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Appellate Court Date: 2022.12.12
13:21:57 -06'00'
Claffey v. Huntley, 2021 IL App (1st) 191938
Appellate Court KEVIN CLAFFEY, Plaintiff-Appellant, v. VIRGINIA HUNTLEY
Caption and MARK HUNTLEY, Defendants-Appellees.
District & No. First District, Fourth Division
No. 1-19-1938
Filed June 17, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 17-L-4613; the
Review Hon. Thomas V. Lyons II, Judge, presiding.
Judgment Affirmed.
Counsel on Patrick J. Giese and Patrick M. Grim, of Tomasik Kotin Kasserman,
Appeal of Chicago, for appellant.
Alexandra K. Hunstein, of Law Offices of Meachum, Boyle, Trafman,
Marek & Parker, of Chicago, for appellees.
Panel JUSTICE MARTIN delivered the judgment of the court, with opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff, Kevin Claffey, appeals a jury’s verdict in favor of the owners of a dog that Claffey
accused of biting him without provocation. Claffey, a letter carrier, after inserting his hand
through the mail slot of defendants’ front door, was bit on the hand. Claffey appeals the circuit
court’s orders denying his motion for directed verdict, motion for judgment notwithstanding
the verdict, and motion for new trial, arguing there was no evidence for the jury to find the bite
was provoked. As we find the evidence did not preclude a finding of provocation as a matter
of law and the verdict was not against the manifest weight of the evidence, we affirm.
¶2 I. BACKGROUND
¶3 Kevin Claffey brought this action with a jury demand seeking damages against Virginia
and Mark Huntley after their dog, Chelsea, a 45-pound Labrador mix, bit Claffey on his right
hand. Claffey, a United States Postal Service letter carrier, testified the bite occurred when he
was delivering mail to the Huntleys’ home in Glencoe, Illinois, on October 1, 2015. Just as he
had done on many occasions over the 16 years that he was assigned to this route, Claffey
parked his mail truck in front of the Huntleys’ house and walked to the front door. He knew
the Huntleys had two dogs and heard one barking from the back part of the driveway. The front
door had a mail slot with two flaps, one on the outside and one on the inside of the door. The
inner flap had a strong spring-loaded hinge that kept the flap shut unless pushed open. As
Claffey wanted to prevent the inner flap from damaging pieces of mail, he placed his right
hand through the slot to hold the inner flap open while he inserted the mail with his left hand.
When he did so, Chelsea leapt up and bit his right hand. Claffey found himself in a “tug of
war” for two or three seconds until he was able to pull his hand back from Chelsea’s mouth.
The top of Claffey’s hand was ripped, and he was in excruciating pain. He then ran back to his
truck and drove to the post office in Glencoe.
¶4 Claffey later sought medical attention. He received one stitch, was prescribed pain
medication, and underwent physical therapy. For the first few months, Claffey experienced
acute pain that he likened to being poked with a fire poker if he used his right hand to do
anything, even basic tasks such as tying his shoes. Eventually, Claffey required surgery to
repair a nerve in his finger.
¶5 At trial, Claffey testified the Huntleys’ dogs would sometimes get excited when he
delivered mail to their house. When he knew the dogs were present, Claffey would bundle the
mail and leave it between the front and screen doors. He also testified that he could insert mail
through the slot without placing his hand inside the house to hold the inner flap open and had
done so before. But at other times, Claffey would place his hand through and hold the flap
open.
¶6 Katherine Sweeney, an animal control officer for the Village of Glencoe, testified she was
dispatched to the Glencoe post office on October 1, 2015. There, she encountered paramedics
attending to Claffey. Claffey reported that the Huntleys’ dog bit his hand when he placed it in
the mail slot. Sweeney’s written report noted that Claffey told her that he heard the dog barking
before he placed his hand in the mail slot. After taking Claffey’s report, Sweeney contacted
Virginia. Virginia stated the dogs were in the house, she heard her dog barking, and then she
heard the mail slot open. She did not learn Claffey had been bitten until Sweeney contacted
her.
