|||Illinois Appellate Court
|||311 Ill.App.3d 787, 724 N.E.2d 1062, 244 Ill.Dec. 174, 2000.IL.0042122
|||February 16, 2000
|||MARY KIRKHAM, PLAINTIFF-APPELLANT,
RON WILL AND JODY WILL, DEFENDANTS-APPELLEES.
|||Appeal from the Circuit Court of Effingham County. No. 96-L-55 Honorable
Richard H. Brummer, Judge, presiding.
|||The opinion of the court was delivered by: Justice Maag
|||The plaintiff, Mary Kirkham, filed a complaint on November 7, 1996, against
the defendants, Ron and Jody Will. Specifically, plaintiff claimed that
on May 3, 1995, she was attacked and bitten by defendants' dog while she
was lawfully on defendants' premises to purchase asparagus from Jody Will's
mother, Evelyn Having, who lived next door to defendants. Plaintiff alleged
that she was peacefully conducting herself when the attack occurred and
that defendants' dog also caused her to trip and fall during the attack.
Plaintiff claimed that as a direct and proximate result of the dog's bite
and the fall, her ankle was fractured, which required her to have surgery
and be hospitalized. Plaintiff prayed for damages pursuant to the Animal
Control Act (510 ILCS 5/16 (West 1994)), which states as follows:
|||"If a dog or other animal, without provocation, attacks or injures
any person who is peaceably 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."
|||On December 4, 1995, defendants filed an answer to plaintiff's complaint.
Defendants denied liability. On January 17, 1997, defendants filed a motion
for summary judgment, claiming that plaintiff was not lawfully on the premises
at the time of the alleged attack because her blood alcohol level was in
excess of 0.10. Defendants also claimed that since plaintiff did not have
permission to be on their property and because she did not intend to be
on defendants' property, she was trespassing. Subsequent to plaintiff's
response and affidavit being filed, several motions to strike were also
filed. Ultimately, the circuit court granted defendants' motion for summary
|||Plaintiff filed a notice of appeal on July 7, 1997. This court reversed
the circuit court's order granting defendants' motion for summary judgment
because a material issue of fact remained unresolved. Kirkham
v. Will, No. 5-97-0460 (February 18, 1998) (unpublished
order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). In the prior
appeal, the record showed that plaintiff was picking up the asparagus for
Linda Shafer, Having's daughter and Jody Will's sister. Shafer told plaintiff
that the asparagus would be in the gas grill and that plaintiff should take
the asparagus and replace it with a $10 bill. The gas grill was located
at the back of Having's house, and Having knew that plaintiff was coming.
Having shared a driveway with defendants, and their homes were adjacent
to one another. The driveway was continuous; one end of it entered on Having's
property and the other end of it entered on defendants' property. Plaintiff
entered the driveway on defendants' property. Because the driveway was blocked
by a parked truck, plaintiff exited her car, intending to walk to the gas
grill to retrieve the asparagus. As she was walking up the driveway on defendants'
property toward Having's house, plaintiff was attacked by defendants' dog.
This court determined that plaintiff presented evidence that she entered
defendants' property during daylight hours and for a lawful purpose, that
is, to purchase asparagus from Having, who lived next door to and shared
a driveway with defendants. Plaintiff presented evidence that she had used
the driveway in the past to access Having's home, that she had been observed
doing so by defendant Jody, and that defendants never objected. The driveway
that plaintiff used, although partially on defendants' property, also led
directly to Having's home and, according to plaintiff, was used by others
to reach Having's home. Defendants presented no evidence to the contrary.
Defendants attempted to escape liability by claiming that since plaintiff's
blood alcohol level was above 0.10 at the time of the attack, she was not
lawfully on the premises. This court held, however, that the Animal Control
Act does not require that the plaintiff lawfully arrive at the place where
she is injured. The Animal Control Act requires that the plaintiff lawfully
be at that place. We determined that plaintiff presented evidence that she
was using defendants' driveway during daylight hours, for a lawful purpose.
