Summary 2006 WY 42

Summary of Decision issued April 7, 2006

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Case Name: Killian and Oakley v. Caza Drilling, Inc. and Long

Citation: 2006 WY 42

Docket Number: 05-37

Appeals from the District Court of Teton County, The Honorable Nancy Guthrie, Judge.

Representing Appellants (Plaintiffs): Robert N. Williams of Meyer and Williams, Jackson, Wyoming and James K. Lubing of James K. Lubing Law Office, Jackson, Wyoming. Argument by Mr. Williams.

Representing Appellees (Defendants): George Santini of Ross, Ross & Santini, LLC, Cheyenne, Wyoming, and Robert C. Jarosh of Hirst & Applegate, PC, Cheyenne, Wyoming for Appellee Caza Drilling, Inc. Gary R. Scott and Robert C. Jarosh of Hirst & Applegate, PC, Cheyenne, Wyoming for Appellee Orvil Long. Argument by Messrs. Santini and Jarosh.

Date of Decision: April 7, 2006

Issues: Appellants: Whether a duty to the motoring public arises where an employee became intoxicated on company premises with the corroboration and knowledge of his supervisor and in violation of a company policy expressly adopted to protect the public. Whether the Wyoming Dram Shop Act is applicable to the facts of this case. Whether court ordered counseling is one of the express exceptions to a privilege under Wyo. Stat. Ann. § 33-38-103.
Caza: Whether the Court should create a duty on the part of employers which have adopted policies prohibiting worksite possession or consumption of alcohol greater than those recognized under the Wyoming Dram Shop Act. Whether an employer can be held vicariously liable for off duty, off premises torts committed by employees or ex-employees. Whether there was a legally recognizable duty owed by Caza Drilling to the Appellant. Assuming such a duty exists, was the death of Jeffrey Pool so far attenuated and disconnected from the breach of the duty to the extent that any such breach as a matter of law could not be a proximate cause.
Long responds: Whether Wyo. Stat. Ann. § 12-8-301 immunized Orvil Long from liability for damages resulting from the accident that caused Jeffrey Pool’s death. If Wyo. Stat. Ann. § 12-8-301 does not immunize Orvil Long from liability for damages resulting from the accident that caused Jeffrey Pool’s death, does Wyoming law impose a duty upon Long, under the circumstances of this case, to protect against the harm caused to Pool. Whether the trial court abused its discretion in ordering that information regarding Orvil Long’s alcohol counseling, which was court-ordered in an unrelated case, was confidential pursuant to Wyo. Stat. Ann. § 33-38-113.

Holdings: Summary judgment is appropriate when no genuine issue exists of any material fact and the moving party is entitled to judgment as a matter of law. The Court examines the record in the light most favorable to the party who opposed the motion for summary judgment, and give that party all the favorable inferences that may fairly be drawn from the record. Through the application of the doctrine of respondeat superior, an employer is only liable for the negligence of an employee who is acting within the scope of his employment. Appellants asked the Court to expand the recognized circumstances in which an employer is liable for the negligence of its employees by imposing a duty directly upon the employer when it has adopted a safety policy with the intent to benefit the public.
The Court rejected Appellant’s use of Peal by Peal v. Smith from the North Carolina Court of Appeals. Next, the Court considered the factors set out in Gates v. Richardson as they applied to the instant case: the foreseeability of harm to the plaintiff; the closeness of the connection between the defendant’s conduct and the injury suffered; degree of certainty that the plaintiff suffered injury; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of burden on the defendant; and the consequences to the community and the court system; and the availability, cost and prevalence of insurance for the risk involved. The law generally recognizes only two situations in which an employer is held liable for the negligent acts of his employees: when the employee is acting within the scope of his employment pursuant to the doctrine of respondeat superior, and when the employee is acting outside the scope of his employment but is on the employer’s premises or is using the chattel of the employer and the employer knows or has reason to know that it has the ability and opportunity to control the employee pursuant to Restatement (Second) of Torts § 317. The Court stated that the expansion of the duty to include the circumstances in the instant case might result in an employer forgoing the adoption of any safety rules to avoid the risk of liability. Under the circumstances of the instant case, the Gates factors do not favor imposing a duty on the defendant. The Court declined to expand the scope of an employer’s liability for the negligent acts of their employees beyond that already established under the law. Neither situation of the duties imposed under § 317 of the Restatement (Second) is applicable to the facts of this case, so there was no duty owed under the section. Appellants’ third party beneficiary theory was not supported by a cogent analysis with citation to appropriate legal authority so the Court declined to consider it.
Special concurrence: The Court took into account Appellant’s second issue regarding whether the Dram Shop Act is applicable. The Court found no duty, so there was no need for a defense, making this part of the argument moot. The argument that the Dram Shop Act creates a statutory duty was raised for the first time on appeal and the Court will not address such issues.

The Court affirmed.

C.J. Hill delivered the opinion for the court; with J. Golden specially concurring.

Link to the case: http://tinyurl.com/jshxs .