Two-tier system of liability allows case to proceed

There are two levels of liability when bringing a dog-bite case. One is strict liability, showing the owner at least should have known his dog had vicious propensities. A second level is premises liability, which does not require proof that the owner had knowledge of the animal's vicious propensities.

For this reason, the Missouri Court of Appeals for the Western District found a circuit court improperly granted summary judgment to a defendant who showed the plaintiffs would not be able to prove the elements necessary under the strict liability theory. The case had been filed under three theories of law, including premises liability and negligence in addition to the strict liability theory. The case was due to genuine disputes of material fact.

In 1994, Katie Wilson was playing next door at Tiffany Simmons house. Wilson was petting Simmons' dog, a Dalmatian named Bo, just before it bit her, resulting in several puncture wounds to her throat and damage to her trachea. Wilson was at Children's Mercy Hospital for three days while she underwent emergency surgery to repair her trachea.

Wilson and her parents filed suit against Mark and Teresa Simmons, parents of Tiffany Simmons, seeking recovery for Katie Wilson's injuries, reimbursement for medical expenses and loss of Katie's services. The suit was pled under the alternative theories of strict liability, premises liability and negligence.

The Simmons filed a motion for summary judgment, claiming they did not know their dog had vicious propensities and argued the Wilsons would not be able to prove that they had that knowledge.

To recover damages in a dog bite case, a plaintiff must prove the defendant either knew or should have known their dog had a tendency to bite people. For this reason, the circuit court granted the defendants' motion for summary judgment.

On its review of the case, the appellate court noted that a defendant's motion for summary judgment must show the plaintiff will not be able to prove its case on any of the theories proposed. Showing they would be unable to prove one theory is not grounds for summary judgment.

In Duren v. Kunkel (Mo. banc 1991) the court rejected the contention that a pet owner is completely immune to liability under any theory.

"Rather, the court recognized that a possessor of land is liable for injury caused by a domestic animal to an entrant on the land, either as an invitee or licensee, under a theory of premises liability if the entrant can show ... that the animal had 'normally dangerous propensities' and the possess of the land failed to take reasonable steps to warn of or prevent the foreseeable harm posed by the animal's propensities," Judge Edwin Smith wrote. "Thus, Duren teaches us that with respect to the proof element of dangerous propensities in domestic animal cases, strict liability cases require proof of abnormally dangerous or vicious propensities, whereas premises liability cases only require proof of normally dangerous propensities."

Duren establishes that, when a dog possesses abnormally dangerous propensities, despite any precautions taken by the owner, the owner is liable for injuries caused by the animal.

"With respect to a dog that does not possess known vicious dangerous propensities, the rule reflects 'a degree of freedom from potential liability' in recognition of that fact that dog is considered man's best friend," Judge Smith wrote, citing Duren. "However, the Duren court makes it clear that that degree of freedom from liability is not absolute. Logically, just because a dog has great social utility does not mean that its possessor should get a free pass where its normally dangerous propensities present a foreseeable danger to certain classes of entrants on the land."

Katie B. Wilson by her next friend Terri A. Wilson, and Daniel E. and Terri A. Wilson, appellants v. Mark R. and Teresa L. Simmons, respondents; case number WD60571; handed down February 18.

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