Illinois Dog Bite Law
CHAPTER 510. ANIMALS
ANIMAL CONTROL ACT
510 ILCS 5/13 (2003)
[Prior to 1/1/93 cited as: Ill. Rev. Stat., Ch. 8, para. 363]
§ 510 ILCS 5/13. Dog or other animal bites; observation of animal
Sec. 13. Dog or other animal bites; observation of animal. (a) Except as otherwise provided in subsection (b) of this Section, when the Administrator receives information that any person has been bitten by a dog or other animal, the Administrator, or his authorized representative, shall have such dog or other animal confined under the observation of a licensed veterinarian for a period of 10 days. The Department may, by regulation, permit such confinement to be reduced to a period of less than 10 days. Such veterinarian shall report the clinical condition of the dog or other animal immediately, with confirmation in writing to the Administrator within 24 hours after the dog or other animal is presented for examination, giving the owner's name, address, the date of confinement, the breed, description, age, and sex of such dog or other animal, on appropriate forms approved by the Department. The Administrator shall notify the attending physician or responsible health agency. At the end of the confinement period, the veterinarian shall submit a written report to the Administrator advising him of the final disposition of such dog or other animal on appropriate forms approved by the Department. When evidence is presented that such dog or other animal was inoculated against rabies within the time prescribed by law, it may be confined in the house of its owner, or in a manner which will prohibit it from biting any person for a period of 10 days, if the Administrator, or other licensed veterinarian, adjudges such confinement satisfactory. The Department may, by regulation, permit such confinement to be reduced to a period of less than 10 days. At the end of the confinement period, such dog or other animal shall be examined by the Administrator, or another licensed veterinarian.
It is unlawful for any person having knowledge that any person has been bitten by a dog or other animal to refuse to notify the Administrator promptly. It is unlawful for the owner of such dog or other animal to euthanize, sell, give away, or otherwise dispose of any such dog or other animal known to have bitten a person, until it is released by the Administrator, or his authorized representative. It is unlawful for the owner of such dog or other animal to refuse or fail to comply with the written or printed instructions made by the Administrator, or his authorized representative. If such instructions cannot be delivered in person, they shall be mailed to the owner of such dog or other animal by regular mail, postage prepaid. The affidavit or testimony of the Administrator, or his authorized representative, delivering or mailing such instructions is prima facie evidence that the owner of such dog or other animal was notified of his responsibilities. Any expense incurred in the handling of any dog or other animal under this Section and Section 12 [510 ILCS 5/12] shall be borne by the owner.
(b) When a person has been bitten by a police dog, the police dog may continue to perform its duties for the peace officer or law enforcement agency and any period of observation of the police dog may be under the supervision of a peace officer. The supervision shall consist of the dog being locked in a kennel, performing its official duties in a police vehicle, or remaining under the constant supervision of its police handler.
(c) For the purpose of this Section:
"Immediately" means by telephone, in person, or by other than use of the mail.
"Law enforcement agency" means an agency of the State or a unit of local government that is vested by law or ordinance with the duty to maintain public order and to enforce criminal laws or ordinances.
"Peace officer" has the meaning ascribed to it in Section 2-13 of the Criminal Code of 1961 [720 ILCS 5/2-13]. "Police dog" means a dog trained to assist peace officers in their law enforcement duties.
HISTORY: Source: P.A. 78-795; 89-576, § 5.
NOTES:
NOTE.
This section was Ill.Rev.Stat., Ch. 8, para. 363.
EFFECT OF AMENDMENTS.
The 1996 amendment by P.A. 89-576, effective January 1, 1997, added the section catchline; added the subsection (a) designation; in subsection (a), in the first paragraph, in the first sentence, added at the beginning "Except as otherwise provided in subsection (b) of this Section"; added subsection (b); added the subsection (c) designation; and in subsection (c), in the introductory language, substituted a semicolon for "the word" and added the definitions of Law enforcement agency, Peace officer and Police dog.
CHAPTER 510. ANIMALS
ANIMAL CONTROL ACT
510 ILCS 5/15 (2003)
[Prior to 1/1/93 cited as: Ill. Rev. Stat., Ch. 8, para. 365]
§ 510 ILCS 5/15. [Vicious and dangerous dogs and other animals]
Sec. 15. (a) For purposes of this Section:
(1) "Vicious dog" means:
(i) Any individual dog that when unprovoked inflicts bites or attacks a human being or other animal either on public or private property.
(ii) Any individual dog with a known propensity, tendency or disposition to attack without provocation, to cause injury or to otherwise endanger the safety of human beings or domestic animals.
(iii) Any individual dog that has as a trait or characteristic and a generally known reputation for viciousness, dangerousness or unprovoked attacks upon human beings or other animals, unless handled in a particular manner or with special equipment.
(iv) Any individual dog which attacks a human being or domestic animal without provocation.
(v) Any individual dog which has been found to be a "dangerous dog" upon 3 separate occasions.
No dog shall be deemed "vicious" if it bites, attacks, or menaces a trespasser on the property of its owner or harms or menaces anyone who has tormented or abused it or is a professionally trained dog for law enforcement or guard duties. Vicious dogs shall not be classified in a manner that is specific as to breed.
If a dog is found to be a vicious dog, the dog shall be subject to enclosure.
(2) "Dangerous Dog" means any individual dog which when either unmuzzled, unleashed, or unattended by its owner, or a member of its owner's family, in a vicious or terrorizing manner, approaches any person in an apparent attitude of attack upon streets, sidewalks, or any public grounds or places.
(3) "Enclosure" means a fence or structure of at least 6 feet in height, forming or causing an enclosure suitable to prevent the entry of young children, and suitable to confine a vicious dog in conjunction with other measures which may be taken by the owner or keeper, such as tethering of a vicious dog within the enclosure. Such enclosure shall be securely enclosed and locked and designed with secure sides, top and bottom and shall be designed to prevent the animal from escaping from the enclosure.
(4) "Impounded" means taken into the custody of the public pound in the city or town where the vicious dog is found.
