347 S.W.3d 477
Mo. Ct. App.2011Background
- Miles, a minor, was bitten by Rich's dog on April 28, 2004, seeking damages from Rich.
- Rich filed a third-party petition against the Humane Society of Missouri, alleging common-law negligence and seeking contribution.
- HS moved to dismiss, arguing Rich failed to state a claim because HS did not own, possess, harbor, or control the dog at the time of the bite.
- The trial court dismissed the third-party petition with prejudice, ruling Rich could not establish actionable negligence by HS toward Miles.
- Rich and Miles subsequently settled Miles's claim against Rich; Rich appeals the dismissal.
- The court upheld dismissal, concluding Rich failed to state a cause of action for contribution and that leave to amend was not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rich stated a claim for contribution under common law negligence. | Rich contends HS's duties and breaches show actionable negligence toward Miles. | Rich argues HS owed Miles a duty and breached it, supporting contribution liability. | No; Rich failed to allege actionable negligence by HS toward Miles. |
| Whether HS can be liable in common law negligence for a dog it did not own, possess, harbor, or control. | Rich asserts HS assumed duty to screen and warn, creating liability. | HS did not own/possess/harbor the dog; no duty in negligence arises toward Miles. | No; no liability under common law negligence because HS did not possess the dog at the time. |
| Whether dismissal with prejudice without leave to amend was proper. | Rule 67.06 requires freely granting leave to amend; dismissal without amendment was improper. | Amendment could not cure the lack of a viable negligence claim against HS. | Yes; dismissal with prejudice was proper; no abuse of discretion in denying leave to amend. |
Key Cases Cited
- Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432 (Mo. banc 2002) (contribution requires actionable negligence toward plaintiff)
- Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727 (Mo. banc 1982) (restatement-based contribution framework)
- Sweet v. Herman Bros., Inc., 688 S.W.2d 31 (Mo. App. 1985) (negligence contribution requires actionable conduct toward plaintiff)
- Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. banc 1993) (pleading standards; pleadings construed in plaintiff's favor)
- Duren v. Kunkel, 814 S.W.2d 935 (Mo. banc 1991) (restatement liability framework for domestic animals)
- Savory v. Hensick, 143 S.W.3d 712 (Mo. App. 2004) (domestic animal liability limited to possessors/harborers)
- Like ex rel. Like v. Glaze, 126 S.W.3d 783 (Mo. App. 2004) (negligence standards for animal-related harm)
- Union Elec. v. Metro. St. Louis Sewer Dist., 258 S.W.3d 48 (Mo. banc 2008) (duty analysis; foreseeability and control considerations)