The driveway provided access from a public way to Having's property. There
was no evidence of any notice or warning to stay off defendants' property,
nor was there any evidence that plaintiff committed any unlawful act upon
defendants' property or caused any damage to defendants' property. We therefore
reversed the summary judgment in favor of defendants and remanded this case
for further proceedings.
|||A jury trial was held on November 2 and 4, 1998. The jury returned a verdict
in favor of defendants, and the court entered judgment on the verdict. Plaintiff
filed a posttrial motion on November 12, 1998. On December 22, 1998, plaintiff's
posttrial motion was denied. Plaintiff filed a timely notice of appeal on
January 6, 1999.
|||Plaintiff claims on appeal that the circuit court erred in instructing
the jury on defendants' liability. More specifically, plaintiff claims that
the circuit court erred in failing to use the tendered pattern jury instruction
(Illinois Pattern Jury Instructions, Civil, No. 110.04 (3d ed. 1995) (IPI
Civil 3d)), because the tendered instruction accurately stated the law in
Illinois. Plaintiff claims that since the circuit court refused to use that
instruction, this court must reverse the judgment of the circuit court and
remand this case for a new trial.
|||The instruction at issue reads as follows:
|||"At the time of the occurrence there was in force in the State of
Illinois a statute governing the responsibility of one owning, keeping or
harboring a dog or other animal. That statute provides that [the owner of
an animal] [a person keeping an animal] [a person harboring an animal] is
liable in damages for injuries sustained from any attack or injury by the
animal on a person peacefully conducting himself in a place where he may
lawfully be [unless that person knew of the presence of an animal and did
something a reasonable person should have known would be likely to provoke
an animal to attack or injure him] [unless that person knew of the presence
of an animal and the unusual and dangerous nature of that animal and did
something a reasonable person should have known would be likely to provoke
an attack or injury by that animal]." IPI Civil 3d No. 110.04.
|||As his proposed instruction number 9, plaintiff's counsel tendered a modified
version of IPI Civil 3d No. 110.04 that omitted the bracketed material on
provocation. Defense counsel first argued that the bracketed language on
provocation should be included, and plaintiff's counsel agreed. After reviewing
the IPI instruction more thoroughly, however, defense counsel argued that
the IPI instruction was not an accurate statement of the law, even with
the bracketed material, and that the IPI instruction should not be given.
The circuit court agreed and refused the IPI instruction.
|||The instruction that was given, defendant's instruction number 7, reads
|||"At the time of this occurrence there was in force in the State of
Illinois a statute governing the responsibility of one owning a dog. That
statute provides that the owner of a dog is liable in damages for injuries
sustained from any attack by the dog on a person who did not provoke the
animal and who was peaceably conducting himself in a place where he may
|||Pursuant to Supreme Court Rule 239 (179 Ill. 2d R. 239), "Whenever
Illinois Pattern Jury Instructions (IPI) contains an instruction applicable
in a civil case, giving due consideration to the facts and the prevailing
law, and the court determines that the jury should be instructed on the
subject, the IPI instruction shall be used unless the court determines that
it does not accurately state the law ***." (Emphasis added.) "The
decision whether to give a non-IPI instruction is within the discretion
of the trial court and will not be reversed absent a showing of abuse
of discretion." People v. Hudson, 157 Ill. 2d 401, 446, 626 N.E.2d
161, 180 (1993).
|||The real question is whether the IPI instruction in this case accurately
states the law in the State of Illinois. A review of the following decisions
makes it clear that the language contained within the first bracket of the
IPI instruction concerning provocation inaccurately states the law. The
circuit court correctly refused the IPI instruction. The IPI instruction
takes the view of a reasonable person. The courts have consistently pointed
out that it is not the view of the person provoking the dog that must be
considered, but rather it is the reasonableness of the dog's response to
the action in question that actually determines whether provocation exists.
|||In Nelson v. Lewis, 36 Ill. App. 3d 130, 131, 344 N.E.2d 268, 270 (1976),
the court defined provocation as "an act or process of provoking, stimulation[,]
or incitement." In Nelson, the 2½-year-old plaintiff accidentally stepped
or fell on the tail of a dog that was chewing a bone. The dog reacted by
scratching the plaintiff's eye. This court held that the case did not involve
a vicious attack that was out of proportion to the unintentional acts involved
and that provocation existed. The Nelson court concluded that an unintentional
act can constitute provocation within the plain meaning of the statute.
