Negligence and “The Reasonable Dog”

Would a reasonably prudent dog batter a postal worker, negligently knock over a vase with a wagging tail or trespass on property to urinate or defecate?

Maybe we’ll find out, now that a court has held that a dog in a dog-bite case was to be judged by a “reasonable dog” standard.

In Kirkham v. Will, an Illinois intermediate appellate court held that, in deciding whether the defense of provocation applied in a dog-bite case, the appropriate test to apply was the “reasonable dog” standard; that is, how a reasonable dog would have reacted to the plaintiff’s presence under similar circumstances.

How a reasonably prudent person would have behaved under a given set of circumstances is one of the great imponderables of tort law that jurors, law students, lawyers, judges and law professors struggle with every day. Despite manifold attempts to define the standard, answers remain elusive.

We entrust the decision to jurors because they presumably know how reasonable people would act. Are they competent to determine how reasonable dogs would act? I can see it now, ads for expert witnesses in “Canine Behavior.”

Kirkham v. Will, 724 N.E.2d 1062, 1065 (Ill. App. Ct. 2000). Thanks to Darius Asly.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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