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¶7 Virginia testified she was home at the time but was in the basement painting a room, so she
did not see what happened. A veterinary technician, Jennifer Johnston, testified that Virginia
brought Chelsea to the Green Bay Veterinary Hospital later that day and reported that Chelsea
had bitten the mailman that morning.
¶8 After the close of evidence, Claffey moved for a directed verdict on liability, arguing that
there was no evidence of provocation. The circuit court denied the motion, reasoning that “a
reasonable jury could conceivably infer from the evidence in this case that the act of sticking
his entire hand or a portion of his hand through the mail slot could be considered provocation
of these dogs.” Accordingly, the matter was submitted to the jury.
¶9 The court instructed the jury that Claffey had the burden on proving four propositions: that
he sustained an injury caused by the Huntleys’ dog; that he was conducting himself peaceably
at the time; that he did not provoke the dog; and that he was in a place where he had a legal
right to be. The court further instructed the jury:
“The term ‘provoked’ means any action or activity, whether intentional or
unintentional, which could reasonably be expected to cause a normal animal in similar
circumstances to react in a manner similar to that shown by the evidence.” See Illinois
Pattern Jury Instructions, Civil, No. 110.04 (approved Dec. 8, 2011).
¶ 10 The jury returned a verdict finding in favor of the Huntleys and against Claffey. Claffey
then filed a motion for judgment notwithstanding the verdict (judgment n.o.v.) and a motion
for new trial. Both motions argued that there was no evidence of provocation. The circuit court
denied both motions, and this appeal followed.
¶ 11 On appeal, Claffey argues that the circuit court erred in denying his motion for directed
verdict and motion for judgment n.o.v., as there was no evidence of provocation and he was
entitled to judgment as a matter of law on liability. He, therefore, requests that we reverse the
judgment and remand for a new trial on damages only. Alternatively, Claffey argues the circuit
court erred in denying his motion for new trial because the lack of provocation renders the
jury’s verdict against the manifest weight of the evidence, and thus, he requests we vacate the
judgment and remand for a new trial on both liability and damages.
¶ 12 II. ANALYSIS
¶ 13 Motions for directed verdicts and motions for judgments n.o.v., although made at different
times, raise the same questions and are governed by the same rules of law. Maple v. Gustafson,
151 Ill. 2d 445, 453 n.1 (1992). A directed verdict or a judgment n.o.v. is properly entered in
those limited cases where all the evidence, when viewed in its aspect most favorable to the
opponent, so overwhelmingly favors the movant that no contrary verdict based on that
evidence could ever stand. Id. at 453. Motions for directed verdicts and motions for judgment
n.o.v. present questions of law, and therefore, our review is de novo. Lawlor v. North American
Corp. of Illinois, 2012 IL 112530, ¶ 37. De novo review means we consider these motions
anew and conduct the same inquiry the trial court would. Ryan v. Yarbrough, 355 Ill. App. 3d
342, 346 (2005); Khan v. BDO Seidman, LLP,
408 Ill. App. 3d 564, 578 (2011). The standard
for a directed verdict or judgment n.o.v. is high and not appropriate if “ ‘reasonable minds
might differ as to inferences or conclusions to be drawn from the facts presented.’ ” (Internal
quotation marks omitted.) Lawlor, 2012 IL 112530, ¶ 37 (quoting York v. Rush-PresbyterianSt. Luke’s Medical Center,
222 Ill. 2d 147, 178 (2006)). In ruling on these motions, a court
does not weigh evidence nor consider credibility of witnesses; rather, the court only considers
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the evidence and any inferences therefrom in the light most favorable to the nonmoving party.
Serrano v. Rotman, 406 Ill. App. 3d 900, 908-09 (2011). Judgment should not be entered on
either motion when “there is any evidence, together with reasonable inferences to be drawn
therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility
of the witnesses or the determination regarding conflicting evidence is decisive to the
outcome.” Maple, 151 Ill. 2d at 454.
