Bethany Krajelis Mar. 28, 2013, 11:44am


The Fifth District Appellate Court this week refused to disturb a Madison County jury verdict awarding $140,000 to a woman who was bitten by her brother’s dog.

In an unpublished order released Monday, the appeals panel affirmed Madison County Associate Judge Clarence Harrison’s denial of the defendants’ motion for a new trial or a judgment notwithstanding the verdict.

The order stems from a lawsuit Trena Wells brought in 2010 against her brother and sister-in-law, Matthew and Amy Cooper, in an attempt to recover damages for her injuries under the Illinois Animal Control Act (ACA).

In 2008, Wells was bitten by the Coopers’ dog, a lab-husky mix named Tank, during a visit to their nearby home in Moro. On his second escape from their home, Tank was hit by a truck, spurring Wells and Amy Cooper to run outside.

When it appeared that Tank was headed back to the street, Wells put her arms around his chest and he collapsed on her hands. As she tried to remove her hands from under him, Tank tore her right thumb apart and put two puncture marks in the other before he died.

As a result of the dog bite, Wells, according to the appellate court order, had four surgeries on her right thumb, which left a scar and limited her ability to care for her newborn child and participate in activities.

Following a three-day trial, the jury returned a verdict in favor of Wells in the amount of $140,000: $5,000 for disfigurement, $45,000 for los of normal life, $50,000 for pain and suffering and $40,000 for medical expenses.

The Coopers, after Harrison entered judgment on the jury verdict, filed a motion for a new trial or in the alternative, a judgment notwithstanding the verdict. Harrison denied their request.

On appeal, the Coopers argued that Harrison erred in denying their motion. They claimed that when Wells put her arms around Tank, she became his “custodian” and under the ACA, was an “owner” who couldn’t recover for her injuries.

The Coopers also argued that the jury was not properly instructed on the issue of a dog’s “custodian” under the ACA, which allows a person injured by a dog that attacks without provocation to recover civil damages from the dog’s owner.

On behalf of the appeals panel, Justice Richard Goldenhersh wrote that “After reviewing the argument on the merits, we agree with plaintiff that the jury was adequately instructed and, therefore, defendants are not entitled to a new trial.”

“The record shows that the instructions gave a clear and adequate picture of the applicable law and that the jury was fully, fairly, and comprehensively informed of the applicable legal principles involved in the instant case,” Goldenhersh wrote.

Although it could be argued that Wells’ act of restraining Tank could be considered provocation, Goldenhersh explained that “the jury’s verdict indicates that it did not believe defendants had tight control over Tank on the day in question.”

He added, “Simply put, the jury did not believe either that plaintiff was Tank's custodian or that plaintiff's attempt to protect Tank from getting hit a second time amounted to provocation. Had defendants exercised better control over Tank, plaintiff would not be injured.”

Justices Stephen Spomer and Bruce Stewart concurred in the order Goldenhersh delivered.

St. Louis attorneys Lindsay Rakers and Andrew Mundwiller represented Wells.

Edwardsville attorney Michael Bedesky represented the Coopers.

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