An old maxim of the law in dog bite cases is that the owner of the offending dog is given “one free bite,” meaning that until a dog bites someone, thereby showing a dangerous propensity, its owner could not be held liable. This has not been law for many years with the adoption of the Illinois Animal Control Act which the First District Appellate Court recently analyzed in an interesting set of facts involving a good Samaritan.
When the trial court granted summary judgment in favor of the defendant (the apparent owner of the dog at issue), the plaintiff (whom the dog had bitten) appealed. The First District Appellate Court reversed and remanded for further proceedings, holding that despite the “one free bite” maxim, there were material issues of fact that remained for a jury’s determination.
In Scollard v. Williams, 2023 IL App (1st) 220464, the offending dog, Ace (whose breed is not mentioned) stayed with the defendant at her house while her son was in college. According to the defendant, Ace was friendly and had never been aggressive with anyone. He had escaped once from her backyard 10 years prior to the incident. On the day in question, the defendant learned that Ace had left the yard when she received a call from someone that she had found him.[i] They also stated that Ace may have been hit by a car since he looked injured. When they tried to lift him into their car, he growled. The person then posted on a Facebook page dedicated to lost and found dogs and cats in southwest Chicago.[ii]
The plaintiff testified that she was very familiar with dogs since she volunteered for rescue organizations and owned three dogs. She responded to a Facebook post about an injured dog (later identified as Ace) who had been found in the neighborhood. When the plaintiff first saw Ace, two people were with him. She laid out a blanket for him and maintained a significant distance until he walked towards her and lay beside her. The other people there testified that the plaintiff sat right next to Ace and petted his hind legs and the top of his head despite his obviously injured state. They also testified that the plaintiff was present when Ace “nibbled” one of their hands, causing a scratch.[iii]
In deposition and discovery, the plaintiff testified that she was resting her hand on Ace’s back when he suddenly and for no apparent reason, bit her. However, she admitted that she sent one of the witnesses a message a few days later that it was not a “mean” bite but that Ace “was just hurt.”[iv] Photographs showed relatively minor injuries, but they later became infected necessitating a multiple day hospital stay.[v]
The plaintiff subsequently filed a two-count complaint against the defendant. The first count was predicated upon the Illinois Animal Control Act and the second count sounded in negligence. In ruling on the defendant’s motion for summary judgment, the trial determined that the plaintiff voluntarily assumed the risk of injury when she sought to help an injured animal she had never met before and granted summary judgment as to the first count. The trial court also granted summary judgment as to the negligence claim because there was no evidence that Ace had demonstrated any dangerous propensities prior to biting the plaintiff – and thus, it was a “free” bite. The plaintiff appealed the court’s ruling as to the Animal Control Act claim only.[vi]
The Appellate Court observed that the Animal Control Act was passed to protect the public by encouraging tight control of animals. To succeed under the Act, a plaintiff must prove four elements:
(1) an injury caused by an animal owned by the defendant;
(2) a lack of provocation;
(3) peaceable conduct by the plaintiff; and
(4) the presence of the plaintiff in a place where she had a legal right to be.[vii]
Regarding the “ownership” prong of the Act, the defendant argued that she was not an “owner” because she did not have control of Ace when he bit the plaintiff. The defendant relied on a case that analyzed a situation where the legal owner relinquished control of her animal to another responsible entity (such as a kennel or a dog groomer) who was reasonably expected to exercise tight control over the animal. Since the defendant in the present case did not voluntarily relinquish such control over Ace, the Appellate Court determined that she remained the “owner” of Ace for purposes of the Act.[viii]
The Court then considered the next two elements together, finding that they are so interrelated since they focus on the plaintiff’s relationship with Ace at the time of the bite. The Court observed that Illinois courts have taken two approaches when evaluating whether a plaintiff has a relationship with either the animal or the animal’s owner to objectively exclude the plaintiff from the protections of the Act. The first is an “assumption of risk” analysis which focuses on the plaintiff’s relationship with the animal’s legal owner. The second is the “owner” analysis which focuses on the plaintiff’s relationship with the animal.[ix]
Regarding the “assumption of risk” analysis, the Court observed that the Illinois Supreme Court has explained that:
…the legislature intended only to provide coverage under the statute for plaintiffs who, by virtue of their relationship to the owner of the dog or other animal or the lack of any such relationship, may not have any way of knowing or avoiding the risk that the animal poses to them.[x]
For example, when someone rents a horse, they understand and expressly accept the risk of using a horse, removing them from the protections of the Act. Similarly, someone involved in a professional contractual relationship with an animal’s legal owner assumes a risk attendant with their profession. For example, someone who contracts to shoe a horse cannot recover for injuries he sustains from the horse as he accepted the risk with full knowledge and appreciation of the potential danger.[xi]
Under the “owner” analysis, the focus is the injured party’s relationship to the animal. For example, when a person voluntarily accepts responsibility for controlling or caring for the animal, the person is an “owner” within the meaning of the Act and is precluded from recovery. ¶30
The Court determined that the plaintiff would not lose the Act’s protections under either the assumption of risk or owner analysis. She was not, as a matter of law, Ace’s owner, and merely petting and generally accompanying a lost animal are not akin to ownership. She did not attempt to feed, water or walk Ace and she did not attempt to transport him.[xii]
Even under the slightly broader assumption of risk test, the Court found that there remained a triable issue of fact because there was conflicting evidence of the plaintiff’s interactions with Ace. While the plaintiff testified that she recognized a “risky situation” because she knows dogs well so she did not aggressively approach him, the other witnesses testified that the plaintiff immediately approached Ace and attempted to interact with him even after he growled and nipped at them.[xiii] The Court held that this conflicting testimony raised genuine issues of material fact as to whether the plaintiff assumed the risk of a dog bite through her interactions with Act, and thus, the matter simply could not be resolved through summary judgment.
The Court also determined, as a matter of policy, that someone in the plaintiff’s position should not be removed from the Act’s protections as a matter of law since the defendant’s proposed interpretation would exempt any individual who voluntarily encounters a lost and injured dog. The Court reasoned that the purpose of the Act – the tight control of animals to protect the public – is served where a citizen makes a cautious attempt to reunite a pet with its owner.[xiv]
The Court also recognized that questions of fact exist as to whether the plaintiff provoked Ace in any way. More than mere touching or petting is generally required to find provocation and the conflicting accounts of what transpired before the bite should be assessed by the finder of fact, the Court reasoned.
For all these reasons, the Court reversed the judgment and remanded the case to the trial court for further proceedings.
This case is another example of the difficulty in securing summary judgment in an injury case in the First District (Cook County). However, the Appellate Court’s recognition of a valid public policy reason for its ruling – encouraging a good Samaritan to assist an injured pet and return it to its rightful owner – is a compelling one, and the specific facts at issue here (namely the conflict in testimony) are necessarily resolved by a jury rather than the Court. Defendants and their counsel must be mindful of the Court’s reasoning in crafting similar arguments for summary judgment.
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