Memorandum To: From: Date: RE: Professor Rodriguez Cameron Karl Section 5 October 10, 2011 Mr.

. Charles Hunt; whether Hunt has a cause of action for injuries sustained at New Beginnings Sanctuary on June 4, 2011.

Issue Under the Illinois Animal Control Act, whether Charles Hunt has a cause of action for injuries he sustained at New Beginnings Sanctuary when a chimpanzee owned by the Sanctuary attacked him after he failed to notice a warning sign, stepped over a wooden fence, and approached the animals enclosure before attempting to photograph the chimpanzee. Brief Answer Probably yes. Under the Illinois Animal Control Act, a successful cause of action includes four elements: (1) defendants animal caused the injury; (2) attack not provoked by person injured; (3) peaceable conduct on behalf of the injured party and (4) lawful presence on behalf of the injured party. A court will likely find that Hunt did not provoke the attack because approaching the chimpanzees location does not constitute provocative behavior, despite the chimps interpretation of those movements as hostile or threatening. Moreover, Hunts conduct will likely be found to be peaceable because it was not of the nature that tends to disturb the public peace. Finally, a court will probably find Hunt to have been lawfully present when he was attacked because he was on the dirt path and the only posted warning sign was insufficient for establishing unlawful presence. Therefore, Hunt can most likely bring a successfully cause of action against the Sanctuary. Facts On June 4, 2011, our client, Mr. Charles Hunt, was attacked by a chimpanzee and severely injured while photographing chimpanzees at New Beginnings Sanctuary in Normal, Illinois. It is the mission of New Beginnings Sanctuary to provide lifetime care for chimpanzees and orangutans that have been retired from medical research, the entertainment industry, or who have been abandoned as pets. The chimpanzee exhibit at the Sanctuary is an enclosure that is separated from the public-access area by two successive barriers. The first barrier is a three-foot wooden fence that runs along the public walkway, which is a secure area from which the patrons can view the animals. The second barrier is a ten-foot high metal fence that encloses the chimpanzees forested habitat. Between these two barriers is a grass field, down the middle of which runs a dirt path. This path extends from the wooden fence that runs along the public walkway to the metal fence that surrounds the chimpanzees forested habitat. Two adjacent signs are located in the area where the dirt path meets the wooden fence. The first is an informational sign that provides the Sanctuarys patrons with information about the animals. The second is a warning sign that instructs visitors not to approach the metal fence enclosing the forested habitat. As an ape enthusiast, the purpose of Hunts visit to the Sanctuary that weekend was to take close-up photos of the chimpanzees that have been retired from the entertainment industry. Particularly, Hunt wanted to photograph a resident chimpanzee named Amy who had starred in television commercials for Old Navy and Coca-Cola prior to her arrival. A behavior 1

