## Facts

- Paul Smith was an eight-year-old child.
- Paul went with another child to the home of Kathy Pitchford to see whether Pitchford’s daughter was home so Paul could play with her.
- As the children approached the home on their bicycles, they saw Pitchford in the front yard barbecuing.
- Paul asked Pitchford whether her daughter was home, and Pitchford said she was not.
- Paul then walked toward the property’s fence/approach area and encountered Pitchford’s family dog, Roscoe.
- Paul had met Roscoe before and had interacted with him without any prior incident.
- Paul greeted the dog (“Hi, Roscoe”) and reached out to pet him.
- After a short interaction, Roscoe jumped up and bit Paul on the face.
- Paul’s injuries required stitches and resulted in permanent facial scarring, with any surgical correction only partially possible.
- Paul’s mother, Linda Smith, filed suit as Paul’s mother and next friend against Pitchford under § 16 of the Illinois Animal Control Act, seeking statutory recovery for Paul’s injuries.
- A jury returned a verdict for Pitchford.
- Plaintiffs moved for judgment notwithstanding the verdict (JNOV) on liability, arguing the statutory elements were established and Pitchford was liable under the Act; the trial court denied the motion, and plaintiffs appealed.

## Issues

1. Whether the trial court should have entered JNOV on liability under § 16 of the Illinois Animal Control Act because the evidence established the statute’s elements as a matter of law.
2. Whether Paul’s conduct in greeting and petting Roscoe could constitute “provocation” under § 16.
3. Whether Paul was “peaceably conducting himself” at the time of the bite within the meaning of § 16.
4. Whether Paul was in a place where he had a “legal right to be” on Pitchford’s property when the bite occurred.

## Decision

- The Illinois Appellate Court (Fifth District) reversed the defense verdict and the denial of plaintiffs’ motion for JNOV on liability.
- The court treated ownership and causation as established: Pitchford owned Roscoe, and Roscoe bit Paul, causing the injuries.
- The court held there was no evidentiary basis on which a reasonable jury could find Paul provoked the dog where the proof showed only a friendly greeting and calm petting.
- The court held Paul’s behavior was peaceable as a matter of law on this record.
- The court held Paul was in a place where he had a legal right to be when approaching the home in an ordinary social manner, with no warning signs, barriers, or directions to stay away.
- The court remanded for further proceedings consistent with liability being fixed under § 16 (leaving damages for determination).

## Legal Principles

- Under § 16 of the Illinois Animal Control Act, a plaintiff must prove: (1) the injury was caused by an animal owned by the defendant; (2) the animal was not provoked; (3) the injured person was peaceably conducting himself; and (4) the injured person was in a place where he had a legal right to be.
- Liability under § 16 does not depend on proof of the owner’s negligence or prior knowledge of dangerous behavior; once the statutory elements are met, the owner is liable.
- “Provocation” requires conduct that would reasonably be expected to excite, incite, or irritate the animal; ordinary, gentle interaction with a familiar dog (such as greeting and petting) is not enough, without more, to support a provocation finding.
- A child approaching a residence in the customary way for a normal social purpose may be lawfully present by implied consent, particularly where there are no warnings, signs, or actions by the homeowner excluding entry.
- JNOV is proper when, even viewing the evidence in the light most favorable to the verdict winner, the evidence so strongly favors the movant that no reasonable jury could have reached the verdict.

## Conclusion

In *Smith by Smith v. Pitchford*, the Illinois Appellate Court held that the evidence established the elements of § 16 of the Illinois Animal Control Act as a matter of law where an eight-year-old calmly greeted and petted a familiar dog while approaching the homeowner’s property for a social visit, and there was no proof of provocation, non-peaceful conduct, or unlawful presence; the court reversed the defense verdict and remanded with liability fixed and damages remaining to be addressed.


Smith by Smith v. Pitchford, 219 Ill. App. 3d 152, 579 N.E.2d 24 (1991)