Animal Law: Defending Animal Bites - Amazon Web Services · leading to problem animal behavior....

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Animal Law: Defending Animal Bites

Seminar Topic: This program discusses legal theories used in defending

animal bite cases in civil, criminal and administrative proceedings,

including available defenses – such as provocation – and jurisdictions

applying the “reasonable dog standards.” A discussion of typical damages,

penalties and fees is included, along with more progressive affects towards

penalizing repeat “owner” ordinances for neglect and/or other behaviors

leading to problem animal behavior.

This material is intended to be a guide in general. As always, if you have

any specific question regarding the state of the law in any particular

jurisdiction, we recommend that you seek legal guidance relating to your

particular fact situation.

The course materials will provide the attendee with the knowledge and

tools necessary to identify the current legal trends with respect to these

issues. The course materials are designed to provide the attendee with

current law, impending issues and future trends that can be applied in

practical situations.

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Disclaimer: The views expressed herein are not a legal opinion. Every fact situation is different and the reader is encouraged to seek legal advice for their particular situation.

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ApexCLE, Inc.

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Author’s Email Address: [email protected]

Author’s Website: www.amrlawgroup.com

Author’s Mailing Address:

111 W Washington St, Suite 1760

Chicago, IL 60602

Author’s Phone Number: 312-376-7660

About The Author Anna Morrison-Ricordati practices civil litigation, business law, and

animal law in Chicago, Illinois. Handling all aspects of dispute resolution, Anna has represented individual and business clients in mediations, arbitrations, jury and bench trials, equitable remedies, and appeals. She is a past Chair of the Illinois State Bar Association’s Animal Law Section Council (2010-2011), Chair of the Chicago Bar Association’s Animal Law Committee (2012-2013), Chair of the DuPage County Bar Association’s Animal Law Section (2013-2014), past President of the North Suburban Bar Association (2014-2015), and has served as a CLE speaker on emerging legal topics for many organizations, including The Chicago Bar Association, Illinois State Bar Association and Louisiana State Bar Association. Anna has also guest lectured at The John Marshall Law School in animal law and civil practice courses.

Anna received her J.D., cum laude in 2003 from The John Marshall Law School, Chicago, IL. She received a M.S., Interdepartmental Biological Sciences in 2001 from Northwestern University, Evanston, IL. She received a B.S., cum laude, Microbiology in 1998 from University of Illinois, Urbana-Champaign, IL. She was admitted in Illinois in 2003 and the District of Columbia in 2007.


mailto:[email protected]

http://www.amrlawgroup.com/


ANIMAL LAW – Defending Animal Bites Introduction & Background – Animal Law

The field of animal law encompasses not only companion animals, commonly referred to as “pets,” but also those animals living in the wild and animals used for entertainment, food and in research. Animal attorneys often seek to protect animals from abuse under existing statutory and case laws and seek to extend animal protection through common law (bringing legal cases) & legislative change. Although a non-traditional legal field, animal law involves traditional subject matter, such as tort, contract, criminal and constitutional law. Animal law is currently taught in 160 law schools (US and Canada), including Harvard, Stanford, UCLA, and the University of Chicago. Recognizing the growth in this field, most state and local bar associations now have animal law section councils or committees. http://aldf.org/animal-law-courses/ (updated Jan. 7, 2016)

Companion Animal Issues In Court

◦ Animal Custody Disputes (Divorce & *Replevin) ◦ Bites (Prosecuting & Defending) ◦ Consumer Fraud (Sales of Sick Animals) ◦ Enforceable Trusts for Animal Beneficiaries (Pet Trusts) ◦ Housing Disputes (No Pet Policies – FHA/ADA) ◦ Veterinary Malpractice (Reasonable Standard of Care) ◦ Wrongful Death & Injury (Negligent & Intentional)

State Laws & Court Treatment Differs



Animal Bites Who Is Bitten?

◦ Person ◦ Another Animal

What Law Applies?

◦ Local Ordinance ◦ State Law ◦ Common Law ◦ HOA – Rules/Regulations

Who Is Responsible?

◦ Veterinary Clinic ◦ Landlord / Tenant

◦ Legal Owner / Keeper Liability Civil

◦ “Reasonable Dog Standard” ◦ Illinois – developed case law

Ordinance (Quasi-Criminal)

◦ Varies greatly Criminal

◦ Rare in Context of Animal to Human Bite ◦ History of Offending Animal/Recklessness

◦ Common in Dog Fights, etc.



