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Animal Control Law

Brief - The Reasonable Dog Standard for Dog Bite Cases - Kirkham v. Will, 311 Ill.App.3d 787, 724 N.E.2d 1062, 244 Ill.Dec. 174 (Ill.App. 2000)

Dog bites are a significant public health problem in the U.S., with an estimated 800,000 bites each year requiring medical treatment. By some estimates, dog bites are the leading cause of emergency room visits for children. This case arose when plaintiff entered the defendant neighbor's yard to pick up some produce that the neighbor had left for her. She was bitten by the defendant neighbor's dog and sued. By Illinois statute, a dog owner is liable for injuries caused by the dog to persons who are where they may lawfully be and who do not provoke the dog. Plaintiff lost at trial and is appealing the jury instructions. Ultimately the court approves the instruction on the standard of care for a dog and finds plaintiff did not make a timely objection to the other contested instruction. The case is interesting because it has a lengthy review of Illinois dog bite law, of which there is a surprisingly large body. The court's conclusion was that the reasonableness of plaintiff's actions toward the dog for the purpose of deciding whether the provocation defense applies must be judged from the perspective of the reasonable dog. While the court does not provide a detailed analysis of whether it is the reasonable pit bull or reasonable bloodhound, the court does give some guidance on this point: "The cases tend to focus on how an average dog, neither unusually aggressive nor unusually docile, would react to an alleged act of provocation." The court does not reach the standard for the known bad dog, although the statutory language might support a comparative fault or constructive provocation defense - perhaps even a duty to avoid bad dogs even when you might lawfully be on the same premises with them. This appears to extend the traditional one bite rule to a more general "you deserved biting" defense.

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