Wilson ex rel. Wilson v. Simmons

• Decision Date: 18 February 2003
• Docket Number: No. WD 60571.,WD 60571.
• Parties: Katie B. WILSON, by her next friend, Tern A. WILSON, and Daniel E. Wilson and Terri A. Wilson, Appellants, v. Mark R. SIMMONS and Teresa L. Simmons, Respondents.
• Court: Missouri Court of Appeals

Page 211

103 S.W.3d 211

Katie B. WILSON, by her next friend, Tern A. WILSON, and Daniel E. Wilson and Terri A. Wilson, Appellants, v. Mark R. SIMMONS and Teresa L. Simmons, Respondents.

No. WD 60571.

Missouri Court of Appeals, Western District.

February 18, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 1, 2003.

Application for Transfer Denied May 27, 2003.

COPYRIGHT MATERIAL OMITTED

H. Kent Desselle, Independence, MO, for appellants.

John E. Franke and Nikki Cannezzaro, Kansas City, MO, for respondents.

Before: ULRICH, P.J., and SPINDEN and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Terri A. Wilson, in her individual capacity and as next friend for her minor daughter, Katie B. Wilson, and Daniel E. Wilson, Terri's husband and Katie's father, appeal from the trial court's summary judgment for the respondents, Mark R. Simmons and Teresa L. Simmons, on the appellants' claims arising out of Katie's being bitten by the respondents' dog. In their two-count petition, the appellants sought damages for personal injuries, reimbursement of medical expenses, and for loss of services.

In their sole point on appeal, the appellants claim that the trial court erred in granting summary judgment to the respondents on the appellants' claims on the basis that, after a reasonable period of time for discovery, they could not prove, under any theory pled, an essential element of their claims, that the respondents knew or should have known that their dog had vicious propensities, because there was a genuine dispute as to that material fact.

We reverse and remand.

Facts

The parties were neighbors. On July 11, 1994, nine-year-old Katie was playing with the respondents' daughter, Tiffany Simmons, at the respondents' home, when she was bitten by Bo, the respondents' dalmation dog. Katie was petting the dog just before it bit her. As a result of being bitten, Katie suffered several puncture wounds to her throat, which damaged her trachea. As a result, she was taken by ambulance to Children's Mercy Hospital in Kansas City, Missouri, where she underwent emergency surgery to repair her trachea, followed by a stay in the hospital's intensive care unit. Katie remained in the hospital a total of three days.

On November 12, 1998, the appellants filed suit against the respondents in the associate division of the Circuit Court of Jackson County. In Count I of the petition, Katie, through her mother as next friend, sought recovery for her injuries, and in Count II, Katie's parents sought damages for reimbursement of medical expenses and the loss of Katie's services. The appellants' claims were pled under three alternative theories of recovery: strict liability, premises liability, and negligence. On January 18, 2001, the appellants filed a request for a jury trial. The case was then transferred on February 22, 2001, to a circuit division, Division 2 of the Circuit Court of Jackson County.

On July 20, 2001, the respondents filed a motion for summary judgment alleging that the appellants had not produced and would not be able to produce sufficient evidence to establish the requisite proof elements of their claims, under any of the three theories pled, specifically that the respondents' dog possessed vicious propensities that were known by or should have been known to them prior to the incident. In support of their motion, they attached their affidavits, which averred, inter alia, that prior to the date of their dog biting Katie, neither of them had ever seen or known of their dog biting, nipping, or otherwise harming anyone, including their own daughter, Tiffany. On September 17, 2001, the appellants filed their response to the respondents' motion, accompanied by the affidavits of Mrs. Wilson and Katie. According to Mrs. Wilson's affidavit, immediately following the dog bite, Mrs. Simmons exclaimed that "the dog had bit and nipped at her own daughter [Tiffany] on several occasions." Similarly, Katie stated in her affidavit that Tiffany had told her that "sometimes the dog bit at her when it was feeding."

