Recent Appellate Decision provides roadmap for dog bite cases. - Mark P. Loftus

The Illinois Second District Appellate court recently handed down an opinion that provides a pretty concise roadmap of the proof one needs when litigating a dog bite case. In Dziewra v. Ori , Jamie Dzierwa sued several people after she was bitten by Fiona – a 105 pound Cane Corso[a Cane Corso(not Fiona) is pictured above]. The drama started on July 25, 2015. Fiona was owned by Joe and Elizabeth Ori. The Oris were out of town and had asked Brad Hoebel(the brother of Elizabeth Ori) to stay at their place and keep an eye on Fiona. Brad had taken care of Fiona on a couple prior occasions. Elizabeth had left pretty basic instructions – “feed [Fiona], and walk her and give her love.”

Jamie had been invited to the Ori home by Brad, along with several others. Elizabeth Ori testified she was aware Brad would invite friends over when he took care of Fiona. Joe Ori however, testified that Brad was only permitted to have his girlfriend over.

Prior to the incident, Fiona had never bitten anyone else in the seven years the Oris had owned her. The dog did scare certain unidentified children and Elizabeth took steps to keep Fiona isolated when those kids were around. Apart from that precaution, Fiona was generally allowed to mingle with guests at the home. Additionally Fiona was known to growl at other people from inside the car, bark at other dogs and bark at strangers who approached the Ori home. On one occasion she had tangled with another dog at a dog park.

After Jamie was bit, she sued the Oris and Hoebel on two counts – under general negligence theories and under the Illinois Animal Control Act . The defendants moved for summary judgement and the trial court granted the motion. Jamie then appealed.

The court first addressed the negligence theory. When asserting negligence leading to a dog bite, the court noted the plaintiff must demonstrate that the owner of the dog knew or had reason to know the dog was dangerous. Jamie argued that the owners knew Fiona was dangerous because a) the previous dustup with another dog and b) Fiona growled at strangers near the house. The Appellate Court however didn’t agree. The Court noted that to be liable the plaintiff must prove the defendants knew the dog had a propensity to injure a person – and that altercations with other dogs didn’t matter. Additionally, the Court noted there was no case law to support that dog who growls at other dogs therefore poses a threat to humans. So the Appellate Court upheld the decision of the trial court to toss the negligence count.

And Jamie had no luck on the statutory count either. The Appellate Court focused on a prior decision holding that the legal owner of a dog is not liable if that owner was not in position to control the dog or prevent injury. As the Oris had relinquished full control to Hoebel, the Oris had no reason to suspect that Fiona would attack one of his guests. The Appellate Court ruled that the Oris did not control Fiona at the relevant time and therefore were not liable under the Act.

Interestingly, the opinions specifically notes the Oris were not liable. There was no discussion as to Hoebel.