## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Edwards v. Lom bardi , 2013 IL App (3d) 120518

Appellate Court Caption J USTI N EDWAR DS
, Plaintiff-Appellant, v. J AMES L OMBA RDI & COL L EEN L OMBA RDI , Def endants-A

ppellees.

District & N o. Third District Docke t No. 3-12-0518

Rule 23 Order

filed Motion to publ ish allowed Opinion filed October 3, 2013

November

20, 2013 November

20, 2013

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action for the injuries plaintiff suffe red when he was attacke d by a llama whil e cleaning a barn on defe ndants’ farm, t he entry o f s u m m ary judgme nt on the neg lige nce co u n t b as ed on the trial court’s conclusion that t h e ri sk of such an attack was assumed by plaintiff was aff irmed, notwithstanding the fac t that defe ndants d i d n ot reple ad the defe nse of assumption of risk afte r plaintiff added the neg lige nce count, sin ce plaintiff waive d that issue and, fur ther, c onsideration of the assumption of risk def

ense showed t hat pl aintiff assumed the risk of being attacked by the llama, he had experience d past incidents of ag gressive behavior by the llama, and he knew the llama was in the barn when he went to c lean there

.

Dec ision Under Review Appea l from the Circuit Court of Grundy County
, No. 09-L -31; the Hon. L anceR. Peterson, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Scott Pyles (argued), of Rathbun, Cservenyak & Koz al
, L L C, of J oliet, for a ppellant.

L indsay A. W atson and Bri an Hunt (argued), both of Hunt L aw Group, L L C, of Chicag o, for a

ppellees.

Panel J USTI CE McDAD E delivere d t h e judgment of the court, with opinion.
J ustices Carter

and Schmidt concur

red in the judgment and opinion.

OP INION

¶ 1 Plaintiff J ustin Edwar ds was attacke d by a llama owned by defe ndants J ames and Colleen L ombardi while clea

ning the L ombardis ’ b arn

. Subsequently Edwar ds filed a complaint ag ainst the L ombardis alleg ing both ordinary neg lige nce and a vi o l at i o n of the Animal Control Act (510 I L CS 5/16 (West 2008)). The trial court grante d summary judgme nt in favor of the L ombardis on both c ounts, c oncluding that Edwar ds assumed the risk of being attacke d. Edwar ds appea ls from t h e t ri al court’s grant of summary judgme nt on the neg lige nce count only

. We aff irm beca use primary assumption of the risk bars Edwar ds from

rec overing

.

¶ 2 FACTS ¶ 3 In 2005, plaintiff J ustin Edwards–then a seni o r i n high school–beg an working at a pet store owned by defe ndants J ames and Colleen L ombardi. During his employ ment, Edwar ds also visited the L ombardis’ family fa rm an d h elped car e for their outdoor animals, which included chicke ns, turkey s, horses, and llamas. Edwar ds later left the employ ment of the L ombardis, but at least four separ ate times prior to the incident g iving ri s e t o this lawsuit Edwar ds helped car e for the animals on the far m while the L ombardis wer e out of town. On

eac h occa sion, J ames L o mb ar d i t o o k Edwar ds around the far m and showed Edwards how to fee d and water the a

nimals, as well as c lean the ba rn that housed the a

nimals. ¶ 4 On these occa sions, whi l e E dwa rd s wa s t en d i n g t o th e anim als on the far m he
encounte red a male llama named Be au. Acc ording to Edwar ds’ deposition testimony
, on one

occa sion while J ames L ombardi was prese nt, Be au rea red up and hit Edwar ds, bloodying his

nose and mouth. Edwar ds testified t h at Be au would always confr ont him as he near ed the entry way to the barn, saying Be au would “pre tty much charg e at you a li ttle bit.” Edwar ds also said that when he clea ned the barn, Be au pushed him into the wall of the barn. Fur thermore
, Be au would spit at both Edwar ds and the L ombardis. Although ever y time

