Summary 2006 WY 33

Summary of Decision issued March 22, 2006

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Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Parrish v. Groathouse Construction, Inc. and Advanced Wall Systems, and Simpson Electric Inc.

Citation: 2006 WY 33

Docket Number: 05-141

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge

Representing Appellants (Plaintiffs): Peter S. Dusbabek and Cara J. Stegemann, Fort Collins, Colorado

Representing Appellee Advanced Wall Systems: Peter K. Michael, Cheyenne, Wyoming.

Representing Appellee Groathouse Construction, Inc.: L. Kathleen Chaney and John W. Fairless, Denver, Colorado

Date of Decision: March 22, 2006

Issue: Whether the trial court erred in determining that Groathouse Construction, Inc. (Groathouse) did not have a non-delegable duty for the safety of workers on the job site and in refusing to instruct the jury on Appellant’s tendered instruction regarding the non-assumption of the risk of the work site by workers based on this court’s holding in Jones v. Chevron USA, Inc. Whether the trial court erred by refusing to instruct the jury on the applicable OSHA regulations in Appellant’s tendered instruction submitted on that point. Whether the trial court erred by refusing to instruct the jury on Appellant’s tendered instruction based on W.S. § 27-1-102 providing that “proper and substantial handrails shall be provided on all stairwells in…buildings where people are employed….” Whether the trial court erred in giving Instruction #7 regarding the responsibility of Groathouse which instruction did not follow the Wyoming Civil Pattern Jury Instructions in the Civil Jury Instruction Guideline section 8.07. Whether the trial court erred by allowing Groathouse and Advanced Wall Systems to examine Donald Jones, masonry contractor, to testify beyond the scope of his endorsement.

Holding: The Court combined issues 1 through 4 for the purpose of discussion since all alleged error in the instruction of the jurors. The Court reviewed whether the instructions taken as a whole adequately and clearly advised the jury of the applicable law. The trial court’s ruling on an instruction will not constitute reversible error absent a showing of prejudice, and prejudice will not be said to result unless it is demonstrated that the instruction confused or misled the jury with respect to the proper principles of law. The burden is on the Appellant to show prejudicial error.
Assumption of the risk: Wyoming has adopted a comparative fault statute which effectively abolished the legal doctrine of assumption of the risk in favor of a scheme under which everyone has a duty to exercise ordinary care. The instruction tendered suggested that Appellant had no duty to exercise ordinary care and therefore no fault could be attributed to him which is a misstatement of Wyoming law. The tendered instruction was incorrect as a matter of law and was inconsistent with other jury instructions accepted by Appellants and submitted to the jury.
OSHA regulations: Trial counsel did not object to the trial court’s refusal of Jury Instruction No. 5. Because no objection was lodged, the trial court’s action is not properly preserved for appellate review.
Wyo. Stat. Ann. § 27-1-102: No cogent argument was presented regarding how the statute applies to Appellant’s case. No legal authority was cited. The Court would not entertain such a perfunctory argument.
Jury Instruction No. 7: Instruction No. 7 informed the jury that Groathouse, Simpson and Advanced were all responsible for their own percentage of fault, if any. Appellant’s argument did not change his percentage of fault. As long as Appellant’s fault remained greater than fifty percent, he was not entitled to recovery under Wyoming’s comparative fault statute.
Testimony of Donald Jones: Rulings on the admissibility of evidence are within the sound discretion of the trial court and will not be disturbed absent a showing of a clear abuse of discretion. Appellants did not give any indication of the factual content and import of the testimony in the context of the entire action or even in the isolated context of the testimony as a whole. Appellant failed to carry their appellate burden of demonstrating an abuse of discretion on the part of the trial court.

The decree of the district court was affirmed.

J. Golden delivered the opinion for the court.

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