(5) "Found to be vicious dog" means (i) that the Administrator, an Animal Control Warden, or a law enforcement officer has conducted an investigation and made a finding in writing that the dog is a vicious dog as defined in paragraph (1) of subsection (a) and, based on that finding, the Administrator, an Animal Control Warden, or the Director has declared in writing that the dog is a vicious dog or (ii) that the circuit court has found the dog to be a vicious dog as defined in paragraph (1) of subsection (a) and has entered an order based on that finding.
(b) It shall be unlawful for any person to keep or maintain any dog which has been found to be a vicious dog unless such dog is at all times kept in an enclosure. The only times that a vicious dog may be allowed out of the enclosure are (1) if it is necessary for the owner or keeper to obtain veterinary care for the dog or (2) to comply with the order of a court of competent jurisdiction, provided that the dog is securely muzzled and restrained with a chain having a tensile strength of 300 pounds and not exceeding 3 feet in length, and shall be under the direct control and supervision of the owner or keeper of the dog.
Any dog which has been found to be a vicious dog and which is not confined to an enclosure shall be impounded by the Administrator, an Animal Control Warden, or the law enforcement authority having jurisdiction in such area and shall be turned over to a licensed veterinarian for destruction by lethal injection.
If the owner of the dog has not appealed the impoundment order to the circuit court in the county in which the animal was impounded within 7 working days, the dog may be humanely dispatched. A dog found to be a vicious dog shall not be released to the owner until the Administrator, an Animal Control Warden, or the Director approves the enclosure as defined in this Section.
No owner or keeper of a vicious dog shall sell or give away the dog.
(c) It is unlawful for any person to maintain a public nuisance by permitting any dangerous dog or other animal to leave the premises of its owner when not under control by leash or other recognized control methods.
Guide dogs for the blind or hearing impaired, support dogs for the physically handicapped, and sentry, guard, or police-owned dogs are exempt from this Section; provided, an attack or injury to a person occurs while the dog is performing duties as expected. To qualify for exemption under this Section, each such dog shall be currently inoculated against rabies in accordance with Section 8 of this Act [510 ILCS 5/8]. It shall be the duty of the owner of such exempted dog to notify the Administrator of changes of address. In the case of a sentry or guard dog, the owner shall keep the Administrator advised of the location where such dog will be stationed. The Administrator shall provide police and fire departments with a categorized list of such exempted dogs, and shall promptly notify such departments of any address changes reported to him.
The Administrator, the State's Attorney, or any citizen of the county in which a dangerous dog or other animal exists may file a complaint in the name of the People of the State of Illinois to enjoin all persons from maintaining or permitting such, to abate the same, and to enjoin the owner of such dog or other animal from permitting same to leave his premises when not under control by leash or other recognized control methods. Upon the filing of a complaint in the circuit court, the court, if satisfied that this nuisance may exist, shall grant a preliminary injunction with bond in such amount as the court may determine enjoining the defendant from maintaining such nuisance. If the existence of the nuisance is established, the owner of such dog or other animal shall be in violation of this Act, and in addition, the court shall enter an order restraining the owner from maintaining such nuisance and may order that such dog or other animal be humanely dispatched.
HISTORY: Source: P.A. 86-1460; 87-456.
NOTES:
NOTE.
This section was Ill.Rev.Stat., Ch. 8, para. 365.
ILLINOIS ADMINISTRATIVE CODE.
See 8 Illinois Administrative Code, § 30.140.
CASE NOTES
LACK OF PROVOCATION
--INFERENCE
The lack of provocation by another animal can be inferred where that animal is confined in its own pen and it is clear it did not attack. Logan County Animal Control Warden v. Danley, 211 Ill. App. 3d 198, 155 Ill. Dec. 615, 569 N.E.2d 1226 (4 Dist. 1991).
OPINIONS OF THE ATTORNEY GENERAL
"ATTACK"
The word "attack", as used in the Animal Control Act, is not limited to actual physical contact, but also encompasses aggressive, threatening, or menacing behavior that does not culminate in biting or other injury. 2002 Op. Atty. Gen (02-001).
RESEARCH REFERENCES
Keeping of domestic animal as constituting public or private nuisance. 90 ALR5th 619.
CHAPTER 510. ANIMALS
ANIMAL CONTROL ACT
510 ILCS 5/16 (2003)
[Prior to 1/1/93 cited as: Ill. Rev. Stat., Ch. 8, para. 366]
§ 510 ILCS 5/16. [Attack or injury by animal; liability of owner]
Sec. 16. 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.
HISTORY: Source: P.A. 78-795.
NOTES:
NOTE.
This section was Ill.Rev.Stat., Ch. 8, para. 366.
CASE NOTES
ANALYSIS
Applicability
Assumption of Risk
--Applicability
--Available Defense
--Not Shown
--Shown
Attacks or Injures
--Disjunctive
--Predictable Behavior
Burden of Proof
--Reduction
Cause of Action
Common Law Action
--Not Precluded
--Pleading
Contributory Negligence
--Jury Instruction
Control of Animal
--Right of Recovery
Coverage
--Scope
Damages
--New Trial
--Not Excessive
Effect of Amendment
--On Other Statutes
--On Scope of Section
Elements of Cause of Action
Horse Rental
Jury Instructions
Lawful Presence
--Improper Warning
--Licensee
--Parents' Home
Legislative Intent
--Creation of Liabilities
--Inquiry
--Reasonable Interpretation
Liability
--Noncustodial Parent
--Not Absolute
--Not Shown
--Not Strict
--Of Keeper
--Running Dog
--Shown
Meritorious Defense
Negligence
--Not Necessary
Ownership
--Dogsitter
--Facts and Circumstances
--Harboring
--Not Shown
--Question of Fact
--Shown
Pleadings
Proportionality
--Illustrative Cases
Provocation
--In General
--Intent Immaterial
--Kicking and Pushing
--Not Shown
--Presence
--Relevant Evidence
--Scream
--Shown
--Source Immaterial
--Unintentional Acts
--Use of Dog Repellant
--Wilfulness Irrelevant
--Young Child
Purpose
Scope of Protection
Standing
--Parents of Minor
--Right to Recovery
APPLICABILITY
The Animal Control Act, 510 ILCS 5/1 et seq., did not cease to apply to equine injury cases after the enactment of the Equine Liability Act, 745 ILCS 47/1 et seq. Carl v. Resnick, 306 Ill. App. 3d 453, 239 Ill. Dec. 443, 714 N.E.2d 1 (1 Dist. 1999), appeal denied, 186 Ill. 2d 566, 243 Ill. Dec. 560, 723 N.E.2d 1161 (1999).
