2014 IL App (1st)132762

No. 1-13-2762

Fifth Division

June 20, 2014

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

)

MARTA TYRKA, Individually and as )

Next Friend of EMILIA TYRKA, a )

Minor, )

)

Plaintiffs-Appellants, )

)

v. )

)

GLENVIEW RIDGE CONDOMINIUM )

ASSOCIATION, )

 )

Defendant-Appellant )

)

(Melissa Bermejo as Special )

Representative of the Estate of Geri M. ) 

Allegretti, )

Defendant). )

Appeal from the Circuit Court

of Cook County.

No. 12 M1 301780

The Honorable

James E. Snyder,

Judge, presiding.

 PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

 Justices Palmer and Taylor concurred in the judgment and opinion.

OPINION
No. 1-13-2762

2

¶ 1 Plaintiffs Marta and Emilia Tyrka appeal the trial court's order dismissing

the counts in their complaint against defendant Glenview Ridge Condominium 

Association (condo association) pursuant to section 2-615 of the Code of Civil 

Procedure (735 ILCS 5/2-615 (West 2012)). Although other counts remain 

against another defendant, the trial court found, pursuant to Illinois Supreme 

Court Rule 304(a) (eff. Feb. 26, 2010), that there was no just reason to delay the 

appeal of its order dismissing counts VII and VIII against defendant condo 

association. 

¶ 2 This appeal concerns injuries sustained by plaintiffs Marta and Emilia 

Tyrka as the result of an attack by a dog belonging to a condo owner. The issue 

on appeal is whether plaintiffs have stated a cause of action against the condo 

association for their injuries. For the following reasons, we affirm the 

dismissal. 

¶ 3 BACKGROUND

¶ 4 I. The Second Amended Complaint

¶ 5 The subject of the trial court's dismissal order was plaintiff's second 

amended complaint. Since this appeal comes to us on a 2-615 dismissal, we 

assume that all the well-pleaded facts in this complaint are true (DeHart v. 

DeHart, 2013 IL 114137, ¶ 18), and we summarize them below. 
No. 1-13-2762

3

¶ 6 Counts VII and VIII were directed against defendant condo association,

and these counts allege that defendant condo association was responsible for the 

management of the condo property located at 4150 West Central Road in

Glenview, including the property's common areas. 

¶ 7 The complaint alleges that, on August 11, 2011, a dog owned by 

defendant Allegretti attacked and mauled a dog owned by plaintiff Marta Tyrka. 

Allegretti's unleashed dog also attacked plaintiffs Marta and Emilia Tyrka. As a 

result of the attack, which occurred in a common area, plaintiffs suffered "great 

pain and discomfort, physical and emotional impairment, all of which injuries 

are permanent."

¶ 8 The complaint does not allege whether Allegretti was a condo owner, but

it does allege that she was a "resident" and "harbored" the dog at the condo 

premises. In addition, the complaint does not allege whether plaintiffs were 

condo owners, residents, lessees, or invitees but only that they were where they 

"had a lawful right to be." The complaint does not allege whether the "common 

area" where the attack occurred was a lobby where the public is invited, or a 

hallway used by residents and invitees, or an interior courtyard used by 

residents and invitees for relaxation, or an event room which residents can

reserve, or another type of space. Since Allegretti died on August 30, 2012, the 
No. 1-13-2762

4

complaint names as a party defendant Melissa Bernejo, who is the special 

representative of Allegretti's estate.

¶ 9 Although the complaint alleges that Allegretti's dog attacked plaintiffs 

"without provocation," the complaint does not provide details concerning the 

attack, such as whether the attack on plaintiffs' dog occurred before or after the 

attack on plaintiffs themselves, whether plaintiffs were trying to break up a 

fight between the two dogs when they themselves were attacked, or whether 

plaintiffs were walking their dog unleashed through the common area, as they 

allege defendant Allegretti was doing.

¶ 10 According to the complaint, defendant Allegretti's dog weighed more 

than 25 pounds, and defendant condo association had regulations against 

owning dogs weighing more than 25 pounds at the condo premises, and 

defendant condo association knew that defendant Allegretti's dog weighed more 

than 25 pounds. Defendant condo association also knew that the dog was 

"violent or had a propensity for violence or a mischievous propensity to cause 

injury or damage," because "prior to August 11, 2011, residents *** had 

complained to [defendant condo association] about the violent nature of the 

dog." 

