Papesh v. Matesevac
223 Ill.App.3d 189, 584 N.E.2d 549, 165 Ill. Dec. 370 (1991)
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Rule of Law:
Under the Illinois Animal Control Act, a person is considered an 'owner' of an animal, and thus liable for its actions, only if they exercise some measure of care, custody, or control over it. A noncustodial parent who does not live with the animal, provide for its care, or exercise control over it is not an 'owner' under the Act, even if they originally purchased the animal for their child.
Facts:
- Barbara Matesevac and Raymond Matesevac divorced in 1982, with their two children initially residing with Barbara.
- In July 1985, Barbara Matesevac purchased a dog named Rupert for her son, Jason.
- In June 1987, Jason and his sibling went to live with their father, Raymond Matesevac.
- In February 1988, after a fire at Barbara's house, Rupert and his pen were permanently moved to Raymond's residence.
- From February 1988 onward, Barbara did not physically care for Rupert or pay for the dog's expenses.
- In July 1988, Jason asked his next-door neighbor, Denise Fay Papesh, to care for Rupert while he and his father were away.
- During this time, Rupert attacked and injured Papesh.
Procedural Posture:
- Denise Fay Papesh filed a complaint against Barbara Matesevac and Raymond Matesevac in the Will County circuit court (trial court).
- Barbara Matesevac filed a motion for summary judgment, arguing she was not the dog's 'owner' under the Animal Control Act.
- The trial court granted the motion for summary judgment, entering judgment in favor of Barbara Matesevac.
- Denise Fay Papesh, as the plaintiff-appellant, appealed the trial court's decision to the appellate court.
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Issue:
Does a noncustodial parent who originally purchased a dog for her child, but who no longer provides any care, custody, or control over the animal, qualify as an 'owner' under the Illinois Animal Control Act and thus become liable for injuries caused by the dog?
Opinions:
Majority - Justice Gorman
No, a noncustodial parent in this situation does not qualify as an owner. The Illinois Animal Control Act's definition of 'owner' includes a 'harborer' or 'keeper,' which courts have consistently interpreted to require some measure of care, custody, or control. At the time of the incident, Barbara Matesevac exercised no such control over Rupert. The dog lived with her ex-husband and son, was licensed under the son's name, and she had not provided any physical or financial care for it in months. Her general instructions to her son about dog care were deemed typical parental advice to teach responsibility, not an exercise of control over the dog itself. Extending liability to a noncustodial parent who is not in a position to prevent harm would contradict the legislative policy of placing responsibility on those best able to control the animal.
Analysis:
This decision clarifies that for liability under the Animal Control Act, 'ownership' is determined by functional control rather than historical connections or legal title. It sets a precedent that shields noncustodial parents from liability for pets they no longer house or control, reinforcing the principle that responsibility should lie with the party in the best position to prevent injury. This shifts the legal focus in similar future cases from who bought the animal to who currently exercises day-to-day care, custody, and control over it.
