Law School Case Brief
Messa v. Sullivan - 61 Ill. App. 2d 386, 209 N.E.2d 872 (1965)
The four elements of an action under Ill. Rev. Stat., ch. 8, para. 12d (1963) are: (1) injury caused by a dog owned or harbored by the defendant; (2) lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the person injured in a place where he has a legal right to be.
The building in which defendants James Sullivan and Helen Sullivan lived was used for several business purposes. The Sullivans occupied the fifth floor as their residence. There were no notices that the fifth floor was not used for commercial purposes. Plaintiff Betty Messa, a deaf mute, entered the building to sell printed cards. She had never been in the building before. She walked through the lobby and entered the elevator. When she got to the fifth floor, the door opened automatically. She had to manually open a second door; a warning sign was posted on the on the manually operated elevator door. She stepped out and walked toward the apartment door when a dog attacked her. Messa filed a lawsuit in Illinois state court against the Sullivan's and defendant Keyman's Club ("Club"), the Sullivans' not for profit corporation that operated in the building. The complaint alleged a common law action for the keeping of a vicious animal and a claim under the state's "Dog Bite Statute," Ill. Rev. Stats. 1963, c 8, § 12d. The parties waived a jury, and the case was tried by the court. On the common law count, the trial court held for defendants because he found that Messa was contributorily negligent. On the statutory count, however, the court rendered judgment for Messa and awarded her $ 3,000 against James Sullivan and the Club. James and the Club appealed, contending that Messa failed to prove that she was lawfully on the premises and that she did not provoke the dog.
Were James and the Club liable under Ill. Rev. Stats. 1963, c 8, § 12d?
The appellate court affirmed the trial court's judgment. The court found that Messa was lawfully on the premises. No notices indicated that part of the building was used as a residence. The sole warning of the dog was posted in a place where it could be seen only split seconds before Messa entered the danger area. Messa had a legal right to be in the hallway. She did not provoke the dog, but only stepped off the elevator and walked a short distance toward the apartment door. Thus, Messa satisfied the four elements of an action the statute: (1) injury caused by a dog owned or harbored by the defendant; (2) lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the person injured in a place where he has a legal right to be.
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