What Laws Govern?

State & Local ◦ Example: Illinois ◦ Illinois Animal Control Act ◦ Local - Illinois Municipal League

◦ http://www.iml.org/ ◦ http://legal.iml.org/page.cfm?key=10134&parent=355

Where to find local laws?

◦ Village or City Hall ◦ Law Library

Municipal

Administrative Hearing

◦ Rules Differ As To Conduct of Hearing ◦ Administrative Review

◦ Example: Illinois ◦ http://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050

HArt.+III&ActID=2017&ChapterID=56&SeqStart=22150000&SeqEnd=23600000

Initial Hearing ◦ Evidence Rules Differ (Some Hearsay Allowed) ◦ Pre-Hearing Discovery (Use FOIA, Absent An Agreement) ◦ Continuations NOT Guaranteed

◦ Appeal to Circuit Court ◦ Appeal to Appellate Court

Liability ◦ Fines & Restitution ◦ Owner Requirements for Dangerous Dog (Euthanasia possible)


http://www.iml.org/

http://legal.iml.org/page.cfm?key=10134&parent=355

http://ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt.+III&ActID=2017&ChapterID=56&SeqStart=22150000&SeqEnd=23600000




Municipal Codes

Vary Greatly From City to City (or Village to Village) Examples: Elgin

◦ A. Designation Of Dangerous Dogs: A dog shall be designated as a dangerous dog when the hearing officer or a court, at the request of the police department, has conducted an evidentiary hearing, heard and considered evidence pertaining to the temperament of the dog, and has entered an order determining that the dog has behaved in the manner described in subsection 7.04.100D of this chapter and designating the dog as a dangerous dog. The hearing officer or the court, upon designating a dog as a dangerous dog, shall enter a written order requiring that, in addition to the payment of the penalties provided under section 7.04.260 of this chapter, the owner shall comply with the registration and license requirements in section 7.04.050 of this chapter and shall comply with each and all of the restrictions set forth in subsection B of this section.

Examples: Berkeley

◦ 6.28.10 – Dangerous Animal. It is unlawful to permit any dangerous animal or any vicious animal of any kind to run at large within the village. Exhibitions or parades of animals which are ferae naturae in the eyes of the law may be conducted only upon securing a permit from the board.

Example: Chicago “Dangerous animal” means an animal meeting any one of the following criteria:

(1) any animal which bites, inflicts injury on, kills or otherwise attacks a human being or domestic animal without provocation on any public or private property; or


http://www.sterlingcodifiers.com/codebook/getBookData.php?ft=3&find=7.04.100




(2) Any animal which on more than one occasion, without provocation, chases or approaches any person in an apparent attitude of attack, on any public property or in any place outside or over the boundaries of its owner's property; or

(3) Any animal owned or harbored primarily or in part for the purpose of dog or other animal fighting or any animal trained for dog or other animal fighting; or

(4) Any dog that is used as a guard dog; or (5) Any animal which has been found to be a vicious dog under

state law.

Municipal Code - Defenses

“Provocation” means that the threat, injury or damage caused by the animal was sustained by a person who, at the time, was committing a willful trespass or other tort upon the premises occupied by the owner of the animal, or was tormenting, abusing, or assaulting the animal, or was committing or attempting to commit a crime.

Municipal Code – Unrestrained

7-12-030 Animals shall be restrained. Each owner shall keep and maintain his animal under restraint; provided, however, that this section shall not apply to any dog being used for rescue or law enforcement work. It shall be unlawful for any owner to allow his or her animal to cross outside the property line of its owner to any extent, including reaching through, over or under a fence, or to keep or allow his or her animal to be outdoors on an unfenced portion of the owner's property, unless the animal is leashed and under the control of its owner or another responsible person; provided that any animal not secured by a leash or lead and that is outdoors on a fenced portion of the owner's property or outdoors on the premises of another person with consent of that person shall not be considered under restraint unless the fence is of sufficient height appropriate to the size of the animal to prevent the animal from jumping or reaching over the fence. In addition, it shall be an



unlawful failure to restrain for an animal to attack, bite, threaten, or jump on any person without that person's consent, outside the property of the animal's owner. The provisions of this section shall be a positive duty of the owner and the offenses described herein shall be strict liability offenses.