-2-Edwar ds car ed for the animals they wer e fre e to roam, sometimes when other people would

car e for the animals, Be au would be locked up in a stall. J ames L ombardi denie d knowing of any of incidents whe re B eau w as ag gressive towa rd Edwa rds, although he did state t hat he had seen Be au be ag g ressive with other animals. Other witnesses swore in aff idavits that they had neve r see n Be au display ag gression or other

dang erous pr opensities. ¶ 5 Edwar ds agree d to car e for the L ombardis’ animals from J uly 1 to J uly 7, 2008 while the L ombardis were out of t own; in exchang e, the L ombardis agree d to purcha se a Chihuahua for Edwar ds. Edwards asked J ames L ombardi whether Be au would be locked up during this period, but James decided that Be au would be f ree to roam. ¶ 6 On the morningof Jul y 6, 2008, Edwards arrived at the far m to clea n the bar n. Prior to
enter ing the barn, E dwa rd s n oticed Be au standing in the barn’ s hallway along with two miniature horses. Edwar ds then enter ed the barn and beg an scooping up animal dropping s. After about 10 to 15 minutes, Edwar d s n o t i ced that Be au was approa ching him. Edwar ds beg an to walk out of the barn and took one to two steps toward Be au, and then Be au rea red back a nd backe d Edwar ds into a corne r. Edwa rds turned to e scape by

jumping over

a half

wall into an adjoining stable, but as he jumped, Be au g ot his head under Edwar ds’ leg s and threw Edwar ds over the wall. Edwar ds cra shed into the ground and immediately felt extreme pain: he could not lift his left arm and believed it was dislocated. Edwar ds g ot to his fee t, and Be au spit at Edwar ds and continued to attempt to charg e at him, though a g ate now separ ated them. Edwar ds eventua lly made it into another stall and then to the barn’ s g ate, using a rake to fend off

Be au while he exit ed the ba rn. ¶ 7 Na dy

n e Ax el ra d -S n o w i s a m em b er o f the I llinois L lama Association and t h e International L lama Association
, wh e r e s h e attended a number of seminars on llama handling and training

. She raised Be au for seven month s p ri o r to selling him to the L ombardis. Axelrad-Snow testified that llamas can be provoked both intentionally and unintentionally

. She opined that enter ing an enclose d space wher e a llama i s l ocate d could be an act of provocation, dependingon the llama’s pe rsonality

. ¶ 8 On May 20, 2009, Edwards filed a complaint ag ainst the L ombardis in the circ uit c ourt of Wil l County
, alleg ing the L ombardis wer e liable for his injuries under the Animal Control Act (510 I L CS 5/16 (West 2008)). After the case was transfe rre d t o t h e ci rcuit court of Grundy County
, the L ombardis answe red the complaint on September 7, 20 1 0

. T h e L ombardis asser

ted sever al aff

irmat i v e defe nses, including contributory neg lige nce,

assump t i o n of the risk, and provocation. There afte r, the L ombardis moved for summary judgme nt. O n Fe bruar

y 22, 2011, the trial cour

t gr anted summary

judgme nt in favor of the L ombardis on the issue of liability under the Animal Control Act. The court also allowed E dwards to amend his orig inal complaint to add a count alleging that the L omb ar d i s we re neg lige nt. The L ombardis did not file any answe r or other pleading direc ted at the new count of neg lige nce, but instead moved for summary judgme nt on the neg lige nce issue. The court grante d this motion on May 30, 2012, with an order stating “De fenda nt’s motion is grante d
as t o the assumpt ion of t he risk issue, and de nied to the extent it i s based on provocation.” Edwar ds filed an emer g ency motion to clarify the court’s order

. In respons e, on J une 12, 2012, the court stated that the L ombardis’ motion for s u m m ary j udg ment was grante d. Edwar ds then filed a timely notice of a

ppeal.

