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Understanding ‘Lawful Presence’ in Dog Bite Attacks

The Chicago Dog Bite Injury Attorneys of Zneimer & Zneimer P.C. have obtained compensation on behalf of numerous victims that were harmed by an animal owned by another. During our decades in practice, we have taken note of a concept—‘ Lawful Presence’—that is not only commonly misunderstood by clients—but is often misinterpreted by courts, and has been the subject of many appeals. The term ‘lawful presence’ refers to whether the incident occurred while the plaintiff was ‘in any place where he or she may lawfully be, ’ and is the fourth element required to recover damages under state animal control laws.

In proving ‘lawful presence,’ in a civil action pursuant to the Illinois Animal Control Act, the plaintiff need only demonstrate that he or she was not trespassing on real property at the time of the injury. As such, a victim who was violating a law at the time of the incident, may still qualify for relief, so long as such violation did not involve trespass. Consider the court’s analysis in Garcia v. Nelson, 759 N.E.2d 601 (2001), a case in which two victims were injured after colliding with a dog, while riding an ATV on a public roadway in violation of Illinois Vehicle Code.

In Garcia, the appellate court, in reversing and remanding the decision of the trial court, determined that the plaintiffs’ presence was indeed lawful, despite the fact that they had been driving a banned vehicle at the time of the incident. In other words, the victims were entitled to be upon a public road, and therefore were in a “place where [they might] lawfully be.” The court went on to say that “[w]e do not think the legislature intended to free a dog owner of her or his duty to control his dog just because the dog's victims happened to have been violating a law.”

While the decision in Garcia may seem perplexing to many, it serves as a perfect example of the benefit of securing legal counsel following an incident involving a dog. Often time, victims make their own assumptions regarding their ability to recover damages, without fully understanding their rights pursuant to the Illinois Animal Control Act. The victims in the Garcia case could have easily misinterpreted the lawfulness of their presence, absent consultation with a professional. Absent consultation with a professional, the victims in the Garcia case could have easily misinterpreted the lawfulness of their presence, absent consultation with a professional.

In addition, the plaintiffs in Garcia could have improperly assumed that recovery under the statute requires an actual attack or bite, when in fact, an attack need not occur, so long as the claimant is able to prove each of the four elements required under the Act. Consequently, case evaluation is critical and can prove to be quite valuable, and further, is offered free of charge by most personal injury attorneys.

However, in selecting a legal representative, it is also important to consider the attorney’s trial experience, and prior successes in litigating matters of a similar nature. For example, in Garcia, resolution of the issue of ‘lawful presence’ was decided at the appellate level, and had the plaintiffs not has a skilled trial attorney to meritoriously defend their legal rights, the outcome, as to that issue, could have been very different.

With more than two of practice experience, veteran trial attorney Peter Zneimer, has the knowledge and proficiency necessary to recover the compensation deserved on behalf of personal injury victims. Our focus has always, and continues to, remain upon the preservation of victims’ rights and the maximization of financial recovery. To schedule your FREE personal injury consultation, contact Zneimer & Zneimer P.C. at 773-516-4100.

Client Reviews
Someone rear-ended my car last spring and I was injured. Peter and Sofia Zneimer and they staff were professional and were always available by phone. I knew that the insurance of the other driver wasn't very good but they were still able to settle my case promptly and I was satisfied with the money I received. Overall, a very good trusted experience. Natig M.
I highly recommend the services of Zneimer and Zneimer. I often seek legal advice from them related to my immigration status and way forward. Both Sofia and Peter are very detailed and quick in answering any question. I laud their professionalism and a very efficient team that works for them. Suman S.
I totally recommend Sofia, she is the best lawyer in Chicago area. She is very professional, very detailed with her work and supportive. She always goes above and beyond to ensure the best outcome. Caring, compassionate and only the best for your family. I won my case because of her professionalism and her knowledge of the law. Aurel P.
I have dealt with Sofia Zneimer since 2009. She is a great lawyer and has helped me tremendously in navigating the process of green card. She is a great resource to have by your side. She is easy to reach. She responds very quickly, which was very important for me. If she can’t answer the question the same day, she does let you know that she is working on it. I would have no hesitation in recruiting her. Hemant S.
I called Zneimer & Zneimer after I was rear-ended on the highway. Peter and Sofia Zneimer have been very helpful in dealing with the insurance company and getting money for my car damage. They are also handling my injury case. They answer all my questions and I am always able to reach them on the phone anytime I want to talk to them. I am confident in having them represent me. The best choice i ever made. Thank you! Emil G.