Any owner who violates any provision of this section shall be subject to a fine of $300.00, if the violation does not result in severe injury or death to any person or damage to another person's property. If the violation results in severe injury or death to any person, the owner shall be subject to a fine of not less than $1,000.00 and not more than $10,000.00. In addition to a fine, the owner may be required to submit full restitution to the victim or may be incarcerated for a period not to exceed six months, or may be required to perform up to 100 hours of community service, or any combination thereof. If the violation results in damage to another person's property, the owner shall be subject to a fine of not less than $300.00 and not more than $1,000.00. In addition to a fine, the owner may be required to submit full restitution to the victim.

“Animal under restraint” means any animal:

(1) either secured by a leash or lead; (2) within the premises of its owner, or confined within a crate

or cage, or confined within a vehicle, or on the premises of another person with the consent of that person; provided that any animal not secured by a leash or lead and that is outdoors on the premises of its owner or outdoors on the premises of another person with consent of that person shall not be considered under restraint unless the animal is on a fenced portion of the premises and the fence is: (i) constructed to keep the animal from reaching through the fence; and (ii) of sufficient height appropriate to the size of the animal to prevent the animal from jumping or reaching over the fence; or

(3) within an area specifically designated by the Chicago Park District or by the City of Chicago as a dog park, or as an animal exercise run; provided that the animal is under the control of a competent person.



Municipal Code – Owner – Injury

“Owner” means any person having a right of property in an animal or who keeps or harbors any animal or who has an animal in his care or custody. “Severe injury” means any physical injury that results in death; loss of soft tissue; a broken bone; hospitalization admittance; impairment of any bodily function; disfiguring laceration; laceration requiring sutures or cosmetic surgery; or lacerations or puncture wounds caused by more than one bite.

Municipal Code - Impoundment

7-12-050

(f) Where there is probable cause to believe that an animal is a dangerous animal, the executive director or his designee is authorized to impound and hold such animal, at the owner's expense, pending the investigation and final resolution of any appeals. Where the animal has caused severe injury or death to any person, the executive director or his designee is required to impound and hold such animal, at the owner's expense, pending the investigation and final resolution of any appeals. Moreover, in no event shall a dangerous animal be released to its owner before the owner obtains a dangerous animal license pursuant to section 7-12-052 or before the executive director or his designee approves the enclosure required by subsection (c)(1). The holding period and impoundment procedures for animals of unknown ownership shall be governed by Section 7-12-060.



Municipal Code - Trends - Breed Specific Legislation (BSL)

◦ Problems ◦ Proof of “Breed” ◦ Blanket Assumptions - Unfair Results ◦ Due Process Concerns

- Reckless Owner

◦ Aimed at Repeat Offenders/Neglectful Owners & Guardian

Common Law & State Statute

Context: Civil Liability for Animal Bite – Most Commonly, Dog Bites Damages: $$$$ Defenses: Provocation “Reasonable Dog Standard” - how would a normal/typical dog react to a person’s actions - Siewerth v. Charleston, 89 Ill.App.2d 64 (1st Dist. 1967) - Nelson v. Lewis, 36 Ill.App.3d 130, 131 (5th Dist. 1976) - Smith v. Pitchford, 219 Ill.App.3d 152, 154 (5th Dist. 1991) - Wade v. Rich, 249 Ill.App.3d 581, 589 (5th Dist. 1993) - VonBehren v. Bradley, 266 Ill.App.3d 446 (4th Dist. 1994). - Kirkham v. Will, 311 Ill.App.3d 787, 794 (5th Dist. 2000) - Beggs v. Griffith, 393 Ill.App.3d 1050, 1056 (5th Dist. 2009)



State Law

510 ILCS 5/2.16 (from Ch. 8, par. 352.16) Sec. 2.16. "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. "Owner" does not include a feral cat caretaker participating in a trap, spay/neuter, return or release program. (Source: P.A. 93-548, eff. 8-19-03; 94-639, eff. 8-22-05.)

510 ILCS 5/16 (from Ch. 8, par. 366) Sec. 16. 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. (Source: P.A. 94-819, eff. 5-31-06.)