primatologist at the Sanctuary told Hunt that he had seen Amy wandering around the northeastern corner of the sanctuary. He also told Hunt that Amy had been administered the antianxiety medication, Xanax, which causes increased levels of anxiety in animals. Because of the medication, Amy was to be particular elusive. Despite that Amy was going to be particularly hard to photograph, Hunts purpose that day at the Sanctuary was to photograph the chimpanzees. To achieve this, Hunt decided that he could get a better picture of the chimpanzees by moving closer to the metal fence that surrounded the habitat. For this better shot, Hunt stepped over the three-foot wooden fence and walked along the dirt path that ran between the two barriers. In this approach to the ten-foot metal fence, Hunt neglected to read the informational sign that was posted because he believed he already knew all of the information it contained. As a result of disregarding the informational sign, Hunt failed to notice the adjacent warning sign. After stepping over the wooden fence and walking along the dirt path, Hunt got close to the metal fence. At this point, he decided to get out his camera incase he was able to spot Amy. Hunt opened up his backpack and began digging through it to retrieve his camera. As this was occurring, Amy came out from behind the trees and made her way towards the location of Hunt. The moment he was going to take a picture of her, Amy was able to reach under the metal fence and pull Hunt to the ground. The act of being pulled to the ground caused Hunts wrist to break. Amy then proceeded to bite Hunt on the leg, which caused severe lacerations. The amount of blood Hunt lost from his wounds caused him to go into shock. He was eventually able to make his way to safety and the Sanctuarys staff came to his aid within five minutes of the attack occurring. Discussion Hunt most likely has a cause of action against New Beginnings Sanctuary under the Animal Control Act (510 ILCS 5/16 (West 2011)) because his claim satisfies all of the required elements in the statute. In claims brought under the Act, Illinois courts have interpreted the statute as having four elements necessary for a cause of action: (1) injury caused by an animal owned by the defendant; (2) the lack of provocation; (3) peaceable conduct of the person injured, and (4) the presence of the injured person in a place where he or she has a legal right to be. Nichols v. Lowe's Home Center, Inc., 407 F. Supp. 2d 979, 982 (S.D. Ill. 2006) (citing Severson v. Ring, 695 N.E.2d 1, 4 (Ill. App. Ct. 1998)). By doing away with the common-law rule that an owner is only liable for any injuries his dog inflicts if he has notice of his dogs vicious inclinations, the Act was passed to protect the public by encouraging tighter control of animals. Garcia v. Nelson, 759 N.E.2d 601, 607-608 (Ill. App. Ct. 2001). Despite this intention, it was not designed to protect all potential plaintiffs but only innocent bystanders who have no reason to know or avoid the risk that the animal poses to them. Id. This is in line with the last three required elements in the statute, as a plaintiff who fails to satisfy one or more of the elements either invites or explicitly assumes the risk of injury and is not protected by the Act as a result. The first element of the statute should not be an issue of dispute at trial. New Beginnings Sanctuary, whose mission is to provide lifetime care for orangutans and chimpanzees that have retired or been abandoned, certainly is the owner of the chimpanzee. See 510 ILCS 5/2.16; Nichols, 407 F. Supp. 2d 979. Since it should not be disputed that the Sanctuary is the owner of the chimpanzee that attacked Hunt, this issue shall be put to rest for the remainder of this memo. Alternatively, this memo will focus on whether Hunt can show that (a) he did not provoke the 2

attack, (b) he was peaceably conducting himself when the attack occurred, and (c) he was in a lawful place when attacked. Albeit the colloquial pressure falls upon the plaintiff in satisfying each of these four elements, the factual basis for Hunts claim is such that a court will likely find each element properly represented. A. A court will most likely find that Hunt did not provoke the attack because approaching the chimpanzees location without warning does not constitute provocation. A court will most likely find that Hunt did not provoke the attack because his actions preceding the incident do not constitute provocative behavior, despite the chimpanzees interpretation of those actions. A plaintiff who provokes the animal to attack is not an innocent bystander because such behavior invites the risk of injury from the animal and, as a result, is not protected by the Act. Garcia, 759 N.E.2d at 607. When the plaintiff has not committed any actions directed at the animal that would likely trigger attack other than approaching its location, and the only reason the attack occurs is because the animal has interpreted plaintiffs movements as hostile or threatening, provocation in the statute should not apply. Messa v. Sullivan, 209 N.E.2d 872, 876 (Ill. App. Ct. 1965); see also Dobrin v. Stebbins, 259 N.E.2d 405 (Ill. App. Ct. 1970) (attack not provoked when plaintiff, a magazine salesman, was bitten by dog after approaching within five or ten feet of defendants door). In Messa, the plaintiff was a saleswoman who sold printed cards depicting the deaf and mute alphabet. Id at 874. The plaintiff, attempting to sell her cards, entered a building owned by the defendants that appeared to be entirely devoted to business. Id. She crossed the lobby and rode the elevator to the fifth floor, which was actually used by the defendants for residential purposes. Id. When the plaintiff exited the elevator and approached the defendants apartment door, the defendants German shepherd ran out of the door and attacked the plaintiff. Id. at 875. On appeal, the defendants argued that the plaintiff was guilty of provocative behavior at the time she was attacked. Id. They reasoned that because the plaintiff approached the apartment and the dog without warning, which constituted a threat to the security of the apartment, the dog resented this threat and attacked as a result. Id. at 876. The court disagreed, however, and reaffirmed the lower courts conclusion that the plaintiff did not provoke the dog to attack. In their reasoning, the court reiterated that the her only actions at that point consisted of stepping off the elevator and walking a short distance toward the area in which the dogs were kept (i.e. the defendants apartment door). Id. In drawing their conclusion, the court stated that [w]e do not believe that the term provocation in the statue was intended to apply to a situation like this and thereby relieve from responsibility the owner of a vicious dog [] merely because the dog interprets the visitors movements as hostile actions calling for attack. Id. (emphasis added). A court will likely find that Hunt did not provoke the attack when he approached the chimpanzees location without warning. Hunts actions prior to the attack are analogous with the actions of the plaintiff in Messa. Like the plaintiff in Messa, who the court held did not provoke the attack, Hunts actions consisted primarily of walking a short distance towards the area in which the chimpanzee was being kept. Also like the plaintiff in Messa, Hunt committed no other acts directed at the chimpanzee that would trigger attack, as the attack occurred before he was able to take a photograph of the chimp. The Messa court reasoned that provocation does not apply in situations where: the plaintiffs only actions prior to attack consist of approaching the area where an animal is located; and the only reason the attack occurs is because the animal 3

