Illinois Official Reports

Appellate Court

Dzierwa v. Ori, 2020 IL App (2d) 190722

Appellate Court 

Caption

JAMIE DZIERWA, Plaintiff-Appellant, v. JOSEPH ORI, 

ELISABETH ORI, and BRAD HOEBEL, Defendants (Joseph Ori and 

Elisabeth Ori, Defendants-Appellees).

District & No. Second District 

No. 2-19-0722

Filed October 7, 2020

Decision Under 

Review

Appeal from the Circuit Court of Du Page County, No. 16-L-461; the 

Hon. Robert W. Rohm, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Joseph LaRocco, of Law Offices of Francis J. Discipio, Ltd., of 

Oak Brook, for appellant.

Andrea R. Zenker, of Higgins & Burke, P.C., of St. Charles, for 

appellees.

Panel JUSTICE JORGENSEN delivered the judgment of the court, with 

opinion.

Justices McLaren and Bridges concurred in the judgment and opinion.
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OPINION

¶ 1 Plaintiff, Jamie Dzierwa, brought suit against defendants, Joseph Ori, Elisabeth Ori, and 

Brad Hoebel, seeking recovery for injuries sustained when the Oris’ dog, a 105-pound cane 

corso named Fiona, bit her. Dzierwa asserted claims under a theory of negligence and under 

the Animal Control Act (Act) (510 ILCS 5/1 et seq. (West 2018)). The Oris moved for 

summary judgment on the claims against them. The trial court granted the motion, and Dzierwa 

brought this appeal.1 We affirm.

¶ 2 I. BACKGROUND

¶ 3 Dzierwa’s injury occurred at the Oris’ home on July 25, 2015. The Oris were out of town, 

and Hoebel, who is Elisabeth’s brother, was house-sitting and taking care of Fiona. According 

to depositions submitted in support of the Oris’ summary judgment motion, before leaving 

town, Elisabeth instructed Hoebel to “feed [Fiona] and walk her and give her love.” Hoebel 

had taken care of Fiona on a few prior occasions. Dzierwa and several others were visiting the 

Oris’ home at Hoebel’s invitation. At her deposition, Elisabeth testified that she was aware that 

Hoebel had friends over at the Oris’ home on prior occasions. On the other hand, Joseph 

testified that Hoebel was told not to have anyone visit the home other than Hoebel’s girlfriend.

¶ 4 Fiona had never bitten anyone or exhibited aggressive behavior prior to biting Dzierwa. 

She did not typically jump on visitors to the Oris’ home. As of March 2018, when Elisabeth 

gave her deposition, the Oris had owned Fiona for seven years. Some children were fearful of 

Fiona, and the Oris would keep Fiona and those children apart. Otherwise, the Oris did not 

generally keep Fiona away from guests. Elisabeth testified that Fiona would growl at people 

“[f]rom the car, through the window.” Joseph testified that Fiona would growl through the 

window when strangers approached the Oris’ home. Fiona did not like other dogs and would 

bark at them. On one occasion in 2015, prior to injuring Dzierwa, Fiona got into a fight with 

another dog at a dog park.

¶ 5 II. ANALYSIS

¶ 6 We first consider whether the trial court erred in entering summary judgment for the Oris 

on Dzierwa’s common-law negligence claim. Summary judgment will be entered “if the 

pleadings, depositions, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2018). “A genuine issue of material 

fact precluding summary judgment exists where the material facts are disputed, or, if the 

material facts are undisputed, reasonable persons might draw different inferences from the 

undisputed facts.” Adames v. Sheahan, 233 Ill. 2d 276, 296 (2009). Rulings on summary 

judgment motions are subject to de novo review. Lewis v. Lead Industries Ass’n, 2020 IL 

124107, ¶ 15.