36 Ill. App. 3d at 131, 344 N.E.2d at 270-71. Provocation in this case was
considered from the perspective of the "normal" dog, since it
does not matter whether the acts that caused the provocation were unintentional
|||In Stehl v. Dose, 83 Ill. App. 3d 440, 403 N.E.2d 1301 (1980), the plaintiff
was attacked by the defendant's 100-pound German shepherd, which the defendant
kept tied on a 25-foot chain. The defendant wanted to get rid of the dog
because he was afraid that his young son might get within the dog's reach.
When the plaintiff heard about the defendant's dog, he offered to take the
dog. The plaintiff was familiar with German shepherds and had been around
them his whole life. The defendant's hired man, George, told the plaintiff
that he could pick the dog up in the afternoon. The plaintiff brought a
bag of food scraps for the dog and took the bag to a point three to four
feet inside the perimeter of his chain. After petting and talking to the
dog, the plaintiff turned his head to go find a rope and the dog attacked,
sinking his fangs into the plaintiff's right forearm. The plaintiff had
to endure extensive medical treatment. The jury returned a verdict in favor
of the defendant. On appeal, this court stated that the issue in the case
was whether it was provocation for the plaintiff, acting in a peaceable
manner, to cross the perimeter of the dog's chain. The court also focused
on the fact that the plaintiff entered the territory that the dog was protecting
and remained within the dog's reach while he was eating. Because the court
determined that the answer to the question was for the jury to determine,
it could not find that the verdict was contrary to the manifest weight of
the evidence. The court did state, however, that the question of what conduct
constitutes provocation is primarily a question of whether the plaintiff's
actions would be provocative to the dog. Thus, the court determined that
neither the fact that the plaintiff had the owner's permission to approach
the dog nor the fact that the plaintiff was conducting himself in a manner
approved by the hired hand was a matter bearing on the issue of provocation.
Stehl, 83 Ill. App. 3d at 443, 403 N.E.2d at 1303.
|||In Robinson v. Meadows, 203 Ill. App. 3d 706, 713, 561 N.E.2d 111, 115
(1990), the four-year-old plaintiff began screaming when the defendant's
dog began barking. The dog responded by attacking the plaintiff viciously,
tearing her lip and inflicting puncture wounds and scratches on her face,
neck, and throat. This court determined that, while the plaintiff's scream
triggered the dog's attack on her, that scream could not be regarded "under
any reasonable standard" as having been sufficient to account for the
savagery of the dog's assault. Thus, no provocation existed. The court,
in making this statement, appears to suggest that the dog reacted in an
unreasonable manner to the child's screams.
|||In Smith v. Pitchford, 219 Ill. App. 3d 152, 579 N.E.2d 24 (1991), the
eight-year-old plaintiff approached the defendant's home with another friend.
They called out to the defendant and asked if her daughter, whom they had
played with at the defendant's home on prior occasions, was home. The defendant's
dog approached the plaintiff. The plaintiff said, "Hi Roscoe."
The plaintiff had met the dog on a prior occasion. After petting the dog
for approximately 30 seconds, the plaintiff looked down at the dog, at which
time the dog jumped up and bit the plaintiff in the face. The Smith court
stated that mere presence on private property does not constitute provocation
regardless of how the animal might interpret the visitor's movements. "Provocation
cannot be said to exist within the meaning of section 16 of the Animal Control
Act [citation] where such unintentional stimuli as greeting or petting a
dog result in the dog attacking the plaintiff viciously and the attack is
'out of all proportion to the unintentional acts involved.'" Smith,
219 Ill. App. 3d at 154, 579 N.E.2d at 26, quoting Robinson v. Meadows,
203 Ill. App. 3d 706, 713, 561 N.E.2d 111, 115 (1990). The Smith court is
setting forth a "reasonable dog" standard. In other words, a "normal"
dog would not be provoked by one's mere presence on private property. See
Smith, 219 Ill. App. 3d at 154, 579 N.E.2d at 26.
|||In Wade v. Rich, 249 Ill. App. 3d 581, 618 N.E.2d 1314 (1993), the 18-month-old
plaintiff accidentally fell onto the middle of a dog that was sleeping in
the sun. The dog responded by repeatedly biting the plaintiff on and about
the head and face, resulting in seven lacerations, the largest one being
four to five inches long. The plaintiff required a total of 23 stitches.
