Does a Provocation Exist If a Dog's Attack Is Out of Proportion to An Unintentional Act of Exciting It ?
In Wade v. Rich, 249 Ill. App. 3d 581, 618 N.E.2d 1314, 188 Ill. Dec. 744 (1993), the 18-month-old plaintiff accidentally fell onto the middle of a dog that was sleeping in the sun.
The dog responded by repeatedly biting the plaintiff on and about the head and face, resulting in seven lacerations, the largest one being four to five inches long.
The plaintiff required a total of 23 stitches.
The Wade court noted that where the acts that stimulated or excited the dog were unintentional, no provocation can be said to exist within the meaning of the statute if the acts cause the dog to attack the plaintiff viciously and the vicious attack is out of all proportion to the unintentional acts involved.
Again, it appears that the court is looking at how a "normal" dog would react to someone falling on it while it is sleeping.
If the dog's attack is out of proportion to the unintentional acts, no provocation exists. See Wade, 249 Ill. App. 3d at 589, 618 N.E.2d at 1320.