¶ 7 The elements of a cause of action for negligence are “the existence of a duty of care owed 

by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by 

that breach.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 430 (2006). In a negligence action 

1

This is an interlocutory appeal, as the Oris claim against Hoebel under the Act remains pending.
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arising from an injury caused by a dog, the plaintiff must prove that the defendant “knew or 

had reason to know the dog would be dangerous.” (Internal quotation marks omitted.) Sedlacek 

v. Belmonte Properties, LLC, 2014 IL App (2d) 130969, ¶ 21.

¶ 8 Dzierwa argues that summary judgment was improper because the deposition testimony 

shows that the Oris knew or had reason to know of Fiona’s vicious propensities. She points to 

the testimony that Fiona had gotten into a fight with another dog at a dog park. However, fights 

between dogs do not presage attacks on humans. See Keightlinger v. Egan, 65 Ill. 235, 237 

(1872) (“To charge the defendant, he must have had knowledge of the dog’s propensity to do 

similar mischief—that is, to bite mankind, and not animals only.”); Klitzka v. Hellios, 348 Ill. 

App. 3d 594, 601 (2004) (altercations with unfamiliar dogs did not indicate that dog was a 

danger to children). Dzierwa also points to testimony that Fiona growled when people came to 

the door. Dzierwa cites no Illinois case law holding that the owner of a dog who growls at 

people is on notice that the dog poses a threat to humans, and we have found none. However, 

we agree with courts in other jurisdictions that have declined to so hold. See, e.g., Hiner v. 

Mojica, 722 N.W.2d 914, 919 (Mich. Ct. App. 2006) (“While the evidence indicated that 

defendant’s dog was barking, snarling, and jumping toward *** plaintiff [and a coworker], the 

evidence did not establish that the dog was abnormally vicious, or that the dog had unusually 

dangerous propensities of which defendant knew or should have known.”); Fontanas v. Wilson, 

751 N.Y.S.2d 656, 657 (App. Div. 2002) (evidence “establish[ing] nothing more than the fact 

that defendants own a large dog who barks or growls when strangers approach his owners or 

his property” was insufficient to establish vicious propensities). Because there is no evidence 

that the Oris knew or had reason to know that Fiona was dangerous, they were entitled to 

judgment as a matter of law on Dzierwa’s common-law negligence claim.

¶ 9 We next consider whether it was error to enter summary judgment on Dzierwa’s claim 

under the Act. Section 16 of the Act provides:

“If a dog or other animal, without provocation, attacks, attempts to attack, or injures 

any person who is peaceably conducting himself or herself in any place where he or 

she may lawfully be, the owner of such dog or other animal is liable in civil damages 

to such person for the full amount of the injury proximately caused thereby.” 510 ILCS 

5/16 (West 2018).

“Owner” means “any person having a right of property in an animal, or who keeps or harbors 

an animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog 

to remain on any premises occupied by him or her.” Id. § 2.16.

¶ 10 Although it would seem from the Act’s language that it would impose strict liability on 

anyone with a property interest in the dog, courts have read the Act to “ ‘require a factual or 

reasonable basis for liability.’ ” Hayes v. Adams, 2013 IL App (2d) 120681, ¶ 13 (quoting 

Wilcoxen v. Paige, 174 Ill. App. 3d 541, 543 (1988)). Thus, the Act “has been held not to apply 

in several situations where the plaintiff has brought himself or herself within its express terms.” 

Id. ¶ 14.

¶ 11 In Hayes, we held that the legal owner of a dog could not be held liable for an injury it 

caused where “she was not in a position to control the dog or prevent the injury.” Id. ¶ 20. In 

Hayes, the defendant brought the dog to a veterinary clinic for a surgical procedure. A clinic 

employee took the dog for a walk before the procedure, using a leash owned by the clinic. The 

dog escaped from the leash, ran away, and bit the plaintiff, who was trying to catch the dog. 

