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Nelson v. Lewis - 36 Ill. App. 3d 130, 344 N.E.2d 268 (1976)

Rule:

Provocation is defined as an act or process of provoking, stimulation or incitement.

Facts:

Plaintiff J.A.N. was a two and one-half year-old girl playing in the backyard of defendant George N. Lewis with other children when she accidentally stepped on the tail of Lewis' dog, which was chewing on a bone at the time. The dog, a large Dalmatian, reacted by scratching J.A.N. in the left eye, causing permanent damage to the tear duct. J.A.N.'s father, plaintiff Eric D. Nelson, filed a lawsuit on J.A.N.'s behalf against Lewis in Illinois state court. The complaint sought damages under the Illinois "dog-bite" statute, Ill. Rev. Stat. ch. 8, para. 366 (1973). After trial, a jury rendered a verdict for Lewis; judgment was entered on the verdict. J.A.N. appealed.

Issue:

Did an unintentional act constitute "provocation" under Ill. Rev. Stat. ch. 8, para. 366 (1973)?

Answer:

Yes.

Conclusion:

The appellate court affirmed the trial court's judgment in favor of Lewis. The court held that provocation within the meaning of the statute meant either intentional or unintentional provocation. The court found that Lewis' dog was provoked by J.A.N.'s unintentional act and it did not viciously react to J.A.N.'s action.

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