Appeal from the Circuit Court of Effingham County. No. 96-L-55 Honorable Richard H. Brummer, Judge, presiding.
The opinion of the court was delivered by: Justice Maag
The plaintiff, Mary Kirkham, filed a complaint on November 7, 1996, against the defendants, Ron and Jody Will. Specifically, plaintiff claimed that on May 3, 1995, she was attacked and bitten by defendants' dog while she was lawfully on defendants' premises to purchase asparagus from Jody Will's mother, Evelyn Having, who lived next door to defendants. Plaintiff alleged that she was peacefully conducting herself when the attack occurred and that defendants' dog also caused her to trip and fall during the attack. Plaintiff claimed that as a direct and proximate result of the dog's bite and the fall, her ankle was fractured, which required her to have surgery and be hospitalized. Plaintiff prayed for damages pursuant to the Animal Control Act (510 ILCS 5/16 (West 1994)), which states as follows:
"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."
On December 4, 1995, defendants filed an answer to plaintiff's complaint. Defendants denied liability. On January 17, 1997, defendants filed a motion for summary judgment, claiming that plaintiff was not lawfully on the premises at the time of the alleged attack because her blood alcohol level was in excess of 0.10. Defendants also claimed that since plaintiff did not have permission to be on their property and because she did not intend to be on defendants' property, she was trespassing. Subsequent to plaintiff's response and affidavit being filed, several motions to strike were also filed. Ultimately, the circuit court granted defendants' motion for summary judgment.
Plaintiff filed a notice of appeal on July 7, 1997. This court reversed the circuit court's order granting defendants' motion for summary judgment because a material issue of fact remained unresolved. Kirkham v. Will, No. 5-97-0460 (February 18, 1998) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)). In the prior appeal, the record showed that plaintiff was picking up the asparagus for Linda Shafer, Having's daughter and Jody Will's sister. Shafer told plaintiff that the asparagus would be in the gas grill and that plaintiff should take the asparagus and replace it with a $10 bill. The gas grill was located at the back of Having's house, and Having knew that plaintiff was coming. Having shared a driveway with defendants, and their homes were adjacent to one another. The driveway was continuous; one end of it entered on Having's property and the other end of it entered on defendants' property. Plaintiff entered the driveway on defendants' property. Because the driveway was blocked by a parked truck, plaintiff exited her car, intending to walk to the gas grill to retrieve the asparagus. As she was walking up the driveway on defendants' property toward Having's house, plaintiff was attacked by defendants' dog. This court determined that plaintiff presented evidence that she entered defendants' property during daylight hours and for a lawful purpose, that is, to purchase asparagus from Having, who lived next door to and shared a driveway with defendants. Plaintiff presented evidence that she had used the driveway in the past to access Having's home, that she had been observed doing so by defendant Jody, and that defendants never objected. The driveway that plaintiff used, although partially on defendants' property, also led directly to Having's home and, according to plaintiff, was used by others to reach Having's home. Defendants presented no evidence to the contrary. Defendants attempted to escape liability by claiming that since plaintiff's blood alcohol level was above 0.10 at the time of the attack, she was not lawfully on the premises. This court held, however, that the Animal Control Act does not require that the plaintiff lawfully arrive at the place where she is injured. The Animal Control Act requires that the plaintiff lawfully be at that place. We determined that plaintiff presented evidence that she was using defendants' driveway during daylight hours, for a lawful purpose. The driveway provided access from a public way to Having's property. There was no evidence of any notice or warning to stay off defendants' property, nor was there any evidence that plaintiff committed any unlawful act upon defendants' property or caused any damage to defendants' property. We therefore reversed the summary judgment in favor of defendants and remanded this case for further proceedings.
A jury trial was held on November 2 and 4, 1998. The jury returned a verdict in favor of defendants, and the court entered judgment on the verdict. Plaintiff filed a posttrial motion on November 12, 1998. On December 22, 1998, plaintiff's posttrial motion was denied. Plaintiff filed a timely notice of appeal on January 6, 1999.
Plaintiff claims on appeal that the circuit court erred in instructing the jury on defendants' liability. More specifically, plaintiff claims that the circuit court erred in failing to use the tendered pattern jury instruction (Illinois Pattern Jury Instructions, Civil, No. 110.04 (3d ed. 1995) (IPI Civil 3d)), because the tendered instruction accurately stated the law in Illinois. Plaintiff claims that since the circuit court refused to use that instruction, this court must reverse the judgment of the circuit court and remand this case for a new trial.
The instruction at issue reads as follows:
"At the time of the occurrence there was in force in the State of Illinois a statute governing the responsibility of one owning, keeping or harboring a dog or other animal. That statute provides that [the owner of an animal] [a person keeping an animal] [a person harboring an animal] is liable in damages for injuries sustained from any attack or injury by the animal on a person peacefully conducting himself in a place where he may lawfully be [unless that person knew of the presence of an animal and did something a reasonable person should have known would be likely to provoke an animal to attack or injure him] [unless that person knew of the presence of an animal and the unusual and dangerous nature of that animal and did something a reasonable person should have known would be likely to provoke an attack or injury by that animal]." IPI Civil 3d No. 110.04.
As his proposed instruction number 9, plaintiff's counsel tendered a modified version of IPI Civil 3d No. 110.04 that omitted the bracketed material on provocation. Defense counsel first argued that the bracketed language on provocation should be included, and plaintiff's counsel agreed. After reviewing the IPI instruction more thoroughly, however, defense counsel argued that the IPI instruction was not an accurate statement of the law, even with the bracketed material, and that the IPI instruction should not be given. The circuit court agreed and refused the IPI instruction.
The instruction that was given, defendant's instruction number 7, reads as follows:
"At the time of this occurrence there was in force in the State of Illinois a statute governing the responsibility of one owning a dog. That statute provides that the owner of a dog is liable in damages for injuries sustained from any attack by the dog on a person who did not provoke the animal and who was peaceably conducting himself in a place where he may lawfully be."
Pursuant to Supreme Court Rule 239 (179 Ill. 2d R. 239), "Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used unless the court determines that it does not accurately state the law ***." (Emphasis added.) "The decision whether to give a non-IPI instruction is within the discretion of the trial court and will not be reversed absent a showing of abuse of discretion." People v. Hudson, 157 Ill. 2d 401, 446, 626 N.E.2d 161, 180 (1993).
The real question is whether the IPI instruction in this case accurately states the law in the State of Illinois. A review of the following decisions makes it clear that the language contained within the first bracket of the IPI instruction concerning provocation inaccurately states the law. The circuit court correctly refused the IPI instruction. The IPI instruction takes the view of a reasonable person. The courts have consistently pointed out that it is not the view of the person provoking the dog that must be considered, ...