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September 23, 1994


Appeal from Circuit Court of Champaign County. No. 91L990. Honorable George S. Miller, Judge Presiding.

As Corrected November 22, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Justices: Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE MCCULLOUGH delivered the opinion of the court:

Plaintiffs filed a complaint for injuries sustained by the minor plaintiff caused by a bite from a dog owned by defendants, alleging theories of common law negligence and liability pursuant to the Animal Control Act (Act) (Ill. Rev. Stat. 1991, ch. 8, par. 351 et seq). Plaintiffs appeal from the judgment entered on a directed verdict in favor of defendants at the close of plaintiffs' case and denial of their motion for a new trial.

The plaintiffs and the defendants occupy neighboring residences in a rural area of Champaign County. Defendant Diane Bradley had previously done some baby-sitting of the plaintiffs' children in her home. In August 1989 the plaintiffs, Benjamin VonBehren, then two years old, and his mother arrived unannounced at the defendants' home while both defendants were at work. They were invited in by the defendants' 16-year-old daughter, who was baby-sitting her nine-year-old brother, Andy. Andy and Benjamin went unattended into the backyard to play. At some point Benjamin saw that defendants' dog, a Labrador retriever, had a bird in its mouth. Benjamin testified he hit the dog several times to get the bird out of its mouth. Andy testified that Benjamin pulled the dog's tail and ears, and attempted to pull the bird from its mouth. The dog then bit Benjamin in the face, causing severe lacerations. Evidence was introduced at trial that the dog ran at large and barked at everyone who approached the premises, that he had previously nipped Andy and a boy from Sadorus, and had torn Daniel VonBehren's pant leg.

Plaintiffs filed a complaint in four counts-two common law counts alleging that defendants knew the dog had bitten or acted aggressively toward human beings and that defendants had a duty to exercise reasonable care for the safety of Benjamin, and two countsbased on section 16 of the Act (Ill. Rev. Stat. 1991, ch. 8, par. 366). At the Conclusion of plaintiffs' evidence, the court granted a directed verdict in favor of defendants. As to the common law counts, the court found that while the minor and his mother were lawfully on the premises, as a matter of law plaintiffs had failed to sustain their burden of showing the defendants could have foreseen that Benjamin would be on the premises unattended and interfere with and strike the dog when it was chewing on a bird. As to the statutory counts, the court found plaintiffs had failed to show Benjamin had not provoked the dog and that provocation within the meaning of the Act had occurred. The court subsequently denied plaintiffs' motion for reconsideration and a new trial.

Plaintiffs allege the court erred by (1) concluding foreseeability was an element of plaintiffs' common law claim because an owner with knowledge of his dog's aggressive or vicious tendencies is strictly liable for injuries caused by the dog regardless of a lack of foreseeability or provocation; and (2) finding the minor's provocation of the dog defeated the statutory claim. We affirm.

The standard of review of directed verdicts is whether all of the evidence, when viewed in the light most favorable to the plaintiffs, so overwhelmingly favors the defendants that no contrary verdict based on that evidence could ever stand. ( Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 504, 229 N.E.2d 504, 510.) Plaintiffs argue that any element of foreseeability relates only to the likelihood the dog will injure other persons once proof of a known vicious Disposition or prior attacks on humans is established and does not apply to the attendant circumstances of a subsequent injury. We agree.

No case cited to us or disclosed by our independent research holds that the circumstances of an attack on humans by a dog of known vicious propensities must in addition be shown to be foreseeable. The cases cited by defendants are inapposite as they relate to the foreseeability attendant to premises liability cases. See Whitcanock v. Nelson (1980), 81 Ill. App. 3d 186, 400 N.E.2d 998, 36 Ill. Dec. 418 (a 2 1/2-year-o1d girl was injured when she entered the fenced enclosure of a horse); Englund v. Englund (1993), 246 Ill. App. 3d 468, 615 N.E.2d 861, 186 Ill. Dec. 57 (a three year old drowned in a relative's swimming pool).

Plaintiffs point to Klatz v. Pfeffer (1928), 333 Ill. 90, 94-95, 164 N.E. 224, 226, in support of their view that a dog's known propensity to attack humans will impose strict liability on the owner for any injuries caused by the dog. However, the Klatz court does not link the owner's knowledge of his dog's prior attacks to strict liability for all injuries later caused by it, but instead to the assumption of a duty to control the animal, breach of which duty may then subject theowner to strict liability. ( Klatz, 333 Ill. at 94-95, 164 N.E. at 226.) However, implicit in the acts giving rise to a duty to control is the proviso that any prior attacks or attempted attacks by the dog occurred "without provocation." ( Klatz, 333 Ill. at 97, 164 N.E. at 227.) This is the genesis of the so-called "one-bite" rule. Logically, if the acts giving rise to the assumption of a duty on the part of the dog owner must be based on unprovoked attacks by the dog, the imposition of liability for any subsequent attack must similarly be contingent upon the absence of provocation by the victim. That this has long been the prevailing view is evidenced in Keightlinger v. Egan (1872), 65 Ill. 235, 238, where the court held that if the plaintiff had wantonly irritated and aggravated the dog, which then bit him to repel an assault, the plaintiff could not recover for damages caused by his own wrong. Accord Chicago & Alton R.R. Co. v. Kuckkuck (1902), 197 Ill. 304, 309-10, 64 N.E. 358, 359 (a complete defense exists if the victim brings the injury upon himself by his own conduct).

Plaintiffs contend that any evidence of provocation by the victim is a jury question constituting contributory negligence and should not have been decided by a directed verdict at the close of the plaintiffs' case. Plaintiffs point out that any contributory negligence based on the acts or omissions of Benjamin's mother would relate only to the parents' claim and can not be imputed to the child ( Rahn v. Beurskens (1966), 66 Ill. App. 2d 423, 430, 213 N.E.2d 301, 305), and a child under the age of seven is conclusively presumed incapable of contributory negligence ( Mort v. Walter (1983), 98 Ill. 2d 391, 395, 457 N.E.2d 18, 20-21, 75 Ill. Dec. 228).

We do not agree with plaintiffs' assertion that provocation is the equivalent of contributory negligence. Each presents a separate origin of causation and is defined differently. Provocation is defined as follows:

"The act of inciting another to do a particular deed. That which arouses, moves, calls forth, causes, or occasions. Such conduct or actions on the part of one person towards another as tend to arouse rage, resentment, or fury in the latter against the former, and thereby cause him to do some illegal act against or in relation to ...

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