dissenting:
I respectfully disagree with the opinion of the majority. I believe the liability of the defendant was established as a matter of law and consequently the case should be remanded for further proceedings on damages only. Alternatively, I believe the plaintiff is entitled to a new trial generally because of prejudicial errors resulting from the trial court’s rulings on evidentiary issues.
The majority, by reference to the statute and prior decisions, has set •forth the elements of the plaintiff’s cause of action. The majority then declare it is the burden of the plaintiff to prove his lack of provocation and hold that because of such burden this issue presented a question of fact to be resolved by the jury. I agree with the primary assertion, the burden is upon the plaintiff, but I believe that he established his lack of provocation as a matter of law and that no jury question existed under the facts presented by this case.
Although the statute purports to enumerate separate independent elements to be proved by the plaintiff it requires only a casual consideration of these elements to recognize that they are neither independent nor mutually exclusive. As applied to the facts of this case they are in fact contradictory if the application proposed by the majority is accepted.
The majority suggest that there is no dispute but that plaintiff’s conduct was peaceable and that he was in an area he was entitled to be. Yet, the plaintiff’s peaceable conduct and presence is considered by the majority to be evidence of provocation. If the plaintiff”s conduct was peaceable and he was where he was entitled to be how can his peaceable presence be deemed any evidence of provocation. Can a person’s conduct be peaceable and at the same time provocative? At least as applied to the facts of this case I think that the answer has to be no.
Plaintiff was specifically invited by the defendant to be at the place he was, namely, within the area which the dog could reach when attached to his chain. Likewise, he was within this area with the permission of the hired hand and the plaintiff’s conduct was in accord with the hired hand’s ideas on how the dog should be approached. Under these circumstances the plaintiff’s peaceable intrusion at the special invitation of the owner can not be regarded as any evidence of provocation.
To adopt the view of the majority would mean that a party riding on a bicycle on the street in front of a house could be regarded as provoking an attack by a dog because he knew or should have known that moving vehicles and bicycles provoke dogs to attack. Alternatively, the party should have known that intruding into an area which a dog might regard as his turf constituted provocation.
It seems to me that the provocation contemplated in the statutory provision refers to conduct by the victim which precipitates the attack by the animal, although Siewerth v. Charleston (1967), 89 Ill. App. 2d 64, 231 N.E.2d 644, suggests by way of dicta, that there need be no intent to provoke an animal. The case itself dealt with the conduct of children who ordinarily at a tender age are incapable of forming an intent and found the conduct was intentional. Whether or not intent is required, it would appear that the ownership and control of the animal versus the conduct of the victim would, at a minimum, present a question of proximate cause, and, in the ordinary case, depend upon the conduct of the victim under the circumstances.
In Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268, the court concludes that provocation may be intentional or unintentional. In Nelson the court holds that where the provocation is unintentional the victim will be entitled to recover where the response of the animal is out of all proportion to the unintentional stimulus. In other words, under such circumstances, the unintentional provocation is not deemed to be the cause of the animal’s attack.
Accordingly, I believe the liability of the defendant was established as a matter of law and the contrary judgment of the court should be reversed and the cause remanded for a hearing on damages only.
Assuming for the purpose of argument that an issue of fact existed which properly presented a jury question, it is my opinion that a new trial is required because the trial court erred in rulings on evidence. As indicated in the majority opinion, the trial court sustained the defendant’s objection to questioning of the defendant regarding the defendant’s knowledge of prior bites and viciousness of the dog. Although similar questions were answered by the hired hand, without any objection by the defendant, to the effect the dog had bitten other people, the fact remains that this issue was excluded on cross-examination of the defendant. The majority justify die exclusion by accepting the defendant’s assertion that the viciousness of the animal was not an element of the plaintiff s cause of action.
I do not believe the issue can be disposed of on this basis for two reasons. First, even though knowledge of a dog’s propensities or viciousness is not an element of the cause of action, such circumstances are of particular relevance in evaluating the plaintiffs conduct. If the dog is known to be vicious or to have bitten other people, communication of this fact to a party would be relevant in determining whether such party’s conduct was provocative in view of the knowledge of the circumstances so communicated. Such facts have peculiar relevance in this case because the plaintiff was where he was and doing what he was doing at the special invitation of the owner. In Steichman v. Hurst (1971), 2 Ill. App. 3d 415, 275 N.E.2d 679, in an action based on the same statute as in the instant case, there was extensive evidence admitted by the trial court and discussed approvingly by the court of review regarding the prior viciousness of the dog, the numerous complaints made to the owner and the mail carrier’s conduct in view of the prior circumstances.
Second, similar testimony was permitted by the hired hand and under such circumstances, excluding the same type of testimony from the lips of the defendant could do nothing but cause confusion in the minds of the jury. Since the questions were relevant the ambiguities created by the trial court’s rulings deprived the plaintiff of a fair trial.
Also excluded from evidence by the trial court was evidence the dog was wagging its tail, tending to indicate a friendly disposition according to the plaintiff. No reason is advanced by the majority why this evidence was not relevant and I believe it was so, particularly when the defendant was relying to a substantial extent on the plaintiffs “familiarity” with German shepherds. If the issue of provocation is related to the plaintiffs knowledge of dogs it seems to me that whatever signals the dog is evincing, either friendly or antagonistic, are relevant and should have been admitted. Since the majority seems to characterize this case as one where there is substantial evidence on both sides, I think the erroneous exclusion of the evidence was prejudicial and requires a new trial.