The Fifth Appellate District downstate issued an interesting opinion yesterday involving a friendly dog and a bad fall.

In 2012, Paulette Crosson was a certified nursing assistant who provided home health care to patients. In August and September, 2012, she made multiple visits to a home owned by Pam and Bob Ruzich to provide health services to a Pam’s grandmother who also lived in the home. While doing so, Paulette became friendly with Pam Ruzich. In the fall of 2012, Paulette went to Pam’s house a couple times for social visits. The following year, in March, Paulette was visiting again at the Ruzich home. Paulette was inside the home for a short period and then left. As she was leaving she was standing on the top step of the front porch. Moxie, defendant’s dog came over to say hello. Plaintiff then petted Moxie.

Moxie responded to the petting and allegedly moved closer to Paulette. Moments later, Paulette was laying on the ground, having fallen off the porch. She claimed that as a result of her fall she suffered severe injuries to her right foot. She then filed suit against the homeowners. Paulette amended her complaint a couple times and in the third Amended Complaint she alleged that Moxie into her and caused her to lose her footing and fall. She claimed that the homeowners violated the Animal Control Act, 510 ILCS 5/16[“the Act”]. The homeowners moved to dismiss the allegations under the Act. The trial court sided with the homeowners and tossed that part of the complaint alleging a violation of the Act. Paulette then appealed.

In order to recover under the Act, the plaintiff is obligated to demonstrate: 1) an injury caused by an animal owned by defendant; 2) lack of provocation; 3) peaceable behavior by the injured party prior to the injury and 4) proof that the plaintiff was in a place where she had a right to be. It is not necessary an animal actually attack. An injured party may recover if the action by the animal leads to the injury – even if the action was harmless. The thorny issue for Paulette was whether Moxie caused her injury. The animal must engage in some affirmative behavior that causes injury. When the dog is simply a passive actor, that isn’t enough. Given that definition, one would think that Moxie, moving in for additional petting, would be sufficient. The Appellate Court however didn’t see it that way.

The court took a close look at Paulette’s deposition testimony where she acknowledge Moxie never actually touched her. Paulette testified that when Moxie moved closer, she adjusted her position and then fell. The court also noted that Paulette admitted to being familiar with Moxie and that she wasn’t surprised by Moxie inching closer for more petting. There was no evidence that Moxie was out of control, agitated, or startled. The Appellate Court concluded that such innocuous behavior wasn’t the type of dog behavior that would permit recovery under the Act.

The Court concluded that Moxie was a a passive, casual force and that it was Paulette’s decision to shift her position that led her to fall. A bit of hair splitting there but the folks in the robes get the last word. Trial court’s decision to toss the case was upheld.