Miles v. Rich

• Decision Date: 26 April 2011
• Docket Number: No. ED 95112.,ED 95112.
• Parties: Marissa MILES, a minor by and through her Mother and Next Friend, Dana MILES, Plaintiff,v.Linda Darlene RICH, Defendant/Third–Party Plaintiff/Appellant,v.Humane Society of Missouri d/b/a St. Louis Humane Society, Third–Party Defendant/Respondent.
• Court: Missouri Court of Appeals

347 S.W.3d 477

Marissa MILES, a minor by and through her Mother and Next Friend, Dana MILES, Plaintiff,

v.Linda Darlene RICH, Defendant/Third–Party Plaintiff/Appellant,

v.Humane Society of Missouri d/b/a St. Louis Humane Society, Third–Party Defendant/Respondent.

No. ED 95112.

Missouri Court of Appeals, Eastern District.

April 26, 2011.Motion for Rehearing and/or Transfer to

Supreme Court Denied July 12, 2011.

Application for Transfer Denied

Oct. 4, 2011.

Joseph K. Robbins, The Robbins Law Firm, St. Louis, MO, for plaintiff.Russell F. Watters, Scott H. Morgan, St. Louis, MO, for appellant.William T. Kacerovskis, Law Offices of Robert J. Hayes, St. Louis, MO, for respondent.KATHIANNE KNAUP CRANE, Presiding Judge.

Plaintiff filed an action against the defendant dog owner for damages arising from injuries sustained when plaintiff was bitten by the dog owner's dog. The dog owner then filed a third-party petition against the humane society from which she had adopted the dog, seeking contribution under a theory of common law negligence. The trial court dismissed the third-party petition with prejudice for failure to state a claim upon which relief may be granted. The dog owner appeals. We affirm.

Plaintiff, Marissa Miles, a minor, by and through her mother and next friend, Dana Miles, filed an action against Linda Darlene Rich seeking damages arising from injuries sustained when Ms. Miles was bitten by Ms. Rich's dog. Ms. Miles alleged that Ms. Rich was the owner and keeper of the dog, that the dog attacked Ms. Miles on April 28, 2004, and that the attack and injuries were the direct and proximate result of Ms. Rich's negligence and carelessness in the following respects:

a) That [Ms. Rich] knew or should have known of her dog's propensity for viciousness and unprovoked attack on innocent persons.

b) That [Ms. Rich] failed to restrain her dog and confine it.

c) That [Ms. Rich] failed to warn [Ms. Miles] of her dog's propensity for viciousness and unprovoked attack on persons.

Thereafter, Ms. Rich filed a third-party petition against the Humane Society of Missouri (the Humane Society) seeking contribution under a theory of common law negligence. Ms. Rich first alleged the existence of Ms. Miles's lawsuit against Ms. Rich, which sought damages resulting from the April 28, 2004 bite by Ms. Rich's dog at Ms. Rich's residence, and she attached a copy of Ms. Miles's petition. She further alleged that the Humane Society received the dog on January 21, 2003, and that it had performed tests on and handled the dog, before it “gave” the dog to Ms. Rich on March 1, 2003. She alleged that “[w]ithin a matter of weeks” after the Humane Society gave the dog to Ms. Rich, Ms. Rich notified the Humane Society that the dog had bitten a child.¹

Ms. Rich alleged that the Humane Society had two duties that it breached. The first was a duty “to inspect, test, observe, and handle its dogs in accordance with the best accepted professional practices so as to prevent releasing dogs that would pose potential aggressive risks onto the public.” She alleged the Humane Society breached this duty as follows:

10. [The Humane Society], holding itself out as a specialist in the field of animal care and adoption, failed to apply the knowledge and use the skill and care ordinarily used by other reasonably well-qualified humane societies in the following respects:

a. [The Humane Society] provided [Ms. Rich] with a stray dog that was unreasonably dangerous and possessed a hazardous propensity to bite.

b. [The Humane Society] failed to conduct any screening or testing to determine the extent of the dog's dangerous nature and hazardous propensity to bite when it knew or should have known of the procedures available for making those types of assessments.

c. [The Humane Society] failed to implement any formal testing, screening, or observation procedures upon receiving the dog to ensure that the dog would be safe when adopted.

d. [The Humane Society] failed to avail itself of readily available and specific testing programs for behavior evaluations and assessments of the dog it was releasing to [Ms. Rich].

