According to the Humane Society, there are an estimated 73 million dogs in the United States. (1) There are an estimated 12.4 million dogs in Illinois. (2) Each year, there are approximately 4,490,000 dog bites nationwide. (3) Of these, more than 750,000 require medical attention. (4) Between 1979 and 1988, there were at least 15 dog-related fatalities in the United States each year. (5) As of the time this article went to press, there have been five fatal dog attacks this year in the United States. (6) Between 1979 and 1988 there were eight dog-bite related fatalities in Illinois and another eight between 1989 and 1994. (7)
Dog-bite cases, often scoffed at in the past, are no laughing matter these days. Indeed, dog attacks by the so-called "bully breeds" (8) garner a lot of media attention.
Most attorneys will never handle a high-profile dog attack fatality case. Instead, we will be involved in the more pedestrian, but often still serious, non-fatal dog bite case. Before photographing the wounds, considering the cost of reconstructive surgery, or calculating the settlement value of a dog-bite claim, attorneys should familiarize themselves with the law of dog bites, both common law and the Illinois Animal Control Act. An injured person can bring both claims, and each has its nuances and hidden traps for practitioners.
In Illinois, dogs are "presumed ... tame, docile and harmless, in the absence of evidence that the dog has demonstrated vicious propensities." (9) In a common law claim, a dog owner is not liable for injuries caused by the dog's bites unless there is evidence the dog presents a danger or has bitten before, (10) without provocation. (11) According to the Illinois Appellate Court, this is "the genesis of the so-called 'one-bite' rule." (12)
The Illinois Animal Control Act" was intended to eliminate this "one-bite" rule. (14) To recover under the Act, an injured person must prove four elements: an injury caused by an animal owned by the defendant, lack of provocation, peaceable conduct, and that the injured person was where he or she had a right to be. (15)
This article will discuss each of these elements in turn and review the cases interpreting them.
An injury caused by an animal owned by the defendant
In this first element, most cases focus on "ownership" as a legal issue. However, the statute defines several of the preliminary words.
"Animal." The statute defines animal as "every living creature, other than man, which may be affected by rabies." (16) Injury as an element is often overlooked in construction of the Act. The statute defines "has been bitten," as "seized with the teeth or jaws so that the person or animal seized has been nipped, gripped, wounded, or pierced, and further includes contact of saliva with any break or abrasion of the skin." (17)
"Injury." In addition, the statute defines "physical injury" as the "impairment of physical condition." (18) An actual bite is not necessary--case law supports claims for injuries by dogs other than by actual bites. (19)
"Ownership." Once the threshold issues of animal and injury are dealt with, an attorney representing or defending a dog bite case under the Act must understand how the Act creates "ownership." Ownership does not refer to the legal owner of the dog. Instead, owner under the statute 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." (20) This definition "has been consistently construed to involve some measure of care, custody, or control." (21)
Understanding "owner" as defined by the statute is critical. The legal owner of a dog is often not necessarily the owner under the Act, and thus not liable for injuries caused by its dog. Instead, the definition of owner refers to one 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."...