Is Mere Presence on Private Property Constitute ''Provocation Defense'' In Dog-Bite Cases ?
In Smith v. Pitchford, 219 Ill. App. 3d 152, 579 N.E.2d 24, 161 Ill. Dec. 767 (1991), the eight-year-old plaintiff approached the defendant's home with another friend.
They called out to the defendant and asked if her daughter, whom they had played with at the defendant's home on prior occasions, was home.
The defendant's dog approached the plaintiff.
The plaintiff said, "Hi Roscoe."
The plaintiff had met the dog on a prior occasion.
After petting the dog for approximately 30 seconds, the plaintiff looked down at the dog, at which time the dog jumped up and bit the plaintiff in the face.
The Smith court stated that mere presence on private property does not constitute provocation regardless of how the animal might interpret the visitor's movements.
"Provocation cannot be said to exist within the meaning of section 16 of the Animal Control Act where such unintentional stimuli as greeting or petting a dog result in the dog attacking the plaintiff viciously and the attack is 'out of all proportion to the unintentional acts involved.'" Smith, 219 Ill. App. 3d at 154, 579 N.E.2d at 26, quoting Robinson v. Meadows, 203 Ill. App. 3d 706, 713, 561 N.E.2d 111, 115, 148 Ill. Dec. 805 (1990).
The Smith court is setting forth a "reasonable dog" standard. In other words, a "normal" dog would not be provoked by one's mere presence on private property. See Smith, 219 Ill. App. 3d at 154, 579 N.E.2d at 26.