¶ 11 In addition, prior to August 11, 2011, defendant condo association knew 

that the dog "had attacked another resident's dog in the common area." "At 
No. 1-13-2762

5

least three individuals who lived in the Glenview Ridge Condominiums *** had 

complained to [defendant condo association] regarding:" (1) a prior attack by 

the dog; (2) the dog's presence in the building despite the condo association's 

regulations; and (3) general nuisance complaints about the dog. Defendant 

condo association knew or should have known that the dog owned by defendant 

Allegretti "would need to be walked" through the common areas of the condo 

premises on a daily basis, and that the dog was walked without a leash. The 

complaint does not allege whether the Allegretti dog would need to be walked 

through the specific common area where the attack occurred.

¶ 12 As a result of these actions, the complaint alleged that defendant condo 

association had acted negligently by failing to take steps to remove the dog and 

by failing to warn others of the dangerous nature of the dog and that, as a result 

of defendant condo association's negligence, plaintiffs were injured. 

¶ 13 Counts VII and VIII are identical, except for the fact that count VII seeks 

relief for injuries suffered by plaintiff Marta Tyrka, while Count VIII seeks 

relief for injuries suffered by minor plaintiff Emilia Tyrka. The complaint does 

not allege the age of the minor plaintiff. 

¶ 14 The prayer for relief for both counts begins: "Wherefore the Plaintiff *** 

prays for entry of judgment against the Defendant, Geri Allegretti." Like the 

second amended complaint, the first amended complaint also mistakenly named 
No. 1-13-2762

6

"Defendant, Geri Allegretti" in the prayer for relief for the two counts against 

defendant condo association.

¶ 15 II. Procedural History

¶ 16 We provide here only a short summary of the relevant procedural history 

leading up to the filing of plaintiffs' second amended complaint.

¶ 17 After plaintiffs filed their original complaint on June 26, 2012, defendant 

moved to dismiss the counts against it. Defendant's original dismissal motion is 

not in the appellate record but its reply is in the record. The reply argues, among 

other things, that the complaint's allegations about defendant's knowledge of the 

dog's alleged viciousness were "conclusory" and hence insufficient to allow the 

complaint to go forward at the pleading stage. The trial court granted 

defendant's dismissal motion on November 28, 2012, but also allowed plaintiff 

28 days to replead. The record does not contain a transcript of proceedings, and 

the trial court's order does not state the reasons for the dismissal.

¶ 18 Plaintiffs filed their first amended complaint on December 27, 2012, and 

defendants again moved to dismiss on January 22, 2013. Defendant again 

argued, among other things, that plaintiffs' allegations about defendant's 

knowledge were "wholly conclusory in nature." On April 15, 2013, the trial 

court again granted defendant's dismissal motion and again granted plaintiffs' 
No. 1-13-2762

7

leave to replead. The record does not contain a transcript of these proceedings 

and the trial court's order does not state the reasons for the dismissal.

¶ 19 On May 7, 2013, plaintiffs filed their second amended complaint, and 

defendant again moved to dismiss. The substance of defendant's final dismissal 

motion is discussed below.

¶ 20 III. The Dismissal Motion

¶ 21 On May 20, 2013, defendant condo association moved to dismiss the 

counts against it pursuant to section 2-615 on the grounds (1) that the counts 

were technically deficient since the prayer for relief sought relief only from 

defendant Allegretti, the dog owner; and (2) that the counts were substantively 

defective since plaintiffs had failed to establish a duty of care owed by 

defendant condo association to protect against an attack by Allegretti's dog. 

¶ 22 First, the motion stated: "Each count is technically deficient in that its 

prayer for relief seeks relief from Geri Allegretti (whose death was spread of 

record by Order of October 16, 2012) and not from the condominium 

association. The corresponding counts of the First Amended Complaint had the 

same technical deficiency, and plaintiffs failed to cure it in this Second 

Amended Complaint." 
No. 1-13-2762

8

¶ 23 Second, the motion argued that plaintiffs had failed to establish that 

defendant condo association had a duty to protect entrants from the potential 

presence of dogs in the common areas. 