Domm v. Hollenbeck

259 Ill. 382 (IL S.Ct. 1913) “The owner of an animal is bound to take notice of the general propensities of the class to which it belongs, but he is under no obligation to guard against injuries which he has no reason to expect on account of some disposition of the individual animal different from the species generally, unless he has notice of such disposition. The owner or keeper of a domestic animal of a species not inclined to mischief, such as dogs, horses and oxen, is not liable for any injury committed by it to the person of another, unless it be shown that the animal had a mischievous propensity to commit such an injury and the owner had notice of it or that the injury was attributable to some other negligence on his part.”



“The natural presumption from the habits of dogs is that they are tame, docile and harmless, both as to persons and property, and the owner of a dog is not liable for damages resulting from the vicious or mischievous acts of the animal unless he had knowledge of his mischievous or vicious propensities, and such knowledge must be proved.”

The proof may be made by evidence of facts and circumstances from which an interference of knowledge arises and it is not necessary that the owner or keeper knew that the dog had committed the same injury. It is sufficient if he knows that i[t] will be likely to commit an injury similar to the one complained of, but it is not enough to charge him that he might have known of the vicious or mischievous propensities of the dog by exercise of reasonable care.”

The trial Court had excluded evidence from numerous witnesses, including the dog’s prior owner, of a general good nature to counter the purported evidence of the plaintiff who claimed the defendant did have notice that the dog would attack and bite someone. The court erred in excluding the evidence, which errors were serious and prejudicial, and the case was remanded.

Lucas v. Kriska

168 Ill. App. 3d 317 (1st Dist. 1988) March 1978, Kriska owned and operated Red Wings Farms – a stable for boarding horses in Des Plaines, Illinois.

Kriska appealed the entry of judgment on the Trial Court Verdict in favor of 8 year old (minor) bitten by dog on Kriska’s (stable owner’s) property.

Minor’s mother boarded a horse at the property; Kriska’s sister also boarded a horse at the property & typically brought her black lab (unleashed & roaming the grounds).



Minor’s mother brought her son to Red Wings Farms to visit the horse when the black lab was present – dog bit minor in face & left permanent facial scar.

Common Law Negligence & Animal Control Act Jury (by special interrogatory) found that property owner did not own, harbor or keep the dog within the meaning of the Act, but returned a general verdict for the minor.

Special interrogatory negated liability per the Act.

Appeal focused on common law liability, but Appellate Court held that there was no evidence of prior knowledge that dog posed a special danger to children or people generally.

Case Warned of Duty (not imposed under ordinary negligence) Attaching When Owner Knows Children Frequent Premises (who by reason of age and immaturity are not expected to comprehend and avoid attendant risks). Lucas claimed she was not required to present evidence that Kriska knew of dog’s propensities. However, to impose liability on someone other than the dog’s owner or keeper under principles of common law negligence, courts of other jurisdictions have held that the plaintiff must show a defendant property owner had prior knowledge of the dog’s viciousness

Wilson v. City of Decatur

389 Ill. App. 3d 555 (4th Dist. 2009)

Dog owned by City allegedly bit woman lawfully on private property.

Trial Court dismissed case; Appellate Court remanded.



Wilson filed suit in December 2006 against City of Decatur pursuant to the Animal Control Act. Plaintiff was in an apartment when police were called due to domestic dispute between sister and sister’s boyfriend. Police dog bit Plaintiff in the stomach.

City moved to dismiss complaint pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 through 10-101.1)

Trial Court granted dismissal, Tort Immunity Act, Sec. 2-202 “a local government employee is not liable for any act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct,” 2-109 which absolves a City of liability where the employee is not liable.

Plaintiff argued that the City was strictly liable as owner of the police dog pursuant to Section 16 of the Animal Control Act.

Court held that Section 2-109 did not grant immunity to the City because ownership of the dog was the basis for the City’s liability.

Janis v. Graham

408 Ill. App. 3d 898 (2nd Dist. 2011)

Plaintiff sued Defendants for injuries when allegedly knocked to the ground by defendants’ dogs, which were running loose in violation of South Elgin, IL’s Ordinance 90.03(B)

Court held that the Animal Control Act (510 ILCS 5/24) granted municipalities the authority to regulate animals and prohibit them from running at large, but it did not provide the municipality could regulate civil liability for incidents involving animals running at large. A common law cause of action for negligence involving injuries caused by an animal already existed & Plaintiff had failed to properly allege the



common law element that the owner had knowledge of the animal’s mischievous propensities. Municipality was “non-home-rule” and governed by Dillon’s Rule (non-home-rule units possess only those powers specifically conveyed by the constitution). Even when authority is conveyed, unit may not adopt an ordinance that infringes upon the spirit of the state law or that is repugnant to the general policy of this state.