interpreted this movement as hostile or threatening. The situation regarding Hunts attack, like that of the plaintiff if Messa, is such that the attack only occurred because the chimpanzee interpreted Hunts unannounced approach as hostile. Although he rummaged through his backpack, Hunt committed no other action directed at the chimpanzee, such as taking a photograph of her. Therefore, given that Hunt can show he was lawfully present when the attack occurred, the court should find that Hunt is not guilty of provocative behavior. B. A court will most likely find that Hunt was conducting himself peaceably because his conduct was not of the nature that tends to cause public disorder. Hunts claim will likely satisfy the element of peaceable conduct because he did not conduct himself in way that tends to cause public disorder or disturb the public peace. In determining the nature of a plaintiffs conduct, courts have focused on whether the conduct falls under the definition of non-peaceable conduct. Garcia, 759 N.E.2d at 609. Conduct that is not peaceable can be defined as conduct that invites or is likely to invite immediate public turbulence, or that leads to or is likely to lead to an immediate loss of public order and tranquility. Id. (citing Valentino v. Glendale Nissan, Inc., 740 N.E.2d. 538 (Ill. App. Ct. 2000)). If a plaintiffs conduct at the time of attack is not of the nature that tends to disturb the public order, the plaintiff can successfully satisfy the peaceable conduct element. Id. at 603. The language of the Act intends to differentiate between plaintiffs who are innocent bystanders and those undeserving of the Acts protection because a person who is conducting himself in a manner that is not peaceable invites the risk of injury from the nearby animal. Id. at 609. The legislature might well wish to deny aid to one who disturbs the public peace, as he ought to realize that his conduct might arouse the fighting of a nearby animal. Id. at 603. In Garcia, two ATV riders brought an action under the Act after they were injured when their ATV collided with a dog on a public road. Id. at 603. The defendant argued that the plaintiffs could not prove that they had been peaceably conducting themselves because they were breaking the Illinois Vehicle Code by driving an ATV on the public right-of-way. Id. at 609. The court disagreed, however, holding that one may violate the law while still acting peaceably because not every illegal act tends to cause turbulence or public disorder. Id. The court reasoned that it would be unjust to deny relief to a victim committing a technical trespass or minor statutory violation because denying relief to anyone who violates any law would not be sensibly distinguish between innocent bystanders and those who invite or assume the risk of injury from the animal. Id. at 609-610. A court is likely to find that Hunt was conducting himself peaceably at the time of the attack because his conduct is analogous to the conduct of the plaintiffs in Garcia. Like the plaintiffs in Garcia, Hunt was not conducting himself in a way that tends to disturb the public order. Hunts conduct leading up to his injury is consistent with the conduct of any typical patron of a facility like the Sanctuary; he walked around the premises with the intention of viewing and photographing the animals. Directly preceding the attack, Hunt climbed over the wooden fence, approached the metal fence enclosing the chimpanzee habitat, and stifled through his backpack in an effort to find his camera. One could not reasonably define such conduct as that which causes public disorder or that Hunt invited or assumed the risk of injury through such conduct. Although Hunt climbed over the initial, three-foot barrier, there remained the ten-foot, metal fence and the moat separating Hunt and the forested habitat. The Garcia court reasoned it would be unjust to deny compensation to a victim simply because he was committing a technical 4