¶ 24 Third, the motion argued that "plaintiffs' allegations as to this defendant's 

knowledge that the Allegretti dog had already inured someone are wholly 

conclusory in nature." The motion argued that, while plaintiffs alleged that the 

Allegretti dog had attacked another dog, the complaint did not allege the 

specific date or whether a bite or other injury occurred or whether the dog ever 

attacked a person.

¶ 25 In plaintiffs' response to defendant's motion, plaintiffs argued that, under 

common law negligence for dog attacks, regardless of the ownership of the dog, 

a landowner is liable when the attack occurred on the landlord's premises and 

the landowner knew of or had reason to know of the dog's viciousness. 

¶ 26 IV. The Trial Court's Dismissal Order.

¶ 27 The trial court's order, entered on July 30, 2013, stated with respect to 

defendant's motion to dismiss:

"This cause coming on to be heard on the motion of the defendant, 

Glenview Ridge Condominium Association, to Strike and Dismiss 

Counts VII and VIII of the Second Amended Complaint, briefs 
No. 1-13-2762

9

submitted, due notice and oral argument heard and the Court fully 

advised in the premises[,]

It is hereby ordered that the motion is granted and Counts VII and 

VIII of the Second Amended Complaint are stricken and the Second 

Amended Complaint is dismissed as to Glenview Ridge Condominium 

Association, with a special finding that no just cause exists to delay 

enforcement of or appeal from said order of dismissal. "

¶ 28 Although the above order states that "oral argument [was] heard," the 

appellate record does not contain a transcript or bystander's report for the 

proceedings.

¶ 29 A notice of appeal was filed on August 22, 2013, and this appeal 

followed.

¶ 30 ANALYSIS

¶ 31 On this appeal, plaintiffs challenge the trial court's dismissal of the counts 

in plaintiffs' second amended complaint, after defendant condo association

moved to dismiss these counts pursuant to section 2-615 (735 ILCS 5/2-615 

(West 2012)). 
No. 1-13-2762

10

¶ 32 I. Section 2-615 Motion

¶ 33 A section 2-615 motion attacks the legal sufficiency of the complaint. 

DeHart, 2013 IL 114137, ¶ 18 (citing Bajwa v. Metropolitan Life Insurance 

Co., 208 Ill. 2d 414, 421 (2004)). When ruling on a section 2-615 motion, a 

court must accept as true all well-pleaded facts in the complaint, as well as any 

reasonable inferences that may be drawn from those facts. DeHart, 2013 IL 

114137, ¶ 18 (citing Doe v. Chicago Board of Education, 213 Ill. 2d 19, 28 

(2004)). A trial court should dismiss a count or cause of action under section 2-

615 only if it is readily apparent from the pleadings that there is no possible set 

of facts which would entitle plaintiffs to the requested relief. DeHart, 2013 IL 

114137, ¶ 18 (citing Bajwa, 208 Ill. 2d at 421). The question for the court is 

whether the allegations of the complaint, when construed in the light most 

favorable to the plaintiffs, are sufficient to establish the cause of action. 

DeHart, 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James, 2012 IL 112393, 

¶ 34). 

¶ 34 However, our supreme court has also emphasized that Illinois is a factpleading jurisdiction, and that plaintiffs are required to allege sufficient facts to 

bring a claim within a legally recognized cause of action. Marshall v. Burger 

King Corp., 222 Ill. 2d 422, 430 (2006). Although plaintiffs are not required to 

set forth evidence in a complaint, they also cannot set forth "simply 
No. 1-13-2762

11

conclusions." Marshall, 222 Ill. 2d at 430. "[M]ere conclusory allegations 

unsupported by specific facts will not suffice." Primax Recoveries v. Atherton, 

365 Ill. App. 3d 1007, 1010 (2006).

¶ 35 On appeal, our review of a trial court's 2-615 dismissal order is de novo. 

DeHart, 2013 IL 114137, ¶ 18 (citing Bonhomme v. St. James, 2012 IL 112393, 

¶ 34). De novo consideration means that we perform the same analysis that a 

trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 

578 (2011).