ASSUMPTION OF RISK
--APPLICABILITY
A plaintiff who assumes the risk of injury is not protected by this Act. Ennen v. White, 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (4 Dist.), cert. denied, 147 Ill. 2d 626, 180 Ill. Dec. 148, 606 N.E.2d 1225 (1992).
Where plaintiff, an admitted experienced cattleman, volunteered to assist with the movement of cattle, and the defendant knew plaintiff had experience with cattle and could reasonably assume that plaintiff was aware of their normal propensities and could or would take reasonable measures to protect himself, the common law defense of assumption of the risk was available even though the action was brought under this Act. Malott v. Hart, 167 Ill. App. 3d 209, 118 Ill. Dec. 69, 521 N.E.2d 137 (3 Dist. 1988).
The defense of assumption of the risk can be applied under this section. Clark v. Rogers, 137 Ill. App. 3d 591, 92 Ill. Dec. 136, 484 N.E.2d 867 (4 Dist. 1985).
--AVAILABLE DEFENSE
Proof of assumption of risk is not precluded as a defense to an action brought under this section. Vanderlei v. Heideman, 83 Ill. App. 3d 158, 38 Ill. Dec. 525, 403 N.E.2d 756 (2 Dist. 1980).
--NOT SHOWN
The plaintiff was not barred from recovery for her injuries by the doctrine of assumption of risk where she was injured while riding her horse when a horse ridden by another person kicked her and her horse while the plaintiff and the other rider were talking after meeting on a trail. Carl v. Resnick, 306 Ill. App. 3d 453, 239 Ill. Dec. 443, 714 N.E.2d 1 (1 Dist. 1999), appeal denied, 186 Ill. 2d 566, 243 Ill. Dec. 560, 723 N.E.2d 1161 (1999).
Where the defendants failed to present any evidence that the plaintiff expressly relieved them from any liability for injuries inflicted by their dog, and in the absence of evidence of a contractual or employment relationship between the parties, the doctrine of assumption of risk was inapplicable. Guthrie v. Zielinski, 185 Ill. App. 3d 266, 133 Ill. Dec. 341, 541 N.E.2d 178 (2 Dist. 1989).
--SHOWN
Where defendant voluntarily accepted responsibility for controlling defendant's dog, placing herself within the definition of an owner, the trial court correctly ruled that she could not recover from the dog's legal owner for injuries which resulted from her own failure to control the dog. Wilcoxen v. Paige, 174 Ill. App. 3d 541, 124 Ill. Dec. 213, 528 N.E.2d 1104 (3 Dist. 1988).
Where plaintiff, a trained horsewoman, knew there were mares in the vicinity when she tried to mount a stallion, knew a stallion could become excited and uncontrollable around mares, but attempted to mount the stallion anyway, and where plaintiff accepted employment as a trainer of stallions knowing such horses were likely to buck or jump, the plaintiff assumed the risk of a fall from the stallion. Clark v. Rogers, 137 Ill. App. 3d 591, 92 Ill. Dec. 136, 484 N.E.2d 867 (4 Dist. 1985).
Where a plaintiff admitted that he had voluntarily entered into a contract with the defendant to shoe the defendant's horse and by his own admissions it was known to him and known within his profession that horses will sometimes kick while being shod, plaintiff, as a matter of law, assumed the risk of injury. Vanderlei v. Heideman, 83 Ill. App. 3d 158, 38 Ill. Dec. 525, 403 N.E.2d 756 (2 Dist. 1980).
ATTACKS OR INJURES
--DISJUNCTIVE
The statutory words "attacks or injures" are disjunctive and allow the plaintiff to recover if the animal injured plaintiff but did not attack. King v. Ohren, 198 Ill. App. 3d 1098, 145 Ill. Dec. 138, 556 N.E.2d 756 (1 Dist. 1990).
--PREDICTABLE BEHAVIOR
An animal is a passive causal force and cannot be a proximate cause of injuries if it stands still or moves away from a plaintiff in a usual, predictable manner known to the plaintiff. King v. Ohren, 198 Ill. App. 3d 1098, 145 Ill. Dec. 138, 556 N.E.2d 756 (1 Dist. 1990).
BURDEN OF PROOF
--REDUCTION
This section reduces the burden upon a plaintiff by eliminating the common-law requirement that an injured person prove and plead that an animal owner knew or should have known of his animal's propensity to injure or attack people. Guthrie v. Zielinski, 185 Ill. App. 3d 266, 133 Ill. Dec. 341, 541 N.E.2d 178 (2 Dist. 1989).
The purpose of this section was to reduce the burden on plaintiffs by eliminating the common-law requirement that a plaintiff must plead and prove that an animal owner either knew or should have known that the animal had a propensity to injure people. Forsyth v. Dugger, 169 Ill. App. 3d 362, 119 Ill. Dec. 948, 523 N.E.2d 704 (4 Dist. 1988).
CAUSE OF ACTION
A cause of action under this section can exist when an attack or an injury occurs. Ennen v. White, 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (4 Dist.), cert. denied, 147 Ill. 2d 626, 180 Ill. Dec. 148, 606 N.E.2d 1225 (1992).
COMMON LAW ACTION
--NOT PRECLUDED
A defendant landowner who was not the "owner" of the dog could nevertheless be found liable under the common law if she were aware of the dog's viciousness. Severson v. Ring, 244 Ill. App. 3d 453, 185 Ill. Dec. 706, 615 N.E.2d 1 (3 Dist. 1993).
This section did not repeal the common law action for recovery as the result of a dog bite. Reeves ex rel. Reeves v. Eckles, 77 Ill. App. 2d 408, 222 N.E.2d 530 (2 Dist. 1966).
--PLEADING
Where plaintiff's complaint specifically alleged only a common law theory of recovery rather than recovery under this section, and failed to allege the two common law elements of mischievous propensity and notice, this omission did not render the complaint defective under F.R.Civ.P. 8(a)(2), with its more relaxed pleading requirements than Illinois' fact-pleading rules, in a diversity action; although the elements of a claim under this section could be inferred from the complaint, filing a new complaint was ordered to allow the issues to be presented more clearly. Ross v. Ross, 104 F.R.D. 439 (N.D. Ill. 1984).
