The Journal of The DuPage County Bar Association

Back Issues > Vol. 24 (2011-12)

The Absence of Provocation Element in Illinois’ Dog Bite Statute
By William Gregory O

The relationship between dogs and humans spans thousands of years[1] with experts suggesting that the domestication of dogs began sometime between 14,000 and 8,000 B.C.[2] Today, one-third of American households have at least one dog.[3] Although we affectionately refer to dogs as “man’s best friend” because of the longstanding history canines share with humans and the prevalence of the relationship between canines and humans, approximately 4.5 million people are bitten by dogs each year.[4][5] Additionally, 334,000 people are admitted to emergency departments every year for dog bite related injuries and another 466,000 people are seen in other medical settings.[6] Moreover, dog bite related emergency room visits result in $102.4 million in annual hospital expenses.[7] Additionally, the insurance industry estimates it pays over $1 billion in homeowners’ liability claims every year for dog bite injuries.[8]

The pervasiveness of dog bites and other animal attacks on humans, and the high stakes involved with such injuries, behoove us to take a closer look at the applicable laws in the State of Illinois. The aim of this article is to briefly outline section 16 of the Animal Control Act,[9] also known as the “dog bite statute” and draw particular attention to the interesting role provocation plays in animal attack cases brought under section 16. In such cases, the plaintiff must prove the absence of provocation; however, the absence of provocation is considered only from the perspective of the defendant’s animal. In a sense, Illinois’ so-called “dog bite statute” forces us to think of animals as thinking, feeling beings rather than mere personal property.     

Common Law Action. When a person is injured in Illinois by a domestic animal, the injured victim has causes of action under both traditional common law tort theories and the Illinois “dog bite statute”.[10] Today, both remedies exist because the Court cannot “extinguish a common-law remedy unless the statutory action is so conflicting to the common-law action that both may not exist.”[11] Consequently, “[e]ither action is available depending upon the facts of the case and it cannot be fairly said that one remedy is contradictory to the other.”[12]

Under Illinois common law, “[a] dog owner’s liability rested upon negligence, and he could be liable only if he harbored a ‘vicious’ dog.”[13] As such, at common law, “one injured by a dog could recover from the owner only if he could prove that the dog had manifested a disposition ‘to bite mankind’ and that the dog’s keeper or owner had notice of this disposition.”[14]  The Illinois “dog bite statute” provides a path of less resistance for a plaintiff seeking to recover for injuries caused by an animal attack, as its analysis focuses on provocation rather than the viciousness of the animal and the owner’s knowledge of such vicious propensities.  

Statutory Action. The pertinent part of the Illinois “dog bite statute” provides, “If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages for the full amount of the injury proximately caused thereby.”[15] Accordingly, as provided in Stehl v. Dose, a plaintiff bringing a cause of action under Illinois’ “dog bite statute” must prove the following elements: (1) an attack by the defendant’s dog; (2) injury to the plaintiff; (3) absence of provocation; and, (4) that the plaintiff was conducting himself peaceably in a place where he had a legal right to be.[16]

As an aside, any person who keeps, harbors, or otherwise cares for an animal on her premises may be named as a defendant under the statute.[17] In this way, a person petsitting for a friend or neighbor could be exposed to liability for an animal she does not own. Also, do not be fooled by the “dog bite statute” misnomer. The above-referenced Stehl case, in its rendition of the elements of a cause of action under the “dog bite statute”, only makes mention of canines; however, a plaintiff injured by any type of domestic animal has a cause of action under the “dog bite statute.”[18]

Not only does the “dog bite statute” apply to all types of domestic animals, as explained above, the statute extends to all types of animal attacks, as any unprovoked attack or attempted attack by a domestic animal will give rise to liability under the statute.[19] In Nelson v. Lewis,[20] a two year old girl was struck and scratched in the left eye by the forepaw of a large Dalmatian. While the lower court’s jury verdict in favor of the defendant was ultimately affirmed, unprovoked pawing or scratching are sufficient forms of animal attacks under the statute. Moreover, a plaintiff can recover for injuries that are mere byproducts of incidents involving animals, even in cases where the animal did not act with the intent to cause harm. In McEvoy v. Brown,[21] a puppy running in between the plaintiff’s legs was said to have caused her to lose balance and fall, giving rise to a cause of action under the “dog bite statute”.