¶ 14 A motion for new trial is different. Steed v. Rezin Orthopedics & Sports Medicine,
2021 IL
125150, ¶ 44. On a motion for new trial, the court will set aside the jury’s verdict and order a
new trial if the verdict is contrary to the manifest weight of the evidence. Id. A verdict is
contrary to the manifest weight of the evidence “ ‘where the opposite conclusion is clearly
evident or where the findings of the jury are unreasonable, arbitrary[,] and not based upon any
of the evidence.’ ” Id. (quoting Maple, 151 Ill. 2d at 454). A reviewing court will not reverse
the trial court’s ruling on a motion for new trial “ ‘unless it is affirmatively shown that the trial
court clearly abused its discretion.’ ” Id. (quoting Lazenby v. Mark’s Construction, Inc.,
236
Ill. 2d 83, 101 (2010)). An abuse of discretion occurs only when the trial court’s decision is
arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted
by the trial court. Seymour v. Collins, 2015 IL 118432, ¶ 41. We are also mindful that “[i]t is
well established that, in an appeal from a jury verdict, a reviewing court may not simply
reweigh the evidence and substitute its judgment for that of the jury.” Snelson v. Kamm, 204
Ill. 2d 1, 35 (2003).
¶ 15 Claffey brought his claim pursuant to section 16 of the Animal Control Act (Act) (510
ILCS 5/16 (West 2012). Section 16 provides:
“If a dog or other animal, without provocation, attacks, attempts to attack, or injures
any person who is peaceably conducting himself or herself in any place where he or
she may lawfully be, the owner of such dog or other animal is liable in civil damages
to such person for the full amount of the injury proximately caused thereby.” Id.
To recover under the Act for a dog bite, a plaintiff must prove (1) the defendant’s dog caused
an injury, (2) lack of provocation, (3) the injured person’s conduct was peaceable, and (4) the
injured person was in a place where they had a legal right to be. Smith v. Pitchford, 219 Ill.
App. 3d 152, 154 (1991). Provocation is “any action or activity, whether intentional or
unintentional, which would be reasonably expected to cause a normal dog in similar
circumstances to react in a manner similar to that shown by the evidence.” (Internal quotation
marks omitted.) Kirkham v. Will, 311 Ill. App. 3d 787, 794 (2000). A plaintiff’s subjective
intent does not determine the issue. Meyer v. Naperville Manner, Inc., 262 Ill. App. 3d 141,
149 (1994).
¶ 16 Claffey argues that the circuit court should have granted either his motion for directed
verdict or motion for judgment n.o.v., as his unimpeached, uncontradicted testimony that the
Huntleys’ dog bit his hand when he placed it through their mail slot could not, as a matter of
law, constitute provocation and, therefore, he was entitled to judgment on liability. His brief
states: “As a matter of law, mere presence of Mr. Claffey’s hand in the mail slot cannot
constitute provocation in Illinois.” To support that proposition, Claffey cites Illinois appellate
cases where courts found the plaintiff’s conduct did not amount to provocation as a matter of
law.
¶ 17 To be sure, Illinois courts have found “[m]ere presence on private property does not
constitute provocation regardless of how the animal may interpret the visitor’s movements.”
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Smith, 219 Ill. App. 3d at 154 (citing Messa v. Sullivan,
61 Ill. App. 2d 386 (1965)). Similarly,
“[p]rovocation cannot be said to exist within the meaning of [the 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.” (Internal quotation marks
omitted.) Id.
¶ 18 Claffey chiefly relies on Robinson v. Meadows,
203 Ill. App. 3d 706 (1990). In Robinson,
the defendants’ two dogs started barking and jumping when someone knocked on the front
door. Id. at 708. One of the dogs, Ben, became particularly agitated.
Id. Jamie, a visiting fouryear-old girl, frightened by the dogs’ behavior, screamed.
Id. at 709. In response, Ben viciously
attacked Jamie, tore her lip, and caused other injuries to her face, neck, and throat. Id. A jury
returned a verdict in favor of the dog owners. Id. at 708. The pivotal issue at trial and on appeal
was whether Ben attacked Jamie without provocation. Id. at 710.
