good morning your honors me it please the court it's all in my name is stephanie fugere and i represent david in virginia gross and the appalling rd party defendants in this matter this case presents two issues for the court to consider  the st issue is whether land owners who neither own nor keep cattle have a duty to guard against injuries to persons caused by another persons cattle and the nd issue is whether a breach of a contract between  defendant and a rd party defendant can create liability in tort to an unrelated point for purposes of a contribution now with regard to the st argument craig who leases land next to the gross  that the gross ins had a common law duty under illinois law to keep his cattle closed there is no such duty a common law only duty with regard to restraining livestock arises under he animals running act which specifically limits liability to owners for keepers of cattle and it's undisputed that the grosses are night or so the trial court properly dismissed the common law negligence claim brought against the pros and and the appellate court should be reversed on that point with regards to the nd issue frank alleges that the gross ins owed duty to the point ted under a contract titled an agreement in connection with my offenses which was entered into decades ago between the predecessor complaint rd party complaint against the gross ins alleges that at common law there is a duty for the gross ins to enclose his cattle and specifically at the record see eighty two dollars in c eighty three you can see any and complaint one or someone to take responsibility of someone else's catalin we have to go way back to the doing is of this state in consideration back i would submit to this court that many of the cases cited in the brief speier both parties can be confusing time there is a duty to restrain animals but is not a duty on everyone it's a duty on owners heber's in the legislative intent is that those classes of persons who have the ability to control animals bear the burden wrote the words and did not allow that to go forward because it said listen the animals running act limits the class of persons who can be liable and the landowners not an owner or keeper of the worst in can't be brought into this action against the defendant driver in the defendant driver brought in the highway five years employer and said ok you owe contribution because of negligent supervision three separate your employee and in the and the supreme court in that case said no just because you can't assert the worker's comp act as an affirmative defense doesn't mean that you can't be brought in under a contribution claim because you are subject to liability or tort until the worker's comp is deficient it's foreseeable that it how to get through and out on the road i would argue that that's a really simple my portion of what we're looking at here we have to look at the foreseeable to the rosen's and what happened here is that is it international work and several others that involved a breach of the contract creating liability and support and i would observe that several of those regional contract did subject the rd party and it's a fact there is no relationship between the rd party defendant and the plaintiff in this case such that it judy would rise i don't think it's necessary for this were to decide issue of whether a contract the breach of a contract and every subject defense asserted the court has to apply a balancing test to determine is this is a contribution claim going to be allowed or not and so if the issue is should he do that balancing test in this case the answer is no because again this is an affirmative defense case we're not asserting the animals running as an affirmative defense to be undergoing on negligence claim simply saying we don't have to do yet common law we don't have a duty under the a the other thing that i would address and there are some arguments that have been made by great that maybe this isn't you know little result isn't good the point of a contribution actually reach all culpable cards and so what i would say to that st of all is don't use the obligation to fix the fence with an obligation to risk free rates cattle my clients do have an obligation to fix the inside and under the contract and we've never not said that that was our what in then moving on beyond what they were kind of relationship whether they're in invitees special relationship that kind of idea then the other parts of the duty analysis would include like the group and then balancing certainly based on their level i think the argument that i heard counsel just meet is sort of if we have some confusing back and forth let's just throw it all in front of the jury and see what the jury makes of it but i would urge this court to reverse the appellate court affirmed the trial were and not let that happen because there are certain situations where the law says once we have undisputed material facts legally certain claims don't ever get to a jury because we've decided that's our system of justice and so counsel argues that that i urge the court to create an absolute rule i don't need this court in the grossman burn asking this court to create an answer we're just asking that the animals running act be in force he also made a comment that we're asking the court to ignore the facts please don't ignore the facts because i think they're very interval to the court's decision here and there is not any facts in dispute some of the very important fact that i think the court should consider are that it's undisputed that my clients were do not live on the property they were not aware that frank was renting the land frank knew who the roses were he knew where they lived he knew how to contact them for that three years prior to this accident in each of the july prior to november of two thousand and eleven when the accident happened the fence had washed out and each time frank made a conscious decision not to call the gross and he elected to undertake his own repairs to that fence and deemed t court action with patrick the repairs he elected to do none of those things and so the idea of culpability here who really should bear the burden of this life we don't have to ignore the fact we look at the facts in the context of the animals running act and the person who should be responsibility is the owner keeper carol this is not something that i think the court needs to address whether there would ever be a situation in which contribution could occur with regard to animals running act but here's one i can think of let's say the two brothers own collectively a herd of cattle one of their power is out on the road only one brother is sued could the other brother bring in a contribution action to the joint owner of cattle that could be a situation where there's a contribution act we're not asking  this court to adopt a rule that there can never be a contribution act with regard to the animals running act but with regard to these facts this situation doesn't apply and again how does it make argument that the rosen are saying that they somebody else's capital there was a question asked of counsel about whether doesn't the contract claim go away because the notice provisions weren't followed yes i believe the answer to that question question is and  and so as a matter of law the trial court found and the appellate court affirmed and that issue isn't of where this court that those notices visions weren't complied with and so i do think it is fail as well is that the contract claim even if this court gets beyond i think really frank is making it equitable our human behavior should share this share this loss and the culpability should be shared between these enjoyed landowners and i think if you look at the facts of the high case there is some instruction would argue there's more of culpability on the part of the leo donor which we don't have this case we're still around that's the that's the consequences of the legislative intent of the animals running it and i think again it's squarely places the burden back on the sure that the fences that they're putting them in are sufficient to make sure that we are they have and the parcel of land is able to meet in the herd to know about that their own dangerous propensities those are all things that belong in terms of a burden or a duty on the person that owns them and so we are asking this court not to create a new absolute rule not to ignore the facts but to look at the facts in this case the undisputed material fac