In a case involving injury to a 7 year-old who was kicked in the back by a horse, the Illinois Appellate Court decided the question of whether contributory fault was a valid defense to the lawsuit.
The plaintiff brought this personal injury case seeking compensation under the Illinois Animal Control Act which provides:
If a dog or other animal, without provocation, attacks, attempts to attack or injures a 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. 510 ILCS 5/16.
In this case, the trial judge allowed the defense of contributory negligence. But the court looked to the case of Johnson v. Johnson, 2008 WL 4830822 (1st Dist., Nov. 5) to reverse the trial court’s judgment. Johnson found that “A plaintiff’s contributory fault is only relevant to the extent that it relates to the element of provocation. It is not a defense in and of itself.”
The Animal Control Act is a derogation of common-law and is not a strict liability statute. Therefore it does not impose strict liability on animal owners whose animal inflicts injuries upon others.
However, the court noted that the statute does not preclude a common-law defense such as assumption of risk. One that assumes the risk of injuries is not entitled to recover under the Act. Harris v. Walker, 119 Ill.2d 542 (1988).
The Illinois Appellate Court distinguished between the defense of assumption of risk and the defense of comparative negligence. And specifically notes that comparative negligence is not a common-law defense.
Indeed, while the defense of contributory negligence existed at the common-law, our Supreme Court in Alvis v. Ribar, 85 Ill.2d 1, 28 (1981), abolished the common-law defense of contributory negligence, which barred a plaintiff from recovering for her injuries if her negligence contributed to the accident, and adopted the doctrine of comparative negligence, which serves to reduce a plaintiff’s damages by the percentage of fault attributed to her. Thereafter, the legislature modified and codified the comparative negligence defense.
The Illinois Appellate Court noted that the attempt of the defendant to equate provocation with negligence was not persuasive.
Because the Illinois Animal Control Act eliminated the requirement that a plaintiff prove that an animal had a vicious disposition to which the owner was aware, Illinois courts recognize that the Act essentially made irrelevant any questions of the injured person’s contributory negligence. Nelson v. Lewis, 36 Ill.App.3d 130, 133 (1976).
Accordingly, plaintiff’s contributory fault is only relevant to the extent that it relates to provocation. It does not stand as a defense by itself.