Nelson v. Lewis, 36 Ill App 3d 130, 344 N.E.2d 268 (Ill. App. 5th Dist. 1976)
Parties: Plaintiff-Appellant: Jo Ann Nelson, by her father and next friend, Eric D. Nelson,
Defendant-Appellee: George N. Lewis
Procedural Posture: The Circuit Court rendered judgment in favor of Defendant, and Plaintiff appealed to the Appellate Court.
Facts: Plaintiff, Jo Ann Nelson, a two and a half year old girl, unintentionally fell or stepped on the tail of a dog owned by George N. Lewis, the defendant. The dog reacted by scratching Plaintiff’s left eye, which caused her eye overflow with tears more frequently and as a result of less irritation than normal, but the vision was not affected. The dog has peaceful and quiet temperament, and was gnawing on a bone when the accident occurred. Plaintiff sued under the Illinois “dog bite” statute.
Issue: Whether plaintiff’s unintentional act constitutes “provocation” within the meaning of the dog bite statute?
Holding: Yes. Plaintiff’s unintentional act constitutes “provocation” within the meaning of the dog bite statute. The court affirmed the trial court’s judgment in favor of defendant.
Rule: Under Illinois law, to receive recovery from the injury caused by a dog, four elements must be proved:
1. Injury caused by a dog owned or harbored by the defendant;
2. Lack of provocation;
3. Peaceful conduct of the person injured;
4. The presence of the person injured in a place where he has a legal right to be.
Reasoning: 1. The mental state of the actor who provokes a dog is irrelevant; therefore an unintentional act can constitute provocation.
2. The statute intended to eliminate the inquiry into subjective considerations. Had the statute intended only intentional provocation to preclude recovery, it would have specified so.
3. A determination of provocation does not require consideration of the degree of willfulness.
Dicta: No one had teased or aggravated the dog before the incident; nor did the dog have a history of attack. “Provocation” within the meaning of the statute means either intentional or unintentional provocation.
The Act, in its current form, provides:
“If a dog or other animal, without provocation, attacks, attempts to attack, or injures a person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.” ?510 ILCS 5/16 (West 2006).
In Messa v. Sullivan, where the plaintiff was attacked by the defendant’s watchdog while entering a hallway that leads to the defendant’s premises, the defendant argued that the plaintiff provoked the dog by approaching the defendant’s apartment and the dog without warning and “this act represented a threat to the security of the apartment [and] that the dog resented this threat”. The Court rejected this argument, as provocation is not present “merely because the dog interprets the visitor’s movements as hostile actions calling for attack.”