Where there is a conflict between an ordinance and a statute, the ordinance must give way.

References 510 ILCS 5/ as “statutory route of recovery that is not based on negligence or strict liability.”

Howle v. Aqua Ill., Inc. 2012 IL App (4th) 120207; 987 N.E.2d 1132 (4th Dist. 2012)

Employee of property owner/employer rented home at edge of employer’s water treatment plant.

Guest of employee/renter was attacked by dog belonging to employee/renter’s son.

Guest’s claim for damages pursuant to 510 ILCS 5/16 (IL Animal Control Act), dismissed against property owner.

Four points

◦ (1) injury occurred at a private family gathering; ◦ (2) property owner warned only that he didn’t want dogs running

outside the boundaries of the rented property; ◦ (3) property owner did not mandate any of the employee’s

interactions with the dogs while on the rented property; and ◦ (4) the property owner had no property interest in the employee’s

dogs, didn’t feed or house them and enjoyed no benefits of their existence.



To prevail on a claim under the Animal Control Act, a plaintiff must prove: ◦ (1) an injury caused by an animal owned by the defendant; ◦ (2) lack of provocation; ◦ (3) the peaceable conduct of the injured person; and ◦ (4) the presence of the injured person in a place where he has a

legal right to be. A landlord is not liable for injuries caused by a dangerous or defective condition on premises leased to a tenant and under the tenant’s control (& owes no duties to tenant’s invitees for animals kept on leased premises). Simply having the right to coerce the tenant to remove the animal by threatening to terminate tenancy does not equal the landlord retaining control of the premises.

Hayes v. Adams

2013 IL App (2d) 120681, 987 N.E.2d 402 (2nd Dist. 2013)

Ideas Behind the Act & Case Law Interpretation

◦ (1) Encourage tight control of animals to prevent harm; ◦ (2) Because the Act intends to prevent public harm, the Act

applies to person who places himself in a position of control akin to an owner;

◦ (3) Courts have rejected strict liability that would impose liability as a pure penalty for dog ownership.

On April 23, 1997, Tina Adams left her Lhasa Apso dog, Gucci, with Carriage House Animal Clinic for a surgical procedure.

Gucci lived with Adams for 9-10 years and had never chased or bitten other dogs or persons, was good around children and was a “pretty calm dog.” The vet clinic (using its own noose & chain) waked Gucci to a grassy area where Gucci escaped and bit the right hand of Kristina Hayes (8 years old) who was at that time waiting for the school bus.



The bite resulted in Hayes having three surgeries (one in 2000, another in 2006, and a final one in 2008).

Hayes filed suit against Adams & Hearle and Sekowski Veterinary Service, LLC d/b/a the Carriage House Animal Clinic.

On February 14, 2012, the court granted Adams’ Motion for Summary Judgment given that Adams’ did not have care of or dominion over Gucci at the time of the injury. Adams was not held “strictly liable” for the injury solely because of her legal ownership of the dog. Hayes’ Motion to reconsider was denied and an appeal pursuant to S.C. 304(a) was allowed.

The Act does NOT impose strict liability on the animal owner. “Although on its face the Animal Control Act appears to hold any legal owner of a dog strictly liable for injuries, and the Act is not negligence-based and does not require an injured party to prove that the “owner” is negligent, the Act also does not impose strict liability on the owner.”

The Act intended to eliminate the requirement that an injured party (per common law) prove that the animal owner knew (or should have known) of an animal’s dangerous propensities.

The Act did not repeal the common law action. References / Distinctions Bailey v. Bly, 87 Ill. App. 2d 259 (4th Dist. 1967) – plaintiff tripped over defendant’s dog Carl v. Resnick, 306 Ill. App. 3d 453 (1st Dist. 1999) – plaintiff injured while riding horse owned by defendant, more than “legal owner” when defendant riding alongside Papesh v. Matesevac, 223 Ill. App. 3d 189 (3rd Dist. 1991) – mother not liable for dog bite where dog in residential custody of father, the Act “contemplates some level of care, control, or custody” Wilson v. City of Decatur, 389 Ill. App. 3d 555 (4th Dist. 2009) – employee of city handling dog, so city still had “care, custody and control via its agent”


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