Memorandum Of Law Cases Assessment Answer

ISSUE

Under the Illinois Animal Control Act, regarding the way a dog behaves and acts in a particular situation or bites someone apparently after getting provoked.  As in the present case, in which Dr. Franklin while partying and playing lost his balance and accidently hurt Tiger (dog), and which in turn got provoked and bit him. During the same time the dog was handled by Ms. Duncan as she had took him under her custody. So, the issue is whether Ms. Duncan may be considered as Tiger’s owner or whether Dr. Franklin provoked Tiger.       

BRIEF ANSWER

Probably both the issues are applicable in this incident. When Dr. Franklin was having a good time with the other guests and playing football in the lawn area, it was quite natural that while playing among so many people it was highly likely that he might collide with someone else or strike something down or for that matter unintentionally hurt someone in the process. So, from that perspective, Dr. Franklin became somewhat careless and smacked on the head of Tiger because of losing his control and therefore Tiger got provoked and bit him. On the other hand, Ms. Duncan was in complete custody of Tiger because it was not the first time when she was taking care of her as an owner. She has been pampering Tiger for a long time because of being a nice neighbor and Tiger feels comfortable with her as well. So, clearly as per the law, she can be considered as an owner because she was harboring Tiger, was in her care and she was acting as his custodian while the real owner Linda was mingling with the guests meanwhile.   

STATEMENT OF FACTS

On the Fourth of July, Ms. Sandy Duncan invited her guests as well as neighbors to the barbecue at her house. Among those guests, Linda Lang was also invited especially along with her dog, Tiger, so that he might not get startle by the fireworks. Dr. Franklin was also one of the invitees present in the party who is also another neighbor. An unwanted incident took place in the middle of the party when Dr. Franklin accidentally fell over Tiger while playing and in response to that Tiger bit him.
Now, there are some important facts that need to be looked into in this case. For quite some time, Ms. Duncan has been fond of Tiger a lot as Linda Lang lives next door to her with Tiger. Ms. Duncan has been pampering Tiger in different occasions in the absence of Linda. She has been making sure that Tiger gets fresh water and sufficient food along with letting him out for toileting. Sometimes when Ms. Lang stays away overnight, Ms. Duncan would bring Tiger to her house and takes complete care of her. Not just that, she also keeps Tiger’s special food and dog treats with her in case Ms. Lang stays overnight out of her house. 
So, naturally there must be a strong bond between Tiger and Ms. Duncan on account of these circumstances . So, based on this close bond, on the day of celebration, Ms. Duncan took the custody of Tiger in her own hands by telling Ms. Lang to go and mingle with the other guests. While taking Tiger’s leash, Ms. Duncan was enjoying socializing with the guests and showing off Tiger at the same time. She was taking complete care of Tiger all this while. So, all of these facts suggest that Ms. Duncan has been acting as if she also owns Tiger and was taking him everywhere with her and therefore it was her responsibility. Ms. Lang, on the other hand, knew that Tiger was also comfortable with Ms. Duncan and therefore she did not care much about him during that time. 
Now, when Ms. Duncan was walking through the lawn with Tiger where football was being played by some people. Dr. Franklin, who was also playing, lost his balance and unintentionally hit Tiger on his head. Yelling in pain, Tiger bit the hand of Dr. Franklin by tearing through the skin. He underwent a treatment just after that and took care of his tetanus. Now, Dr. Franklin wants to seek damages from Ms. Duncan for the injury that he sustained after the bitten by the dog.  He wants to seek the damages on the ground of being emotionally traumatized as well as because of the fact that he is a doctor and makes his living using his hands.      

