protect the public from harm and since the overriding purpose is to protect the public from harm the animal control act impose penalties both on the owner of the animal and anyone that acts and places themselves in a position of control over the animal as such the courts have told us that the courts must carefully weigh the specific facts of each case when making a decision involving the animal control act when specific cases specific facts of this case are examined the court's going to see that there are genuine issues of material fact as to whether illinois has has acted with control over the dogs owned by its employee robert ship and as such we're going to ask for versal of the lower court's decision to dismiss count  the church woods residence they are annoyed ground and the circumstances of what was going on with regard to the other dogs that for purposes of the animal control act he was and then really the only issue here is ownership they have to the plaintiff has to prove that the injured person was the injury was caused by an animal owned by the defendant and the act defines owner in a much broader sense and i think the case law tells us this but the section two point one six of the act of fines an owner to be any person having a right of property in an animal or the harbor or keeper of an animal or one who has it in his care or its custody or who knowingly permits a dog to remain on a premises occupied by him or her and when you start with the animal control act first i think that last phrase knowingly permits a dog to remain on a premises occupied by him or her applies in this situation in this case mr chip were granted a premises for his employer on a piece of property that was completely enclosed of upon the property they owned it all there was a fence around it there was barbed wire around the fence there was ey were on a premise is occupied by aquil annoyed but it's also more than that it's the ownership that they demonstrate an act in control over these animals and they actually exercise ongoing and continuous control over these animals and that is shown by the actions that are  taken first of all at the premises itself the residential premises which mr chip would rented was part of the article property and again aqua had complete control over the access to the property but they also did other things to maintain control over the property they they mowed the grass they play of the driveway they fixed the roof they actually replaced the roof and they did all the electronic electrical mechanical repairs on the property if i owned a sixty unit apartment building and one of my tenants mrs brown  had a little dog maybe fluffy and fluffy but somebody i'm i going to be liable it depends on how much access or how much control you retain over the property and there are cases about landlords and tenants that tell us first on the common law setting if the landlord maintains any sort of control over the property yes you can be on the hook and you also have to go through the other things in common though you have to prove a knowledge of the dog's propensity but as far as the animal in the process the scenario he gave you  the act under common law either ok the sooner you just gave us if you retains control over the premises yes and there are cases out there on the steinberg cases is in the briefs and we talked about i'm sure is the case where the classic absentee landlord had no idea that the dog was there or that anything was going on his manager of the apartment said you can keep a dog there and under that case there was no liability found but that's not the case here and in your scenario i think you need to know more facts then well there is scenario then why isn't the answer the same as in steinberg building all the guy a lord knew is the one of his sixty ten and says a dark and if that's all he does there's no liability i think steinberg is clear on that but that's not the case we have in front of us our knowledge is here in this case i'm sorry what beyond knowledge of the dog being present is in our case here in our case here we have actual control over both the property and the dogs and we see the property being more than have more than i've religion apartment and yeah i know you have a dog there we actually see control over the property and over the dogs and most importantly we see it over the dogs we see what what control over the dog sage a exert the same control that they exerted over all the other dogs and when mr chimp would was called in for his meeting with his boss and his supervisor mr gay part and they knew about sage because m to play cards before this all happened they had a meeting with him and there was an ultimatum given on august twelfth of two thousand and eight and then there's a memo created by mr brun's the vice president on august thirteenth and they talk about the ultimatum that was given mr chip wood and it's to maintain your dogs it's not to maintain this dog as opposed to that dog it is to maintain your dogs and if there is one more incident involving your dogs then you will be out of here so a threat to  terminate his lease is enough to establish control into the act i don't think it's enough alone that we have it more than that we have a right to control not only his his to is lease but we have the right to control his employment which is there on the property and they also exercised the right to control the dogs and when they met with him on august twelfth they told him if you have any more problems with these dogs you the dogs are going to go or you're going to go and mr chip would testify in his deposition that i understand that i understand they have that power over me and if mr bronze tells me the dogs have to go i understand they have to go and more than that we see exactly how much control they have over the dogs after the incident happens because once measures would probably not be allowed in most cases as our rules variants it does come in to show the amount of control they had over here and it belies