Dennis Miller v. Apria Healthcare

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2603
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Dennis Miller; Terrence Miller, *
*
Appellants, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Apria Healthcare, Inc., * [UNPUBLISHED]
*
Appellee. *
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Submitted: January 14, 2002
Filed: January 24, 2002
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Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Dennis Miller arranged to have Apria Healthcare, Inc. (Apria) deliver oxygen
tanks to his mother, Edna Miller, an elderly home-bound patient. Because Mrs.
Miller could not answer the door without assistance, Dennis Miller repeatedly
instructed Apria to deliver the tanks after three p.m., when someone else would be
home. At 2:22 p.m. on August 28, Apria delivered oxygen tanks to Mrs. Miller,
“pounding” on the door to gain her attention. Mrs. Miller attempted to answer the
door without assistance, but fell and broke her hip. Mrs. Miller died as a result of her
hip fracture. Claiming diversity jurisdiction, Dennis Miller and his brother Terrance
Miller sued Apria in federal court, alleging Apria negligently caused their mother’s
death. The district court* granted Apria’s motion to dismiss. Applying Missouri law,
the district court found Mrs. Miller’s injury was not reasonably foreseeable so Apria
did not owe Mrs. Miller a duty of care in timing its deliveries. See Lopez v. Three
Rivers Electric Coop., Inc., 26 S.W.3d 151, 155-56 (Mo. banc 2000). The district
court found that Dennis Miller’s warnings put Apria on notice that early delivery
attempts were likely to be unsuccessful because no one would answer the door. The
Millers did not claim they warned Apria that Mrs. Miller might attempt to answer the
door unassisted, thus creating a risk of injury. Apria, then, was not on notice that
early deliveries could create a foreseeable risk of injury.
Having carefully reviewed the record de novo and considered the facts and all
reasonable inferences that can be drawn from them in the light most favorable to the
Millers, we conclude the district court correctly decided that the Millers’ complaint
did not state a claim for which relief could be granted. Sisley v. Leyendecker, 260
F.3d 849, 850 (8th Cir. 2001). We also conclude the district court did not abuse its
discretion in denying the Millers’ motion to amend the complaint; the proposed
amended complaint does not cure the deficiencies and amendment would be futile.
Grandson v. Univ. of Minn., 272 F.3d 568, 575 (8th Cir. 2001). Because an extended
opinion would serve no useful purpose in this diversity case, we affirm without
further discussion. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
*
The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
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