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Stroop v. Day6/1/1995
s a dog to bite an individual should be a defense under § 27-1-715, MCA. Conversely, provocation should not be required to rise to the level of intentional torture to be a valid defense.
In Robinson, the Illinois Court of Appeals addressed this particular concern. In its discussion, the court stated:
Where, as here, the terms of a statute are not specifically defined, the words must be given their ordinary and popularly understood meanings, but the words must also be construed with reference to the purposes and objectives of the statute. [Citation omitted.] Where literal enforcement of a statute will result in great injustice which was not contemplated, we will construe the statute to give effect to what must have been reasonably intended by the legislature. [Citation omitted.]
As commonly understood, provocation means an act or process of provoking, stimulation or excitement. . . . These definitions are so expansive, however, that, if taken literally, [the Illinois dog-bite statute] could be interpreted to mean that 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. . . . e believe that so literal an interpretation would render the statute largely meaningless, and yield unjust and absurd results.
Robinson, 561 N.E.2d at 114. The court went on to conclude that the determination of what constituted provocation has generally "proceeded on a case-by-case basis." Robinson, 561 N.E.2d at 115. Under such an analysis, provocation may include unintentional acts, provided that the attack that followed was not grossly out of proportion to the act of provocation. Wade v. Rich (Ill. Ct. App. 1993), 618 N.E.2d 1314.
We do not dispute the Days' claim that a dog is capable of remembering specific instances from its past. We nevertheless conclude, as a matter of law, that Stroop's act of chasing Stogie with a fence post four to six weeks prior to being bitten was not provocation under § 27-1-715, MCA. An incident so remote in time cannot be considered provocation under the terms of this statute.
Similarly, Stroop's extending his hands and forearms into the Days' property was not provocation. There was no testimony that Stroop thrust his hands toward the dog or made any quick or threatening gestures. As discussed below, Stroop's hands were lawfully on the Days' property. Mere presence on the property of another does not amount to provocation. See Smith v. Pitchford (Ill. Ct. App. 1991), 579 N.E.2d 24. Conduct such as Stroop resting his arms on the fence and allowing his hands and forearms to dangle over the Days' property cannot be considered provocation under any reasonable interpretation of that term.
The Days' second argument is that Stroop was not lawfully on or in the Days' property at the time of the bite. The Days argue that, while Stroop may have initially been lawfully on the Days' property, Day's warning Stroop to remove his hands from over the fence and Stogie's aggressive behavior converted Stroop's permissive presence to nonpermissive presence. The Days claim that, because Stroop was a "trespasser" at the time of the incident, he is barred from recovery under § 27-1-715, MCA.
Stroop argues that he was not a trespasser at the time of the incident. Stroop claims that he was standing in a public alley, with only his hands over the Days' property. He claims any encroachment onto the Days' private property was made as either an invitee or a licensee. Therefore, he was in a public place or lawfully in a private place pursuant to the terms of § 27-1-715, MCA.
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