the claim by the defense that we didn't have any control over what happened inside the premises because they clearly did because they threw him out of the house based on this incident that happened inside the premises so it's more than control over the leasehold it's even more than control over his job it's that we exercise going in continuous control over this property your client argued to the court that the only disputed relevant issue is whether our core qualifies as an owner of the dog under the act correct regarding care to i don't think the others are disputed and the defendant filed a motion on the two six nineteen point one that purported to be based on section two six thirteen to sixteen nineteen seeking to dismiss appeal then on the coming all negligence action we are here on a summary judgment which is granted as to that with regard to the motion to dismiss filed under two six nineteen point one at the trial level that you make any objection to it on the grounds that it failed to comply with the statute that the motion itself did yes no we did not with regard to two six nineteen which was the basis for granting the motion and that's my understanding as well how is that affirmative matter why isn't that just the negation of an essential claim that you brought than your complaint i think you can argue that it is well thought is then why is it being heard as a motion to dismiss  but in fact in this in the in else is used by the trial court regarding the question of is was aqua illinois the water company the owner of the dog was to ask whether there was any genuine issue of material and affidavits were attached which normally doesn't happen actually at that point we asked for a deposition to be taken i think from then on it kind of got treated as a summary judgment motion quite frankly after that because we're considering affidavits and depositions and things of that so no one was going to bother to say what the procedural posture should be no one did well is there any it seems to me that there is no prejudice to you or to the  treating this is essentially a motion for summary judgment because the standards were the same were they not that they are the same i think so the trial court concluded with regards of the common law negligence count that there was grant of summary judgment i think that's what it is judge and i think that's where we're at too bad no one talked about that at the trial and it is true that ok go ahead thank you when we talk about let's talk about the think in this case first of all our case law tells us that a landlord that retains control of at least a portion of the premises has a duty to use ordinary care to maintain the property that we do the dogs here and so does have a duty here to the to these people even if it is for incidents that happened inside the home in addition there is some knowledge of the dangerous propensities of these dogs and we see several incidents along the way  recall the dog of chip wood son who was visiting for holiday party actually the son and the dog were permanent residence at that time so it was a permanent resident mr shit was how long it's been a permanent residence it's not clear no one really had a specific residence but by the time this had happened everyone's recollection was clear that the son and the dog sage had come to reside there on a permanent i such it would  whether he had was living there are residing there permanently you know i thought there was some equivocation based on my or i think there was some back and forth and i think by the time my recollection mr shit was testimony's by the time this incident happened can be established by looking at the pattern of behavior that is there and the care of the dog that is given and what we see from the care of these dogs is that they were allowed to act in a dangerous behavior and that aqua knew about that which is aware of the three incidents that involve francis richards the plant treatment operator where marley comes after mr brunson self the vice president was part of what he referred to as an attack once when he tried to come on the property there's also an incident involving trolley miller who is a janitor at the place and he testifies to several times when the when the dog marley comes at him and he said it's not a matter as if she was going to bite me it was just a matter of when and that dog would come at you or is marley is not the dog at issue no the that but you can assume from the way the dogs are treated according to our case law that there is so enter there there is dangerous propen sities that can be assumed and whether aqua knew or should have known about the dangerous propensities of these dogs and i think there's enough there the jury ought to make those decisions and that's what the cases tell us that generally questions about these types of issues are for the trier of fact and whether it's the severance in case under the common law count or its eggs or thompson under the animal control act counts generally these questions are for the trier of fact and there's all kinds of questions out here of genuine issues of material fact about how much control these that i had over these dogs and how much knowledge they had about the dangers propensities those and whether the jury actually agrees  not they ought to be the ones that make that decision it should be decided as part of a dispositive motion getting back to the animal control ac the facts here show that mr chip would had these dogs on a property that was owned by aqua was maintained by aqua that aqua continued to have ongoing and continuous control even up through and through the time of this incident and they actually maintained control which is also demonstrated by the fact that they tossed mr shit wood out of the property after it happened and so what we see here are genuine issues of material fact all over the place about whether there was control as defined by the animal control these issues ought to be decided by a jury you are as you have you know