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Nelson v. Lewis (1976)

Nelson v. Lewis (1976) No. 75-432

Appellate Court of Illinois, Fifth District

March 3, 1976

The facts of the case are these: (Evidentiary Facts)“On the date of her injury, plaintiff Jo Ann Nelson, a two and a half year old, was playing ‘crack-the-whip’ in defendants backyard with his daughter and other children. Jo Ann was on the end of the ‘whip.’ The testimony shows that after she had been thrown off the whip, Jo Ann fell or stepped on the dog’s tail while the dog was chewing a bone. The dog, a large Dalmatian, reacted by scratching the plaintiff in her left eye. There was no evidence that plaintiff or anyone else had teased or aggravated the dog before the incident, nor was there evidence that the dog had ever scratched, bitten, or attacked anyone else. According to its owner, the dog had not appeared agitated either before or after the incident. As a result of her injuries, Jo Ann incurred permanent damage to a tear duct in her left eye. It was established that Jo Ann’s left eye will overflow with tears more frequently and as a result of less irritation that normal, but that her vision in the eye was not affected.” (Procedural Facts) “The Circuit Court, St. Clair County, Robert L. Gagen, J., rendered judgment in favor of defendant, and plaintiff appealed. The Appellate Court, Karns, P. J., held that ‘provocation’ within [the] meaning of dog bite statute means either intentional or unintentional provocation, that defendant’s dog was provoked by plaintiff’s unintentional acts and did not viciously react to those acts, and that thus plaintiff was precluded from recovering.”

The issues of the case are these: 1. Did the act of Jo Ann Nelson, rise to the point of intentional or unintentional provocation of a dog, under the Illinois Dog Bite statute?

The holding of the case is this: 2. Jo Ann Nelson’s falling or stepping on the dogs tail, did rise to the level of being an unintentional provocation of the dog, under the Illinois Dog Bite statute.

The majority opinion (rationale) written by Justice Karns stated in part: “Our statute pertaining to liability of an owner of a dog attacking or injuring persons provides: If a dog or other animal without provocation, attacks or injures any person who is peacefully conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained (Ill. Rev. Stat. 1973, ch. 8, par. 366). Under the statute there are four elements that must be proved: 1. Injury caused by a dog owned or harbored by the defendant; lack of provocation; peaceable conduct of the person injured; and the present of the person injured in a place where he has a legal right to be (Siewerth v. Charleston (1967), Messa v. Sullivan (1965), Beckert v. Risberg (1964), reversed in 1965). There is no dispute but that the dog caused the plaintiff’s injury; the defendant owned the dog; the plaintiff’s conduct was peaceable; and she was injured in a place where she had a legal right to be. The issue presented is whether plaintiff’s unintentional act constitutes ‘provocation’ within the meaning of the statute. It appears that this issue has not been passed upon by an Illinois court. The statute does not distinguish between intentional and unintentional acts of provocation and thus, defendant argues, an unintentional act, so long as it provokes an animal or dog, may constitute provocation. Defendant’s position, that the mental state of the actor who provokes a dog is irrelevant is consistent with the commonly understood meaning of provocation. Provocation is defined as an act or process of provoking, stimulation or incitement (Webster’s Third New International Dictionary). Thus it would appear that an unintentional act can constitute provocation within the plain meaning of the statue… In the present case, it was admitted that the plaintiff jumped or fell on the dog’s tail; that the dog was of a peaceful and quiet temperament; and that the dog was gnawing on a bone when the incident occurred. Under these circumstances, we believe that the dalmatian was provoked, although the provocation was not intentional. Plaintiff argues that since her act was unintentional, or that because she was of an age at which she could not be charged with scienter, she did not provoke the dog within the meaning of the act… We believe that the determination of ‘provocation’ should also be made independently of such considerations. A determination of provocation does not require consideration of the degree of willfulness which motivates the provoking cause… Although we believe that the instant statute does not impose liability upon a dog owner whose animal merely reacts to an unintentionally provocative act, the present appeal does not involve a vicious attack which was out of all proportion to the unintentional acts involved (E. g. Messa v. Sullivan, supra). The dalmatian here apparently only struck and scratched plaintiff with a forepaw in response to the plaintiff’s stepping or falling on its tail while it was gnawing on a bone, an act which scarcely can be described as vicious. Therefore we hold that ‘provocation’ within the meaning of the instant statute means either intentional or unintentional provocation; that the defendant’s dog was provoked by the plaintiff’s unintentional acts and did not viciously react to these acts; and that no reversible error was committed in the trial court. For the foregoing reasons, the judgment of the Circuit Court of St. Clair County is affirmed.”

Justice Jones and Justice George J. Moran, concur (Dicta).

The judgment of the court in this case: was that the young girl who unintentionally landed on the tail of a dog, caused the dog to be provoked. Under the Illinois Dog Bite Statute, a dog owner is only liable if the dog which caused the injury was unprovoked. Because the court found that the dog was provoked, the dog owner was not liable for the damage caused by the dog.

Work’s Cited: 344 North Eastern Reporter, 2d Series Pg. 268-272, Nelson v. Lewis, No. 75-432.

Legal Brief by: David A.W. Hittle

July 2, 2013