where the court concluded that “a denial of a motion for summary judgment is not subject to review on appeal after a trial has been held, as any error in the denial merges into the subsequent judgment,” it stated that “[t]his same reasoning applies equally to the plaintiff’s issue on denial of his motion for a directed verdict as to liability”
How later courts described this case
- where the court concluded that “a denial of a motion for summary judgment is not subject to review on appeal after a trial has been held, as any error in the denial merges into the subsequent judgment,” it stated that “[t]his same reasoning applies equally to the plaintiff’s issue on denial of his motion for a directed verdict as to liability”
Written by the judges who cited it.
The opinion
JUSTICE LEWIS, dissenting:
Chaucer wrote in Troüus and Ckriseyde:
“It is nought good a sleeping hound to wake.” Shakespeare gave the same admonition in Henry IV and Henry VIII. Scott, Dickens, and many others made similar warnings, so that now Webster simply sets out that “let sleeping dogs lie” is a colloquial expression and does not give any source. Webster’s New World Dictionary 403 (3d College ed. 1988).
I do not wish to appear to be unsympathetic to the plaintiff and his mother, as I have personally witnessed dogs biting small children and the terror that such an event causes the parent and the child. If it were my child, I would be ready to shoot the dog. The point I am making is, however, that for centuries we have known that dogs bite when they are suddenly awakened from sleep. We also know that whenever you commingle small children and dogs, one or the other is going to be hurt. The legislators and jurors do not live in a vacuum; they are aware of the nature of dogs and children.
The admonition of Chaucer should be heeded by this court, as we are entering an area that should best be left to the legislature and juries. The legislature is well aware of how many people own dogs and how emotionally attached they become to their dogs. (As State’s Attorney, I filed charges against a woman who had moved to my county from Chicago and who had misappropriated a neighbor’s good rabbit dog as a pet for her children. The colorful trial judge, after patiently advising defendant that the constitution does not provide “dognappers and barn burners” with the right to select the tree from whence they shall be hanged, told defendant: “Ma’am let me give you a little advice. Down here in Southern Illinois you don’t mess with people’s dogs or people’s children. And in that order!” I have paused to reflect as to whether my reasoning in this case is in accordance with the law or whether it is in accordance with my heritage.) If the legislature desires to impose absolute liability on dog owners, then it should do so. The courts have no business carving out exceptions in the Animal Control Act to meet the judges’ personal opinions.
Isn’t it strange that in this appellate district we have had juries in St. Clair, Saline, Washington, and now Effingham Counties (see Nelson v. Lewis (1976), 36 Ill. App. 3d 130 , 344 N.E.2d 268 ; Robinson v. Meadows (1990), 203 Ill. App. 3d 706 , 561 N.E.2d 111 ; Smith v. Pitchford (1991), 219 Ill. App. 3d 152 , 579 N.E.2d 24 ) that all ruled in favor of the dog owner as to the issue of provocation but were then reversed by this court? Possibly, we judges, because of our education and elevated position, know something about how dogs think that the 48 jurors chosen at random do not?
This court has entered the canine-psychology field. We apparently are going to decide how a reasonable dog should respond to unintentional provocation by a child as a matter of law. Normally, we let juries decide facts and what responses a reasonable person would make to certain stimuli. The majority opinion decides the factual situation, i.e., that a sleeping dog should not repeatedly bite a child if it is suddenly awakened by the child falling or stepping on it. I realize that jurors may not be qualified to decide what is a proper reaction by a dog in a given situation, but as much as I hate to admit it, most people would trust the collective wisdom of the jury more than they would trust the collective wisdom of this court! Juries decide many issues in very complex fields in which they are not knowledgeable, and we as judges are happy that they do so. Surely the dog bite cases are another area in which juries should be used in deciding whether the dog was provoked and whether the dog’s response to the provocation was to be expected. If we as judges are going to shoulder the burden of deciding as a matter of law what the proper response of a dog should be to a certain provocation, then we will be deciding whether as a matter of law one bite is all right but three bites are too many, or. 10 stitches are okay but 23 stitches are not. What happens if there is only one bite but the child loses an eye or a finger? Is the defendant not liable for the damages caused by the dog’s first bite as a matter of law but liable for all subsequent bites? When this case is retried on damages only, will the defendant be allowed to show that the largest laceration of four to five inches was caused by the dog’s first bite, which may be a legitimate response to the provocation? How can the courts make a factual determination as a matter of law as to what response or responses of a dog are “out of proportion to the unintentional act committed by plaintiff?”