trespass or minor statutory violation. In other words, it is the conducts effect on the public order and not the legal status of the act itself that is important. Hunts conduct, like the conduct of the plaintiffs in Garcia, can be defined as peaceable because its effect on the public peace is not one of disturbance. Therefore, a court should find his claim to satisfy this element of the statue. C. Hunt can probably show that he was lawfully present when attacked because his use of the dirt path made him a licensee and the warning sign failed to give grounds to hold him as a trespasser for walking past it Hunt can probably establish that he was lawfully present because he was not trespassing at the time the attack occurred. Courts have interpreted the language of the statue regarding lawful presence as referring only to the place where the plaintiff is physically located at the time of the injury and whether or not he or she has a legal right to be there. Garcia 759 N.E.2d at 607. We hold that the quoted language unambiguously requires only that a plaintiff not be trespassing on real property. Id., (emphasis added). In line with the innocent bystander theme, a trespasser cannot bring a claim under the Act because a trespasser invites the risk of injury posed by the animal. Id. at 608. A way in which a plaintiff can be lawfully present within the meaning of the statute is by making use of a dirt path provided by the property owner, so long as the owner has not provided some form of warning. Dobrin, 259 N.E.2d at 407. In Dobrin, the defendants dog bit the plaintiff when he entered the defendants premises in an effort to sell magazines via a dirt path that led from the sidewalk. Id. at 406. There was no sign or posted notice on the property warning salesmen or anyone else to keep off the property. Id. The Dobrin court reasoned that [a]n owner of property who provides a path or walk from the public way to his door, without some indication (sign, posting of notice, or words) warning away those who seek lawful business with him extends a license to use the path or walk during the ordinary hours of the day. Persons who thus make use of the path or walk are licensees. Id. at 407. Accordingly, the court held that the plaintiff was a licensee on the defendants land when he was bit and, therefore, he had a legal right to be there. Id. The mere existence of a warning sign, however, does not by itself give grounds for holding all those who enter past it as being unlawfully present; the sign must be deemed by the court as sufficient to give such grounds. Messa, 209 N.E.2d at 875. In Messa, the only sign posted by the defendants warning of vicious dogs being kept on the fifth floor was on the door that the plaintiff had to open to right before she entered into the hallway. Id. at 873. The plaintiff claimed that she did not see the sign because she was preoccupied with pushing open the heavy elevator door and exiting into the hallway. Id. at 874. The defendants argued that entry onto the fifth floor past this large warning sign constituted unlawful entry by the plaintiff. Id. at 875. The court disagreed, however, holding that the plaintiff was lawfully present when she was attacked, even with the presence of a warning sign. Id. According to the court, the sign was posted in a place where it could be seen only split seconds before one would enter the danger area and only at a time when the elevator passenger would be concerned with pushing open the heavy door to step into the hall and continue on with his business there. Id. The court reasoned that under the circumstances, not only was the sign in the wrong location but it also failed to give adequate warning of the danger that existed. Id. As a result, the court asserted that the sign gives no grounds for holding that persons who enter the hall have no legal right to be there. Id. 5

