While dogs bring us happiness and enrich our lives, they can also be sources of liability for their owners. The Second District’s recent decision in Dzierwa v. Ori examines the two liability theories recognized in Illinois for bodily injury caused by an animal, which all Illinois dog owners should be aware of.
The Original Case
In Dzierwa, plaintiff was bitten by Fiona, a 105-pound Cane Corso owned by defendants Joseph and Elizabeth Ori. The Oris were out of town at the time, and co-defendant Brad Hoebel was house-sitting and watching Fiona. Hoebel invited guests over to the Oris’ home, one of whom was plaintiff. Prior to biting plaintiff, Fiona had not exhibited any aggressive behavior nor had she bitten anyone prior to the incident.
Plaintiff sued the Oris and Hoebel under two theories: 1) common law negligence and 2) the Illinois Animal Control Act. Plaintiff appealed following the trial court’s grant of summary judgment in favor of the Oris.
Appellate Court Review
In reviewing plaintiff’s common law negligence claim, the Appellate Court began its analysis by reciting the four elements required to prove such a claim: 1) duty, 2) breach of duty, 3) causation, and 4) damages. The court then focused on the critical element for proving a negligence claim involving an animal: a plaintiff must also prove that defendant knew or had reason to know the animal would be dangerous.
Discovery revealed that while Fiona had never bitten anyone in the past, she typically growled at people from the car or through the window. Fiona also did not like other dogs and would bark at them. On one prior occasion, Fiona got into a fight with another dog at a dog park. The Appellate Court found that none of this evidence was sufficient to raise a question of fact that Fiona was abnormally vicious or had a dangerous propensity to injure humans. Regarding Fiona’s prior fight with another dog, the court found that fights among dogs do not foreshadow attacks on humans. As such, the court upheld summary judgment for defendant on the common law negligence count.
The court next addressed plaintiff’s claim under the Illinois Animal Control Act. The Act states, in pertinent part, the following:
“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.” 510 ILCS 5/16 (West 2018).
Illinois courts distill the language of Section 16 of the Act down into four elements that must be proven: 1) an injury caused by defendant’s animal; (2) lack of provocation; (3) peaceable conduct of the person injured; and (4) the presence of the injured person in a place where he or she had a right to be.
The only element at issue in Dzierwa was the first element, the “ownership” element. Plaintiff argued that she raised sufficient evidence to satisfy this element as the Oris were the legal owners of Fiona at the time of the injury. However, the court noted that although the language of the Act seems to impose strict liability on anyone with a property interest in a dog, Illinois courts require a “factual or reasonable basis for liability.”
Imposing liability on a dog owner hinges on the issue of control. The Second District cited to several Illinois appellate court decisions in which the court declined to impose liability on legal dog owners because those owners were not positioned to control the dogs or prevent injury.
In Dzierwa, the court noted that the Oris had relinquished complete care, custody, and control of Fiona to Hoebel while they were away. They also gave Hoebel broad discretion in caring for Fiona and protecting others from encounters with her. As the Oris were not positioned to control Fiona’s actions at the time of plaintiff’s injury, there was no basis to impose liability on the Oris for that injury.
Plaintiff attempted to sidestep the lack of evidence of the Oris’ direct control over Fiona by arguing that the Oris exercised indirect control over her. In other words, the Oris had control over Fiona because they had control over how much discretion to give Hoebel to control Fiona. However, the court rejected this argument, finding no reasonable basis to impose liability under the factual scenario presented, and affirmed summary judgment on plaintiff’s claim under the Act.
While dog owners may not want to think about the possibility of their beloved pets injuring another, dog owners should be aware of the claims they could potentially face if that were to occur. They should understand that if their dog is vicious by nature and has a history of exhibiting violent or aggressive behavior toward humans, they should consider themselves on notice of the potential for liability and take reasonable steps to protect the public. Dzierwa also reminds us that in some cases, liability for injury can extend beyond dog owners, themselves, and attach to anyone who exercises sufficient control over the dog at the time of injury.