## Facts

- Donna Luck owned a 75-acre farm but did not live on the property; she visited periodically.
- Luck rented the farmhouse on the farm to Daniel Lesko under a lease that prohibited Lesko from keeping his large dog inside the farmhouse.
- Although the lease barred the dog from the house, Luck permitted Lesko to keep the dog in an old barn on the property that was otherwise used only for storage.
- Luck had no other contact with the dog; Lesko exclusively provided the dog’s care and maintained custody and control over it.
- The dog escaped from the barn area and ran onto an adjacent road.
- Douglas Whitten was riding a motorcycle on the road when the dog crossed into his path, causing Whitten to lose control and fall, resulting in injuries.
- Whitten sued for damages under the Illinois Animal Control Act (ACA), alleging Lesko was liable as the dog’s legal owner and Luck was also liable as a statutory “owner” because she “harbored” the dog by allowing it to remain on her premises.
- Lesko filed bankruptcy and was discharged from the suit, leaving Luck as the primary defendant for purposes of the appeal.
- The circuit court granted summary judgment to Luck, finding her limited involvement with the dog did not make her an “owner” under the ACA.
- Whitten appealed to the Illinois Appellate Court, Fifth District.

## Issues

1. Whether, under the Illinois Animal Control Act, an absentee landlord becomes a statutory “owner” of a tenant’s dog by permitting the dog to be kept in a barn on the landlord’s property when the landlord does not otherwise care for, possess, or control the dog.
2. Whether summary judgment for the landlord was proper when the record showed the tenant had exclusive care, custody, and control of the dog.

## Decision

- The appellate court affirmed the circuit court’s grant of summary judgment for Luck.
- The court held Luck was not a statutory “owner” under the ACA because she did not own the dog and did not possess, keep, or exercise care, custody, or control over it.
- The court rejected Whitten’s argument that Luck “harbored” the dog merely because she allowed Lesko to keep it in the barn; permission to house the dog on the property, without a custodial or controlling relationship to the animal, was insufficient.
- A dissenting justice would have treated the statutory “owner” question as one for the factfinder in light of Luck’s permission for the dog to stay in the barn on her property.

## Legal Principles

- Under the Illinois Animal Control Act, statutory “owner” status turns on a relationship to the animal that involves possession, keeping, harboring, care, custody, control, or a comparable responsibility for the animal’s presence and conduct.
- A landlord’s ownership of the premises, standing alone, does not make the landlord a statutory “owner” of a tenant’s animal for ACA strict-liability purposes.
- “Harboring” under the ACA requires more than allowing an animal to be on one’s property; it requires a meaningful level of custody or control over the animal or responsibility for its care or confinement.
- Summary judgment is proper where the material facts show the defendant lacked the type of control or custodial role the ACA requires for statutory “owner” liability.

## Conclusion

The Illinois Appellate Court affirmed summary judgment for Donna Luck, holding that an absentee landlord who merely permitted a tenant to keep a dog in a barn on the landlord’s property—without owning, possessing, caring for, or controlling the dog—was not a statutory “owner” under the Illinois Animal Control Act and therefore was not strictly liable for injuries caused when the dog escaped and interfered with Douglas Whitten’s motorcycle.


Whitten v. Luck, 6 N.E.3d 866 (2014)