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Messa v. Sullivan (1965)

Messa v. Sullivan (1965) Gen. No. 49893

Appellate Court of Illinois, First District, First Division

July 30, 1965

Rehearing Denied Sept. 7, 1965.

The facts of the case are these: (Evidentiary Facts) “The plaintiff suffered her injuries in the Keyman’s Club building, 4721 West Madison Street in the City of Chicago. Located on the lower level and on the first and second stories of this building were the following: a bowling alley, a barber shop, a cocktail lounge, banquet and meeting rooms, a ballroom and various other businesses and offices. A labor union office occupied the third floor and the fourth floor was vacant. James Sullivan, the president of the Club and the manager of its building for over twenty years, and his wife, Helen, occupied the fifth floor as their residence. No other use was made of the fifth floor. The Sullivan’s apartment contained a safe in which the receipts from the operation of the building were kept. In additional, the apartment contained the defendants’ furniture, personal property and their three year old German Shepherd dog, named ‘K.C.’, which was kept there to protect the Club’s property in the apartment. The various businesses located in the building were advertised by signs on the exterior of the structure and on a building directory which was located in the building lobby. There were, however, no noticed anywhere that the fifth floor was used as a residence and not for commercial or business purposes. All the floors of the building were served by an automatic elevator which could be reached on the ground floor by entering the building from Madison Street and by walking through the building lobby past the building office, which was located on the left of the lobby as one entered the building. The plaintiff and the defendant, James Sullivan, testified concerning the events which occurred on the day in question. The plaintiff, who was a deaf mute, testified that as about two o’clock on the afternoon of June 12, 1961, she entered the defendants’ building for the purpose of selling printed cards depicting the deaf and dumb alphabet. She said that this was the first time she had been in the building; that as she walked through the lobby she saw a woman at a telephone switchboard in the building office, that she entered the elevator and rode it to the fifth floor. When she got to that floor the door on the elevator itself opened automatically. The plaintiff said that before she could step out of the elevator she had to manually open a second door which swung outward. She opened this door, which she said was heavy. She stepped out into the fifth floor hall and turned to the left where there was a door. At this point the defendants’ dog ran out of the door and jumped on the plaintiff. She testified: ‘*** the dog bit me on the leg, and he bit me on the body, and he bit me on the arm, and I tried to cover my face. And the dog was big and the dog was bigger than I was, and he was on top of me, and three times he bit me.’ The plaintiff stated that she finally managed to get back to the elevator and to ride down to the lobby where she told the woman at the switchboard what had happened. During her testimony, the plaintiff was shown plaintiff’s exhibit number one, a picture of a sign reading in large letters: ‘WARNING KEEP OUT VICIOUS POLICE DOGS INSIDE…’ She denied having seen the sign because in her words, ‘*** the door was so heavy. I was pushing the door, it was a sliding door, and I did not see the sign.’ Concerning her injuries, the plaintiff identified two exhibits as accurate pictures of the large marks and wounds inflicted by the dog on her legs, on her right side ad on her right arm… The defendant, James Sullivan, testified that on the day in question he and an office girl were in the building office; that he observed the plaintiff walk into the lobby and proceed directly to the elevator without looking at the directory; that he saw the plaintiff board the elevator; and that he noticed the elevator go to the fifth floor. He said that the door on the elevator itself opened automatically; that when this door opened on the fifth floor, there was a second door which must be opened outward by hand to gain entrance to the hall; and that a thirty inch high sign warning of the presence of vicious dogs was posted on this manually operated door so that the bottom of the sign was about three and one-half to four feet from the floor… In his discovery deposition, the defendant testified that there was no sign in the elevator itself regarding vicious dogs and that the manually operated elevator door on the fifth floor could be locked by a key, but that it was unlocked on the day of the occurrence… The ‘Dog Bite Statute’ with which this appeal is principally concerned provides: ‘If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained. The term ‘owner’ includes any person harboring or keeping a dog. The term ‘dog’ includes both male and female of the canine species (Ill. Rev. Stat. 1963, ch. 8, ss.12d). This court, in Beckert v. Risberg, 50 Ill. App.2d 100, 199 N.E.2d 811, set forth the four elements of an action under this statute as follows: 1. Injury caused by a dog owned or harbored by the defendant; 2. Lack of provocation; 3. Peaceable conduct of the person injured, and 4. The presence of the person injured in a place where he has a legal right to be. There is no dispute that the plaintiff was bitten by a dog owned by the defendants and hence there is no question concerning the first element above. The defendants contend that the other elements are not satisfied, however, because the plaintiff’s entry onto the fifth floor past a large sign warning her of the presence of the dog which bit her constituted and constituted an unlawful entry by the plaintiff and constituted provocative behavior on her part.” (Procedural Facts) “Betty Messa brought this action against James Sullivan, Helen Sullivan and the Keyman’s Club, an Illinois not for profit corporation, to recover damages for the bodily injuries which she sustained as the result of being bitten by the defendants’ dog. The complaint was based on two theories: first, a common law action for the keeping of a vicious animal and, second, an action based on what is commonly known as the ‘Dog Bite Statute’ (Ill. Rev. Stat. 1963, ch. 8, ss. 12d). The parties waived a jury and the case was tried by the court. On the common law count, the trial court held for the defendants because he found that the plaintiff was contributorily negligent. No appeal has been taken from the judgment entered on that issue. On the statutory count, however, the court concluded that the plaintiff should recover and therefore he entered judgment awarding the plaintiff damages only against James Sullivan and the Keyman’s Club in the amount of $3,000. From this judgment these two defendants appeal. They contend that the plaintiff failed to prove, as she was required to prove in order to recover under the statute, that she was lawfully on the defendants’ premises and that she did not provoke the dog to attack. Alternatively the defendants contend that the amount of the damage award is not supported by the evidence.

