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plaintiffdefendanttrialverdicttestimony

plaintiffdamagesappealtrialtestimony

Related Cases

Vanderlei v. Heideman, 83 Ill.App.3d 158, 403 N.E.2d 756, 38 Ill.Dec. 525

Facts

The plaintiff, a licensed horseshoer since 1972, was hired by the defendant to trim and shoe several horses. On August 13, 1977, while shoeing the defendant's stallion, the plaintiff was injured when the horse kicked him. The plaintiff had trimmed and shod multiple horses that day and was aware of the risks involved in handling horses, having been kicked on several previous occasions. The defendant raised the defense of assumption of risk, which was dismissed at trial, leading to a jury verdict in favor of the plaintiff.

The plaintiff has been a licensed horseshoer since 1972 and has been actively engaged in the business of shoeing horses either on a full or part-time basis since that date.

Issue

Whether the owner of a horse is strictly liable under the Animal Control Act for injury to a hired horseshoer who, without provocation, is kicked by the animal.

The question raised by this appeal is whether the owner of a horse is strictly liable under the Animal Control Act (Ill.Rev.Stat.1977, ch. 8, par. 366) for injury to a hired horseshoer, who, without provocation is kicked by the animal.

Rule

Proof of assumption of risk is not precluded as a defense to an action brought under the Animal Control Act, and assumption of risk is ordinarily a jury question, but can be determined as a matter of law when the plaintiff has prior knowledge of the risks involved.

Proof of assumption of risk is not precluded as defense to action brought under Animal Control Act section providing that if a dog or other animal without provocation attacks or injures any person peaceably conducting himself in any place where he may lawfully be, owner of such dog or animal is liable in damages.

Analysis

The court analyzed the facts and determined that the plaintiff, as a professional horseshoer, was aware of the risks associated with his work, including the possibility of being kicked by a horse. The plaintiff's own testimony indicated that he had encountered this risk before and had voluntarily accepted it as part of his profession. Therefore, the court concluded that the defense of assumption of risk applied, and the lower court's dismissal of this defense was erroneous.

The plaintiff's own testimony shows that getting kicked is a “normal” risk which he envisioned as a horseshoer. He admitted that he had been kicked on several previous occasions and that twice before he had been kicked under circumstances similar to those involved here.

Conclusion

The court reversed the judgment of the lower court, ruling that the plaintiff had assumed the risk of injury as a matter of law and that a new trial was not warranted.

We therefore reverse the judgment. In so doing we have given consideration to the question of whether the case should be remanded for a new trial.

Who won?

Defendant; the court ruled in favor of the defendant by reversing the lower court's decision, stating that the plaintiff had assumed the risk of injury.

We therefore conclude that proof of assumption of risk is not precluded as a defense to an action brought under Section 16 of the Animal Control Act.

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