As mentioned above, Illinois’ “dog bite statute” substantially relaxes the plaintiff’s burden of proof at common law by eliminating “the requisite proof that the dog was vicious towards humans and that the owner knew of this disposition”.[22]  Instead, the “dog bite statute” requires us to consider whether the animal in question was provoked.[23] The Nelson case defined provocation as “an act or process of provoking, stimulation or incitement.”[24]

Provocation of the Animal. Interestingly, the absence of provocation is considered from the animal’s perspective. In this way, the injured victim’s intent to provoke the animal is irrelevant, as “[t]he statute does not distinguish between intentional and unintentional acts of provocation”.[25] In Nelson, where a young girl was scratched by a Dalmatian, the injured minor was deemed to have provoked the dog by accidentally stepping on the dog’s tail while playing in the defendant’s backyard.[26] Conversely, a mail carrier who was attacked by a small dog after spraying it with Halt!, a Post Office issued dog repellant, was determined to be taking “reasonable measures for self-protection” and not acting provocatively toward the dog.[27]

In Nelson and Steichman, we have two divergent outcomes that may seem counterintuitive. On one hand, accidentally stepping on a dog’s tail resulted in a finding of provocation in Nelson. On the other hand, knowingly and purposefully dousing a dog with pepper spray was not provocation in the Steichman case. Remember, the absence of provocation is evaluated from the animal’s point of view. Making physical contact with an otherwise preoccupied dog, as in Nelson, will startle and provoke such an animal, while spraying an attacking dog with dog repellant, as in Steichman, is self-defense, not an act of provocation. 

Furthermore, the age of the injured victim or her ability to form the intent to provoke an animal has no impact on the provocation inquiry; “a young child is not exempt from responsibility for his or her acts which provoke a dog under this statute.”[28] This fact is of particular importance when we consider that 70% of dog bite-related fatalities and over 50% of bite wounds that require medical attention involve youths.[29][30] Moreover, only bicycle and baseball/softball related injuries result in more emergency room visits for children than dog bite related injuries.[31] 

In Siewerth v. Charleston, a seven year old boy repeatedly kicking and pushing an injured Rhodesian Ridgeback “was completely sufficient to constitute provocation as contemplated by the statute.” Like the injured victim in Nelson, who was 2 years old at the time of the incident, the injured party in Siewerth was a minor child (7 years old); however, unlike young Jo Ann Nelson, who provoked the dog in her case by accidentally stepping on the dog’s tail, the plaintiff in Siewerth intentionally kicked and pushed the defendant’s dog. Regardless of whether the young boy in Siewerth was able to form the intent to provoke the dog in that case, the fact remains that the dog was provoked and this is all that really matters when we consider the absence of provocation under Illinois’ “dog bite statute”.

Although the injured victim’s intent to provoke an animal and her ability to form such intent are irrelevant when we examine the absence of provocation under the statute, requiring a plaintiff to prove the absence of provocation does not give a defendant carte blanche to depict any and all conduct of a plaintiff as provocative behavior. In other words, the term “provocation” in the “dog bite statute” does not “thereby relieve from responsibility the owner of a vicious dog”.[32] In Messa v. Sullivan, where the plaintiff was attacked by the defendant’s watchdog while entering a hallway that leads to the defendant’s premises, the defendant argued that the plaintiff provoked the dog by approaching the defendant’s apartment and the dog without warning and “this act represented a threat to the security of the apartment [and] that the dog resented this threat”. The Court rejected this argument, as provocation is not present “merely because the dog interprets the visitor’s movements as hostile actions calling for attack.”[33]