CONTRIBUTORY NEGLIGENCE
--JURY INSTRUCTION
While instructions regarding the issue of plaintiff's contributory negligence should not have been given in a case brought under a prior similar provision which made it unnecessary to prove negligence in order to recover damages, the instructions were not so prejudicial as to warrant a reversal of judgment in favor of plaintiff, especially since the evidence amply supported the verdict. Beckert v. Risberg, 33 Ill. 2d 44, 210 N.E.2d 207 (1965).
CONTROL OF ANIMAL
--RIGHT OF RECOVERY
There is no legal or policy justification for extending the protections of this Act to a rider of a horse; once the rider mounts the horse, the rider is no longer a bystander or observer, but is someone who has asserted dominion over the animal and is an active partner with the animal in recreational activity, and the rider assumes control and responsibility for the horse. While a cause of action may be stated under other theories of liability, there is none under this Act. Ennen v. White, 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (4 Dist.), cert. denied, 147 Ill. 2d 626, 180 Ill. Dec. 148, 606 N.E.2d 1225 (1992).
Where a person accepts responsibility for controlling an animal, he or she cannot recover for injuries sustained when he or she fails to control the animal. Ennen v. White, 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (4 Dist.), cert. denied, 147 Ill. 2d 626, 180 Ill. Dec. 148, 606 N.E.2d 1225 (1992).
Where a person accepts responsibility for controlling an animal, she cannot maintain a cause of action for injuries resulting from her own failure to control the animal. Wilcoxen v. Paige, 174 Ill. App. 3d 541, 124 Ill. Dec. 213, 528 N.E.2d 1104 (3 Dist. 1988); Ennen v. White, 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (4 Dist.), cert. denied, 147 Ill. 2d 626, 180 Ill. Dec. 148, 606 N.E.2d 1225 (1992).
COVERAGE
--SCOPE
Coverage under this statute was intended for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal posed to them. Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917 (3 Dist. 1988).
DAMAGES
--NEW TRIAL
Plaintiff was properly awarded a new trial on the issues of damages alone where a jury verdict on the question of liability was adequately supported by the evidence under this section, and the questions of damages and liability were so separate and distinct that a trial limited to the question of damages would not have been unfair to the defendant. Barr v. Groll, 208 Ill. App. 3d 318, 153 Ill. Dec. 298, 567 N.E.2d 13 (5 Dist. 1991).
--NOT EXCESSIVE
Where the jury verdict was five times the amount of out-of-pocket expenses, the verdict did not provide grounds for reversal. Reeves ex rel. Reeves v. Eckles, 108 Ill. App. 2d 427, 248 N.E.2d 125 (2 Dist. 1969).
EFFECT OF AMENDMENT
--ON OTHER STATUTES
Amendment adding "other animals" to this section was not intended to result in a revocation by implication of the Domestic Animals Running at Large Act (510 ILCS 55/1 et seq.). McQueen v. Erickson, 61 Ill. App. 3d 859, 19 Ill. Dec. 113, 378 N.E.2d 614 (2 Dist. 1978).
--ON SCOPE OF SECTION
The legislature, by amending this statute to encompass "other animals" besides dogs, did not intend to change the scope and general applicability of the statute to envelop a situation where domestic animals, such as horses, were running at large. McQueen v. Erickson, 61 Ill. App. 3d 859, 19 Ill. Dec. 113, 378 N.E.2d 614 (2 Dist. 1978).
ELEMENTS OF CAUSE OF ACTION
The four elements that must be proved to establish a cause of action are (1) injury caused by an animal owned by the defendants; (2) lack of provocation; (3) peaceable conduct of the injured person; and (4) the presence of the injured person in a place where he has a legal right to be. Nelson ex rel. Nelson v. Lewis, 36 Ill. App. 3d 130, 344 N.E.2d 268 (5 Dist. 1976); McQueen v. Erickson, 61 Ill. App. 3d 859, 19 Ill. Dec. 113, 378 N.E.2d 614 (2 Dist. 1978); Forsyth v. Dugger, 169 Ill. App. 3d 362, 119 Ill. Dec. 948, 523 N.E.2d 704 (4 Dist. 1988); Guthrie v. Zielinski, 185 Ill. App. 3d 266, 133 Ill. Dec. 341, 541 N.E.2d 178 (2 Dist. 1989); Moore v. Roberts, 193 Ill. App. 3d 541, 140 Ill. Dec. 405, 549 N.E.2d 1277 (4 Dist.), cert. denied, 132 Ill. 2d 546, 144 Ill. Dec. 259, 555 N.E.2d 378 (1990); Smith ex rel. Smith v. Pitchford, 219 Ill. App. 3d 152, 161 Ill. Dec. 767, 579 N.E.2d 24 (5 Dist.), cert. denied, 142 Ill. 2d 665, 164 Ill. Dec. 928, 584 N.E.2d 140 (1991).
Duty is not an element of a cause of action against an owner under this section, nor is it necessary to prove negligence on the part of the owner. Kirchgessner v. County of Tazewell, 162 Ill. App. 3d 510, 114 Ill. Dec. 224, 516 N.E.2d 379 (3 Dist. 1987).
In order for the plaintiff to recover under this section, he is required to prove: an attack by a dog; that the defendant is the owner of the dog; injury to the plaintiff; absence of provocation by the plaintiff; and that the plaintiff was conducting himself peaceably in a place where he had a legal right to be. Steinberg ex rel. Martinez v. Petta, 139 Ill. App. 3d 503, 94 Ill. Dec. 187, 487 N.E.2d 1064 (1 Dist. 1985), rev'd on other grounds, 114 Ill. 2d 496, 103 Ill. Dec. 725, 501 N.E.2d 1263 (1986).
HORSE RENTAL
No claim exists under the act when a rider is thrown from a horse she has voluntarily mounted. Swierkosz v. Starved Rock Stables, 239 Ill. App. 3d 1017, 180 Ill. Dec. 386, 607 N.E.2d 280 (3 Dist. 1993).