DISCUSSION

Owner
Issue
The issue at hand regarding the owner is that whether Ms. Duncan can be considered the owner of Tiger in light of the Illinois Animal Control Act or not because apparently she was the one who leashed Tiger from his actual owner and took his complete responsibility on her own. 
Rule
Under the Illinois Animal Control Act (Act), (510 ILCS 5/2.16) , the definition of an owner of a dog (or any animal for that matter) is someone who has a right of property in the animal, or someone who keeps or harbors the animal or dog, or one who takes care of him, or someone who is being acting as its custodian, or the person who is knowingly allowing the dog (or animal) to roam around and remain inside the premises that is being occupied by that person. Also, an owner is not someone who is a feral cat caretaker who involves in the activity of trapping, spaying/neutering or in any releasing program.
Explanation
In a similar case regarding dog, Docherty v. Sadler, 689 N.E.2d 332 (Ill. App. Ct. 1997) , minor Plaintiff Phillip Docherty was badly injured when the Defendant Sadler’s dog was collided with him. The father of the plaintiff made a complaint under the Animal Control Act (Act) (510 ILCS 5/1, while the defendant applied for a move to dismiss by stating that the minor was an owner for the relevant purpose of the Act and therefore should be exempted from the protection provided by the Act. As per the facts, the plaintiff went to the defendant’s home where he was shown the location where all the items that were needed to care for the dog were kept because the minor plaintiff had to feed the dog and provide it the water. After the defendant had gone out of the house, minor plaintiff came back with his sister to take care of it as was expected. While doing so, he let the dog out and started playing with it in the backyard by running after it from corner to corner of the lawn. During their play, the plaintiff collided with the dog and sustained serious and permanent injuries. So, later in the court of law, the lawyers of plaintiff cited the relevant part of     Illinois Animal Control Act (Act), 510 ILCS 5/16 (West 1996), which says – if a dog without being provoked, attacks or injures a person who at that instant peacefully conducting in any lawful place, then the owner of that dog is declared as liable in damages to the extent of the sustained injuries. 
The trial court, in the end, found that the minor plaintiff was the “owner” of the dog for the purpose of law and therefore should be exempted from the protection of the Act. The court declared that the minor plaintiff was neither an innocent bystander nor someone who fell within the class of people that could be protected by the act because his relationship with the dog at that time was such that it excluded him from the protection.
Analyze
In another case, GOENNENWEIN v RASOF 695 NE 2d 541 (Ill. App. Ct. 1998) , in which the plaintiff, Goennenwein raised two issues regarding the opinion of the trial court. These issues were whether the trial court had erred in deciding that defendant was not the owner of the dog that was responsible for injuring plaintiff or that the plaintiff knew or should have known about the dog’s allegedly harmful nature. The defendant, on the other hand, argued that she was not the owner of the dog and she had no idea about its dangerous propensities. The disposition of Lissette (plaintiff) was that Buddy (the dog in question) jumped on her while she was hugging Alan and defendant was not present there so no evidence of defendant could knew about the incident. In response to that, the defendant again testified that she had no knowledge that Buddy would be at the dinner until Jeffrey (real owner) showed up with the dog. The plaintiff testified that she did not have food the moment she walked past the dog and did not see the attack. While, Defendant denied that either Alan or Lissette asked her to confine Buddy. One more fact also emerged here was that the plaintiff was six years old at the time of the incident and therefore she could not recall the accurate detailing of what exactly happened at that time. 
The trial court gave its judgment in the favor of defendant on the grounds that the complaints were made against her. The plaintiff then contended that the trial court made an error of judgment in granting summary judgment and alleged that the defendant was the owner and invoked the Illinois Animal Control Act (Act), 510 ILCS 5/16 (West 1996) . The provision of this Act essentially says that any person keeps or harbors a dog, or acts as its custodian, or permits it in his/her premises, then he/she shall be considered as the owner. 
Rebuttal
The court, on its part, observed a number of facts that emerged during the course of the case. It was presumed that the dog was tamed and docile with no vicious propensities. The court disagreed with the assertion made by the plaintiff that the Rottweiler breed of dogs is generally dangerous because it was not fair to malign any breed on the basis of hysteria or rumor. It was also presumed that the confining of her own Rottweiler by the defendant amounted to nothing because the Toy Poodle was also confined.  There was also no evidence found regarding the adolescence stage of Buddy that could have made him aggressive. 
So, finally, the court declared that Buddy was not a dangerous dog and did not growl, snarl or threaten anyone and so, did not chase the plaintiff and the defendant had no knowledge about Buddy’s behavior and was not declared as the owner of Buddy. Therefore, the court affirmed the judgment of circuit court of Lake County.
Conclusion
Therefore, in the present case of Franklin v Duncan, as per the Illinois Animal Control Act (Act), 510 ILCS 5/2.16, it was clear that Ms. Duncan acted as a person who occasionally kept and harbored Tiger. In multiple occasions Tiger has been in the care of Ms. Duncan due to the absence of Ms. Lang at her home. Particularly, on the very day of incident, on account of the bonding with Tiger, Ms. Lang acted as his custodian and also knowingly allowed him to enter and remain in her premises. Therefore, it is obvious by all accounts to establish that Ms. Duncan should be declared as an owner of Tiger.      