¶ 36 I. Technical Deficiency in Prayer for Relief

¶ 37 Defendant argues that we may affirm on one of two grounds: (1) that the 

prayer for relief was technically deficient; and (2) that the complaint was 

substantively deficient because it failed to establish a duty on the part of 

defendant condo association to protect plaintiffs from the dog owned by 

defendant Allegretti.

¶ 38 As noted above, the prayer for relief in the counts against defendant 

condo association asked for relief solely from defendant Allegretti. This same 

technical defect existed in the first amended complaint, and plaintiffs failed to 

correct it in their second amended complaint.

¶ 39 However, defendant has failed to provide any legal authority for this 

point either in its appellate brief or in its motion to dismiss before the trial 
No. 1-13-2762

12

court. "This court has repeatedly held that a party waives a point by failing to 

argue it." Lozman v. Putnam, 379 Ill. App. 3d 807, 824 (2008). See also

People v. Ward, 215 Ill. 2d 317, 332 (2005) ("point raised in a brief but not 

supported by citation to relevant authority *** is therefore forefeited"); In re 

Marriage of Bates, 212 Ill. 2d 489, 517 (2004) ("A reviewing court is entitled to 

have issues clearly defined with relevant authority cited."); Rosier v. Cascade 

Mountains, Inc., 367 Ill. App. 3d 559, 568 (2006) (by failing to offer supporting 

legal authority or any reasoned argument, plaintiffs waived consideration of 

their theory for asserting personal jurisdiction over defendants); Ferguson v. 

Bill Berger Associates, Inc., 302 Ill. App. 3d 61, 78 (1998) ("it is not necessary 

to decide this question since the defendant has waived the issue" by failing to 

offer case citation or other support as Supreme Court Rule 341 requires); Ill. S. 

Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (argument in appellate brief must be 

supported by citation to legal authority and factual record).

¶ 40 For the foregoing reasons, we do not find persuasive defendant's 

argument about this technical defect. 

¶ 41 II. Duty of Care

¶ 42 Defendant also argued, both in its appellate brief and in its motion to 

dismiss before the trial court, that plaintiffs failed to establish that defendant 

owed a duty of care to protect plaintiffs from defendant Allegretti's dog. 
No. 1-13-2762

13

¶ 43 Both of plaintiffs' counts against defendant are for common law 

negligence. Although the parties discuss the Illinois Animal Control Act (the 

Act) (510 ILCS 5/16 (West 2012)) in their appellate briefs, plaintiffs have not 

alleged a statutory cause of action against defendant condo association pursuant 

to the Act. The Act provides that a dog "owner" is liable in civil damages to a 

person who was attacked by a dog without provocation, if that person was 

peacefully conducting herself in any place where she had a lawful right to be. 

510 ILCS 5/16 (West 2012). The Act defines the word "owner" broadly to 

include any person "who knowingly permits a dog to remain on any premises 

occupied by him or her" (510 ILCS 5/2.16 (West 2012)), and it does not require 

plaintiffs to prove that the defendant knew of a dog's vicious nature. Severson 

v. Ring, 244 Ill. App. 3d 453, 456 (1993). However, in their complaint, 

plaintiffs bring claims of only common law negligence against defendant condo 

association. Plaintiffs do not assert either a statutory claim under the Act or a 

claim of breach of fiduciary duty against defendant condo association. In their 

brief to this court, plaintiffs state: "Plaintiffs' case was filed pursuant to 

common law negligence as opposed to the Illinois Animal Control Act." Thus, 

neither the Act nor any fiduciary duty owed by the condo association is at issue 

on this appeal. 
No. 1-13-2762

14

¶ 44 To state a cause of action for common law negligence, a complaint must 

allege facts that establish: (1) the existence of a duty to use reasonable care 

owed by the defendant to the plaintiffs, (2) a breach of that duty, and (3) an 

injury proximately caused by that breach. Marshall, 222 Ill. 2d at 430; First 

Springfield Bank & Trust v. Galman, 188 Ill. 2d 252, 256 (1999). 

¶ 45 In the case at bar, defendant did not move to dismiss on either the second 

or third elements, which are (2) the breach of a duty or (3) the injuries 

proximately caused by that breach. Defendant argued solely that it lacked (1) a 

duty to use reasonable care.