Where a person rents a horse and understands and expressly accepts the risks of using the horse, he cannot recover damages under this section from the person who rented the horse to him. Harris v. Walker, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917 (3 Dist. 1988).
JURY INSTRUCTIONS
In an action arising from an attack of the plaintiff by the defendants' dog, the court properly refused to use Illinois Pattern Jury Instruction, Civil, No. 111.04 (3d ed. 1995) because that instruction inaccurately states the law with regard to provocation by taking the view of the reasonable person, rather that the view of a reasonable dog. Kirkham v. Will, 311 Ill. App. 3d 787, 244 Ill. Dec. 174, 724 N.E.2d 1062 (5 Dist. 2000).
LAWFUL PRESENCE
Violation of traffic laws by injured plaintiffs who were illegally riding an all-terrain vehicle on a public highway when they were injured by colliding with the defendant's dog did not necessarily preclude them from recovering under the statute; their activity was peaceable, though illegal, and they were in a place where they had a right to be, although they should not have been riding an all-terrain vehicle there. Garcia v. Nelson, 326 Ill. App. 3d 33, 259 Ill. Dec. 821, 759 N.E.2d 601 (2 Dist. 2001), appeal denied, 198 Ill. 2d 614, 264 Ill. Dec. 324, 770 N.E.2d 218 (2002).
--IMPROPER WARNING
Where in the defendants' building, no notices indicated that any part of the premises was used as a private residence, it was clear that when the plaintiff entered the building, crossed its lobby, entered the elevator and rode it to the fifth floor, the plaintiff was lawfully on the premises, she was also lawfully on the premises when she entered the fifth floor hall were she was attacked, since persons entering the building and riding its elevator would have no reason to believe that the fifth floor was used for residential purposes or that vicious dogs were kept there, where the sole warning to this effect was posted in a place where it could be seen only split seconds before one would enter the danger area, under these circumstances, the warning sign was in the wrong location, it did not give adequate warning of the danger, and gave no grounds for holding that persons who entered the hall had no legal right to be there. Messa v. Sullivan, 61 Ill. App. 2d 386, 209 N.E.2d 872 (1 Dist. 1965).
--LICENSEE
Plaintiff was a licensee on defendant's land when he was bitten by defendant's dog; therefore, he was in a place where he could lawfully be within the meaning of a prior similar provision. Dobrin ex rel. Dobrin v. Stebbins, 122 Ill. App. 2d 387, 259 N.E.2d 405 (1 Dist 1970).
--PARENTS' HOME
The plaintiff was lawfully on the premises at the time the defendants' dog attacked her, where the plaintiff, although an adult who resided elsewhere, was in the habit of visiting the defendants, her parents, on a regular basis and possessed a key to the defendants' home, and where such possession was of a long-standing nature. Guthrie v. Zielinski, 185 Ill. App. 3d 266, 133 Ill. Dec. 341, 541 N.E.2d 178 (2 Dist. 1989).
LEGISLATIVE INTENT
--CREATION OF LIABILITIES
The legislature intended to create two liabilities on the part of the owner of a dog, one if the animal injured a person who was peaceably conducting himself in a place he could lawfully be, or one if the animal attacked a person under such circumstances. McEvoy v. Brown, 17 Ill. App. 2d 470, 150 N.E.2d 652 (3 Dist. 1958).
--INQUIRY
Under this Act, the legislature did not intend to eliminate inquiry into whether an animal might be diseased, whether a dangerous propensity was undisclosed, whether a horse was properly saddled, or whether there was any attempt to match the rider with the horse. Harris v. Walker, 152 Ill. App. 3d 384, 105 Ill. Dec. 426, 504 N.E.2d 526 (3 Dist. 1987), rev'd on other grounds, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917 (1988).
--REASONABLE INTERPRETATION
Where literal enforcement of this Act would result in great injustice which was not contemplated, the court will construe this Act to give effect to what must have been reasonably intended by the legislature. Vanderlei v. Heideman, 83 Ill. App. 3d 158, 38 Ill. Dec. 525, 403 N.E.2d 756 (2 Dist. 1980).
LIABILITY
Where the injuries were caused by the animal's behavior other than an attack on the victim, proximate cause between the animal's behavior and the injury to the minor victim must be established. Claxton ex rel. Claxton v. Grose, 226 Ill. App. 3d 829, 168 Ill. Dec. 554, 589 N.E.2d 954 (4 Dist. 1992).
--NONCUSTODIAL PARENT
This Act contemplates some level of care, control, or custody, in order for a noncustodial parent to be held liable for the injuries caused by her son's dog. Papesh v. Matesevac, 223 Ill. App. 3d 189, 165 Ill. Dec. 370, 584 N.E.2d 549 (3 Dist. 1991).
--NOT ABSOLUTE
While a plaintiff need not prove a defendant's negligence under this Act, the statute does not impose absolute liability on animal owners. Guthrie v. Zielinski, 185 Ill. App. 3d 266, 133 Ill. Dec. 341, 541 N.E.2d 178 (2 Dist. 1989).
Under this Act, liability is not absolute (i.e., not strict liability) but qualified. Harris v. Walker, 152 Ill. App. 3d 384, 105 Ill. Dec. 426, 504 N.E.2d 526 (3 Dist. 1987), rev'd on other grounds, 119 Ill. 2d 542, 116 Ill. Dec. 702, 519 N.E.2d 917 (1988).
--NOT SHOWN
Where dog was in defendants' home, behind a locked gate, and defendants stated the dog could not get out, and it was impossible for the dog to attack or injure plaintiff, there was no factual or reasonable basis for imposing liability under this section for fall suffered by plaintiff while visiting in defendants' home, allegedly occasioned by becoming frightened on hearing the dog growl. Partipilo v. Dimaria, 211 Ill. App. 3d 813, 156 Ill. Dec. 207, 570 N.E.2d 683 (1 Dist. 1991).
Where the plaintiff fell from the porch as a result of tripping over a dog who was lying in her path as she sought to exit from the house, owner of the dog was not liable for plaintiff's injuries under a prior similar provision because there was no overt act, vicious or otherwise, attributable to the dog that caused the injury to the plaintiff. Bailey v. Bly, 87 Ill. App. 2d 259, 231 N.E.2d 8 (4 Dist. 1967).
