Leith v. Frost

899 N.E.2d 635, 387 Ill. App. 3d 430, 326 Ill. Dec. 418, 2008 Ill. App. LEXIS 1337
CourtAppellate Court of Illinois
DecidedDecember 31, 2008
Docket4-07-0964
StatusPublished
Cited by9 cases

This text of 899 N.E.2d 635 (Leith v. Frost) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leith v. Frost, 899 N.E.2d 635, 387 Ill. App. 3d 430, 326 Ill. Dec. 418, 2008 Ill. App. LEXIS 1337 (Ill. Ct. App. 2008).

Opinion

JUSTICE APPLETON

delivered the opinion of the court:

Plaintiffs, Mark and Mindy Leith, sued defendant, Andrew E. Frost, for tortious damage to their personal property, a dachshund named Molly. In a bench trial, plaintiffs presented evidence that defendant’s Siberian husky, Cosmo, intruded into their backyard and attacked Molly. The trial court found in plaintiffs’ favor but awarded them only $200, Molly’s fair market value, rather than the $4,784 in veterinary expenses they were seeking. Plaintiffs appeal from the award of damages, and defendant appeals from the finding of liability. To prevent the award of damages from being merely nominal, we modify the trial court’s judgment so as to award plaintiffs $4,784 in damages. Otherwise, we affirm the judgment.

I. BACKGROUND

Defendant lived next door to plaintiffs on North Jefferson Street in Lincoln. His backyard was enclosed by a wooden stockade fence six feet high. Inside this fence, he kept his three Siberian huskies, one of which was named Cosmo. Plaintiffs’ backyard also was enclosed by a wooden stockade fence six feet high. The two fences almost abutted one another; they were four or five inches apart. Plaintiffs owned two dachshunds, one of which was named Molly. Often, plaintiffs let their dachshunds out of the house and into the backyard. The huskies dug under the fences, trying to get into plaintiffs’ backyard, but the parties filled the holes with dirt, rocks, and bricks.

Mindy Leith testified that on April 27, 2006, she came home and let the two dachshunds out into the backyard. Then she went back into the house and unloaded groceries. She heard one of the dachshunds yapping, and when she ran outside, Cosmo was in the backyard — not defendant’s backyard but plaintiffs’ backyard. He had Molly pinned down in a flowerbed, and he was mauling her as if to “gut” her. Mindy recognized Cosmo because she had seen him in the past by looking over the fence. As Mindy delivered kicks to Cosmo, Molly used her front feet to drag herself under some patio furniture. With Cosmo lunging and snapping under the patio furniture, Mindy pulled Molly out and carried her into the house. The other dachshund followed them inside. Mark Leith came home and used a rake to chase Cosmo out the front gate.

Mindy took Molly to a veterinarian in Atlanta, Illinois, and, from there, to the veterinary teaching college at the University of Illinois in Champaign. On the way to Champaign, Mindy called defendant and told him that the estimated cost of treating Molly’s injuries would be $4,000 with $2,000 down. According to her, defendant admitted he was responsible, and he agreed to pay the veterinary expenses. Mindy testified she would have taken Molly to the University of Illinois in any event. The veterinary bills totaled $4,784, all of which plaintiffs paid out of pocket, the first $2,000 with a credit card and the rest in installments.

On cross-examination, Mindy admitted she had never approached close enough to defendant’s dogs to pet them. The huskies had been next door since April 1, 2006, and she had seen them by looking over the fence. She also had seen them when they stuck their snouts through the holes they had dug or when they were jumping. She testified: “I was outside mowing my yard[,] and the same dog was jumping over the very front of the fence ***.” She did not see Cosmo enter her backyard on April 27, 2006, but because all the holes under the fence had been filled, she believed that Cosmo “definitely came over the fence.”

Defendant testified that before he moved next door to plaintiffs, he lived with his parents on Oglesby Street and Cosmo twice escaped from a chain-link kennel at that address. “[H]e stuck his nose in the corner and was able to lift it up and sneak under.” At North Jefferson Street, defendant realized his dogs had dug under the fence when he received “a complaint from [Mindy] about seeing [his] dog’s nose underneath the fence.” Actually, Mindy called his mother, who in turn called him. He then “dug a little trench about a foot wide and put two layers of bricks in the trench along the fence,” in between his fence and plaintiffs’ fence.

Before the incident on April 27, 2006, Cosmo escaped from defendant’s backyard on North Jefferson Street either once or twice, depending on how one interprets defendant’s testimony. The first time, Cosmo escaped by breaking a plank off the fence and “squeezing] out.” In the following testimony, defendant seemed to be describing another escape:

“Q. Prior to the accident[,] had any of your dogs ever jumped over the fence in your backyard?
A. No.
Q. Ms. Leith testified that she had seen your dogs kind of jumping high prior to the accident. Why were they — do you know how they were able to jump so high?
A. Whenever I moved in[,] I wasn’t thinking clearly[,] I guess[,] and I put the dog[ ]house right up against the fence ***, and they were able to jump up and get their paws above and come over[,] and then I got a call[,] or my mom got a call[J from Ms. Leith stating what was going on. So I went home and instantly moved the dog[ ]house away[,] and it has never been there since.”

Twice in his testimony, defendant mentioned Mindy’s calling his mother instead of him, and Mindy also mentioned calling defendant’s mother because he was not easy to reach. Apparently, he put in a lot of hours working. In addition to student-teaching in Springfield, he had been holding down two jobs, one at Kroger and the other at Federal Express. Therefore, by his own admission, “[t]he amount of time that [he was] actually home to see what [his] dogs were up to was pretty limited.”

On April 27, 2006, defendant got off work at Kroger at 7:30 p.m. He rushed home and changed clothes because he was expected for supper at his parents’ house at 7:45 p.m. He came out of his house and got into his truck, and “Mindy came pounding on the back of [his] truck[,] yelling and screaming about how [his] dog ate her dog and she was going to kill [his] dog.” Defendant “was ready to speed away to [his] parents’ house,” and he did not check on his dogs at that time. He had never known the dogs to be vicious toward man or beast; he had never known them to even bark at plaintiffs’ dogs. He denied admitting fault or agreeing to pay any veterinary bills; the most he told Mindy was he would “see what [he] could do.” As it turned out, Cosmo was not in defendant’s backyard when defendant left for his parents’ house that evening. Cosmo returned home about an hour after Mindy left for the veterinarian’s office in Atlanta. He had no blood or injuries on him.

According to defendant, a couple of other dogs in the neighborhood somewhat resembled Cosmo. Plaintiffs’ fence was 15 years old and deteriorating. In fact, a plank on it fell apart as he was constructing his own fence, and he went ahead and put a new plank up to replace the old one. Three months after the incident, defendant was in his backyard, taking care of his dogs, when he “overheard Mark Leith cussing up a storm about how his [(Mark’s)] dogs were digging along the fence.”

Defendant called Sharon Raleigh, who testified she had been operating a kennel in Armington for 12 years.

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Cite This Page — Counsel Stack

Bluebook (online)
899 N.E.2d 635, 387 Ill. App. 3d 430, 326 Ill. Dec. 418, 2008 Ill. App. LEXIS 1337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leith-v-frost-illappct-2008.