¶ 46 Whether a duty exists in a particular case is a question of law for the 

court to decide and so it is therefore an appropriate ground for a section 2-615 

motion to dismiss. See Marshall, 222 Ill. 2d at 430 (citing Chandler v. Illinois 

Central R.R. Co., 207 Ill. 2d 331, 340 (2003)). By contrast, whether a 

defendant breached that duty and whether the breach was the proximate cause 

of the plaintiffs' injuries are generally factual matters for a jury to decide, so 

long as there is a genuine issue of material fact regarding those elements. 

Marshall, 222 Ill. 2d at 430 (citing Espinoza v. Elgin Joliet & Eastern Ry. Co., 

165 Ill. 2d 107, 114 (1995)). 

¶ 47 Plaintiffs allege that defendant owed them a duty because defendant 

owned the premises upon which they were injured. To begin with, plaintiffs do 
No. 1-13-2762

15

not allege the status of their presence on the premises. We do not know 

whether they were condo owners, residents, lessees, or invitees. Plaintiffs do 

not allege where the incident occurred, but offer only the conclusion that the 

attack occurred in "a common area." Plaintiffs allege knowledge by defendant 

but not which person, on behalf of the condo association, possessed that 

knowledge, or in what form the residents' complaints were made, or when they 

were made.

¶ 48 To support their allegation that defendant owed them a duty, plaintiffs 

rely primarily on the following four cases: (1) Frost v. Robave, Inc., 296 Ill. 

App. 3d 528, 537-38 (1998); (2) Goennenwein v. Rasof, 296 Ill. App. 3d 650, 

654 (1998); (3) Severson v. Ring, 244 Ill. App. 3d 453, 458 (1993); and (4)

Lucas v. Kriska, 168 Ill. App. 3d 317, 320 (1988). In the majority of these 

cases, no liability was found.

¶ 49 In Frost, this court held that a business entity was not liable in common 

law negligence for a dog attack which occurred on the second-floor landing 

immediately outside of the business' office, although the dog was owned by a 

co-owner of the business and the dog's owner occasionally took the dog to 

work. Frost, 296 Ill. App. 3d at 530-31. The Frost court acknowledged that, 

under common law negligence, a business entity does not necessarily have to be 

the dog's owner to be liable for a dog attack, and that "[f]acts giving rise to a 
No. 1-13-2762

16

duty" occur "where [a] defendant is legally responsible for the premises where 

the injury occurred." Frost, 296 Ill. App. 3d at 537. However, since the attack 

in Frost did not occur on the defendant business' premises and the business did 

not own or have custody or control of the dog, the defendant business could not 

be held liable. Frost, 296 Ill. App. 3d at 537. 

¶ 50 Plaintiffs argue that Frost shows that defendant condo association is 

liable because it is legally responsible for the premises where the attack 

occurred. However, all Frost establishes is that defendant may be liable, not 

that it is.

¶ 51 In Goennenwein, the appellate court affirmed a trial court's grant of 

summary judgment in favor of the defendant, although the defendant was the

undisputed owner of the home where a dog attack occurred. Goennenwein, 296 

Ill. App. 3d at 651, 655. In Goennenwein, a four-year-old was attacked at a 

Passover seder by a dog owned by the adult son of the defendant host and 

premises owner. Goennenwein, 296 Ill. App. 3d at 651-52. The court affirmed

the dismissal of the common-law negligence claim because "plaintiff failed to 

come forward with evidence to raise an issue of fact as to defendant [premises 

owner]'s knowledge of the dog's alleged dangerousness." Goennenwein, 296 

Ill. App. 3d at 655. 

¶ 52 Discussing the issue of knowledge, the court stated:
No. 1-13-2762

17

"It is presumed that a dog is tame, docile, and harmless absent evidence 

that the dog has demonstrated vicious propensities. Lucas v. Kriska, 169 

Ill. App. 3d 317, 320 (1988). To impose a duty on defendant, plaintiff 

needed to establish that defendant knew or had reason to know that the 

dog would be dangerous to children. See Lucas, 168 Ill. App. 3d at 320. 

Because a dog ordinarily is not a danger to children (see Lucas, 168 Ill. 

App. 3d at 320), plaintiff needed to come forward with evidence to show 

that defendant knew that [this particular dog] was a danger to children." 