Evidence was sufficient to sustain a finding that the defendant was not guilty in a suit for damages for personal injuries brought under former similar provision. Garbell v. Fields, 36 Ill. App. 2d 399, 184 N.E.2d 750 (1 Dist. 1962).
--NOT STRICT
While the language of this section appears to be absolute, it does not impose strict liability on animal owners. Partipilo v. Dimaria, 211 Ill. App. 3d 813, 156 Ill. Dec. 207, 570 N.E.2d 683 (1 Dist. 1991).
--OF KEEPER
The keeper of an animal, as well as its owner, can be held liable under this Act; a keeper of an animal has been defined in terms of management, custody, care or control. Kirchgessner v. County of Tazewell, 162 Ill. App. 3d 510, 114 Ill. Dec. 224, 516 N.E.2d 379 (3 Dist. 1987).
--RUNNING DOG
Where it was established that the act of a dog running between plaintiff's legs was the cause of her falling, evidence was sufficient to sustain liability under a prior similar provision upon the dog's owner. McEvoy v. Brown, 17 Ill. App. 2d 470, 150 N.E.2d 652 (3 Dist. 1958).
--SHOWN
The owner of a horse was liable for injuries caused when the horse kicked the plaintiff rider of another horse where the plaintiff did nothing to provoke the incident and was peaceably conducting herself in a place where she had a legal right to be. Carl v. Resnick, 306 Ill. App. 3d 453, 239 Ill. Dec. 443, 714 N.E.2d 1 (1 Dist. 1999), appeal denied, 186 Ill. 2d 566, 243 Ill. Dec. 560, 723 N.E.2d 1161 (1999).
In an action on common law and statutory liability, plaintiff's uncontroverted evidence clearly established a prima facie case of liability for damages resulting from dog attack under a prior similar provision. Kovac v. Ducharme, 2 Ill. App. 2d 80, 118 N.E.2d 629 (1 Dist. 1954).
MERITORIOUS DEFENSE
Where defendant alleged in his petition that victim was bitten in defendant's office, which was prohibited to the public and marked by visible warning signs, and victim alleged that the bite took place on used car lot, but testified that she saw defendant's dog inside the office when she first arrived on the lot, defendant's allegations raised a meritorious defense. Frostin v. Radick, 78 Ill. App. 3d 352, 33 Ill. Dec. 875, 397 N.E.2d 208 (1 Dist. 1979).
NEGLIGENCE
--NOT NECESSARY
This Act creates a right of action unlike the common law remedy, and in order to recover under the statute, it is unnecessary to prove negligence, at least as to the owner. Thompson v. Dawson, 136 Ill. App. 3d 695, 91 Ill. Dec. 586, 483 N.E.2d 1072 (4 Dist. 1985).
OWNERSHIP
--DOGSITTER
Minor who was taking care of defendant's dog while defendant was out of town for five days was an owner for purposes of the statute and precluded from recovering against defendant for injuries sustained while caring for dog. Docherty v. Sadler, 293 Ill. App. 3d 892, 228 Ill. Dec. 460, 689 N.E.2d 332 (4 Dist. 1997).
--FACTS AND CIRCUMSTANCES
The question of whether or not a person is a keeper or harborer of a dog depends upon the peculiar facts and circumstances of each individual case. Steinberg ex rel. Martinez v. Petta, 139 Ill. App. 3d 503, 94 Ill. Dec. 187, 487 N.E.2d 1064 (1 Dist. 1985), rev'd on other grounds, 114 Ill. 2d 496, 103 Ill. Dec. 725, 501 N.E.2d 1263 (1986).
--HARBORING
Harboring means protecting; one who treats a dog as living at his house and undertakes to control his actions is the owner or keeper of the dog within the meaning of the law. Steinberg ex rel. Martinez v. Petta, 139 Ill. App. 3d 503, 94 Ill. Dec. 187, 487 N.E.2d 1064 (1 Dist. 1985), rev'd on other grounds, 114 Ill. 2d 496, 103 Ill. Dec. 725, 501 N.E.2d 1263 (1986).
--NOT SHOWN
Where the owner of the animal is present and in control of it, the property owner cannot be considered an owner under the Act merely because the property owner permitted the animal to be on the premises. Goennenwein v. Rasof, 296 Ill. App. 3d 650, 695 N.E.2d 541 (2 Dist. 1998).
Where an owner-employee of a business occasionally took his dog to work and the dog was fed at those times, the business was not a harborer or keeper of the dog so as to make it liable for a dog attack occurring off the premises after the business had closed. Frost v. Robave, Inc., 296 Ill. App. 3d 528, 230 Ill. Dec. 612, 694 N.E.2d 581 (1 Dist. 1998).
--QUESTION OF FACT
The question of ownership of a dog that has bitten a plaintiff is usually one for the trier of fact. Papesh v. Matesevac, 223 Ill. App. 3d 189, 165 Ill. Dec. 370, 584 N.E.2d 549 (3 Dist. 1991).
--SHOWN
Farmhand was an "owner" under this Act where part of his job was to care for boar, and he was doing so at the time the boar attacked him; thus, he could not recover under this Act. Eyrich v. Johnson, 279 Ill. App. 3d 1067, 216 Ill. Dec. 620, 665 N.E.2d 878 (3 Dist. 1996), appeal denied, 168 Ill. 2d 587, 219 Ill. Dec. 562, 671 N.E.2d 729 (1996).
PLEADINGS
Trial court should not have dismissed plaintiff's complaint with prejudice where she had properly pleaded all but one of the four elements required and the drafting problem could be easily remedied by amendment. Moore v. Roberts, 193 Ill. App. 3d 541, 140 Ill. Dec. 405, 549 N.E.2d 1277 (4 Dist.), cert. denied, 132 Ill. 2d 546, 144 Ill. Dec. 259, 555 N.E.2d 378 (1990).
Plaintiff adequately alleged a cause of action under the this section, and the section was applicable to the case. Chittum v. Evanston Fuel & Material Co., 92 Ill. App. 3d 188, 48 Ill. Dec. 110, 416 N.E.2d 5 (1 Dist. 1980).