-3-¶ 9 ANALYSI S

¶ 10 Edwar ds has appea led the order granting summary judgme nt in favor of the L ombardis. First, he arg

ues that the L ombardis could not rely on assumption of the risk as an aff irmative defe nse beca

use they did not plead the issue in response to the neg lige nce count. Second, he contends that the undisputed mat erial fac ts of this case do not demonstrate that Edwar ds assumed the risk of an attack. Finally
, he argues that even if assumption of the risk applies, beca use the L ombardis could anticipate he would encounte r Be au, the delibera te encounte r exception applies to abrog ate a ssumption of the risk. ¶ 11 Summary judgme nt sh al l b e en tere d wher e the pleading s, depositions, admissions and aff idavits on file, viewed in the light most favor able to the nonmoving party , reve al that there is no g enuine issue as to any materia l fac t and that the moving party is entitled to judgme nt

as a matter of law. 735 I L CS 5/2-1005(c) (West 2010). “W hile summary judgme nt aids in the ex peditious dispositi on of a lawsuit, it is a drastic means of disposing of litigation and thus should be allowed only when the right of the moving party is clea r and fre e from doubt.” Ford v. Round Barn True Value, Inc.
, 377 I ll. App. 3d 1109, 1116 (2007). An order granting summary judgme nt is revie wed de novo

. Kajima Construction Servic es, Inc. v. St. Paul Fire &Marine Insuranc e Co. , 227 I ll. 2d 102, 106 (2007). ¶ 12 In a common-law neg lige nce ac t i o n , a p laintiff injured by an animal cannot r ecove r

u n l ess the animal had a dang erous dispositi on and the owner knows of the danger o u s dispositi on. Vanderlei v. Heidem an , 83 I ll. App. 3d 158, 162 (1980); Nelson v. Lewis
, 36 I ll. App. 3d 130, 133 (1976). See also Klatz v. Pfeffer
, 333 I ll. 90, 94-95 (1928) (animal owner has duty to control animal if the animal is inhere ntly dang erous or the animal has manifested

a dispositi on to attack others). I f the owner knows of prior attacks, then the owner assumes a duty to control the animal. See Klatz , 333 I ll. at 94-95. ¶ 13 Her e, there are sufficie nt fac ts in the rec ord to cre ate a triable issue of fac t on whether the L ombardis had knowledge of Be au’s prior ag gressive behavior

. Howeve r, the trial court grante d summary judgme nt b ec au s e it conclude d that Edwar ds assumed the risk of being
at t ac k ed b y Be au. There fore
, we must deter mine whether primary assumption of the risk applies.

¶ 14 I . Fa ilure to Plead Assumption of the Risk ¶ 15 As an initial matter, Edwar ds argues that the trial co u rt erre d i n gra n ting summary judgme nt based on the aff irmative defe nse of assumption of the risk beca use afte r Edwar ds added his count in neg lige nce, the L ombardis never reple d their aff irmative defe nses in response to the new count; instead, the L ombardis immediately moved for summary judgme nt. Edwar ds points out that as an aff irmative defe nse, assumption of the risk must be specific ally pled so that the plaintiff is not taken by surprise. See 735 I L CS 5/2-613(d) (West 2010). Ordinarily
, if a party fails to plead an aff irmative defe nse, the defe nse is waived and

ca nnot be considered even if the evidence sugg ests the ex istence of the defense. Atha n s v. W illiams , 327 I ll. App. 3d 700, 705 (2002). ¶ 16 Even if there wer e err or, any failure by th e L o m b ar d i s t o re p l ead their af firmative

-4-defe nses is not a g round for reve rsal here beca use Edwar ds forf

eited this argument on appea l by n o t p re s en t ing it below. An argument not raised by the appellant in the trial court and prese nted for the first time on appea l is g ener ally considere d waived. Palen v. Daewoo Motor Co.
, 358 I ll. App. 3d 649, 658 (2005). In his reply brief, Edwar ds conce des he did not object
at the trial level to the L ombardis’ failure to reple ad their aff irmative defe nses. Be cause the issue was not argued below, we deem it waived. Acc ording ly
, we will examine the arguments of par

ties reg ardingassumption of the risk.

