Law School Case Brief
Siewerth v. Charleston - 89 Ill. App. 2d 64, 231 N.E.2d 644 (1967)
The elements of a cause of 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.
Plaintiff minor sought review of a judgment of the Circuit Court of Cook County (Illinois) awarding him damages for injuries sustained when defendant dog owner's dog bit him on the face. The minor asked that the judgment be reversed and remanded for a new trial on the question of damages only. The owner filed a cross-appeal and asked that the judgment in favor of the minor be reversed. The owner contended that the minor failed to prove all of the necessary elements of the cause of action set forth in the complaint. The owner argued that the minor was guilty of provocation and that the attack by the dog was with provocation.
Did plaintiff minor fail to prove all of the necessary elements of the cause of action set forth in the complaint?
The Illinois appellate court agreed. The elements of a cause of action under the statute 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 court, in reversing the judgment, held that the kicking or pushing of the dog by the minor on two occasions, plus the kicking and pushing of the dog by his playmate sufficiently provoked the dog to constitute a complete bar to the statutory cause of action. The minor contended that there was no provocation on his part, as provocation required intent and there was nothing in the record to show that the minor intended to provoke the dog into the action of biting him. Even if the provocation in the statute needed intent, the record showed intent on the part of the minor. The minor testified that the dog growled after he was pushed or kicked by the minor on each occasion, and when the dog growled, the minor knew that he made the dog angry. The kicking or pushing of the dog on two occasions by the minor and subsequently by his playmate constituted continuous provocation.
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