What Does 'Without Provocation' Mean in Dog Attack and Injury Cases?

The Chicago Attorneys of Zneimer & Zneimer P.C. represent victims that were attacked or injured by a dog or other animal. Pursuant to Illinois law, in order for a person or entity to be held civilly liable for damages incurred as a result of being injured by an animal, the attack must have occurred “without provocation.” Precisely what constitutes provocation, or lack thereof, is a concept that has been addressed in numerous prior dog bite injury cases, and depending on your unique incident, may be an issue that is disputed in your particular case as well. In hopes of providing dog attack victims clarification on the concept of ‘provocation,’ we offer the following discussion on this important legal issue.

First and foremost, victims should know that the right to recover damages in a civil action extending from a bite, attack, or injury caused by a dog in this state, is determined in accordance with the Illinois Animal Control Act. Although the Act does define many animal-related terms, the term ‘provocation,’ has not been expressly defined by statute. It is a well-founded legal principle that when the law fails to provide a specific definition of a term used, that such term shall be construed through applying its ‘ordinary and popular meaning,’ while also conforming to the ‘purposes and objectives of the statute’ or ‘reasonable intentions of legislature.’

While defining provocation, for purposes of determining whether the victim of an attack either did or did not provoke the animal, may seem fairly straightforward, it actually can become far more complex when applying its meaning to a particular set of facts. This precise issue was discussed in Robinson v. Meadows, 561 N.E.2d 111 (Ill. App. Ct. 1990), where the court began its analysis through discussing the ‘ordinary and popular meaning of provocation, in stating:

“ [a]s commonly understood, provocation means an act or process of provoking, stimulation or excitement. Similarly, to provoke has been defined as "to excite anger or passion; to exasperate; to irritate; to enrage; to excite; to stimulate; to arouse; to call forth; to call into being or action; cause, occasion." (internal quotations and citations omitted)

The court went on to note the expansive nature of such definitions, that when applied literally, “would render the statute largely meaningless, and yield unjust and absurd results.” In support of its contention, the Robinson court utilizes two hypothetical scenarios—the first in which a dog attacks “an innocent child riding his bicycle down a public street because the movement of the bicycle has excited it or the sounds of traffic have startled it”—the second in which a dog bites “a bald-headed man walking down the hallway of his apartment building because, for whatever reason, the dog has developed a fear of men without hair.”

In the hypotheticals provided in Robinson, applying the ordinary and popular meaning, given its “broad and literal interpretation,’ would preclude either victim from recovering under the statute, and to do so would be “grossly unfair.” Consequently, in order to prevent such incongruous results, it is necessary to go a step further, and look to the purpose intended by the statute, which as Robinson points out, is a process that Illinois courts have generally undertaken on a case-by-case basis.

Prior cases have examined ‘reasonableness’ in terms of the proportionality between the victim’s actions and the dog’s response. However, as has been noted before, it is the reasonableness of the dog’s response that must that must be considered in determining disproportionality, not the view of the victim that is attacked. In other words, where a victims intentional or unintentional actions, would cause a dog in similar circumstances to respond precisely as a normal dog would, or a reasonable person might expect it to, then it cannot be said that the dog’s reaction was disproportionate with the harm inflicted.

On the other hand, it cannot be said that provocation exists where the dog’s response is ‘out of all’ proportion to the victim’s actions. Consider this concept both in terms of unintentional acts and intentional acts. For example, the intentional actions of a mail carrier that was subsequently attacked by a dog after using repellent spray, and as a result fell and required multiple surgeries—here the attack was not provoked, but rather a reasonable means of self-protection. See, Steichman v. Hurst, 2 Ill.App.3d 415 (1971), 275 N.E.2d 679. In comparison, consider a case where a small child unintentionally steps on a dog’s tail as it gnawed on a bone, and the dog responds by striking and scratching the child with its forepaw—here, the court found the that provocation existed, and the dog’s response was reasonable, despite the child’s age. See, Nelson v. Lewis, 36 Ill.App.3d 130 (1976), 344 N.E.2d. 268.

In reading the foregoing, it is easy to see just how complex it can be to define the term ‘provocation’ in a manner that might apply universally to any particular case. In short, the court’s interpretation of provocation can vary greatly from one case to another. Consequently, without having a legal professional to advocate on your behalf, victims often place themselves in a position which leaves the term ‘provocation’ susceptible to an interpretation that may work against the victim’s interests. The attorneys of Zneimer & Zneimer P.C. offer FREE personal injury consultation in all personal injury matters, and as such, in the very least, having your case evaluated, can prove to be both a worthwhile and valuable investment of your time.

To schedule your FREE & COMPREHENSICE case evaluation, contact thus online, or by calling 773-516-4100.