Because the defendant “relinquished care, custody, and control to the veterinary clinic, and 
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there was nothing to indicate that she had any reason to believe that the clinic would allow the 

dog to escape or that the dog would bite someone” (id.), there was no reasonable basis for 

imposing liability. Similarly, the Oris relinquished care, custody, and control of Fiona to 

Hoebel, and, as explained in connection with Dzierwa’s common-law negligence claim, the 

Oris had no reason to believe that Fiona would pose a danger to Hoebel’s guests.

¶ 12 In an effort to distinguish Hayes, Dzierwa argues that, unlike the defendant in Hayes, the 

Oris “controlled the human traffic to which the dog would be exposed.” The argument is 

unpersuasive. The Oris relinquished full control over Fiona, giving Hoebel broad discretion to 

make decisions as to how to care for her and protect others from violent encounters with her. 

That discretion extended to determining whether and how to limit Fiona’s contact with other 

people. Dzierwa’s argument seems to be that the Oris had control over Fiona because they had

control over how much discretion to give Hoebel to control Fiona. That sort of indirect control 

is not sufficient to impose liability under the Act. One of the principal cases upon which Hayes

relied—Carl v. Resnick, 306 Ill. App. 3d 453 (1999)—supports our conclusion. In Carl, Judy 

Carl (the plaintiff), Shelly Resnick (the defendant), and a third woman, Kathy Paddock, were 

riding horses. Resnick owned the horses that Carl and Paddock were riding. Carl was injured 

when the horse that Paddock was riding kicked her. The Carl court concluded that, for purposes 

of liability under the Act, Resnick was an owner of the horse. The court stressed that

“[Resnick] was more than the mere legal owner of the horse at the time of the incident. 

Although Paddock was riding [Resnick’s] horse, not only was [Resnick] present when 

the incident occurred, but she testified in her deposition that she would never let 

anybody ride her horse without her being present. When asked why not, she responded 

‘[b]ecause she’s mine. I wouldn’t ever send my horse out with anybody else besides 

me.’ [Resnick’s] testimony, in conjunction with her presence at the time of the incident

and her legal ownership of the horse, clearly established that she maintained care, 

custody, and control of her horse to bring her within the definition of ‘owner’ found in 

the Animal Control Act.” (Emphasis added.) Id. at 463-64.

The necessary implication is that Resnick would not have been considered the “owner” of the 

horse that Paddock was riding if Resnick had fully relinquished control of the horse to Paddock 

by letting her ride unaccompanied.

¶ 13 In a further effort to escape the rule in Hayes, Dzierwa cites an unpublished order decided 

under Illinois Supreme Court Rule 23(b) (eff. Apr. 1, 2018): Schmit v. Metcalf, 2017 IL App 

(2d) 151040-U. Although Dzierwa recognizes that such orders are not precedential (see Ill. S. 

Ct. R. 23(e)(1) (eff. Apr. 1, 2018)), she contends that she is citing it here merely so that we can 

consider its “rationale and reasoning.” However, that is not a permissible purpose for which a 

Rule 23 order may be cited. Rule 23(e)(1) expressly states that such orders “may not be cited 

by any party except to support contentions of double jeopardy, res judicata, collateral estoppel 

or law of the case.” Id. Dzierwa correctly notes that, in In re Estate of LaPlume, 2014 IL App 

(2d) 130945, ¶ 24, we cited a Rule 23 order “as an example of a court’s reasoning and as a 

reasonability check.” However, this court is not a “party” and so is not subject to Rule 23(e)’s 

limitation on the purposes for which Rule 23 orders may be cited. See Crystal Lake Ltd. 

Partnership v. Baird & Warner Residential Sales, Inc., 2018 IL App (2d) 170714, ¶ 86. 

Because the citation of Schmit violates Rule 23(e), we will not consider that case.

¶ 14 Because the Oris lacked control over Fiona during the relevant time frame, they were not 

subject to liability under the Act and were entitled to summary judgment on the claim based 
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on the Act.

¶ 15 III. CONCLUSION

¶ 16 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 17 Affirmed.