¶ 19 The appellate court noted that the Act does not define provocation.
Id. So, the court looked
to principles of statutory interpretation, including that words must be given their ordinary and
popularly understood meanings, should be construed with reference to the purposes and
objectives of the statute, and a statute should be construed to give effect to what must have
been reasonably intended by the legislature if literal enforcement would result in great
injustice. Id. Using those principles, the court found a literal definition of provocation such as
“an act or process of provoking, stimulation or excitement” was too expansive and its
application would yield unjust and absurd results. Id. The court reasoned literal interpretation
would mean “provocation exists whenever any external stimulus has precipitated the attack or
injury by an animal, i.e., whenever the animal’s actions are not completely spontaneous.” Id.
To illustrate its point, the court offered two hypothetical examples:
“[A] dog may attack an innocent child riding his bicycle down a public street because
the movement of the bicycle has excited it or the sounds of traffic have startled it.
Similarly, a dog may bite a bald-headed man walking down the hallway of his
apartment building because, for whatever reason, the dog has developed a fear of men
without hair. In each case, ‘provocation’ could be said to exist if that term were given
its broad and literal interpretation. As a result, neither the innocent child nor the
unfortunate bald-headed man would have any recourse under the statute for his
injuries.” Id. at 710-11.
The court then stated it would be grossly unfair to deny recovery in such circumstances and
contrary to the purpose of section 16, which was intended to make it easier to obtain redress
for injuries caused by an animal than it was under the common law. Id. at 711. Under a literal
interpretation where provocation could be established merely by showing an animal’s attack
resulted from some outside stimulus, a plaintiff would almost never be able to prevail. Id. The
court further observed that prior precedent supported that provocation does not exist when a
dog viciously attacks a victim out of all proportion to the unintentional act involved. Id. at 713
(citing Nelson v. Lewis, 36 Ill. App. 3d 130, 134 (1976)). Finally, the court found that while
Jamie’s scream triggered Ben’s attack, the assault was so savage that her scream could not
amount to provocation as a matter of law. Id. Therefore, the court reversed the trial court’s
denial of her motion for judgment n.o.v. and remanded for a new trial on damages. Id.
¶ 20 We do not find Robinson or the other cases Claffey cites compel the same result in this
case. Claffey’s assertion that his hand was merely present in the mail slot ignores what we
believe are significant facts and circumstances that distinguish this case. By placing his hand
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through the mail slot into the interior of the Huntleys’ house, Claffey breached the enclosure
that otherwise separated and protected him from the Huntleys’ dogs. But for that act, the dogs
could not have come into contact with him. We also find it significant that the mail slot’s
interior flap had a spring-loaded hinge. This feature required the deliberate act of pushing it
open for a hand to reach inside the house. Indeed, Claffey testified he held it open on purpose.
¶ 21 These facts render Claffey’s actions quite different from “the innocent child” riding his
bicycle down the street or “the unfortunate bald-headed man” walking down the hallway of his
apartment building that were contemplated in Robinson. In those instances, no barrier
separated the person from a dog if it reacted to the stimuli of their ordinary act. But Claffey is
not similarly situated to those hypothetical plaintiffs. Rather than a mere external stimulus,
Claffey took the additional step of introducing a stimulus into the dog’s separate environment,
exposing himself to a possible reaction.
¶ 22 In our view, the action precipitating the bite in this case is akin to reaching over a fence or
into an enclosure in which a person knows or should know a dog may be confined. Generally,
courts have found—both under the common law and under more strict statutes—that a plaintiff
may be precluded from recovering for injuries sustained in this manner. See, e.g., Farley v.
