Nelson v. Lewis
36 Ill. App. 3d 130, 1976 Ill. App. LEXIS 1994, 344 N.E.2d 268 (1976)
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Rule of Law:
Under the Illinois 'dog-bite' statute, provocation can be an unintentional act. The injured person's intent or age is irrelevant to determining whether their action constituted provocation.
Facts:
- Jo Ann Nelson, a 2.5-year-old child, was playing 'crack-the-whip' in the backyard of the defendant, Lewis.
- As part of the game, Jo Ann was thrown from the end of the line of children.
- Jo Ann then fell or stepped on the tail of Lewis's Dalmatian dog.
- At the moment she fell on its tail, the dog was chewing on a bone.
- In reaction, the dog scratched Jo Ann in her left eye, causing permanent damage to a tear duct.
- Prior to this incident, there was no evidence that the dog had ever attacked anyone or that the children had been teasing it.
Procedural Posture:
- The plaintiff, Jo Ann Nelson, by her father, filed suit against the defendant dog owner in the Circuit Court of St. Clair County, an Illinois trial court.
- The case was tried before a jury.
- The jury returned a verdict in favor of the defendant.
- The trial court entered a judgment on the jury's verdict.
- The plaintiff, as the appellant, appealed the judgment to the Appellate Court of Illinois, Fifth District.
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Issue:
Does an unintentional act, such as accidentally stepping on a dog's tail, constitute 'provocation' within the meaning of the Illinois 'dog-bite' statute, thereby precluding recovery for the resulting injury?
Opinions:
Majority - Mr. PRESIDING JUSTICE KARNS
Yes. An unintentional act can constitute provocation under the Illinois 'dog-bite' statute. The court reasoned that the plain meaning of 'provocation'—an act of stimulating or inciting—does not require intent. The statute itself does not distinguish between intentional and unintentional acts, and if the legislature had intended to limit the defense to intentional provocation, it would have specified so. The court concluded that the statute was designed to remove subjective inquiries, such as the injured person's state of mind, from the liability analysis. The statute eases the common law burden but does not impose absolute strict liability. Furthermore, the plaintiff's young age does not exempt her from responsibility for a provoking act. The court also noted that the dog's reaction—a scratch—was not a vicious attack out of proportion to the provocation of being stepped on while chewing a bone.
Analysis:
This decision clarifies that under the Illinois dog-bite statute, the focus of the provocation defense is on the objective nature of the injured person's act and its effect on the animal, rather than the person's subjective intent. It prevents the statute from becoming a pure strict liability law, especially in cases involving children, by confirming that an owner is not liable if their dog reacts non-viciously to an accidental provocation. This ruling establishes a precedent that unintentional acts can bar recovery, while also suggesting a proportionality limit—a dog's vicious overreaction might not be excused by a minor, unintentional provocation.