The issues in this case are these: 1. Was Betty Messa lawfully on the defendants’ premises, pursuant to the Illinois ‘Dog Bite Statute?’ 2. Did Betty Messa provoke the dog under the Illinois ‘Dog Bite Statute?’ 3. Are the defendants’ liable for the dog bite, under the Illinois ‘Dog Bite Statute?’ 4. Was the award of $3,000 excessive or shocking to the judicial conscience?

The holding in this is that: 1. Betty Messa, was lawfully on the defendants’ premises. 2. The court found that Betty Messa, entrance into the premises of the defendants’ was not indicative of a provocation under the Illinois ‘Dog Bite Statute.’ 3. Under the Illinois ‘Dog Bite Statue’ four elements must be acted: Injury caused by a dog owned or harbored by the defendant, this occurred. Lack of provocation, this occurred, the court found no provocation by Betty Messa. Peaceable conduct of the person injured, this occurred, Betty Messa was there for a legal business transaction. The presence of the person injured in a place where he has a legal right to be, this occurred, the court found that she was there for a lawful reason, and had a right to be there. 4. The court found that the award of $3,000 was not excessive, and not shocking to the judicial conscience.

The majority opinion (rationale) written by Justice Burman states in part: “We do not agree that the plaintiff was not lawfully on the defendants’ premises. From all indications on the exterior of the defendants’ building, in its lobby and on the inside of the elevator cab itself, people like the plaintiff could only surmise that the entire building was devoted to business purposes and that it was intended that they should come there on business. No notices anywhere indicated that any part of the premises was used as a private residence. It is clear, therefore, that when she entered the building, crossed its lobby, entered the elevator and rode it to the fifth floor, the plaintiff was lawfully on the premises. In addition, we believe that she was also lawfully on the premises when she entered the fifth floor hall where she was attacked. Persons entering the building and riding its elevator would have no reason to believe that the fifth floor was used for residential purposes or that vicious dogs were kept there. The sole warning to this effect was posed in a place where it could be seen only split seconds before one would enter the danger area and only at a time when the elevator passenger would be concerned with pushing open the heavy door in order to step into the hall and continue on with his business there. We agree with the trial court that under these circumstances the warning sign was in the wrong location, that it did not give adequate warning of the danger and the hence the sign gives no grounds for holding that persons who enter the hall have no legal right to be there… Next the defendants argue that the plaintiff was guilty of provocative behavior at the time she was attacked. They reason that the plaintiff approached the apartment and the dog without giving a warning as to the nature of her visit; that this act represented a threat to the security of the apartment; that the dog represented this threat and that the plaintiff should have known such conduct would be likely to provoke a dog to attack. We do not agree. Here the plaintiff had a legal right to be in the hallway. Her only actions at that point consisted of stepping off the elevator and walking a short distance toward the defendants’ apartment door. We do not believe that the term ‘provocation’ in the statute was intended to apply to a situation like this and thereby relieve from responsibility the owner of a vicious dog, which is specifically kept for protection, merely because the dog interprets the visitor’s movements as hostile actions calling for attack. Finally the defendants contend that the award of $3,000 is not supported by the evidence and that it is excessive. Our courts have consistently held that a damage award to a plaintiff in a personal injury case will not be set aside unless it is so palpably excessive as to indicate passion or prejudice on the part of the trier of fact (Holsman v. Darling State Street Corp., 6 Ill. App.2d 517, 128 N.E.2d 581, and cased there cited; Eizerman v. Behn, 9 Ill. App. 2d 263, 132 N.E.2d 788; Lau v. West Towns Bus Co., 16 Ill. 2d 442, 158 N.E.2d 63) or unless it is so large as to shock the judicial conscience (Barango v. E. L. Hedstrom Coal Co., 12 Ill. App.2d 118, 138 N.E.2d 829; Smelcer v. Sanders, 39 Ill. App.2d 164, 188 N.E.2d 391; Myers v. Nelson, 42 Ill. App.2d 475, 192 N.E.2d 403). The record shows that the plaintiff sustained multiple wounds on her body, arms and legs and that she suffered great pain. We find nothing here to indicate passion or prejudice on the part of the trial judge and we do not believe that under the circumstances the award can be considered shocking to the judicial conscience. Hence we cannot substitute our judgment for that of the trial judge and set aside the award. The judgment should be affirmed.

Justice Murphy and Kluczynski concur with the majority opinion (dicta).

The judgment in this case is that the defendants are liable for the damages done to the plaintiff because the dog bite occurred according to the Illinois ‘Dog Bite Statute.’ Unlike Nelson v. Lewis, the dog was not provoked by the victim. In Nelson, the dog’s tail was stepped on in an unprovoked provocation, which caused the dog to hurt the victim Miss Nelson. In this case, the dog was not bothered by the victim other than when the victim opened a door, which the victim believed to be an opening to another business. The victim also had a legal right to be on the premises, and the victim’s conduct was peaceable. The plaintiff’s judgment for an award of $3,000 is affirmed by the court.

Works Cited: 209 North Eastern Reporter, 2d Series Pg. 872-876, Messa v. Sullivan, Gen. No. 49893.

Legal Brief by: David A.W. Hittle

July 2, 2013