Siewerth v. Charleston
89 Ill.App.2d 64, 1967 Ill. App. LEXIS 1369, 231 N.E.2d 644 (1967)
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Rule of Law:
An intentional act that a person knows will anger or disturb a dog constitutes provocation under the Illinois dog bite statute, and such provocation can be a continuous series of acts by more than one person, which serves as a complete bar to recovery.
Facts:
- On June 8, 1963, seven-year-old Roy Siewerth was playing on the front porch of Ruben Charleston's home with Charleston's son, Kevin.
- Charleston's 100-pound Rhodesian Ridgeback dog, which had recently given birth and had been injured in a car accident weeks prior, was also lying on the porch on the extremely hot day.
- Siewerth pushed or kicked the dog in the stomach on two separate occasions.
- The dog growled after each time Siewerth kicked it, and Siewerth later testified that he knew his actions made the dog angry.
- A few minutes after Siewerth's second kick, his playmate Kevin Charleston also pushed or kicked the dog.
- Barbara Charleston, the defendant's wife, told the boys to get off the porch and specifically told Siewerth to go home, but he did not leave.
- Subsequently, Siewerth bent his head toward the dog, and the dog bit him on the face.
Procedural Posture:
- Roy Siewerth, a minor represented by his father, sued Ruben Charleston in a trial court for injuries from a dog bite.
- The trial court entered a judgment in favor of the plaintiff, Roy Siewerth, awarding him $500.30.
- Siewerth (appellant) appealed to the intermediate appellate court, contending the damage award was inadequate.
- Charleston (appellee) filed a cross-appeal to the same court, asking for the judgment against him to be reversed entirely.
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Issue:
Does kicking or pushing a dog, with the knowledge that the action angers the dog, constitute 'provocation' under the Illinois dog bite statute, thereby barring the injured person from recovering damages?
Opinions:
Majority - Mr. Presiding Justice Sullivan
Yes, kicking or pushing a dog with the knowledge that it angers the animal constitutes provocation under the statute and bars recovery. The statute requires a plaintiff to prove a 'lack of provocation.' The court rejected the plaintiff's argument that he, as a minor, lacked the intent to provoke, because the plaintiff himself testified that he knew the dog was angry when it growled in response to being kicked. The court also held that the kicks from the plaintiff, followed by a kick from his playmate, constituted 'continuous provocation.' Because the plaintiff failed to prove the element of lack of provocation, he could not recover under the statute, and the defendant was not liable.
Analysis:
This case clarifies the legal definition of 'provocation' under the Illinois dog bite statute, establishing that the standard does not require an intent to be bitten, but merely an intent to perform the act that provokes. It sets a precedent that a minor is capable of such provocation and that the actions of multiple parties can be viewed as a single, 'continuous provocation.' The decision strengthens the defense for dog owners by confirming that a plaintiff's own contributory actions, if deemed provocative, can serve as a complete bar to recovery under the statute.