In Stehl, the plaintiff, an invited guest on the defendant’s farm, was attacked by the defendant’s German Shepherd after feeding the dog scraps and entering the dog’s circle, conduct deemed sufficiently provocative by the Court. The Court stated that “neither the fact that plaintiff had the owner’s permission to approach the dog nor the fact that plaintiff was conducting himself in a manner approved by the hired hand are matters bearing on the issue of provocation.”[34] According to the Court, the plaintiff’s act of crossing the perimeter of the dog’s chain, entering into the dog’s territory, and remaining in said territory while the dog ate was sufficient provocation. 

Although both Messa and Stehl involve visitors attacked by guard dogs, the cases have opposite results. In Messa, the Court found no provocation on the part of the plaintiff while the opposite is true of Stehl; however, this does not mean that these cases are inconsistent. The differing outcomes of Messa and Stehl  may point to, dare I say, a sort of reasonable dog standard for provocation under the “dog bite statute”. If provocation is not present “merely because the dog interprets the visitor’s movements as hostile actions calling for attack”, then reasonableness must be the benchmark for evaluating the absence of provocation.[35]

One possible explanation for the divergent holdings of Messa and Stehl relates to the locations of the incidents. In Messa, the plaintiff was attacked in the hallway outside the defendant’s apartment. Simply put, a watchdog must not overstep her bounds and her bounds are limited to her owner’s property. A guard dog that indiscriminately mauls visitors before they even enter the dog owner’s home is a vicious, and inherently unreasonable, dog.   

In Stehl, the plaintiff was on the defendant’s property and inside the dog’s circle, no less, when bitten on the forearm by the defendant’s watchdog. Stehl demonstrates that encroaching on a watchdog’s territory can be enough to give rise to a finding of provocation even if the dog gives no indication that she feels provoked prior to attacking. With that said, a perfectly reasonable dog in the defendant dog’s position may too feel provoked by a stranger invading her territory.

Another possible explanation for the differing outcomes in these cases involves the interactions of the plaintiffs with the watchdogs before the attacks. Messa had no knowledge of the dog or interactions with the dog prior to the attack whereas Stehl entered the defendant’s property for the exclusive purpose of interacting with the dog. The plaintiff in Messa was just exiting the elevator when she was attacked by the defendant’s German Shepherd. Only an unreasonably vicious dog would attack a person under such circumstances. In contrast, the plaintiff in Stehl visited the defendant’s farm for the purposes of inspecting and ultimately re-homing the dog. Moreover, the plaintiff was feeding the dog while inching closer and closer to the animal. All this happened while the plaintiff was on the dog’s turf. The direct contact between Stehl and the dog makes the dog’s unexpected attack more reasonable and the presence of provocation more likely than was the scenario on the Messa case.

Conclusion. The bond between humans and domestic animals creates great joy, companionship, and unconditional love for both people and pets; however, we must be cognizant of the impact animal attacks have on injured victims and the public health risks involved with animal attacks. Illinois’ “dog bite statute” alleviates the proof problems associated with common law negligence by requiring the plaintiff prove the absence of provocation rather than having to prove the defendant’s dog is dangerous and the defendant was previously aware of such dangerous propensities. In considering whether an animal was provoked from the animal’s point of view, we must look at factors such as the animal’s motivation, health, and mental state at the time of the incident. Perhaps the statute is a sign of our changing attitudes of the treatment of animals under the law. At the very least, Illinois’ “dog bite statute” is one of the rare laws that requires attorneys to think of animals as something more than just chattel and for a good reason aside from the less stringent proof requirements for plaintiffs: animals have feelings too.

[1] Weiss HB, Friedman DI, Coben JH, Incidence of dog bite injuries treated in emergency departments, 2711 J. American Med. Assoc. 51 (1998) (“JAMA”), (citing Davis SJM, Valla FR, Evidence for domestication of the dog 12,000 years ago in the Natufian of Israel, 276 Nature 608-610 (1978).