The respondents' motion was heard by the trial court on September 26, 2001, and sustained on September 27, 2001. In entering summary judgment for the respondents, the trial court found that "a plaintiff seeking to recover damages from a dog bite must prove that the dog owner knew or at least had reason to know of his pet's tendency to bite people, or its `dangerous propensities.'" The trial court further found that this requirement existed "[r]egardless of the theory upon which the claim is based."

This appeal followed.

Standard of Review

Our standard of review is set forth in ITT Commercial Fin. Corp. v. Mid-Am Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993), which states, in relevant part:

When considering appeals from summary judgments, the [c]ourt will review the record in the light most favorable to the party against whom judgment was entered. Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the summary judgment motion. We accord the non-movant the benefit of all reasonable inferences from the record.

Our review is essentially de novo. The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially. The propriety of summary judgment is purely an issue of law. As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.

(Citations omitted.)

I.

In their sole point on appeal, the appellants claim that the trial court erred in granting summary judgment to the respondents on the appellants' claims on the basis that, after a reasonable period of time for discovery, they could not prove, under any theory pled, an essential element of their claims, that the respondents knew or should have known that their dog had vicious propensities, because there was a genuine dispute as to that material fact. Specifically, they claim that they had put the issue of the respondents' dog's vicious propensities in dispute sufficiently to defeat the respondents' motion for summary judgment, in that in Mrs. Wilson's affidavit, she stated that, immediately following the dog bite, Mrs. Simmons exclaimed that the dog had bit and nipped at her own daughter on several occasions and that in Katie's affidavit she stated that the respondents' daughter had told her that sometimes the dog bit at her when it was feeding.

To make a prima facie case for summary judgment under Rule 74.04,¹ the movant must show that: (1) there is no genuine dispute as to the material facts on which the movant is relying for summary judgment; and (2) based on those undisputed facts, the movant is entitled to judgment as a matter of law. Rule 74.04; ITT Commercial Fin., 854 S.W.2d at 380. If the movant is a defending party, as in our case, a prima facie case for summary judgment can be made by employing one or more of three means: (1) showing undisputed facts that negate any one of the plaintiff's required proof elements; (2) showing that the plaintiff, after an adequate period of discovery, has not produced and will not be able to produce evidence sufficient to allow the trier of fact to find the existence of one or more of the plaintiff's proof elements; or (3) showing that there is no genuine dispute as to the existence of the facts necessary to prove the movant's properly pleaded affirmative defense. ITT Commercial Fin., 854 S.W.2d at 381. "Regardless of which of these three means is employed by the `defending party,' each establishes a right to judgment as a matter of law." Id. "Where the facts underlying this right to judgment are beyond dispute, summary judgment is proper." Id.

The appellants' claims were pled on three alternative theories of recovery: (1) strict liability; (2) premises liability; and (3) negligence. Thus, as a defending party, to make a prima facie case for summary judgment, the respondents were required to demonstrate in their motion, employing one or more of the three means discussed in ITT, that on the undisputed material facts alleged, the appellants could not, as a matter of law, recover on any of the three theories pled. Ashworth v. City of Moberly, 53 S.W.3d 564, 571 (Mo.App. 2001). In their motion, the respondents employed the second means available to a defending party for obtaining summary judgment. They contended, as the sole basis for their motion, that regardless of the theory pled, they were immune from liability for their dog's attack on Katie, unless the appellants could prove that, at that time, the respondents' dog possessed vicious propensities, of which the respondents had actual or constructive knowledge, and that the appellants had not and would not be able to produce any evidence establishing that fact. In that regard, the respondents argued below that even assuming that their dog had bitten or had nipped at their daughter on a prior occasion or occasions, as asserted in the appellants' response to the respondents' motion for summary judgment, that fact was insufficient to put the issue of their dog's vicious propensities in genuine dispute so as to allow the appellants to survive summary judgment in that proof of a prior dog bite and/or attempts to bite is insufficient to establish the vicious propensities of a dog without evidence of the circumstances relating to the occasion of the biting and its extent.

In entering summary judgment for the respondents, there can be no doubt that the trial court agreed with the respondents' argument with respect to the appellants' being required to show that the respondents' dog possessed vicious propensities of which they had actual or constructive knowledge. In that regard, the judgment of the trial court reads: ...