Sarah C. Deutch v. State of Illinois

ORDER

MCGLYNN, J. This matter comes before the Court on Claimant’s Motion for Partial Summary Judgment and Respondent’s Motion for Summary Judgment. Both parties argue that each is entitled to summary judgment on the legal issue of whether Respondent, Southern Illinois University at Edwardsville (hereinafter “SIUE”) had a duty to abate or warn Claimant about potential aggressive tendencies of migratory Canada geese, particularly in the proximity of a nest.

Claimant was a visitor to the University Campus Art and Design Building. Upon entering the Building, she did not see any warning of the location of nests or potentially aggressive geese.

Upon exiting, a goose confronted her. She attempted to move around the goose and unwittingly moved between the goose and its nest. When she did so, the goose flew at her and chased her.

Claimant fell, struck her head on the brick facade of the Building, and severely injured her shoulder. Claimant asserts that if she had been aware that there was a nest in the area of the Building, she “could have made a better effort to avoid the area near the nest.” She thought it reasonable to attempt to move around the goose to leave.

Illinois courts have followed the common law rule that an owner or keeper of a domestic animal is strictly liable for injuries caused by the animal only if the plaintiff can show that the animal had an uncommon “mischievous” or dangerous propensity to commit such an injury and that the owner had actual knowledge of the propensity. Domm v. Hollenbeck, 259 Ill. 382, 385; 102 N.E. 782, 783 (1913); Forsyth v. Dugger, 169 Ill.App.3d 362, 523 N.E.2d 704, 707, 119 Ill.Dec. 948, 951 (4th Dist. 1988). Accord: Restatement (Second) of Torts §509 (1977). In the matter at bar, SIUE is not an owner or keeper; the Canada goose is not a domestic animal; Claimant has not established SIUE officials had actual knowledge of this goose’s dangerous propensity to commit injuries to person.

By statute, Illinois has broadened the strict liability of owners and keepers of animals.

Section 16 of the Illinois Animal Control Act (510 ILCS 5/16 (1994)) provides: If a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained. [*125]

Again, SIUE is not the owner of this Canada goose.

Another cause of action is created by the Domestic Animals Running At Large Act (DARAL) (510 ILCS 55/1-55/5.1 (1994): No person or owner of livestock [the definition of “livestock” in the Act includes domesticated “geese” but not Canada geese] shall allow livestock to run at large in the State of Illinois. All owners of livestock shall provide the necessary restraints to prevent such livestock from so running at large and shall be liable in civil action for all damages occasioned by such animals running at large; provided, that no owner or keeper of such animals shall be liable for damages in any civil suit for injury to the person or property of another caused by the running at large thereof, without the knowledge of such owner or keeper, when such owner or keeper can establish that he used reasonable care in restraining such animals from so running at large.

This statute, however, applies only when grazing livestock escape from confinement.

Moore v. Roberts, 193 Ill.App.3d 541, 549 N.E.2d 1277, 140 Ill.Dec. 405 (4th Dist. 1990).

Moreover, SIUE does not own the Canada goose nor keep it as livestock.

Thus, Illinois has imposed duties only upon “owners” and “keepers.” SIUE is not an “owner” or “keeper” as those terms are defined in Illinois law. Illinois has not extended the common law nor statutory duties and liability to landowners upon whose land migratory birds or animals repose or nest. In fact, the federal government has preempted the regulation of Canada geese. All Canada geese are considered migratory birds and protected under the Migratory Bird Treaty Act, 16 U.S.C. 703-711. Federal regulations govern management and resolution of conflicts caused by Canada geese. Regulations governing the issuance of permits to take, capture, kill, possess and transport migratory birds are authorized by the Act, promulgated in Title 50 Code of Federal Regulations Parts 13 and 21 and issued by the U.S. Fish and Wildlife Service.

SIUE is limited in its discretion in ridding the campus of the nuisance of Canada geese.

Mr. Peter McLaughlin, Assistant Superintendent of Grounds, testified that Canada geese are protected by federal law, and SIUE is required to obtain permits from USDA and IDNR before taking potentially lethal actions against geese and population control measures relating to eggs and nests. The fact that SIUE is regulated in its conduct in regard to Canada geese is significant.

Restatement (Second) of Torts, §517 provides: “The rules as to strict liability for dangerous animals do not apply when possession of the animal is in pursuance of a duty imposed on the possessor as a public officer or as a common carrier.” The federal government has imposed regulations on SIUE regarding eliminating or culling the flocks of migratory Canada geese.

McLaughlin also testified that prior non-lethal efforts to relocate particular geese from busy areas of campus to remote areas were unsuccessful. The Canada geese return to their desired place of repose, nesting.

Claimant cites to public news reports which demonstrate Administrators at SIUE were aware of aggressive actions of Canada geese to pedestrians prior to Claimant’s injury. Claimant [*126] points out published reports that in response, SIUE in 2013 announced a Charity Goose Harvest: a plan in cooperation with the USDA to gather up Canada geese on campus, transport them to a food-processing center, and donate the food products to needy individuals. The event was cancelled due to student and animal rights activists who, among other things, cited a lack of injuries. This demonstrates that the migration of geese on campus is not only a matter of federal regulation, but the sense of the community is to tolerate the occasional aggressive behavior. This sense of the community is a consideration as to the practical implication of this Court imposing new duties to a community which prefers patience to paté.

Claimant argues that the University should have placed signs or cordoned off the area where nests are known to exist. First, Claimant did not establish that SIUE officials had actual knowledge of the location of this nest, nor actual knowledge of the aggressive demeanor of this particular Canada goose. Second, the Court will decline under these facts before us, to extend common law or statutory duties to create a duty on SIUE to post signs or cordon off areas where potentially a nest or aggressive Canada goose may repose.

Accordingly, Claimant’s Motion for Partial Summary Judgment is denied. Respondent’s Motion for Summary Judgment is granted.