When a Dog Isn’t Man’s Best Friend

By: Matthew J. Healy

New figures just released from the 2005-2006 National Pet Owners Survey show pet ownership is currently at its highest level. According to the survey, Americans own approximately 73 million dogs. A Center for Disease Control survey estimates that there are 800,000 dog bites every year. Lately we have seen increasing news coverage of brutal dog-on-human attacks. Dog bites are not as infrequent as you might expect. It begs the question: what are a victim's and a dog owner's rights and responsibilities?

PREVIOUS LAW

The law in Illinois used to presume that domestic animals are inherently harmless. In the past, in order for a person injured by a dog to recover from the owner, he had to prove that the dog had a mischievous propensity to commit such injuries and that the owner had knowledge of the propensity. Courts referred to this as the "one free bite" rule because the owner could always claim, at least for the first bite, that he was unaware of his dog's propensity.

CURRENT LAW

The law in Illinois has changed. The Illinois legislature enacted the Animal Control Act (510 ILCS 5/1) to encourage tight control of animals in order to protect the public from harm. The Act broadened the liability of owners and keepers of dogs. It states that "if a dog or other animal, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained" (510 ILCS 5/16). This Act changed the standard. The initial inquiry no longer looks at the owner's awareness of his dog's dangerous propensity (an owner's awareness can be a fact difficult to prove). We now first look at the victim's act and the dog's response to see if the dog was provoked. However, if it is found that the owner was aware of his dog's mischievous propensity prior to a bite then the owner may be held strictly liable.

What is "provocation?" It is any act of the injured person, intentional or unintentional, which would likely cause a normal animal to react the way that it did. The reasonableness of the dog's response determines whether provocation exists. For example, one court found that the act of someone stepping off an elevator and walking toward the apartment door where the dog awaited was not provocation. Another court found that a child's unintentional stepping on a dog's tail, and the dog then scratching the child's eye, was provocation. That court reasoned that the dog's reaction was not out of proportion to the unintentional act involved. On the other hand, a court found a child's screaming at the excited barking of a dog was not sufficient provocation for the violent attack that followed. Another court found that it was not provocation for a mailman to spray "Halt" at a ten pound dog advancing toward him.

Who is an "owner?" An owner is defined as one who owns, keeps or harbors a dog, or takes the dog in his care, or even one who knowingly allows a dog to remain on his property. For example, a dog walker could be liable as a "keeper" if that dog bites another while under the dog walker's care. However, one who agreed to board and care for a friend's dog could not recover when the dog bit her because she herself was considered the "keeper" of the dog. An absentee landlord who merely allowed a tenant to keep a dog was not considered a "harborer," and therefore was not liable.

An "attack" is not limited to an aggressive, violent act by the dog. For example, a court found a dog owner liable when the dog chased a bicyclist and that bicyclist fell causing injury. Another court found an owner liable when his dog excitedly greeted a visitor, knocking the visitor down and causing her injury. However, when a dog is passive, it cannot be said the dog is the cause of an injury. For example, a court denied liability when a person tripped over a dog as it lay on porch steps. A court denied liability when a guest spilled boiling water on herself as she stepped over a dog which had been following her around the kitchen.

RECENT TRENDS IN LEGISLATION AND INSURANCE PRACTICE

Currently, there are bills in the Illinois legislature being considered that would ban or severely restrict specific breeds of dogs, including the "pit bull" and Rottweilers. One bill would automatically deem certain breeds as vicious, require those owners to muzzle and leash the dogs whenever outside, and require the owners to maintain liability insurance.

Homeowner's insurance commonly covers dog liability. Some insurance companies are now inquiring what breed the insured keeps at home. If the breed is considered dangerous, some insurers are raising the premium for the added risk or altogether denying insurance for that dog.

Some commentators suggest that "breed specific legislation" will do little to address the root cause of dangerous dog problems--irresponsible owners. They question whether the act of labeling certain breeds dangerous is fair. For example, a few poorly trained Rottweilers should not taint the entire breed. They insist that strongly enforced leash laws and increased public education efforts that promote responsible dog ownership are more reasonable ways to protect communities from future dog attacks.

CONCLUSION

This general discussion of rights and responsibilities relating to dog bite liability should not be considered a substitute for individual legal advice from an attorney based on the facts of a particular case.

The law has attempted to strike a reasonable balance between a victim's rights and a dog owner's responsibility. However, as discussed, each case's outcome depends on its own unique facts. The hope is that both dog owner and visitor/passerby become more educated on dog-human interaction. Let's not change the old proverb: Dog is Man's Best Friend.

Please contact Healy Scanlon Law Firm if you are need of legal assistance on this subject.