Kirkham v. Will, No. 5-99-0019

5th District, 16 February 2000

JUSTICE MAAG delivered the opinion of the court:

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 lawfullyon 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 causedher to trip and fall during the attack. Plaintiff claimed that as a direct and proximate result of the dog's bite and the fall, herankle was fractured, which required her to have surgery and be hospitalized. Plaintiff prayed for damages pursuant to theAnimal 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 inany place where he may lawfully be, the owner of such dog or other animal is liable in damages to such person for thefull 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 thealleged attack because her blood alcohol level was in excess of 0.10. Defendants also claimed that since plaintiff did nothave 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 circuitcourt 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 forsummary 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 Kirkham v. Will, No. 5-97-0460 (February 18,1998) (unpublished order pursuant to Supreme Court Rule 23 (166 Ill. 2d R. 23)).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 showedthat plaintiff was picking up the asparagus for Linda Shafer, Having's daughter and Jody Will's sister. Shafer told plaintiffthat the asparagus would be in the gas grill and that plaintiff should take the asparagus and replace it with a $10 bill. Thegas grill was located at the back of Having's house, and Having knew that plaintiff was coming. Having shared a drivewaywith defendants, and their homes were adjacent to one another. The driveway was continuous; one end of it entered onHaving'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 toretrieve the asparagus. As she was walking up the driveway on defendants' property toward Having's house, plaintiff wasattacked by defendants' dog. This court determined that plaintiff presented evidence that she entered defendants' propertyduring daylight hours and for a lawful purpose, that is, to purchase asparagus from Having, who lived next door to andshared a driveway with defendants. Plaintiff presented evidence that she had used the driveway in the past to accessHaving's home, that she had been observed doing so by defendant Jody, and that defendants never objected. The drivewaythat 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 toescape liability by claiming that since plaintiff's blood alcohol level was above 0.10 at the time of the attack, she was notlawfully on the premises. This court held, however, that the Animal Control Act does not require that the plaintiff lawfullyarrive at the place where she is injured. The Animal Control Act requires that the plaintiff lawfully be at that place. Wedetermined that plaintiff presented evidence that she was using defendants' driveway during daylight hours, for a lawfulpurpose. The driveway provided access from a public way to Having's property. There was no evidence of any notice orwarning to stay off defendants' property, nor was there any evidence that plaintiff committed any unlawful act upondefendants' property or caused any damage to defendants' property. We therefore reversed the summary judgment in favorof 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 enteredjudgment on the verdict. Plaintiff filed a posttrial motion on November 12, 1998. On December 22, 1998, plaintiff'sposttrial 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 JuryInstructions, Civil, No. 110.04 (3d ed. 1995) (IPI Civil 3d)), because the tendered instruction accurately stated the law inIllinois. Plaintiff claims that since the circuit court refused to use that instruction, this court must reverse the judgment ofthe 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 oneowning, keeping or harboring a dog or other animal. That statute provides that [the owner of an animal] [a personkeeping an animal] [a person harboring an animal] is liable in damages for injuries sustained from any attack or injuryby the animal on a person peacefully conducting himself in a place where he may lawfully be [unless that personknew of the presence of an animal and did something a reasonable person should have known would be likely toprovoke an animal to attack or injure him] [unless that person knew of the presence of an animal and the unusual anddangerous nature of that animal and did something a reasonable person should have known would be likely toprovoke 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 thatomitted the bracketed material on provocation. Defense counsel first argued that the bracketed language on provocationshould be included, and plaintiff's counsel agreed. After reviewing the IPI instruction more thoroughly, however, defensecounsel argued that the IPI instruction was not an accurate statement of the law, even with the bracketed material, and thatthe 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 oneowning a dog. That statute provides that the owner of a dog is liable in damages for injuries sustained from any attackby the dog on a person who did not provoke the animal and who was peaceably conducting himself in a place wherehe may lawfully be."

Pursuant to Supreme Court Rule 239 (179 Ill. 2d R. 239), "Whenever Illinois Pattern Jury Instructions (IPI) contains aninstruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determinesthat the jury should be instructed on the subject, the IPI instruction shall be used unless the court determines that it does notaccurately state the law ***." (Emphasis added.) "The decision whether to give a non-IPI instruction is within thediscretion 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 thefollowing decisions makes it clear that the language contained within the first bracket of the IPI instruction concerningprovocation inaccurately states the law. The circuit court correctly refused the IPI instruction. The IPI instruction takes theview of a reasonable person. The courts have consistently pointed out that it is not the view of the person provoking the dogthat must be considered, but rather it is the reasonableness of the dog's response to the action in question that actuallydetermines whether provocation exists.

In Nelson v. Lewis, 36 Ill. App. 3d 130, 131, 344 N.E.2d 268, 270 (1976), the court defined provocation as "an act orprocess of provoking, stimulation[,] or incitement." In Nelson, the 2