Messa v. Sullivan
61 Ill. App. 2d 386, 1965 Ill. App. LEXIS 962, 209 N.E.2d 872 (1965)
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Rule of Law:
Under the Illinois Dog Bite Statute, an individual is considered to be lawfully on the premises of a mixed-use commercial and residential building if the building's appearance implies a public invitation and any warning of danger is inadequately placed. Furthermore, the act of merely entering an area where a guard dog is kept does not constitute "provocation" under the statute.
Facts:
- James Sullivan was the president of the Keyman’s Club and managed its building, which housed numerous businesses and offices on its lower floors.
- Sullivan and his wife, Helen, resided on the fifth floor of the building, which was otherwise unoccupied. There were no signs indicating the fifth floor was a private residence.
- The Sullivans kept their German Shepherd dog, 'K.C.', in their fifth-floor apartment to protect the Club’s receipts, which were stored in a safe there.
- On June 12, 1961, Betty Messa, a deaf mute, entered the building lobby to sell printed cards.
- Messa took the public, automatic elevator to the fifth floor.
- To exit the elevator car onto the fifth-floor landing, Messa had to manually push open a heavy, outward-swinging door.
- A sign warning 'VICIOUS POLICE DOGS INSIDE' was posted on this manual door.
- As Messa pushed the door open and stepped into the hallway, the dog ran from the Sullivans' apartment and attacked her, causing multiple bite wounds. Messa testified she did not see the sign as she was focused on opening the heavy door.
Procedural Posture:
- Betty Messa sued James Sullivan, Helen Sullivan, and the Keyman’s Club in an Illinois trial court on two theories: a common law claim and a claim under the state's 'Dog Bite Statute'.
- The parties waived a jury, and a bench trial was conducted.
- The trial court found for the defendants on the common law count, holding that Messa was contributorily negligent.
- The trial court found for Messa on the statutory count against James Sullivan and the Keyman’s Club, awarding her $3,000 in damages.
- Defendants James Sullivan and the Keyman's Club (appellants) appealed the judgment on the statutory count to the Appellate Court of Illinois. Messa (appellee) did not appeal the ruling on the common law count.
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Issue:
Does a person who enters a residential floor of a mixed-use building fail to meet the Illinois Dog Bite Statute's requirements of being lawfully on the premises and not provoking the animal, when the building appears entirely commercial and the only warning of a vicious dog is on a heavy, manually-operated elevator door leading to that floor?
Opinions:
Majority - Mr. Presiding-Justice Burman
No. A person in these circumstances meets the statutory requirements of being lawfully on the premises and not provoking the animal. The court reasoned that the building's overall commercial appearance created an implied invitation to the public to enter and ascend to the various floors. The single warning sign was inadequately placed, as it was only visible split seconds before entering the area of danger and at a time when a person would be distracted by the physical effort of opening a heavy door. Therefore, the sign did not provide adequate warning to render Messa's presence unlawful. The court also held that 'provocation' under the statute is not established merely because a guard dog interprets a visitor's peaceful movements as a threat; Messa's only actions were stepping off the elevator and walking in the hall.
Analysis:
This decision clarifies the scope of liability under the Illinois Dog Bite Statute, particularly for owners in mixed-use properties. It establishes that an implied invitation to the public, created by a building's commercial nature, is not easily revoked, requiring warnings that are both clear and appropriately timed. The ruling narrows the definition of 'provocation,' placing the onus on the owner for a guard dog's reaction to a person's non-threatening presence. This precedent makes it more difficult for dog owners to evade statutory liability by claiming a visitor was a trespasser or was provocative without evidence of an adequate warning or truly provocative acts.
