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.

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