There may be some cases, such as in Robinson and Smith, in which a court can legitimately say that the stimuli do not amount to provocation. In battery cases, the courts hold that even though the victim makes unpropitious comments about the defendant’s mother, those comments, as provoking as they may be, do not justify a punch in the nose. So, screaming by a child or saying a dog’s name while petting the dog is not going to be recognized as a matter of law as provocation of a dog. The majority seems to recognize that falling on a dog while it is asleep is provocation, as unintentional as it may be. Why the majority would then wish to shoulder the burden of determining an appropriate response by the dog is beyond me. If a child fell or jumped on a sleeping human, would we be surprised if the human lashed out with his or her fists and injured the child severely? Why should a dog be held to a higher standard than a supposedly more intelligent animal? If the legislature wishes to hold the dog to such a high standard, then all the legislature has to do is pass a law. Meanwhile, let’s let the jury perform its function of determining what would be an appropriate response (i.e., when is the dog ceasing to respond to the provocation and merely being vicious) and the liability of the defendant.
I also disagree with the majority’s view that the verdict was not a compromise verdict. The defense attorney clearly told the jury that $3,000 to $6,000 would be an adequate award. Both attorneys talked about pain and suffering, emotional trauma, and disfigurement in their arguments to the jury. There is no way that the jury “ignored the proof of plaintiff’s pain and suffering.”
We appellate justices are constantly complaining about trial judges not telling us what happened at the trial or why they ruled in such a manner. In this case, the trial judge did an excellent job in setting out what had occurred and why he felt boxed in by plaintiff’s request for a new trial on damages only. How can we sit in Mt. Vernon a year later and decide that we know better than Judge Brummer what was going on in Effingham County? Trial judges have ways and means of knowing many things that are not on the record, and even if something occurs on the record, the event may be different from what it appears to be in the transcript. These are just two reasons why the appellate courts defer to the trial judge’s judgment in many instances.
Judge Brummer indicated that he wished that he could grant a new trial on all the issues, but he was boxed in by plaintiff’s request for a new trial on damages only. The plaintiff’s attorney wisely recognizes that a second trial most often is not as good as the first trial from a plaintiff’s viewpoint. He now knows that juries are not very sympathetic to victims in dog bite cases. Our system is not perfect, but the legislature and the jury have spoken. I would like to award a lot of money to the victim in this case as compensation for his injury, but to do so would mean substituting my judgment for the legislature’s and the jury’s judgments. I am not prepared to become the supreme lawmaker.
To award damages for an injury there normally should be a wrong or some fault on the part of defendant, not just deep pockets. The owners were not accused of negligence for allowing the dog to sleep outside the entrance door, of strict liability to a business invitee, or of strict liability for owning a vicious dog. They did nothing wrong under the issue in this case other than mere ownership of a dog. For some reason, we feel that the owner should be held responsible for the acts of his dog because we think of the dog as being more human and as an extension or representative of the owner as opposed to inanimate property. There are many instances, however, where an owner of property is not held responsible, and we are not upset by such a result merely because the property was in some way involved in the injury (e.g., the child could have fallen down some stairs or off a tree branch without liability being imposed on the owner of the property). If damages are to be awarded under the Animal Control Act because of mere ownership, then the legislature, and not this court, should say so.
In considering the effect of the majority opinion, I am reminded of the old Southern Illinois expression about things that will not work, “This dog don’t hunt.”
Accordingly, I would affirm the trial court.