The Wade court noted that where the acts that stimulated or excited the
dog were unintentional, no provocation can be said to exist within the meaning
of the statute if the acts cause the dog to attack the plaintiff viciously
and the vicious attack is out of all proportion to the unintentional acts
involved. Again, it appears that the court is looking at how a "normal"
dog would react to someone falling on it while it is sleeping. If the dog's
attack is out of proportion to the unintentional acts, no provocation exists.
See Wade, 249 Ill. App. 3d at 589, 618 N.E.2d at 1320.
|||In VonBehren v. Bradley, 266 Ill. App. 3d 446, 640 N.E.2d 664 (1994),
the two-year-old plaintiff pulled the dog's tail and ears and hit the dog
several times in order to get a bird out of its mouth. The dog bit the plaintiff
in the face. This court held that a dog owner has no common law duty to
control the dog's response to acts of provocation directed toward it. The
court stated that since provocation is measured solely from the perspective
of the animal, the evidence showed that the striking of the dog and the
plaintiff's attempts to remove the bird from its mouth constituted provocation
and not contributory negligence. Hence, no breach of the defendant's duty
occurred. VonBehren, 266 Ill. App. 3d at 450, 640 N.E.2d at 667.
|||These cases demonstrate that previous courts have focused on provocation
from the perspective of the animal. The cases tend to focus on how an average
dog, neither unusually aggressive nor unusually docile, would react to an
alleged act of provocation. Hence, we believe that the trial court correctly
refused the IPI instruction tendered by plaintiff. With respect to the language
in the second bracket, we express no view. This case does not involve an
animal known to have an "unusual and dangerous nature."
|||We further believe that the court did not abuse its discretion by giving
defendants' tendered instruction number 7 instead. Defendants' instruction
number 7 is a correct statement of the law. However, it is incomplete because
it fails to define provocation. This deficiency was remedied, as we will
explain, when later the court further instructed the jury in response to
|||Next, plaintiff claims that the circuit court erred in defining the term
"provocation" for the jury using a "reasonable dog"
standard and that this court must reverse the judgment of the circuit court
and remand this cause for a new trial.
|||During deliberations, the jury returned a note to the circuit judge. The
note read as follows: "We need a definition of Provoke. Need a legal
definition. Foremen [sic]." The circuit judge returned a note to the
jurors that read as follows: "When I use the phrase [']to provoke[']
or the word [']provocation,['] I mean any action or activity, whether intentional
or unintentional, which would be reasonably expected to cause a normal dog
in similar circumstances to react in a manner similar to that shown by the
evidence." This definition is accurate in light of our prior analysis.
We note that the definition takes into account what a person would "reasonably
expect," and it also takes into account how a normal dog would react
in similar circumstances. We believe that in future cases of this type,
this definition of provocation should be given as part of the instructions
to the jury. Once again we must emphasize that we are expressing no view
on what instruction is proper when the case involves an animal known to
have an unusual and dangerous nature.
|||Plaintiff also argues on appeal that the instruction was an inaccurate
statement of the law because it did not include a reference to liability
for a dog that "injures" a person but only referred to liability
for a dog that "attacks" a person.
|||A review of the complaint in the instant case shows that in paragraph
5 plaintiff alleged that "the dog of the Defendants attacked the Plaintiff
without provocation, bit her[,] and caused her to trip and fall." (Emphasis
added.) Plaintiff even testified at trial, "I took about two steps
and the dog attacked." (Emphasis added.) Hence, the instruction was
consistent with the pleadings and the testimony given at trial. In an appropriate
case, the word "injure" may be substituted for the word "attack"
if the facts justify the use of that term.
|||Plaintiff also claims that the circuit court erred in refusing to allow
testimony regarding the demeanor of the dog, its propensity to attack, and
the consistency of the puncture marks with those left by a dog.
|||The circuit court initially granted, in part, defendants' first motion
in limine barring Dan Overbeck's testimony regarding the appearance of the
puncture wounds on Mary's leg and the demeanor and disposition of the dog.
