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In the context of a negligence case arising out of a dog bite, it is not the view of the person provoking the dog that must be considered, but rather it is the reasonableness of the dog's response to the action in question that actually determines whether provocation exists.
The plaintiff, Mary Kirkham, filed a complaint on November 7, 1996, against the defendants, Ron and Jody Will. Specifically, Kirkham claimed that on May 3, 1995, she was attacked and bitten by defendants' dog while she was lawfully on defendants' premises to purchase asparagus from Jody Will's mother, Evelyn Having, who lived next door to defendants. Kirkham alleged that she was peacefully conducting herself when the attack occurred and that defendants' dog also caused her to trip and fall during the attack. Kirkham claimed that as a direct and proximate result of the dog's bite and the fall, her ankle was fractured, which required her to have surgery and be hospitalized. Kirkham prayed for damages pursuant to the Animal Control Act. On December 4, 1995, defendants filed an answer to Kirkham’s complaint. Defendants denied liability. On January 17, 1997, defendants filed a motion for summary judgment, claiming that Kirkham was not lawfully on the premises at the time of the alleged attack because her blood alcohol level was in excess of 0.10. Defendants also claimed that since Kirkham did not have permission to be on their property and because she did not intend to be on defendants' property, she was trespassing. Subsequent to Kirkham’s response and affidavit being filed, several motions to strike were also filed. Ultimately, the circuit court granted defendants' motion for summary judgment. Kirkham appealed arguing that the circuit court erred in instructing the jury on defendants' liability. More specifically, Kirkham claimed that the circuit court erred in failing to use the tendered pattern jury instruction, because the tendered instruction accurately stated the law in Illinois.
Was the pattern instruction which took the view of a reasonable person correctly refused by the trial court?
The court affirmed, holding that the language contained in the pattern instruction concerning provocation inaccurately stated the law and that the trial court correctly refused the instruction. The pattern instruction incorrectly used a reasonable person standard when it was not the view of the person provoking the dog that must be considered, but rather the reasonableness of the dog's response to the action in question that actually determined whether provocation existed. Although the court's instruction was incomplete because it failed to define provocation, this deficiency was remedied by the trial court's further instructions to the jury in response to an inquiry. The trial court's evidentiary rulings were also not an abuse of discretion.