Ms. Rich also alleged that the Humane Society “had a duty to warn [Ms.] Rich of what it knew or should have known—that dogs that bite are likely to bite again.” She alleged the Humane Society breached this duty as follows:

13. Instead, [the Humane Society], holding itself out as a specialist in the field of animal care and adoption, failed to use the knowledge, skill, and care ordinarily used by other reasonably well-qualified humane societies to warn of the hazards and problems associated with a dog that bites in the following respects:

a. [The Humane Society] encouraged [Ms.] Rich to give the dog more time instead of referring [Ms.] Rich to Animal Control to turn the dog over for quarantine for a period of days.

b. [The Humane Society] offered to enroll [Ms.] Rich's dog in its behavior modification class, while concealing its own policy of not retraining a dog who bites because of the likelihood it will bite again.

c. [The Humane Society] did not fully inform [Ms.] Rich of her option to return the dog to [the Humane Society's] facilities.

d. [The Humane Society] did not fully inform [Ms.] Rich of the risks presented by keeping a dog that had already bitten once.

Ms. Rich alleged proximate cause as follows: “As the direct and proximate result of [the Humane Society's] actions and omissions, [Ms. Miles] has brought suit against [Ms.] Rich.”

The Humane Society filed a motion to dismiss the third-party petition on the ground that the third-party petition failed to state a claim upon which relief may be granted because Ms. Rich did not have a legally valid contribution claim against the Humane Society in that she did not allege that the Humane Society controlled, owned, possessed, or harbored the dog at the time of the attack. After a hearing on the motion, the trial court dismissed the third-party petition, concluding that the third-party petition did not state a claim showing that Ms. Rich was entitled to contribution from the Humane Society on a theory of common law negligence because it did not allege any facts showing that the Humane Society was liable to Ms. Miles for the injury, which was an essential element of a contribution action.² The trial court concluded that there was no possible set of facts on which Ms. Rich could prevail against the Humane Society, and that it would dismiss the petition with prejudice.

Ms. Rich and Ms. Miles subsequently settled Ms. Miles's claim against Ms. Rich, and Ms. Rich appealed from the trial court's dismissal of her third-party petition.

DISCUSSION

On appeal, Ms. Rich contends that the trial court erred (1) in dismissing her third-party petition for failure to state a claim because she properly pleaded a cause of action for contribution under a common law negligence theory, and (2) in dismissing her third-party petition with prejudice without leave to amend.

Our review of a dismissal for failure to state a claim is de novo. Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 768 (Mo. banc 2007). A motion to dismiss for failure to state a claim upon which relief may be granted is exclusively a test of the adequacy of the petition. Id. We will affirm a dismissal on any ground that supports the motion to dismiss. Beck v. Fleming, 165 S.W.3d 156, 158 (Mo. banc 2005). In considering whether a petition fails to state a claim upon which relief can be granted, we give the pleadings their broadest intendment, and we construe all allegations favorably to the pleader. Bachtel v. Miller County Nursing Home Dist., 110 S.W.3d 799, 801 (Mo. banc 2003). We review the petition in “an almost academic manner, to determine if the facts alleged meet the elements of a recognized cause of action, or of a cause that might be adopted in that case.” Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993). We disregard conclusory allegations that are not supported by the facts. Whipple v. Allen, 324 S.W.3d 447, 449–50 (Mo.App.2010). We do not address the merits of the case or consider evidence outside the pleadings. Ryann Spencer Gp. v. Assurance Co., America, 275 S.W.3d 284, 287 (Mo.App.2008).

I. Contribution/Common Law Negligence

In her first point, Ms. Rich argues that the trial court erred in dismissing her third-party petition against the Humane Society because she properly pleaded a cause of action for contribution based on common law negligence. She asserts that her petition alleged facts sufficient to show that the Humane Society (1) had a duty to prevent the adoption of the dog by implementing any tests and procedures it knew or should have known about to identify the dog's dangerous nature or propensity to bite, and (2) had a duty to fully inform Ms. Rich of the risks presented by keeping a dog that it knew had bitten before and encouraging her to keep the dog in contravention of its own policy not to try to re-train dogs that have already bitten because of the likelihood they would bite again. We disagree with these arguments and with the premises on which they are based.

A. Contribution

Ms. Rich's third party claim against the Humane Society seeks contribution. “ ‘When two or more persons become liable in tort to the same person for the same harm, there is a right of contribution among them.’ ” Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432, 442 (Mo. banc 2002) (quoting Safeway Stores, Inc. v. City of Raytown, 633 S.W.2d 727, 730 (Mo. banc 1982) (quoting Restatement (Second) of Torts section 896A(1) (1965))). “To maintain an action for contribution, both the party seeking contribution and the ‘defendant against whom contribution is sought must be ... tortfeasor[s], originally liable to the plaintiff-injured party.’ ” Gramex, 89 S.W.3d at 442 (quoting Safeway, 633 S.W.2d at 730 (citing W. Prosser, Law of Torts, section 50, at 300 (4th ed.1971))) (alterations in original). “[L]iability for...