The answer is no.  This is an interesting case because the plaintiff isn’t actually the one filing against the Humane Society.  The defendant third-partied them into the case to try to minimize her losses, but the strategy didn’t work.  Honestly, it wasn’t a bad strategy, but I’m not sure I would have appealed the trial court’s decision based on all of the unfavorable case law.

To put the case in context, Plaintiff (Ms. Miles) was bitten by a dog and filed suit for her injuries against Defendant, the dog’s owner (Ms. Rich).  After being sued, Defendant filed a third-party petition against the Humane Society for contribution.  The Defendant’s claim alleged the Humane Society was negligent in failing to properly screen and test the dog before allowing it to be adopted.  The Defendant further alleged that the Humane Society was negligent in failing to advise Defendant of the risks of owning a dog that had already bitten someone once before.  The trial court granted the Humane Society’s Motion to Dismiss for Failure to State a Claim.  The Defendant subsequently appealed.

The Missouri Court of Appeals for the Eastern District affirmed.  The Eastern District’s 13-page decision can best be summed up in the following two paragraphs of the opinion:

Section 518 of the RESTATEMENT has been specifically applied to a situation in which a seller of a dog who no longer possessed the dog was sued on a theory of negligence when the dog later bit a child.  In Blaha v. Stuard, 640  N.W.2d 85 (S.D. 2002), the court held that the seller of the dog could not be liable for negligently failing to prevent the harm because he did not “possess” the dog, which was required for liability under the theory of negligence set out in the RESTATEMENT.  The court further held that in order to establish liability  under this theory, the court would have to place the seller of the dog in the shoes of the possessor of the dog and there was nothing to support the contention “that possessor’s liability may be super-imposed upon a seller.”  Blaha, 640 N.W.2d at 89-90.

Here, the Humane Society did not own, possess, harbor, or control the dog when it bit Ms. Miles.  As a result, it had no duty under common law negligence principles to prevent the harm to Ms. Miles.  It was not liable in common law negligence to Ms. Miles for harm caused by Ms. Rich’s dog.

Miles, a minor, et al., v. Rich v. Humane Society of Missouri et al., No. 95112 (Mo. App. E.D., April 26, 2011) Crane, J.