the questions that really concludes my presentation and i think ok you have an opportunity to was not a harbor which is part of the definition that it was not a keeper it was not a custodian it was not the actual owner which is what i determine what i call the person who has an actual property right in the animal i mean can there's no issue here it is undisputed either just inch it would own that dog as the actual owner or bob chip would did so all that were left with is the definition the statutory definition in the animal control act of knowingly allowing the dog to be kept on premises owned or occupied by him or her so if that's what we're dealing with we've got the supreme court pronouncement that we're not trying to expand liability here to these tangential people such as landlords and to follow up on justice appleton's question if your planet in sixty unit building the owner of fluffy was walking down the hall and you as the landlord got notice that somebody complained about fluffy barking or growling or nipping somebody in the hallway and you said to your tenant if you don't fluffy when she's outside the confines of your apartment that under the plaintiff's analysis you would be liable to anything that happened to one of your your tenants invitees at a private party inside the unit and what we're talking about here when we're talking about control and again the animal control act does not define can control it does not even use the word control control is what comes from our case law and the case law is control at the time the exact moment of the injury and at the exact location of the injury and that's the begs vs griffith case it's not whether you maintain control or ever had control of the animal at some other time the case cited by the pla you know it's the the fourth district case where there were actually was some type of control exercised by the defendant that was a ki to the ownership of the dog and that was the case where the stray dog was brought home by the woman she instructs you then went on vacation or went out of town and she instructed a neighbor to put out water and food for the dog it was her intent that if the dog was still around when she came back that she would take it to the shelter in that case the dog ran out and in front of a motorcyclist who then wrecked his motorcycle and and sued the defendant as the owner of the dog in that case although it was after a bench trial the court refused to overturn a finding that even with that level of control the actual direct actual physical possession of the dog taking it home from church not letting it in there in your house but allowing it to roam on your premises and then instructing the neighbor to put out food or water things that an owner to typically would do even under those facts the judge the trial judge found that there was no control under the animal control act that just that isolated instance of feeding and watering the dog in that one occasion was not enough to make that defendant an owner and the appellate court said well we're not going to overturn that because it was out of print bench trial but it's instructive that even with some measure of control the courts are reluctant to expand the animal control act beyond what the legislature intended and that's what in essence they're asking here since we have the steinberg case which is a landlord tenant case which is completely on point in that case the dog was behind a fence and injured of a member of the public and although the or the landlord had notice that the dog was there through his manager the supreme court said we decline to extend animal control act liability to landlords under that based upon either the animal control act or common law negligence that the facts as pled lead to that conclusion is in that their central claim they have claimed that he's an owner of the dog that aqua is the owner of the dog by virtue of the fact that they exercise this control which again they they claim to be control over the dogs in this case we view that as control over the dogs that they knew of which were  marley but also that it was to control the dogs when they were outside potentially on premises occupied by aqua such as the common areas or the areas of the plant which again were in compas bind motion to six or seven to six nineteen to dismiss trial court denied your two six or fifteen claims were granted the one hundred two six nineteen with regard to the animal control act what was the affirmative matter you presented that i was going to get to that but thank you for reminding me to get to it now the way the complaint was actually pled did not put the landlord tenant relationship into issue they basically said you own the house this guy was allowed to live in it because he was your manager to get that affirmative matter to get it within the parameters of clips converses steinberg vs para i had to somehow get beyond the four corners of the complaint to allege the affirmative matter that hey we're  absentee landlord here so how is that affirmative ma into that the underlying complaint is state of cause of action but you're saying yes all of that but you lose for some reason other then negation of the essential elements such as you have no standing special imitations well it's affirmative factual matter i guess it's facts that i at the time that i filed the motion deemed necessary to establish why i can defeat the claim ok so you're that chit would was harboring dogs they'd if you look at the complaint there is not even an allegation that we were a harbor there is not an allegation that we were an owner there was not an allegation that we were the custodian or keeper there was not even an allegation that we knew of or we allowed the dogs to be on premises that we own the allegation was that we knew that shit would was an owner of dogs  get into whenever i try to look at the quote unquote hybrid motion under the code of civil procedure i've gone round and round with judge flanagan in the circuit court of cook county