Provocation

Issue
In the present case, the second issue when Dr. Franklin, while playing football in the lawn with other guests, unintentionally hit Tiger on its head. The dog then snapped and in response to that act of Dr. Franklin, bit on his hand and tore the skin. So, the question is whether it was the act of provocation on the part of Dr. Franklin or not.
Rule
Under the Illinois Animal Control Act (Act), (510 ILCS 5/16) which addresses animal attacks and injuries. It says that if a dog or any other animal for that matter, without being provoked, attacks or injures a person who at that instant peacefully conducting in any lawful place, then the owner of that dog is declared as liable in damages to the extent of the sustained injuries. So, whether or not the dog (Tiger) was provoked will be concluded in the final part of the discussion. To throw more light in order to establish the facts of this case, let us look into some of the case laws more closely that are related to this incident. 
Explanation
In a similar case, NELSON v LEWIS 344 NE 2d 268 (Ill. App. Ct. 1976) , a toddler happened to have accidently stepped on the tail of a dog, which in turn suddenly responded and scratched her eye in the process. This attack caused permanent damage to her eye. The plaintiff then moved to seek the damages under Ill. Rev. Stat. Ch. 8, Para. 366 (1973) by stating that the stepping on the tail of the dog was not an intentional act, so, did not provoke the dog at all. 
The court heard all the arguments that the plaintiff on the dog’s tail unintentionally, that the dog was of peaceful temperament and having a bone at that time. The argument on the part of plaintiff was that she was of an age that she could not have understood how to provoke anyone. Also, the plaintiff’s counsel demanded the statute to impose a strict liability upon the dog owner because of the injuries caused to a child of tender years.
The court, however, held the view that the provocation that happened was looked under the statute and declared as both intentional and unintentional acts. It was so because the dog got provoked due to the unintentional act. 
Analyze
In another case, ROBINSON V MEADOWS 561 NE 2d 111 (Ill. App. Ct. 1990) , in which a minor, Jamie Robinson (plaintiff) sought to recover damages on account of injuries she sustained on being attacked by a dog owned by Clara and Charles Meadows (defendants). But the jury declared the verdict in favor of Meadows. As per the facts of the case, Tippy and Ben the two dogs of Meadows barked at the plaintiff, a minor, who was at the house of Meadows at that time. The plaintiff then screamed out of fear and Ben, who was just nearby, responded by attacking her and tore her lips and injured her neck, face and throat. She was then rushed to a local hospital and operated on by a plastic surgeon. Plaintiff was ultimately left with serious scars and a permanent shortening of her lip. 
So, in an attempt to seek the damages for her injuries even after the judgment from lower court, the mother of plaintiff appealed in the higher court on the basis of section 16 of the Animal Control Act (Ill. Rev.Stat.1985, ch. 8, par. 366), which says, without provocation, if a dog attacks or injures any person who is in a peaceful disposition, the owner of the dog is liable to pay for the damages.
Rebuttal
After hearing all the arguments and facts, the court observed that the scream of a minor cannot be regarded as a provocation and definitely cannot be accounted for the savagery of dog's assault.  So, the court concluded that the judgment of the circuit court was needed to be reversed so that the plaintiff should be provided with new trial.
So, in the present scenario of Dr. Franklin v Ms. Duncan, the unintentional act of Dr. Franklin was enough to be termed as a provocation because even if he lost his balance, Dr. Franklin hurt Tiger causing him pain. So, it was quite natural that a dog who is docile and tamed completely, will always respond in the similar manner and would bite any person who would cause him pain.     

CONCLUSION

Both of the above issues contained in the above case scenario have one clear aspect of liability in them. The act of Ms. Duncan falls quite well under the declaration of being owner of the dog (Tiger), which is why she is liable for the damages and injuries sustained by the plaintiff. On the other hand, Dr. franklin was clearly found to have provoked Tiger, even if unintentionally, and therefore got bitten by him. So, he is also liable on account of this and therefore, should not claim any damages for the injuries.