CBA Record November-December 2022

Keep Fido on a Leash: The Illinois Dog-Bite Rule By Richard Lee Stavins

L ong ago, Illinois common law effec tively allowed every dog one free bite. The victim of a dog bite who sued the dog’s owner was required to prove that the dog had a history of a dangerous propensity . Chicago & Alton R.R. Co. v. Kuckkuck, 197 Ill. 304 (1902). Often, proving that was impossible even if true. Although a few other states still have the one-free-bite rule, Illinois long ago went completely the other way. Everything was changed by section 16 of the Illinois Animal Control Act. 510 ILCS 5/16. To prevail in a case under the Animal Control Act, the victim must prove six elements (Claffey v. Huntley, 2021 IL App (1st) 191938, ¶ 15): (1) the defen dant owned the animal, (2) the victim was peaceable, (3) the victim had a right to be where they were; (4) the victim did not provoke the animal, (5) injury, and (6) causation. Defendant Owner The statutory definition of owner is as broad as could possibly be. An owner is any person who either has a right of prop erty in the animal, keeps the animal, har bors the animal, has the animal in their care, or acts as custodian of the animal. 510 ILCS 5/2.16

What is a “harborer”? For example, assume an elderly gentleman lives in his home with his adult daughter who cares for him, and the daughter owns a dog (Fido). The father does not own or care for Fido. Only the daughter owns and cares for Fido. The father and Fido don’t even like each other. Fido bites a visiting friend of the owner. The daughter is liable as the owner and the father is liable as the har borer because the dog lived in his house. To impose liability, there must be some evidence that the defendant exer cised care, custody, and control over the animal. Steinberg v. Petta, 114 Ill.2d 501, 502 (1986). Merely being the landlord of a rental property on which a tenant kept the animal is insufficient to impose liability. Along the same lines, a common law neg ligence claim against the lessor usually will not be proper if the Animal Control Act claim is not proper. Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207, ¶ 61. Peaceable Victim with a Right to Be in the Location The victim could be walking down the sidewalk, in a park, in their own backyard, in the owner’s house by implied invita tion, or just about anywhere else. How ever, a trespasser does not have the right

to be where they were and therefore has no case. A burglar likewise has no right to be in the location being burgled. Hence, contrary to folklore, when Fido bites a burglar, the burglar has no dog-bite case against the owner. No Provocation by the Victim Provocation is an act by the victim that would cause a normal animal to react as did the particular animal. Claffey . The issue is how a normal animal would react to what the victim did, not what was the victim’s intent. Meyer v. Naperville Manner, Inc., 262 Ill.App.3d 141, 149 (2d Dist. 1994). Injury and Causation The injury can be inflicted by the animal by means of a bite, a scratch, or in any way whatsoever. In fact, there need not even be contact between the animal and the victim: if Fido comes running at the victim, but never touches the victim, and the victim falls and sustains injury, liabil ity attaches. What the Victim Need Not Prove Crucially, there are some things that a victim need not prove. They include: • The injury was inflicted by a dog.

28 November/December 2022