Picard, 29 N.Y.S. 802, 803 (Gen. Term 1894) (stable employee who was bitten when he
reached for a blanket into a stall housing a chained mastiff could not recover; “it was only by
some such means that he could have received the injury of which he complains, because the
dog, being securely chained within the stall, could not come to him to bite,—he must go to the
dog to be bitten”); Badali v. Smith, 37 S.W. 642 (Tex. Civ. App. 1896) (dog owner not liable
for bite when boy put his hand through an opening in the fence of a dog’s enclosure); Matson
v. Kivimaki, 200 N.W.2d 164 (Minn. 1972) (child bitten when he passed through neighbor’s
fence); Blair v. Jackson, 526 S.W.2d 120 (Tenn. Ct. App. 1973) (adult could not recover if bite
occurred when he leaned over fence); Kenney v. Barna, 341 N.W.2d 901 (Neb. 1983) (child
bitten when she put hand through fence to pet dog). But see Stroop v. Day, 896 P.2d 439 (Mont.
1995) (plaintiff could recover for bite sustained when his hands and forearms dangled over
defendants’ fence).
¶ 23 In those cases, the court typically found the injured person to be a trespasser or
contributorily negligent—issues not present here. Indeed, we recognize that contributory or
comparative negligence is not an available defense under the Act. Johnson v. Johnson, 386 Ill.
App. 3d 522, 540 (2008). But the plaintiff’s fault is not irrelevant either. To the contrary, a
plaintiff’s contributory fault is relevant “to the extent that it relates to the element of
provocation.” Id. Thus, a trier of fact may consider the plaintiff’s fault insofar as it could
amount to provocation.
¶ 24 On this point, we take guidance from Engquist v. Loyas, 803 N.W.2d 400 (Minn. 2011), in
which the Supreme Court of Minnesota addressed whether provocation could include
consideration of the plaintiff’s fault under that state’s statute, which is the same in substance
as in Illinois. Like Illinois, Minnesota courts do not recognize contributory or comparative
negligence as a defense in dog bite cases. Id. at 405-06. Yet, the court observed that
provocation nevertheless “focuses on the plaintiff-victim’s conduct and requires both the
plaintiff’s direct knowledge of the danger and that the plaintiff-victim voluntarily exposed
herself to that danger.” Id. at 406. The court continued:
“Provocation under the statute has a narrower meaning than contributory negligence.
Specifically, a plaintiff-victim who voluntarily and unnecessarily provokes a dog in a
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manner that invites a dog attack is not entitled to recover. It is not necessary that the
plaintiff-victim intend to provoke the dog. Rather, provocation involves voluntary
conduct that exposes the person to a risk of harm from the dog, where the person had
knowledge of the risk at the time of the incident.” Id.
The court then remarked that “whether a dog was provoked … is primarily a question of fact
for the jury.” Id.; see also Brans v. Extrom, 701 N.W.2d 163, 167 (Mich. Ct. App. 2005) (“The
question of provocation is a question of fact to be determined by the jury on the basis of the
circumstances of each case.”).
¶ 25 We likewise believe provocation is generally a question of fact and the fact finder may
consider whether the plaintiff had knowledge of the risk of harm from an animal and
voluntarily exposed themselves to that risk. Cf. Stehl v. Dose, 83 Ill. App. 3d 440, 443 (1980)
(“[W]hether plaintiff’s conduct amounted to provocation is not clear. Reasonable men would
differ, and accordingly, we view this issue as one especially suited to jury determination.”). If
so, and the plaintiff’s actions would be reasonably expected to cause a normal dog in similar
circumstances to react in a manner similar to that shown by the evidence, the fact finder may
conclude the dog was provoked.
