Putting Arms Around Dog to Restrain Him Is Not Sufficient for Provocation says the Illinois Appellate Court

In Wells v. Cooper, 2013 IL App (5th) 120074-U, 2013 WL 1197789 (Ill.App. 5 Dist.) Trina Wells sued her brother and sister-in-law for dog bite injuries from their dog, Tank.
In November 2008, Trina Wells visited her brother and sister-in-law. Her relatives owned a lab-husky mix named Tank. After Trina Wells arrived at her relatives’ home, she played with Tank. At one point the dog ran out of the front door, but her sister-in-law went outside and brought the dog back. The dog wanted to play in the yard. Tank escaped again. As Trina Wells and her sister-in-law were talking, they saw Tank roll out underneath a truck and appeared to have been hit. They noticed that Tank was moving slower than he normally did but they could not see any broken bones or blood. As they approached Tank, he was trying to go to the street again, and Trina Wells put her arms around Tank to stop him from running away. He collapsed on her hands and as she was trying to get her hands, Tank bit her into her left thumb, and then died.
The plaintiff filed a complaint against the her brother and sister-in-law, Matthew Cooper and Amy Cooper, for injuries she suffered when the dog bit her. A jury awarded her $140,000, and her brother and sister-in-law appealed.
In the appeal, the defendants contend the jury was not adequately instructed as to the issue of a dog’s “custodian” for purposes of the Animal Control Act (Act) (510 ILCS 5/1 to 35 (West 2008)). The defendants claimed that when Trina put her arms around Tank to prevent him from going back into the street, she became Tank’s custodian and was, therefore, an “owner” within the meaning of the Act and cannot recover for her injuries.

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The court disagreed with the defendants. Section 16 of the Act, on which defendants’ liability was based, provides:
“Animal attacks or injuries. If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby.” 510 ILCS 5/16 (West 2008).
Section 2.16 of the Act defines “owner” in pertinent part as follows:
” ‘Owner’ means any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian, or who knowingly permits a dog to remain on any premises occupied by him or her.” 510 ILCS 5/2.16 (West 2008).
The court noted that the Act “encourages tight control of animals in order to protect the public from harm.” The question of ownership is a question of fact for the jury. In this case, the court instructed the jury, defining that an “owner” is “any person having a right of property in an animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.” The court noted that plaintiff had no ownership interest in Tank. She had two dogs of her own. Although the defendants argued plaintiff should not be allowed to recover because plaintiff was acting as Tank’s custodian, “the jury simply did not believe defendants’ theory.”
The defendant’s other theory was that Tank was “provoked either by plaintiff’s act of putting her arms around him after he got hit or by the automobile itself.” The court noted that “the facts are clear that when plaintiff came to visit on the day in question,” the defendant had difficulty controlling Tank. Defendants contend that plaintiff’s act of putting her arms around the injured Tank constituted provocation or that Tank was provoked by the automobile which hit him.
If an animal was provoked, there can be no recovery as a matter of law, even if another person or outside stimulus causes the behavior which results in an injury to the plaintiff. The term ‘provoked’ means any action or activity, whether intentional or unintentional, which would reasonably be expected to cause a normal animal in similar circumstances to react in a manner similar to that shown by the evidence.” Defendants insist that plaintiff should have expected to be bitten when she placed her arms around a mortally injured dog. The court noted that “the purpose of the Act was to make it easier to obtain redress for injuries caused by animals and if ‘provocation could be established merely by showing that an animal’s attack resulted from some outside stimulus and was not merely spontaneous, just the opposite would happen. A plaintiff would almost never be able to prevail.'” In this case, it was undisputed that “Tank was a handful on the date in question. He escaped out the front door and later escaped out the back gate only to be hit by a passing truck. When it looked like Tank might try to go back out into the street, plaintiff put her arms around Tank to try to restrain him. Tank then bit plaintiff’s thumbs, causing substantial damage.” The court found that the plaintiff’s actions were not sufficient provocation to elicit a vicious response from the dog.
Learning Point
In order to ascertain who is an owner of the dog, it is necessary to look closely at ownership interest and at the conduct alleged in the underlying action. Further, to show that there was no provocation, the court looks at the actions of the plaintiff and third parties prior to the injury and also considers the purpose of the Act.

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