QUESTION PRESENTED:
Whether the court will reject the motion filed by the defendant to dismiss the claims of our client?
BRIEF ANSWER:
probably not. The defendant Mr Androcles’s motion to dismiss our client’s complaint may not succeed because all the elements envisaged in the ‘Dog bite statute’ are fulfilled. Firstly, the injury caused by the dog to Harvey in response to the throwing the snowball was severe and unproportional in nature. Secondly, there was no provocation as the response of the dog was not proportional or justifiable under ordinary discourse. Thirdly, our client’s conduct at the zoo was peaceable as their purpose was not to disturb the activity of the dog. Fourthly, The presence of our client and his father at the zoo was …show more content…
The statute is understood according to the case of Nelson v. Lewis (36 Ill.App.3d 130, 344 N.E.2d 268 1976) and Siewerth v. Charleston 89 III App. 2d 64, 231 N.E. 2d 644. The issue at hand is whether the plaintiff’s act of throwing the snowball at the dog constitutes provocation within the meaning of the statute. In Nelson V. Lewis, the act of the plaintiff was unintentional yet it was considered as provocative. The plaintiff was playing a game and while playing, she accidently stepped on the dog’s tail. This is when the element of ‘proportionality’ seeps in, which can be better understood with reference to the case of Siewerth v Charleston 89 Ill. App.2d 64 (1967)231 N.E.2d Roy and Seiwerth repeatedly kicked and irritated the dog. It was evident that the dog was agitated. As a result the dog attacked Roy. The court ruled that it was evident that the conduct of the children was not peaceable and amounts to provocation. In the case of Woodley, on the contrary, the snowball mildly hit the dog once. The manner in which the snowball hit the dog was evidently harmless and without any ill intentions. The mild spray of snow did not constitute for the dog to cause the injury when it viciously bit the young child requiring so many stitches. Inferring from the case of Nelson V. Lewis, the response of the dog to the defendant stepping on its tail was justifiable as it was not vicious in nature …show more content…
App.2d 387 (1970)259 N.E.2d 405, the entrance of the plaintiff to the defendant’s house as a magazine seller was seen as a lawful act as it was during the ‘ordinary working hours of the day’ for the purpose of magazine subscription. Similarly, in the given scenario, the plaintiff and his father were visiting the zoo during ‘ordinary hours of the day’. There act did not seem suspicious in any manner. The path which they took led to the front door. Also, there was no demarcation or sign that indicated that the building was a private property, neither was it anywhere indicated that a vicious dog was present in the building. The building looked like most of the exhibits at the zoo and since there were no signs or borders or barriers present, the entry into the premise seems justified and lawful. This proves that the presence of the plaintiff at the zoo was lawful and their conduct
Whether the court will reject the motion filed by the defendant to dismiss the claims of our client?
BRIEF ANSWER:
probably not. The defendant Mr Androcles’s motion to dismiss our client’s complaint may not succeed because all the elements envisaged in the ‘Dog bite statute’ are fulfilled. Firstly, the injury caused by the dog to Harvey in response to the throwing the snowball was severe and unproportional in nature. Secondly, there was no provocation as the response of the dog was not proportional or justifiable under ordinary discourse. Thirdly, our client’s conduct at the zoo was peaceable as their purpose was not to disturb the activity of the dog. Fourthly, The presence of our client and his father at the zoo was …show more content…
The statute is understood according to the case of Nelson v. Lewis (36 Ill.App.3d 130, 344 N.E.2d 268 1976) and Siewerth v. Charleston 89 III App. 2d 64, 231 N.E. 2d 644. The issue at hand is whether the plaintiff’s act of throwing the snowball at the dog constitutes provocation within the meaning of the statute. In Nelson V. Lewis, the act of the plaintiff was unintentional yet it was considered as provocative. The plaintiff was playing a game and while playing, she accidently stepped on the dog’s tail. This is when the element of ‘proportionality’ seeps in, which can be better understood with reference to the case of Siewerth v Charleston 89 Ill. App.2d 64 (1967)231 N.E.2d Roy and Seiwerth repeatedly kicked and irritated the dog. It was evident that the dog was agitated. As a result the dog attacked Roy. The court ruled that it was evident that the conduct of the children was not peaceable and amounts to provocation. In the case of Woodley, on the contrary, the snowball mildly hit the dog once. The manner in which the snowball hit the dog was evidently harmless and without any ill intentions. The mild spray of snow did not constitute for the dog to cause the injury when it viciously bit the young child requiring so many stitches. Inferring from the case of Nelson V. Lewis, the response of the dog to the defendant stepping on its tail was justifiable as it was not vicious in nature …show more content…
App.2d 387 (1970)259 N.E.2d 405, the entrance of the plaintiff to the defendant’s house as a magazine seller was seen as a lawful act as it was during the ‘ordinary working hours of the day’ for the purpose of magazine subscription. Similarly, in the given scenario, the plaintiff and his father were visiting the zoo during ‘ordinary hours of the day’. There act did not seem suspicious in any manner. The path which they took led to the front door. Also, there was no demarcation or sign that indicated that the building was a private property, neither was it anywhere indicated that a vicious dog was present in the building. The building looked like most of the exhibits at the zoo and since there were no signs or borders or barriers present, the entry into the premise seems justified and lawful. This proves that the presence of the plaintiff at the zoo was lawful and their conduct