A court will probably find that Hunt was in a place he had a legal right to be because he was a licensee and not a trespasser when attacked by the chimpanzee. The dirt path that was used by Hunt is analogous to the dirt path that was used by the plaintiff in Dobrin. The plaintiff in Dobrin, who the court held to be in a lawful place, was walking along a dirt path that extended to the defendants door from the public walkway. Similarly, Hunt was on a dirt path that extended from the public walkway when bitten by the chimpanzee owned by the Sanctuary. The Dobrin court reasoned that because the owner of the property provides the path from the public walkway, the owner is extending an invitation for the path to be used. Although the dirt path taken by Hunt led to the metal barrier surrounding the chimpanzee habitat, it was similarly leading from the public way and provided for by the owners of the property who, as a result, extended a license for it to be used. Being present on the path when the attack occurred, Hunt was a licensee and not a trespasser on the defendants property. Thus, the court should hold that Hunt was in a lawful place when attacked by the chimpanzee owned by the Sanctuary. New Beginnings Sanctuary may argue that Hunt was trespassing at the time of the attack, and thus not lawfully present, because he passed the warning sign instructing visitors not to approach the metal fence. The sign posted by the Sanctuary instructing visitors not to approach the metal fence is analogous to the sign posted by the defendants in Messa that warned of the presence of vicious of dogs. The warning sign at the Sanctuary, like the warning sign in Messa, was in the wrong location and did not provide adequate warning of the type of danger experienced by Hunt. Like the plaintiff in Messa, Hunt failed to notice the warning sign before being attacked by the chimpanzee. The sign was not posted in a location, such as at the entrance of the Sanctuary, which would have ensured all guests, including Hunt, had received the warning prior to entering any potential danger areas throughout the premises. The location of the sign also prevented Hunt from noticing it, as he was unable to distinguish it from the informational sign he disregarded and to which it was adjoined. Although Hunt consciously disregarded the information sign, the safety of guests at establishments like the Sanctuary is not contingent upon whether or not one has read the provided informational signs. Furthermore, like the warning sign in Messa, the sign posted by the Sanctuary did not give adequate warning of the danger. Although the sign instructed visitors not to approach the metal fence, the sign did not adequately warn of the danger experienced by Hunt, i.e. getting attacked through the fence. Because an inadequate warning sign provides no grounds for holding that persons who enter past have no legal right to be there, the court should conclude that Hunt was not a trespasser at the time of the attack but instead a licensee.

Recommendations Hunt can most likely bring a successful cause of action against New Beginnings Sanctuary because his claim satisfies all of the required elements set forth by the Illinois Animal Control Act. Though Hunt will likely win if he goes forward with the claim given the present facts, he may want to consider looking further into the issue of Xanax and its effects on chimpanzees or primates in general. The primatologist that spoke with Hunt prior to the attack informed him that Amy was given Xanax, which caused her to be especially allusive and anxious, but he did not suggest anything about a potential attack or an increased level of danger. While Hunt can most likely bring a successful claim under the Act without consideration of this issue, there is potential for it to strengthen the claim, especially in relation to elements (a) and (b). Potential areas for 6

further discovery include but are not limited to: What are the general practices and/or customs that surround the use of Xanax and primates in captivity, as well as for animals in general? Are captive primates that are given Xanax usually isolated from the general, captive population until habituation occurs? What is the status of Xanax in the realm of animal captivity generally? Depending on the answers to such questions, Hunt may want to consider the use of expert testimony concerning this issue. Although this will add to the already burdensome costs of litigation in general, the issue can potentially strengthen the claim in regards to the elements of provocation and peaceable conduct, considering the chimpanzee was under the influence of narcotics at the time of the attack. A quick and inexpensive inquiry into the issue could certainly provide a sufficient preliminary report in determining the value of pursuing the issue further. Furthermore, the potential value of the issue in strengthening Hunts claim can ensure the worthiness of the expenses produced by litigation.