Smith by Smith v. Pitchford - 219 Ill. App. 3d 152, 161 Ill. Dec. 767, 579 N.E.2d 24 (1991)

Rule:

Section 16 of the Animal Control Act, Ill. Rev. Stat. ch. 8, para. 366 (1985) provides 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.

Facts:

Plaintiff Paul Smith, an eight-year-old child, was bitten by defendant Kathy Pitchford's dog, Roscoe. Plaintiff, along with an eight-year-old girl named Heather went to defendant's home to visit defendant's daughter that day. With plaintiff walking and Heather riding her bike, the children approached the defendant’s home and saw defendant barbecuing out front on a partially enclosed patio. While still in the street, the children called out to defendant and asked if her daughter was home. Defendant told them that she was not home and returned to her barbecuing. Plaintiff walked up the driveway towards the patio entrance until he was between a fence which partially enclosed the patio and a car parked in the driveway. At this time, plaintiff was met by the defendant's dog. Paul stood with his back to the car, and the dog was positioned in front of him. After approximately 30 seconds, plaintiff looked down at the dog at which time, it jumped up and bit plaintiff in the face. During all these events, defendant remained on the patio. When she heard Heather's screams, defendant walked around the fence, and saw blood on plaintiff’s face. Plaintiff’s father took him to the local emergency room. There the wounds were treated and stitched. Plaintiff was left with some permanent facial scarring which may be partially remedied by surgery. Plaintiff, by Linda Smith, his mother and next friend, brought an action to recover damages for personal injuries he sustained when he was bitten by a dog owned by defendant. The jury returned a verdict in favor of defendant and against plaintiff. Plaintiff's post-trial motion was denied, and he appealed. 

Issue:

Did the trial court err in ruling in favor of defendant in plaintiff’s action to recover damages for personal injuries?

Answer:

Yes.

Conclusion:

The court reversed the decision and remanded the case. The court held that the circuit court should have entered judgment notwithstanding the verdict in favor of the plaintiff father on the question of liability and ordered a new trial on the issue of damages. The court ruled that the evidence, when viewed in its aspect most favorable to the defendant, so overwhelmingly favored the plaintiff father that no contrary verdict was possible. However, as required by § 16 of the Animal Control Act (Act), Ill. Rev. Stat. ch. 8, para. 366 (1985), the plaintiff father established that an injury caused by the defendant’s animal, a lack of provocation, peaceable conduct of the plaintiff child, and the presence of the plaintiff in a place where he had a legal right to be, the court concluded that the plaintiff minor child's conduct in greeting and petting the dog was peaceable and involved no provocation within the meaning of § 16 Act.