward v. Lombardi, 2013 IL App (3d) 120518 (McDade)
Facts: Plaintiff was injured by a llama while caring for the defendants animals when they were out of town. The plaintiff testified that he had seen prior incidents of aggressive behavior by the llama including an incident in the presence of the defendant where the llama reared up and bloodied the nose and mouth of plaintiff. Defendant denied knowledge of any aggressive behavior towards the plaintiff or other humans, but admitted to seeing the llama exhibit aggressive behavior toward other animals. The plaintiff initially filed suit under the Animal Control Act, which the defendant raised affirmative defenses, including assumption of the risk. The Animal Control count was dismissed with leave for the plaintiff to add a negligence count. The defendant then moved for summary judgment, without having first raised the affirmative defense of assumption of the risk, and the trial court granted the motion specifically finding that the plaintiff had assumed the risk of injury.
Holding: As a result of past attacks on the plaintiff, he assumed the risk of injury when accepting a job that involved feeding the animal. Further, plaintiff waived its argument that the assumption of risk wasn’t specifically pled or that the deliberate encounter exception applied because they weren’t raised in the underlying proceedings.
Filed in Trial Book Under: Animal Control Act, Animals, Assumption of Risk, Waiver
Commentary: Clearly the plaintiff was a “keeper” of the animal under the Animal Control Act so the dismissal of that count was not surprising, nor a subject of the appeal. The problem for him is that as a “keeper” with a paid contract to care for the animal, coupled with specific knowledge of the dangerous propensities of the llama, he was hard pressed to be able to argue against the assumption of the risk. What’s more interesting here is the throwaway comment by the appellate court regarding the waiver of the deliberate encounter exception where the opinion states:
“we note that is unclear whether the deliberate encounter exception would apply to Edwards’ assumption of the risk. The doctrine normally applies in the context of open and obvious dangers on land, although the appellate court in Morrissey indicated that even when primary assumption of the risk applies, the deliberate encounter exception may still allow a plaintiff to recover. (Morrissey, 404 Ill.App.3d at 732 (finding insufficient support to conclude that primary assumption of the risk necessarily abrogates the deliberate encounter exception)). We need not decide whether the deliberate encounter exception applies here, however, because once again Edwards has waived the argument on appeal by failing to raise it below.”
I would have liked to have seen the analysis on this issue because it seems as if the deliberate encounter exception would be appropriate here.