Goennenwein, 296 Ill. App. 3d at 654-55.

Thus, to impose liability on someone other than the dog's owner under 

principles of common law negligence, plaintiffs must show that a defendant 

premises owner had prior knowledge of the dog's viciousness. Lucas, 168 Ill. 

App. 3d at 320; see also Goennenwein, 296 Ill. App. 3d at 654-55.

¶ 53 The Goennewein court then discussed facts which could have provided

the defendant host and premises owner with the knowledge that the dog might

pose a potential danger to the child. Those facts included whether the dog had

"growl[ed], snarl[ed] or threaten[ed] anyone" in the hours immediately prior to 

the attack, and whether the dog had previously attacked anyone when 

previously on the defendant's premises. Goennenwein, 296 Ill. App. 3d at 655.
No. 1-13-2762

18

¶ 54 Similarly, in Severson, the appellate court also considered what facts 

would provide a premises owner with knowledge that a dog might pose a 

danger, and it also found significant the existence of a prior attack on a person. 

Severson, 244 Ill. App. 3d at 458-59. In Severson, the appellate court held that 

a trial court erred in granting summary judgment on a common-law negligence 

claim, because there was a material issue of fact about whether the defendant 

premises owner knew of the dog's vicious nature. Severson, 244 Ill. App. 3d at 

458-59. In Severson, the appellate court reversed because the dog had bitten 

another child just 20 days before it bit this 2-year-old plaintiff, and because the 

dog owner had stated in front of the defendant premises owner that a person 

should not "go near" his dog when the dog was "chained up" in the defendant's 

yard. Severson, 244 Ill. App. 3d at 458-59. 

¶ 55 In Lucas, which was also cited by plaintiffs, the appellate court held that 

the trial court erred in not entering judgment for the defendant premises owner

on the plaintiff's common-law negligence claim, notwithstanding the jury's 

verdict for the eight-year-old plaintiff. Lucas, 168 Ill. App. 3d at 319, 321. The 

appellate court held that, although the defendant was undisputedly both the 

premises owner and the brother of the dog's owner, reversal was required in 

light of the complete absence of evidence of any prior bites by the dog. Lucas, 

168 Ill. App. 3d at 319, 321. Thus, in Goennenwein, Severson and Lucas, the 
No. 1-13-2762

19

appellate court considered the absence or presence of prior attacks on people 

significant in determining whether a premises owner had the knowledge 

required for a common-law negligence claim that a dog was potentially 

dangerous.

¶ 56 Since the case at bar involved a section 2-615 motion to dismiss rather 

than a summary judgment motion as in both Goennenwein and Severson, 

plaintiffs here do not have to come forward with evidence but only with factual 

allegations. However, they still must allege sufficient facts in order to 

overcome the presumption discussed above in Goennenwein and Lucas that 

dogs are tame, docile and harmless. Goennenwein, 296 Ill. App. 3d at 654-55; 

Lucas, 168 Ill. App. 3d at 320 ("Illinois law presumes the tameness and docility 

of dogs and only imposes liability where there is notice of the dog's vicious 

propensities").

¶ 57 Plaintiffs argue in their appellate briefs that paragraphs 14 through 18 of 

their two negligence counts allege sufficient facts to show the knowledge which 

was lacking in Goennenwein and Lucas:

 "14. That on and prior to August 11, 2011, and at all times relevant 

hereto, [defendant condo association], knew that the dog owned and 

harbored by [defendant Allegretti] was violent or had a propensity for 

violence or a mischievous propensity to cause injury and damage.
No. 1-13-2762

20

15. That prior to August 11, 2011, residents of the Glenview Ridge 

Condominium premises complained to [defendant condo association] 

about the violent nature of the dog owned and harbored by [defendant 

Allegretti].

16. That prior to August 11, 2011, [defendant condo association] 

knew that the dog owned and harbored by [defendant Allegretti] had 

attacked another resident's dog in the common area of the Glenview 

Ridge Condominiums.

17. That prior to August 11, 2011, [defendant condo association] 

knew of said dog attack in the common area of their premises.

