DuPage County Dog Bite Lawyers: Pleading a Negligence Cause of Action

When filing a dog bite complaint, the plaintiff may pursue multiple theories of liability against the dog owner. The Animal Control Act holds dog owners strictly liable for bites and attacks by their dog. E.g. 510 ILCS 5. Prior to the passage of the Animal Control Act, a plaintiff was forced to bring a negligence cause of action. In such cases, a dog owner could plead an affirmative defense that he or she lacked knowledge that the dog would attack or bite–commonly referred to as the “one-bite” or “scienter” rule. Klatz v. Pfeffer, 333 Ill. 90, 94-95 (1928).

The Illinois legislatures adopted the “dog bite” statute, which eliminated the scienter rule. The modern “dog bite” statute states, in part: “If a dog or other animal without provocation attacks or injures any person who is peaceably conducting himself . . . the owner of such dog or other animal is liable in damages to such person for the full amount of the injury sustained.” 510 ILCS 5/16. The Illinois Supreme Court in Beckert v. Risberg held that the elements necessary to sustain an action under this section are: (1) proof of injury by the dog; (2) lack of provocation; (3) peaceable conduct; and (4) presence of the plaintiff in a place where he or she had a right to be. 33 Ill. 2d 44, 46 (1965); See https://www.chicago-injury-lawyer.org/dog-bite/. Accordingly, a dog owner may only defend an action under the statute by proving that the victim was creating a disturbance, trespassing, or tormenting the dog in a way that provoked the attack.

Negligence Cause of Action

More often than not, dog bite victims rely solely on the dog bite statute when filing a lawsuit against a dog owner. A negligence cause of action may nonetheless exist and should still be pursued. Many courts, however, restrict a negligence cause of action to imposing a duty on a dog owner only if the owner fails to prevent the harm. Because a negligence cause of action assumes that dogs are not predisposed to doing harm, it is difficult to base a negligence claim merely upon a failure to supervise and/or control the dog.

When a negligence claim is pled, a plaintiff may find it difficult to meet the burden of proof that the defendant either knew or should have known the dog had vicious propensities. In such cases, proof of foreseability of the harm is key. In Drell, the court held that a dog owner should have anticipated, when she tied her dog to top of oxygen tank, that the dog, which was large enough to pull tank over, would do so, and, although child’s mother was present with child, the injury suffered by a child from falling tank was foreseeable, and jury could find that dog owner was negligent. Drell v. Am. Nat. Bank & Trust Co., 57 Ill. App. 2d 129 (1965)

Similarly, the court in Lucas held that a negligence claim for a dog bite against a property owner must show that the owner knew of dog’s propensity to viciousness. Lucas v. Kriska, 168 Ill. App. 3d 317 (1988). The court reasoned that customary principles of common-law negligence apply to determine liability of the owner of premises upon which child is injured. A duty imposed under ordinary negligence principles will attach if the owner knows or should know that children frequent the premises, and a dangerous condition exists which may cause injury. The owner is liable for failure to remedy such condition if it is likely to cause injury to children generally, who, by reason of their age and immaturity, would not be expected to comprehend and avoid attendant risks.

Most dog bite claims are brought under the Illinois Animal Control Act’s strict liability theory. However, plaintiff can also plead a negligence cause of action. In either instance, dog bite victims must seek medical attention and immediately contact a knowledgeable attorney to assist them in holding dog owner’s liable for their dog’s viscous conduct.

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