PROPORTIONALITY
--ILLUSTRATIVE CASES
Where 18 month old plaintiff accidentally fell onto the middle of the dog, which was sleeping in the sun and the dog responded by repeatedly biting plaintiff on and about the head and face, resulting in seven lacerations, the largest one being four to five inches long, the viciousness of the dog's attack on plaintiff, which was out of proportion to the unintentional act committed by plaintiff, clearly established the defendants' liability for plaintiff's damages. Wade v. Rich, 249 Ill. App. 3d 581, 188 Ill. Dec. 744, 618 N.E.2d 1314 (5 Dist.), cert. denied, 153 Ill. 2d 570, 191 Ill. Dec. 630, 624 N.E.2d 818 (1993).
PROVOCATION
--IN GENERAL
Provocation of a dog means any action or activity, whether intentional or unintentional, which would be reasonably expected to cause a normal dog in similar circumstances to attack. Kirkham v. Will, 311 Ill. App. 3d 787, 244 Ill. Dec. 174, 724 N.E.2d 1062 (5 Dist. 2000).
--INTENT IMMATERIAL
Had the legislature intended only intentional provocation to be a bar to recovery, it would have so specified; its conclusion apparently was that an owner or keeper of a dog who would attack or injure someone without provocation should be liable. This implies that the intent of the plaintiff is immaterial. Nelson ex rel. Nelson v. Lewis, 36 Ill. App. 3d 130, 344 N.E.2d 268 (5 Dist. 1976).
Provocation within the meaning of this section means either intentional or unintentional provocation. Nelson ex rel. Nelson v. Lewis, 36 Ill. App. 3d 130, 344 N.E.2d 268 (5 Dist. 1976).
--KICKING AND PUSHING
Kicking or pushing of a dog, which bit plaintiff, on two occasions by the plaintiff and subsequently by his playmate was completely sufficient to constitute provocation, and the owner of the dog was not liable for the injuries the plaintiff sustained. Siewerth ex rel. Siewerth v. Charleston, 89 Ill. App. 2d 64, 231 N.E.2d 644 (1 Dist. 1967).
--NOT SHOWN
Under a prior similar provision, where a plaintiff approached an apartment and a dog without giving a warning as to the nature of his visit, this act did not represent a threat to the security of the apartment, and the plaintiff was not required to have known that such conduct would be likely to provoke a dog to attack, since the plaintiff had a legal right to be in the hallway and her only actions at that point consisted of stepping off the elevator and walking a short distance toward the defendants' apartment door. The term provocation was not intended to apply to a situation like this and thereby relieve from responsibility the owner of a vicious dog, which was specifically kept for protection, merely because the dog interpreted the visitor's movements as hostile actions calling for attack. Messa v. Sullivan, 61 Ill. App. 2d 386, 209 N.E.2d 872 (1 Dist. 1965).
Mere acts of untying a dog and feeding it, in the absence of any evidence of any characteristic or action of the dog that would tend to apprise the plaintiff that she might be injured by the dog, were not acts of provocation on her part under a prior similar provision. McEvoy v. Brown, 17 Ill. App. 2d 470, 150 N.E.2d 652 (3 Dist. 1958).
--PRESENCE
Mere presence on private property does not constitute provocation, regardless of how the animal may view the visitor's movements. Smith ex rel. Smith v. Pitchford, 219 Ill. App. 3d 152, 161 Ill. Dec. 767, 579 N.E.2d 24 (5 Dist.), cert. denied, 142 Ill. 2d 665, 164 Ill. Dec. 928, 584 N.E.2d 140 (1991).
--RELEVANT EVIDENCE
The question of what conduct constitutes provocation is primarily a question of whether plaintiff's actions would be provocative to the dog; thus, neither the fact that plaintiff had the owner's permission to approach the dog nor the fact that plaintiff was conducting himself in a manner approved by a hired hand were matters bearing on the issue of provocation. Stehl v. Dose, 83 Ill. App. 3d 440, 38 Ill. Dec. 697, 403 N.E.2d 1301 (3 Dist. 1980).
--SCREAM
While plaintiff's frightened scream certainly triggered the attack on her by defendants' dog, that scream could not be regarded under any reasonable standard as having been sufficient to account for the savagery of the dog's assault; thus, as a matter of law, no provocation could be said to have existed. Robinson ex rel. Robinson v. Meadows, 203 Ill. App. 3d 706, 148 Ill. Dec. 805, 561 N.E.2d 111 (5 Dist.), cert. denied, 135 Ill. 2d 566, 151 Ill. Dec. 392, 564 N.E.2d 847 (1990).
--SHOWN
Where the victim was attempting to retrieve from the dog's mouth a bird it was chewing, and the child's acts in striking the dog and or pulling its tail and ears were not directed to self-defense, while victim was too immature to appreciate the seriousness of his acts, his acts were provocation within the meaning of the Act as a matter of law. Vonbehren v. Bradley, 266 Ill. App. 3d 446, 203 Ill. Dec. 744, 640 N.E.2d 664 (4 Dist. 1994), appeal denied, 159 Ill. 2d 582, 207 Ill. Dec. 525, 647 N.E.2d 1018 (1995).
--SOURCE IMMATERIAL
There is no requirement that in order to avoid liability the injured party be the provocateur. The focus is on the conduct of the animal and whether its conduct was the result of an outside stimulus, the source of which is immaterial. Forsyth v. Dugger, 169 Ill. App. 3d 362, 119 Ill. Dec. 948, 523 N.E.2d 704 (4 Dist. 1988).
--UNINTENTIONAL ACTS
An unintentional or accidental act can constitute provocation; however, where the acts which stimulated or excited the dog were unintentional, no provocation can be said to exist within the meaning of the statute if the acts cause the dog to attack the plaintiff viciously and the vicious attack is out of all proportion to the unintentional acts involved. Wade v. Rich, 249 Ill. App. 3d 581, 188 Ill. Dec. 744, 618 N.E.2d 1314 (5 Dist.), cert. denied, 153 Ill. 2d 570, 191 Ill. Dec. 630, 624 N.E.2d 818 (1993).