[2] Randolph M, Every Dog’s Legal Guide: a must-have book for your owner, 2-3 (Nolo, 2007). 

[3] Gershman KA, Sacks JJ, Wright JC, Which Dogs Bite? A case-control study of risk factors, 93 Pediatrics 916 (1994)(citing Rowan AN, Companion animal demographics and unwanted animals in the United States, 5 Anthrozoos 222-225 (1992); Weiss, supra n. 1, at 53 (citing Wise JK, Yang JJ, Dog and cat ownership, 1991-1998. 204 J Am Vet Med Assoc 1166-1167 (1994)); Sacks JJ, Kresnow M, Houston B. Dog bites: how big a problem? 2 Inj Prev 53 (1996).

[4] Sacks JJ, Kresnow M, Houston B. Dog bites: how big a problem? 2 Inj Prev 53 (1996).

[5] Quinlan KP, Sacks JJ, Hospitalizations for dog bite injuries, 281 J. American Med. Assoc. 232-233 (1999).

[6] Weiss, supra n. 1, at 53.

[7] Id.

[8] Beaver BV, Human-Canine Interactions: A Summary of Perspectives, 210 J Am Vet Med Assoc 1148-1150 (1997).

[9]510 Ill. Comp. Stat. 5/16 (2010).

[10] Steichman v. Hurst, 2 Ill. App.3d 415, 417, 275 N.E.2d 679 (1971) (citing Reeves v. Eckles, 77 Ill. App.2d 408, 222 N.E.2d 530 (1966)).

[11] Reeves v. Eckles, 77 Ill. App.2d 408, 410, 222 N.E.2d 530 (1966).

[12] Id.

[13] Nelson v. Lewis, 36 Ill. App.3d 130, 133, 344 N.E.2d 268, 272 (1976).

[14] Id. (citing Chicago & Alton R.R. Co. v. Kuckkuck, 197 Ill. 304, 64 N.E. 358 (Ill. 1902); Domm v. Hollenbeck, 259 Ill. 382, 102 N.E. 782 (1913); Klatz v. Pfeffer, 333 Ill. 90, 164 N.E. 224 (1928)).

[15]510 Ill. Comp. Stat. 5/16 (2010).

[16] Stehl v. Dose, 83 Ill. App.3d 440, 443, 403 N.E.2d 1301, 1303 (1980).

[17] 510 Ill. Comp. Stat. 5/2.16 (2010).

[18] Id.

[19] Id.

[20] 36 Ill. App.3d 130, 133, 344 N.E.2d 268, 272 (1976).

[21] McEvoy v. Brown, 17 Ill.App.2d 470, 150 N.E.2d 652 (3 Dist. 1958).

[22] Lewis, supra n. 14, at 133 (citing Beckert v. Risberg, 33 Ill.2d 44, 210 N.E.2d 207 (1965)).

[23] 510 Ill. Comp. Stat. 5/2.16.

[24] Lewis, supra n. 14, at 131 (citing Webster’s Third New International Dictionary 1827 (1961)).

[25] Id.

[26] Id.

[27] Hurst supra n. 11, at 419.

[28] Lewis supra n. 14, at 133.

[29] Wright JC, Canine aggression toward people: bite scenarios and prevention, 21 Vet Clin North Am Small Anim Pract 306-307 (1991).

[30] Gershman supra n. 3, at 93:913.

[31] Weiss, supra n. 1, at 2711:52-53.

[32] Messa v. Sullivan, 209 N.E.2d 872, 875, 61 Ill. App.2d 386, 393 (1965).

[33] Id.

[34] Dose supra n. 16, at 443.

[35] Sullivan supra n. 30, at 394.

William Gregory O is the Co-Founder and current Vice Chair of the DuPage County Bar Association’s Animal Law Committee. William has written extensively on the subject of animal law. Also, he has contributed to publications on the topics of business law, employment law, and healthcare law. William is admitted to practice in Illinois.

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