¶ 17 I I . Primary Assumption of the Risk ¶ 18 Primary implied assu mp t i o n o f ri s k i s an aff irmative defe nse that arises wher e the plaintiff’s conduct indicates that he “has implicitl y consente d to encounter an inher ent and known risk, there by excusing another from a leg al duty which would otherwise exis t.” Evans

v. Lima Lima Flight Team, Inc.
, 373 I ll. App. 3d 407, 418 (2007). Whil e a plaintiff assumes the risks that are inhere nt in the nature of the activity itself, he does not assume risks cre ated by the defe ndant’s neg lige nce. Sullivan-Coughlin v. Palos Country Club, Inc.
, 349 I ll. App. 3d 553, 560 (2004). The defe nse is “base d on the theory that a plaintiff ‘will not be hear d to complain of a risk which he has encounte red voluntarily
, or brought upon himself with full knowledg e and appr ec i at i o n o f the dang er.’ ” Vanderlei
, 83 I ll. App. 3d at 162 (quoting Wil liam L

. Prosser, Torts § 79, at 523 (4th ed. 1971)). Assumption of the risk is particula rly applicable when the pa

rties ar e in a contra ctual relationship with eac h other. Vanderlei , 83 I ll. App. 3d at 162. I f the doctrine applies, primary assumption o f th e ri s k operates as a complete de fense to a neglig ence action because the defendant is said not to owe any duty to the plaintiff. Clark v. Rogers , 137 I ll. App. 3d 591, 594 (1985). ¶ 19 The parties cite two prior c ases de alingwith primary implied assumption of the risk in the contex t of an anim al attack. In Vanderlei
, a professional horseshoer was kicked by the defe ndant’s stallion while placinga shoe on the horse; the horseshoe r admitted that he had been kicked twice befor e under simil ar circ umstances, and also admitted that it was known within his profe ssion that hor ses sometimes kick while beingshod. Vanderlei , 83 I ll. App. 3d at 163. The appellate court reve rsed the jury verdic t in favor of the horseshoe r and enter ed

a judgme n t i n fa v o r of the defe ndant, finding that the fac ts demonstrated the horseshoe r assumed the risk of being kicked. Vanderlei
, 83 I ll. App. 3d at 163. In Clark
, the plaintiff

was a profe ssional horse trainer empl o yed to train the defe ndant’s stallions, and she sued afte r she was bucked off a st allion n am ed J et. Clark
, 137 I ll. App. 3d at 595. The plainti ff admitted she was t o ld that J et was used to tease mare s for bree ding purposes befor e she attempted to ride him. Clark
, 137 I ll. App. 3d at 595. Also, she test i fi ed that when she attempted t o m o u n t J et there wer e mare s in the vicinity
, and she knew stallions could be excitable around mare s. Clark
, 137 I ll. App. 3d at 595. The appellate court aff irmed a g rant of s u m m ary judgme nt for the defe ndant, findi ng that under the circ umstances the plaintiff assumed the r isk of any

fall. Clark, 137 I ll. App. 3d at 595. ¶ 20 Ba sed on the rea soning of these case s, we conclude that the fac ts of this case indicate that Edwar ds assumed the risk he would be attacke d by Be au when he enter ed the barn. Edwar ds
contra cted to car e for the L ombardis’ animals knowing Be au would be fre e to roam. Be fore

