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Under the Animal Control Act, Ill. Rev. Stat. ch. 8, paras. 351-378, ownership is defined to include harboring or keeping an animal, but the statutory language does not provide any further definition or explanation of those terms. The court's function in construing the statute is to determine and give effect to the legislative intent. The verb "harbor" means to afford lodging to, to shelter, or to give a refuge to. The "keeper of dog" is a harborer of a dog. Any person, other than owner, harboring or having in his possession any dog. One who, either with or without owner's permission, undertakes to manage, control, or care for it as dog owners in general are accustomed to do. Harboring or keeping an animal, therefore, involves some measure of care, custody, or control, and it is in those senses that the terms "harbor" and "keep" have been construed under legislation.
The defendant owner of a property had tenants who owned a dog. When the dog bit the plaintiff, the plaintiff filed an action against the owner for negligence as well as an action under the Animal Control Act (Act), Ill. Rev. Stat. ch. 8, paras. 351-378. At the close of the plaintiff’s case in chief, the trial judge directed a verdict in the defendant's favor on the negligence count because there was no evidence that the defendant was chargeable with knowledge that the dog was dangerous. The trial judge denied the defendant's motion for a directed verdict on the count alleging the statutory cause of action, however, and later denied a motion for judgment notwithstanding the verdict. In affirming the judgment in favor of the plaintiff, a majority of the appellate court panel believed that the evidence was sufficient to sustain the jury's conclusion that the defendant harbored or kept the dog. In the appellate court's view, the jury could have found that the defendant received a benefit from the security provided by the fence and the dog, retained control over the backyard, and, through his manager's activity in mentioning complaints about the dog to the owners, sought to exert control over the animal's use of that area. Defendant challenged the decision.
Under the circumstances, could the defendant owner be held liable under the Animal Control Act?
The court found that the evidence, when viewed in its aspect most favorable to the injured person, so overwhelmingly favored the defendant owner that no contrary verdict based on it could ever stand, and, therefore, the trial court erred in denying the defendant owner's motions for a directed verdict and for judgment notwithstanding the verdict. The defendant owner should not have been regarded as having harbored the tenants' dog within the meaning of the Act. Harboring or keeping an animal necessarily involved some measure of care, custody, or control. The defendant owner did none of these. All that the defendant owner had done was to permit the tenants to keep a dog on the premises. The defendant owner was not liable under § 16 of the Act, codified at Ill. Rev. Stat. Ch. 8, para. 366 (1983). To hold otherwise would have impermissibly expanded the scope of the Act. The court further held that the directed verdict in the defendant owner's favor on the negligence count was proper because there was no evidence that the owner was chargeable with knowledge that the dog was dangerous.