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Posted on Sep 8th, 2021

Intrusion into dog’s secure environment provides provocation defense under Animal Control Act

By Jason G. Schutte

Synopsis.

Appellate court provides excellent discussion of provocation under the Illinois Animal Control Act in affirming defense verdict in dog bite personal injury claim in Claffey v. Huntley, 2021 IL App (1st) 191938.

Facts of Case.

Plaintiff filed suit against defendants seeking recovery under the Illinois Animal Control Act.[1] Plaintiff appealed defense verdict from jury trial.

Plaintiff was a mailman for the United States Post office at the time of the bite.[2] Plaintiff was bitten on his right hand as he was delivering mail to defendants’ home. He was aware that the defendants’ had two dogs and heard one barking on the day of the bite. The door to defendants’ home had a mail slot in it, with an outer and inner flap. Plaintiff reached into the slot to push open the inner flap to prevent the flap from damaging the mail he was delivering. Plaintiff was bitten by one of defendants’ dogs on his right hand as he pushed mail into the slot. [3]

Plaintiff testified that defendants’ dogs would sometimes become excited when he delivered mail to the home. He would bundle the defendants’ mail and place it between their screen door and front door when he knew the dogs were present. He also testified that he could insert mail inside the slot without placing his hand inside the house to hold the inner flap open and had done so in the past.[4]

Provocation of the dog was a major issue at trial. The trial court denied plaintiff’s Motion for Directed Verdict, which argued there was no evidence of provocation. The jurors were instructed on the definition of provocation and subsequently returned a verdict for the defendants.[5]

Appellate court analysis.

In order for the plaintiff to recover under the Animal Control Act (herein Act), he must prove:

  1. Injury caused by the defendants’ dogs;
  2. Lack of provocation of the dog;
  3. That he was conducting himself in a peaceable manner;
  4. That he was in a place where he had the legal right to be.[6]

Plaintiff argued that placing his hand inside the mail slot could not be considered provocation as a matter of law.[7] The Act itself does not define provocation.[8] The focus of provocation findings is from the dog’s perspective.[9]

The court in Claffey noted that Claffey had breached an enclosure by reaching through the mail slot. Claffey would have been protected from the dogs and not come into contact with them, had he not reached through the slot. Further, the court found it pertinent that the interior flap was spring loaded, requiring Claffey to take the deliberate action of pushing it open and reaching into the house.[10] Claffey’s actions were not mere external stimulus to the dogs, rather, his actions introduced stimulus into the dog’s separate environment that exposed him to their reaction.[11]

The Claffey court analogized the facts of this case to a situation where a person is bitten when reaching into a fence or enclosure when they know or should know that a dog may be confined therein. The Claffey court noted that numerous courts have found that such action barred recovery from resulting injuries in such cases.[12]

A reasonable jury could find that a normal dog would perceive a hand entering its enclosed environment to be an intrusion and react by biting. Hence, a reasonable jury could find that the dog in this case was provoked. [13]

The court further recognized that plaintiff’s fault in causing the provocation was a relevant consideration. Plaintiff’s actions undermined measures that provided protection to him from the subject animals, i.e., the door. [14] Further, the legislative intent behind Section 16 of the Act, which provides the avenue for recovery, is to protect people who may not have any way of avoiding or knowing the dangers provided by the animal.[15]

Perhaps the most interesting discussion from this case is the court’s description of the actions of the owner and dog prior to the plaintiff opening the mail slot, “the Huntleys secured their dog against contact with outsiders by keeping it inside their home. ‘Securing dogs is what is expected of a dog owner – it protects the dogs and it protects the public.’ [citation] But by breaching that security, Claffey encroached on the dog’s isolated environment and exposed himself to risk of harm.”[16] In essence, Claffey had to go to the dog in order to be bitten.[17]

Practical effect of case.

This case helps clarify the concept of provocation of an animal under the Act. Provocation under the Act is broader than simply beating or taunting an animal. Rather, it encompasses a full evaluation of the facts underlying an injury caused by an animal. Relevant facts include the location of the dog, the location of the plaintiff, plaintiff’s knowledge of the risk posed by the animal, the plaintiff’s actions resulting in the injury, specifically exposing themselves to the animal, and the proportionality of the animal’s response to the stimulus giving rise to the provocation defense.

Generally, whether provocation exists will be a question of fact for the jury. Attorneys and claims adjusters should pay special attention to the underlying facts of the case including those described in the preceding paragraph to determine whether a provocation defense exists and the viability of any such defense as trial. If a jury is convinced that provocation occurred, then a defense may likely be the result of the jury’s verdict.

 

[1] 510 ILCS 5/16;

[2] Claffey v. Huntley, 2021 IL App(1st) 191938, ¶3;

[3] Claffey at ¶3;

[4] Claffey at ¶5;

[5] Claffey at ¶¶8-10;

[6] Claffey at ¶15, internal citation omitted;

[7] Claffey at ¶16;

[8] Claffey at ¶19;

[9] Claffey at ¶27;

[10] Claffey at ¶20;

[11] Claffey at ¶21;

[12] Claffey at ¶22;

[13] Claffey at ¶27;

[14] Claffey at ¶26;

[15] Claffey at ¶26.

[16] Claffey at ¶27, internal citation omitted;

[17] Claffey at ¶27

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