Kirkham v. Will
244 Ill. Dec. 174, 311 Ill. App. 3d 787, 724 N.E.2d 1062 (2000)
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Rule of Law:
Under the Illinois Animal Control Act, provocation is an affirmative defense determined by an objective 'reasonable dog' standard, which evaluates whether the plaintiff's actions would be reasonably expected to cause a normal dog in similar circumstances to attack.
Facts:
- Mary Kirkham went to purchase asparagus from Evelyn Having, who lived next door to defendants Ron and Jody Will.
- The asparagus was located in a gas grill at the back of Having's house.
- Having and the Wills shared a continuous driveway, and Kirkham entered the driveway on the Wills' property.
- Because a truck blocked the driveway, Kirkham exited her vehicle to walk toward Having's house.
- While walking on the portion of the driveway on the Wills' property, their dog attacked and bit Kirkham.
- The attack caused Kirkham to trip and fall, resulting in a fractured ankle that required surgery.
Procedural Posture:
- Mary Kirkham filed a complaint against Ron and Jody Will in the circuit court (trial court).
- The Wills filed a motion for summary judgment, which the circuit court granted.
- Kirkham, as appellant, appealed to the Illinois Appellate Court, which reversed the summary judgment and remanded the case for trial.
- A jury trial was held in the circuit court, resulting in a verdict for the defendants, the Wills.
- Kirkham filed a post-trial motion, which the circuit court denied.
- Kirkham, as appellant, filed a timely notice of appeal to the Illinois Appellate Court.
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Issue:
Does the Illinois Animal Control Act's provision on provocation require an analysis from the perspective of what a reasonable person would know is likely to provoke an animal, or from the perspective of how a normal dog would reasonably react to the stimulus?
Opinions:
Majority - Justice Maag
No, the Act requires an analysis from the perspective of how a normal dog would react. The proper standard for determining provocation under the Illinois Animal Control Act is not what a reasonable person would expect to provoke a dog, but rather whether the plaintiff's actions would cause a normal dog to react in a similar manner. The court rejected the Illinois Pattern Jury Instruction (IPI), which framed the issue from the viewpoint of a reasonable person, because it inaccurately stated the law as established by precedent. Citing a line of cases including Nelson v. Lewis, Stehl v. Dose, and VonBehren v. Bradley, the court found that Illinois law consistently measures provocation from the perspective of the animal. The analysis focuses on the reasonableness of the dog's response to a given stimulus, regardless of whether the plaintiff's actions were intentional or unintentional. Therefore, the trial court was correct to refuse the IPI instruction and to provide the jury with a definition of provocation based on what would 'be reasonably expected to cause a normal dog in similar circumstances to react in a manner similar to that shown by the evidence.'
Analysis:
This decision solidifies the 'reasonable dog' standard for the provocation defense in Illinois animal liability cases, definitively rejecting the 'reasonable person' standard reflected in the state's pattern jury instructions. By doing so, the court prioritizes an objective evaluation of the animal's likely reaction over the subjective intent or awareness of the human victim. This clarification creates a more predictable, albeit potentially difficult to apply, standard for future cases, requiring juries to assess whether an animal's aggressive response was proportional to the victim's conduct from the animal's perspective. The ruling impacts litigation strategy by shifting the focus of evidence from the plaintiff's state of mind to the typical behavior of the animal species.