who basically doesn't believe that you can bring two motions because you have to if you're bringing a six one nine motion you are by your de facto as you put it just as admitting the well pled allegations of the complaint isn't she right she she is correct you're ok so what's what's the problem and see the other thing i miss point out is i'm not sure what the when you bring it to six nineteen point one motion to dismiss the statute requires that the motion must be in parts must be limited to and still specify that it is made under section either section two six or thing through six nineteen must clearly show the points  grounds relied upon under the section upon which it is based you don't do any of that you know four separate grounds in your motion in three of them you don't identify either of the sections at space in the third one it's only in the last line i can tell what you're referring to plus it seems to me that at a minimum you're referring melding these things together when you cited tom bronzes allegation as defeating the affidavit again if that accurate that reading is accurate and i don't have unfortunately the motion in front of me and i haven't thought of maybe it would seem to be confusing judge to be quite honest with y court seemed to be applying that standard and everyone seemed to be arguing at the even though it was purportedly a dismissal of the two six nineteen that i would agree with ok so is there any prejudice to you or to the plaintiff if we in fact   this knowledge that the plaintiff is trying to impute going to the common law count it's clear that they have to prove duty breach at such a duty issue is really what's at issue here and not only did judge clary grant the motion for summary judgment on the duty issue but he also granted the summary judgment on a separate independent basis that being that there was no evidence in this record that a a knew that sage the offending dog was aggressive or had any vicious a propensity in fact the records completely devoid of any incidents involving shane sage other than an inadmissible here's a statement that was made on the night of the dog bite that was not made in the presence of any aqua personnel save perhaps chip would but there's certainly is that say well there was a statement made by justin ship wo to bob ship would sister whether by ship was present or not i don't know it was not clear from the record but her recollection was that justin made a comment that stage that nipped a friend of his in the past there's no evidence that this was ever communicated  other than one incident where a manager went to play poker at the chip would residence and he knew that sage was there didn't know that sage was living there at the time but in fact had sage sit in his feet during the entire poker party and allow him to pet him so i'm not sure if i understand you refer to it as a hearsay statement so my question is is it something which isn't titled to very little value in this context of where the summary judgment should have been granted or is it something which shouldn't have been treated considered at all but the trial court first of all i don't think it was considered by the trial court it was not made a basis of judge clear his ruling at all well read was its was not a heart of the materials evidence your material submitted to judge the armand it was not geometry wasn't to such as you had to judge the arm and decided the motion to dismiss the judge clary it was a change in judges not change every year or so in the summertime the summary judgment got around it was judge wasn't this statement part of the evidence or material submitted to judge larry i don't recall that statement being anywhere in the argument or the breeze so we don't know whether it was part of the evidence or materials we don't do not but we do know that was not part of judge cleary's articulated reasons on the record at the first difficulty counsel is a mum you're looking at some forty years plus cumulative trial court experience here it's good practice for trial judges always to state for the record what they considered but it's not required and it would be better practice for a trial counsel to make a record of what they submitted to the trial court to consider that we have that do did either you or mr jones or miss that's a problem we have to play to make clear to the trial court what you were asking the trial court to consider from my standpoint i did not argue in any way this hearsay statement because i was responding to their arguments and i did not did not raise it so it was not submitted by what you have movement so you're the one who's saying here judge is all this stuff to consider and in my presentation to judge clary i did not make reference at all to this hearsay statement because my position was that even if it was made the ultimate conclusion was we don't know a whether it was true but b it is unpersuasive since it involves something that i quote was never made privy to this this this prior event if it was an event that you know but then you see the reason i'm harping on this is because now we have a difficulty if this is something that your position is was submitted to the trial court to consider the trial court should have considered it the burden should have been on you at the trial level to say judge don't consider that that improper motion to strike or address it in some fashion so we have a record made that your objection of the trial level was presented to the trial court in the court says i'm not going to consider it or i will consider one of even if it was considered by the judge since judge larry since i won there was no reason for me to question whether it was that was part of his ruling or not that would have been the the the plaintiffs were of course ability and you know that's after the fact but you know before you won if you were concerned about the trial courts considering this a motion to strike i think should have been made and without that i guess we'll just consider everything