Provocation cannot be said to exist within the meaning of this section where such unintentional stimuli as greeting or petting a dog result in the dog attacking the plaintiff viciously and the attack is out of all proportion to the unintentional acts involved; thus, eight year old child who was bitten by defendant's dog which he was petting in her driveway was entitled to recovery under this section. Smith ex rel. Smith v. Pitchford, 219 Ill. App. 3d 152, 161 Ill. Dec. 767, 579 N.E.2d 24 (5 Dist.), cert. denied, 142 Ill. 2d 665, 164 Ill. Dec. 928, 584 N.E.2d 140 (1991).
Where the acts which stimulated or excited a dog were unintentional, no provocation could be said to exist within the meaning of this section if the acts caused the dog to attack the plaintiff viciously and the vicious attack was out of all proportion to the unintentional acts involved. Robinson ex rel. Robinson v. Meadows, 203 Ill. App. 3d 706, 148 Ill. Dec. 805, 561 N.E.2d 111 (5 Dist.), cert. denied, 135 Ill. 2d 566, 151 Ill. Dec. 392, 564 N.E.2d 847 (1990).
Where defendant's dalmatian apparently only struck and scratched a child plaintiff with a forepaw in response to the plaintiff's stepping or falling on its tail while it was gnawing on a bone, an act which scarcely could be described as vicious, the dog was provoked by the plaintiff's unintentional acts and did not viciously react to these acts. Nelson ex rel. Nelson v. Lewis, 36 Ill. App. 3d 130, 344 N.E.2d 268 (5 Dist. 1976).
--USE OF DOG REPELLANT
Plaintiff's acts in spraying dog with dog repellant were not provocative but were reasonable measures for self-protection evoked by the dog's actions and deterred him only momentarily. Steichman v. Hurst, 2 Ill. App. 3d 415, 275 N.E.2d 679 (2 Dist. 1971).
--WILFULNESS IRRELEVANT
A determination of provocation does not require consideration of the degree of wilfulness which motivates the provoking cause. Nelson ex rel. Nelson v. Lewis, 36 Ill. App. 3d 130, 344 N.E.2d 268 (5 Dist. 1976).
--YOUNG CHILD
A young child is not exempted from responsibility for his or her acts which provoke a dog under this section. Nelson ex rel. Nelson v. Lewis, 36 Ill. App. 3d 130, 344 N.E.2d 268 (5 Dist. 1976).
PURPOSE
The primary purpose of this section of the Act was to eliminate the common law requirement that the victim prove the owner knew the animal had a vicious propensity. Ennen v. White, 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (4 Dist.), cert. denied, 147 Ill. 2d 626, 180 Ill. Dec. 148, 606 N.E.2d 1225 (1992).
The purpose of this section is to require an animal owner to be responsible for injuries caused by his animal when that animal is acting of its own volition. Thus, if an outside stimulus causes the injury-causing behavior in the animal, no liability attaches. Forsyth v. Dugger, 169 Ill. App. 3d 362, 119 Ill. Dec. 948, 523 N.E.2d 704 (4 Dist. 1988).
SCOPE OF PROTECTION
Plaintiff, who was injured when a horse that she was riding threw her from its back, could benefit from the protection of this Act, although the horse did not attack her. Ennen v. White, 232 Ill. App. 3d 1061, 174 Ill. Dec. 219, 598 N.E.2d 416 (4 Dist.), cert. denied, 147 Ill. 2d 626, 180 Ill. Dec. 148, 606 N.E.2d 1225 (1992).
STANDING
--PARENTS OF MINOR
Parents of a minor child are responsible for that child's medical expenses, and since the obligation to pay rests on the parents, a cause of action to recover such medical expenses from an animal owner liable for the child's personal injuries under this section lies in the parents, not the child. Claxton ex rel. Claxton v. Grose, 226 Ill. App. 3d 829, 168 Ill. Dec. 554, 589 N.E.2d 954 (4 Dist. 1992).
--RIGHT TO RECOVERY
The right to seek recovery is not limited to the person physically attacked by the dog; any injured person, including a parent of a minor, may recover under this section, and, in order to recover such medical expenses, such party must establish: (1) that the minor victim's injury was caused by the animal owned by the defendant; (2) lack of provocation; (3) peaceable conduct of the minor child; and (4) the presence of the minor child in a place where he had a right to be. Claxton ex rel. Claxton v. Grose, 226 Ill. App. 3d 829, 168 Ill. Dec. 554, 589 N.E.2d 954 (4 Dist. 1992).
OPINIONS OF THE ATTORNEY GENERAL
"ATTACK"
The word "attack", as used in the Animal Control Act, is not limited to actual physical contact, but also encompasses aggressive, threatening, or menacing behavior that does not culminate in biting or other injury. 2002 Op. Atty. Gen (02-001).
LEGAL PERIODICALS
For article, "Survey of Illinois Law: Torts," see 21 S. Ill. U.L.J. 891 (1997).
For article, "Survey of Illinois Law: Tort Developments," 19 S. Ill. U.L.J. 945 (1995).
For note on animal law and landlord liability, discussing Steinberg v. Petta, 501 N.E.2d 1263 (1986), see 76 Ill. B.J. 461 (1988).
For article, "Trespassers, Licensees, and Invitees on Illinois Farm Land for Recreation," see 1980 S. Ill. U.L.J. 369.
RESEARCH REFERENCES
Liability of owner of dog for dog's biting veterinarian or veterinarian's employee. 4 ALR4th 349.
Liability of dog owner for injuries sustained by person frightened by dog. 30 ALR4th 986.
Modern status of rule of absolute or strict liability for dogbite. 51 ALR4th 446.
Liability of owner or operator of business premises for injury to patron by dog or cat. 67 ALR4th 976.
Landlord's liability to third person for injury resulting from attack on leased premises by dangerous or vicious animal kept by tenant. 87 ALR4th 1004.
Liability for injury inflicted by horse, dog, or other domestic animal exhibited at show. 68 ALR5th 599.
Disclaimer: The dog bite, animal attack, personal injury, wrongful death, negligence or other legal information presented at this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney client relationship. Any results set forth here were dependent on the facts of that case and the results will differ from case to case. Please contact a dog bite lawyer or animal attack attorney for advice on your rights.
Copyright © 2004 US Dog Bite Lawyers - Animal Attack Attorneys and Dog Bite Lawyers serving the United States and MegaHunter, Inc. All Rights Reserved.