18. That prior to August 11, 2011, at least three individuals who lived 

in the Glenview Ridge Condominiums located at 4150 W. Central Road, 

in the City of Glenview, County of Cook, and State of Illinois had 

complained to [defendant condo association] regarding a prior attack by 

said dog, the dog's presence in the building despite the violation of the

Defendant's rules and regulations, and general nuisance complaints 

regarding the dog owned and harbored by [defendant Allegretti]."

¶ 58 When these paragraphs are stripped of their legal conclusions and 

reduced to only their factual allegations, the paragraphs allege that three 
No. 1-13-2762

21

individuals living at the condo premises complained to defendant condo 

association about "[1] a prior attack by said dog, [2] the dog's presence in the 

building despite the violation of the Defendant's rules and regulations, and [3] 

general nuisance complaints."

¶ 59 Of these three factual allegations, only one relates to the dog's potentially 

violent nature, namely, the alleged prior attack. The dog's presence in violation 

of defendant's regulations and general nuisance complaints reveals nothing 

about a potential propensity for violence. Nuisance complaints could be due to 

barking; and the violation of defendant's regulations, according to plaintiffs, 

was because the dog was over 25 pounds. Illinois courts do not presume that 

any particular breed, size or type of dog is vicious, and every dog must be 

evaluated individually. Goennenwein, 296 Ill. App. 3d at 655 

¶ 60 As for "the prior attack" identified in paragraph 18, paragraph 18 does 

not allege what the Allegretti dog attacked: whether the target of this prior 

attack was a person, another unleashed dog, a cat, a squirrel or a piece of 

furniture. The complaint does not allege any of the circumstances of this prior 

attack, such as whether the dog attacked to ward off a perceived danger to its 

owner. Although the complaint states repeatedly that the attack on plaintiffs 

was "unprovoked," the complaint does not make the same assertion with respect 

to this prior attack.
No. 1-13-2762

22

¶ 61 In paragraph 16, the complaint does allege that defendant condo 

association knew of a prior attack by the Allegretti dog on "another resident's 

dog in the common area." If the attacks in paragraphs 16 and 18 are one and 

the same, this allegation is still not sufficient, without more, to show that 

defendant had knowledge that this dog was likely to attack, without any 

provocation, people peaceably walking through the common areas of the condo 

association. Again, there are no allegations concerning the circumstances of 

this prior attack, such as the date, whether there were any injuries or bites, 

whether the dog's owner was under any threat or danger, whether the attack was 

unprovoked, or whether the dogs involved were unleashed. 

¶ 62 Nowhere does the complaint allege the facts discussed in prior appellate 

cases such as whether the dog previously snarled at, growled at, threatened or 

attacked another person. Goennenwein, 296 Ill. App. 3d at 655 (appellate court 

considered whether the dog had previously attacked, "growl[ed], snarl[ed] or 

threaten[ed] anyone"); Severson, 244 Ill. App. 3d at 458-59 (a recent prior 

attack, plus a warning by the dog owner delivered in front of the defendant 

premises owner, created a material issue of fact about the premises owner's 

knowledge); Lucas, 168 Ill. App. 3d at 321 (the trial court erred in not granting 

judgment notwithstanding the verdict in light of the complete absence of 

evidence of prior bites by the dog). As a result, plaintiffs' second amended 
No. 1-13-2762

23

complaint fails to show knowledge by defendant condo association, and we 

must affirm the trial court's dismissal of the counts against defendant condo 

association. Primax, 365 Ill. App. 3d at 1010 ("mere conclusory allegations 

unsupported by specific facts will not suffice"). 

¶ 63 We observe that the second amended complaint is plaintiffs' third attempt 

at drafting a complaint, and plaintiffs did not seek leave to amend for a third 

time after defendant argued for a third time both that knowledge was an issue

and that plaintiffs' allegations of knowledge were "conclusory." A reviewing 

court must presume that another attempt at repleading will be fruitless when

there is no proposed amended pleading in the record. Lake County Grading Co. 

of Libertyville, Inc. v. Advance Mechanical Contractors, Inc., 275 Ill. App. 3d 

452, 461 (1995).

¶ 64 CONCLUSION

¶ 65 For the foregoing reasons, we affirm the trial court's dismissal of counts 

VII and VIII in plaintiffs' second amended complaint against defendant condo 

association.

¶ 66 Affirmed.