that was presented to the court go ahead back to this control over the entire premises again there is no evidence and it is undisputed that aqua never advertise council never exercised any control over the garage area which is the exact location of the dog fight the thought that because there was a security fence and a gate doesn't mean that aqua controlled every single person that went in and out because mr would have his own garage door opener type remote that he could use to open the gate the and this was part of judge clary's ruling that on the date in question it wasn't as if somebody from security came out and checked the d s to make sure that the plaintiff and the other party guests were on the list they merely said into the box at the gate we're going to see bob chip wood and they were buzzed in without any question so this suggestion that somehow this control over the actual gate to get to the house somehow translates to control over the garage i think is an argument that is extremely unpersuasive that the the case law is instructive that we're not looking at  control at any time other than at the time of the dog bite and at the location of the incident and again that goes into the duty analysis under the common law as well under klitschko versus hell yes almost an identical fact pattern the court said that there is no duty where there is no retain control over the premises and in this case the premises that we're talking about is the garage area of the home again it's undisputed that w have plowed the driveway or mowed the grass they never went into the garage they didn't store anything in the garage mr chip would was free to use the garage in any way that he saw fit in fact he had the only garage door openers to the garage where summary judgment was either affirmed or the klitschko case says that you look at each dog individually we don't discriminate as to breed in the lucas case the every dog is presumed tame and docile unless address the fact that counsel has said that this case under the animal control act the steinberg case is directly on point numbers directly not on point steinberg is the case the judge appling came up with about i own a sixty unit apartment and there's a poodle and there's an accident am i on the hook for that that's what steinberg is steinberg the landlord lived four blocks away from where this happened landlord said i didn't even know about the dog his manager had given the dog owner's permission to build a fence to keep the dog there and altho have been some complaints about the dogs being noisy and messy made to the manager the landlord was clearly not in control of that this case is more like pigs versus johnson which is the case from two thousand and nine in bags versus johnson it isn't even involved dogs it's about horses in that case the home owner had a paddock area and a barn but he had given up horses around two thousand in two thousand and five he lets his neighbor rankin keep his horses on that property so it's on the griffith property but mr rankin the neighbor it wrecks a fence electronic fence to keep the horses heap he pays to maintain that fence he maintains the horses with the feed and the grooming and the veterinary care and the evidence is that mr griffith had no involvement in the raising of these horses and what happens on this day is the plaintiff comes to look at the property in order to buy it and griffith and rankin are both there although they don't take part in the showing but they're both present and during the showing the plaintiff is walking around and goes in the horse barn and for whatever reason the horses take a run at her and she gets injured there is all of the evidence said that the homeowner mr griffith had no part in these horses and what happens in the defendant's mosher motion for summary judgment judge it's in the deposition transcripts and all of the depositions were submitted in that part of the record so it's in there i don't know this isn't a very conflict that this is what you're asking the court to consider which the depositions in which part in opposition to the motion of summary judge judge no one specified which parts of the depositions should be security or access counsel to specify what yours i giving to the court both in opposition and support identify the specific evidence or in matters i agree thank you finally the last thing this issue of control in council wants you to focus on what happened in the garage well the garage was under the control of aqua and that's most clearly seen in the fact that they tossed it would out of his residence because of what happened here and that's an incident that happened in the garage and mr brown's testified in his deposition that says the only reason we kicked him out there was no other reason other than this incident which is the incident in the gripe why does that speak to the question of control it shows that they have the they have leverage over him they they have ability to control what goes on they gave him an ultimatum in august of that year it was a month by month lease correct and they told him in august of that year that if there's one more incident involving these dogs and clearly doesn't matter if it was in the house outside of the house anywhere on the upper property where we're terminating your tenancy and that's exactly what happened in this case they have ongoing control through this incident at the time and they can say that we didn't have control over that dog that they could have they could have had him in a pen they could have gotten rid of the dogs and shit would said if they told me get rid of the dog so to get rid of the dogs they gave him the opportunity to keep the dogs under their terms and this is what happened and because of that they are on the hook as far as the animal control act is concerned at least there's issues of material fact that ought to go to the jury for those reasons we asked at the lower courts verdict be a reason and be overturned in this case be sent from thank you thank you