Plaintiff's counsel made an offer of proof that established that Overbeck
was familiar with the dog as of the date of the occurrence. Overbeck stated
that he was afraid of the dog due to its aggressive behavior. He admitted,
however, that he was, in general, fearful of dogs "more so than the
average person." Overbeck believed that the dog was likely to bite
someone. He agreed that the puncture wounds on Mary's ankle were consistent
with the marks that would be left by a dog; however, he also agreed that
the wounds were consistent with a puncture that could occur from a small
branch or twig being stuck in the side of one's ankle. Overbeck agreed on
redirect examination during the offer of proof that his opinion was not
based solely on his fear of dogs but was based upon a comparison of this
dog to other dogs in general.
|||Evidence should be admitted if it is material or relevant. See Ciampi
v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94, 108, 634 N.E.2d 448,
459 (1994). The determination of what is relevant is a matter within the
sound discretion of the trial court, and that court's determination will
not be disturbed on review absent an abuse of that discretion. See Hartman
v. Pittsburgh Corning Corp., 261 Ill. App. 3d 706, 723, 634 N.E.2d 1133,
|||A review of the record shows that plaintiff failed to present any evidence
that Overbeck had adequate experience in observing dog bites in order for
him to give him an objective basis for determining that the puncture wounds
on plaintiff's leg were consistent with a dog bite. Moreover, we note that
Overbeck's testimony that the puncture wounds on plaintiff's leg were consistent
with a dog bite would have been cumulative to Dr. Timothy Gray's reading
of plaintiff's medical history, which stated that plaintiff "was bitten
by a dog on the left ankle." We find no abuse of discretion in the
court's ruling. Any error was harmless at most.
|||We note parenthetically that plaintiff claims that the circuit court abused
its discretion in failing to rule on the offer of proof. Although we agree
with plaintiff that the circuit court should have made a final ruling on
the offer of proof, it is clear from the record that the trial judge heard
nothing during the offer of proof that prompted him to change his mind.
The circuit court rejected the offer of proof as the record does not indicate
that the jury received evidence or heard argument based on the offer of
proof. For future guidance to the circuit courts, we urge the court to rule
on an offer of proof even though a ruling has been made on the same matter
via a motion in limine. See Ely v. National Super Markets, Inc., 149 Ill.
App. 3d 752, 760, 500 N.E.2d 120, 126 (1986).
|||Finally, plaintiff claims that the circuit court erred in giving defendants'
instruction number 5 regarding plaintiff's burden of proof. Specifically,
plaintiff claims that the question of whether plaintiff was "lawfully
on defendants' property" is a question of law, which should have been
determined by the circuit court rather than the jury.
|||The relevant portion of instruction number 5 is as follows: "The
plaintiff has the burden of proving each of the following propositions:
First, that the plaintiff was lawfully on the defendants' property ***."
The court refused both parties' tendered definitional instructions and gave
the following as the court's instruction number 1:
|||"When I use the term 'lawfully on the defendants' property' or 'where
he may lawfully be', I mean that the plaintiff was in a location that is
consistent with the reasonably expected use of that location, even if the
plaintiff was not given permission by the defendants to be at that location.
In the absence of such permission, a person may lawfully be on the property
if he is there for a lawful purpose during daylight hours, he is using a
path, walkway, or driveway to gain access, and there is no sign or warning
to 'stay off.' Whether the plaintiff was lawfully where she claims to have
been attacked by defendants' dog is for you to decide."
|||We note that plaintiff's counsel withdrew his objection to the court's
instruction number 1. An instruction that is not objected to at trial or
an issue that is not raised is waived on appeal. See Konieczny v. Kamin
Builders, Inc., 304 Ill. App. 3d 131, 136, 709 N.E.2d 695, 699 (1999). We
express no view on the propriety of the instruction or the issue framed.
This issue is waived.
|||For all of the foregoing reasons, we affirm the circuit court's judgment.
|||CHAPMAN and KUEHN, JJ., concur.
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