-5-he enter ed the barn, Edwar ds saw that Be au was inside and unconfine d. L ike the horseshoe r

in Vanderlei
, who had been kicked on prior simil ar occa sions, Edwar ds knew that Be au had been aggr essi ve toward him in the past: Edwar ds testified that Be au would alway s charg e when he near ed the barn, and Be au had pushed him into a wall and hit him in the fac e in the past. Despite these experience s, Edwar ds chose to enter the barn knowing Be au was inside. There fore
, he assumed the risk that Be au would attack him in a manner simil ar to those past instances. ¶ 21 We reje ct Edwar ds’ attempts to distinguish Vanderlei and Clark on the basis that those

case s involved profe ssionals who there fore understood the risks inhere nt in their field; here
, Edwar ds knew the risk Be au posed to him beca use of his p as t ex p er i ence with Be au’s ag gression. We also reje ct the argument that Edwar ds could not assume the risk here beca use it was the L ombardis who we re ne g lige nt for fa iling to conf ine B eau. E dwards knew B eau would be fre e to roam but agree d to car e for the animals any way

. Fur thermore
, it was not the decision to leave Be au unconfine d that led to the attack, but rathe r it was Edwar ds’ decision
to enter a conf

i n ed s p ace with an animal that had previously been ag gressive toward him. There fore
, it was proper for the trial court t o enter summary judgme nt on the basis that Edwar ds assumed the risk of be ing attacked by Be au.

¶ 22 I I I . Deliber ate Enc ounter Exception ¶ 23 Edwar ds arg

ues that even if he is said to have assumed the risk, the deliberate enc ounter exception applies beca

use the L ombardis would have expected him to encounte r Be au while he was working on the far m. Under the deliberate encounte r exception, a landowner is liable for injuries to a business invitee resulting from an open and obvious dang er if the landowner has rea son to expect a person would choose to encounter the appar ent dang er. LaFeve r v. Kemlite Co. ,185 I ll. 2d 380, 390-91 (1998). The exception is often applied in case s involving economic compulsion, such as wher e worke rs are compelled t o encounte r dang erous conditions as part of their employ ment. Morrissey v. Arlington Park Race course, LLC
, 404 I ll. App. 3d 711, 725-26 (2010). ¶ 24 We note that it is unclea r whether the d el i b er at e encounte r exception would apply to

excuse Edwar ds’ assumption of the risk. The doctrine normally applies in the context of open and obvious dang ers on land ( LaFeve r , 185 I ll. 2d at 390-91), although the appe llate cour t in Morrissey indicated that even when primary assumption of the risk applies, the deliberate encounte r exception may still allow a plaintiff to rec over ( Morrissey
, 404 I ll. App. 3d at 732 (f i n d i n g insufficient support to conclude that primary assumption of the risk nece ssaril y abrog ates the de liberate encounte r exception)). ¶ 25 We ne ed not de cide whether the deliber ate e ncounter

exception applies here
, howeve r, beca use once ag ain Edwar ds has waived the argument on appea l by failing to raise it below. See Palen
, 358 I ll. App. 3d at 658 (argument not raised by the appellant at trial is considere d waived on appea l). Edwar ds asser ts that he did in fac t r aise this argument at the trial court; howeve r, he fails to cite to any rele vant pag es of the r ecor d wher e he r aised this argument. We have also independe ntly revie w e d th e c o mm o n

- law rec ord and repor t of proce eding s, and there is no indication from any of the pleading s, briefs, or motions that Edwar ds ever argued

-6-to the t rial court that the deliberate encounter e x ception applied here

. There fore
, g iven t he

rec ord befor e us, we conclude that Edwar ds did not raise this argument below and there fore the issue is waived. ¶ 26 Acc ording ly
, beca use the undisputed materia l fac ts de monstrate that Edwar ds assumed the risk of being attacke d by Be au, the trial court properly granted summary judgme nt in favor of the L ombardis.

¶ 27 CONCLUSI ON ¶ 28 Fo r the fore g oing rea sons, the judgme nt of the circ uit court of Gru n dy C o u n t y i s aff irmed.

¶ 29 Affir

med.

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