Under the Illinois Animal Control Act, a plaintiff seeking to recover injuries from the result of a dog bite must prove: “(1) an attack by defendant’s dog; (2) injury to plaintiff; (3) absence of provocation; and (4) that plaintiff was conducting himself peaceable in a place where he had a legal right to be.” Stehl v. Dose, 83 Ill.App.3d 440, 443 (3rd Dist. 1980). The third element of this burden, absence of provocation, can be a complex area of the law. In Nelson, provocation was initially defined as “an act or process of provoking, stimulation or incitement.” Nelson v. Lewis, 36 Ill.App.3d 130, 131 (5th Dist. 1976).
Since the Nelson decision, subsequent Illinois Appellate Court decisions have provided some as to what actions constitutes provocation. For example, the court in Stehl v. Dose also stated that a determination of provocation is “primarily a question of whether plaintiff’s actions would be provocative to the dog.” Stehl at 443. In addition, this standard takes into account both “what a person would reasonably expect, and how a normal dog would react in similar circumstances.” Kirkham v. Will, 311 Ill.App.3d 787, 794 (5th Dist. 2000). An unintentional or accidental act can sometimes create provocation, however “where the acts which stimulated or excited the dogs 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 act is out of proportion to the unintentional acts involved.” Wade v. Rich, 249 Ill.App.3d 581, 589 (5th Dist. 1993).
As to specific actions, courts have found that “mere presence on private property does not constitute provocation regardless of how the animal may interpret the visitor’s movements.” Smith v. Pitchford, 219 Ill.App.3d 152, 154 (5th Dist. 1991). In another case, a dog’s attack on a child was not disproportionate where the child struck the dog several times, pulled its tail and ears and attempted to take something the dog was chewing. VonBehren v. Bradley, 266 Ill.App.3d 446 (4th Dist. 1994). Kicking and pushing has also been considered provocation, Siewerth v. Charleston, 89 Ill.App.2d 64, while untying and feeding the dog were not acts of provocation on the part of the plaintiff. McEvoy v. Brown, 17 Ill.App.2d 470 (3rd Dist. 1958).
Dog bites are a serious matter, and those who own violent dogs should not be allowed to avoid paying the effects of their harmful animal. For an injured person, it is imperative to discuss your case with an attorney who understands the nuances of the law on provocation. Remember, if the animal was provoked, there may be no recovery, even if another person or outside stimulus causes the behavior that results in an injury to the plaintiff. Beggs v. Griffith, 393 Ill.App.3d 1050, 1056 (5th dist. 2009). Someone who has been injured as a result of a dog attack can and should take immediate action in order to protect their legal rights, and their health. If you or your loved one has been bitten by a dog and sustained injuries, you should immediately report the incident to Animal Control and contact a knowledgeable attorney.