¶ 26 We believe consideration of the plaintiff’s fault as provocation in similar circumstances is
consistent with the purposes of the Act, especially when the plaintiff’s actions subvert
measures that provide protection from the animal. While the Act intended to make recovery
easier than it was under the common law, which required a plaintiff to prove the owner knew
or should have known of their dog’s propensity to bite, that is not the Act’s sole aim. The Act
does not impose strict liability on dog owners (Robinson, 203 Ill. App. 3d at 711), and we have
recognized the purpose of the Act “is to encourage tight control of animals in order to protect
the public from harm.” (Internal quotation marks omitted.) Beggs v. Griffith, 393 Ill. App. 3d
1050, 1054 (2009). We have also stated that the legislative intent behind section 16 was to
protect people who “ ‘may not have any way of knowing or avoiding the risk the animal poses
to them.’ ” Johnson, 386 Ill. App. 3d at 539 (quoting File v. Duewer,
373 Ill. App. 3d 304, 307
(2007)). Consistent with those purposes, we find these remarks from the Supreme Court of
Louisiana relevant:
“When a person who knows the security measures established by the owner, having
abided by them in the past, nevertheless breaches that security, he eliminates the dog’s
isolated environment and, in essence, turns the dog loose upon himself. This is not a
case of a dog running down the street unfettered to prey upon the public. The owner
secured the dog against contact with outsiders by enclosing the dog within the fence
…. Secured, the dog posed no unreasonable risk of harm. Secured, the dog also was
not subject to provocation. Secured, the dog was able to guard and protect his master’s
home with no undue risk of harm to the innocent public. By breaching the security that
the dog’s owner had created, the plaintiff negated that security.” Pepper v. Triplet,
2003-0619, pp. 24-25 (La. 1/21/04); 864 So. 2d 181.
Though the Louisiana statute differs from ours, these observations inform our consideration of
the facts and circumstances here.
¶ 27 In this case, the Huntleys secured their dog against contact with outsiders by keeping it
inside their home. “Securing dogs … is what is expected of a dog owner—it protects the dogs
and it protects the innocent public.” Id. at 24. But by breaching that security, Claffey
encroached on the dog’s isolated environment and exposed himself to risk of harm. The dog
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could not have come into contact with Claffey under these circumstances. Echoing Farley,
Claffey had to “go to the dog to be bitten.” Furthermore, Claffey knew of and had a way of
avoiding the risk the Huntleys’ dogs posed to him. He testified that he would sometimes bundle
their mail and leave it between the screen and front door for that very reason. Moreover,
regardless of Claffey’s intent or purpose in placing his hand through the slot, a jury could
reasonably expect a normal dog to perceive a hand entering its enclosed environment as an
intrusion and react as it did; in other words, that this bite was provoked. Provocation focuses
on the dog’s perspective. Kirkham, 311 Ill. App. 3d at 793. And interaction with dogs is so
common that jurors could draw their own conclusion based on their common sense and
experience. See People v. Rudd, 2020 IL App (1st) 182037, ¶ 58 (“When evaluating evidence
and ‘choosing from among competing inferences, jurors are entitled to take full advantage of
their collective experience and common sense.’ ” (quoting United States v. O’Brien, 14 F.3d
703, 708 (1st Cir. 1994))). Thus, here we agree with the trial court’s finding that “a reasonable
jury could conceivably infer from the evidence in this case that the act of sticking his entire
hand or a portion of his hand through the mail slot could be considered provocation.”
¶ 28 As a reasonable jury could infer that the dog was provoked, even from Claffey’s
uncontradicted testimony, we cannot conclude the evidence so overwhelmingly favors Claffey
that no verdict in favor of the Huntleys based on that evidence could ever stand. Therefore, we
find Claffey was not entitled to a directed verdict or judgment n.o.v.
¶ 29 For the same reasons we have outlined, we do not believe the verdict was against the
manifest weight of the evidence. Further, we note that in this case the circuit court did not
provide a literal, expansive definition of provocation that the Robinson court found improper.
Rather, the court instructed the jury on provocation with the definition established in Kirkham,
that was decided a decade after Robinson and is consistent both with Robinson and other
Illinois appellate cases that examined provocation. We likewise note that the circuit court did
not instruct the jury on comparative negligence. Therefore, we presume the jury properly
confined its considerations of Claffey’s possible fault to the extent it related to provocation as
defined in Kirkham. See People v. Birge, 2021 IL 125644, ¶ 40 (jurors are presumed to follow
the instructions given by the court). Accordingly, the trial court did not abuse its discretion in
denying Claffey’s motion for a new trial.
¶ 30 III. CONCLUSION
¶ 31 Based on the foregoing, we find the trial court properly denied the motion for directed
verdict, motion for judgment n.o.v., and motion for new trial.
¶ 32 Affirmed.
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