 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Like v. Glaze2/3/2004
, Co. , 75 S.W.3d 247, 257 (Mo. banc 2002).
Whether a duty exists is a question of law. Id. Foreseeability is the touchstone for the creation of a duty. Id. A duty is established when a defendant is shown to have actual or constructive knowledge that there is some probability of injury sufficiently serious that an ordinary person would take precautions to avoid it. Pierce v. Platte-Clay Electric Co-op., Inc. , 769 S.W.2d 769, 776 (Mo. banc 1989). Glaze had a duty here if he knew or should have known that the dog could cause harm to others if it were allowed to run at large. Here, although the dog would bark and jump up when approached by a stranger, there is no genuine dispute that it had never bitten, attacked, or harmed anyone. Like has not produced any evidence tending to show that it was foreseeable that the dog could cause harm if it were allowed to run at large.
Like's reliance on Wilson v. Simmons is misplaced. 103 S.W.3d 211 (Mo. App. W.D. 2003). In that case, the court reversed summary judgment on a premises liability claim because the trial court mistakenly held that the plaintiff was required to prove that the defendant knew or should have known of the dog's abnormally dangerous propensities. Id. at 216. This is not a premises liability case. Moreover, the dog in Wilson had bit and nipped at a child on several occasions before it bit the plaintiff, whereas here there was no such evidence. Id. at 215. Likewise, cases involving substances, such as fumes and water, that are harmless to others so long as they are confined to the defendant's own property, but which the defendant knows to be mischievous if they get on his neighbor's property are equally inapplicable. See Behle v. Shell Pipe Line Corp. , 17 S.W.2d 656, 657 (Mo. App. 1929) (citing Rylands v. Fletcher, 1 L.R.-Ex. 265 (1866)). Glaze had no reason to know the dog would cause harm if not confined.
There is no genuine dispute as to the facts showing that the attack on Like was unforeseeable. Thus, Glaze had no duty to restrain the dog, and summary judgment was proper.
Point denied.
III. CONCLUSION
The judgment is affirmed.
|