Summary 2006 WY 106

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Case Name: Black v. William Insulation Company, Inc.

Citation: 2006 WY 106

Docket Number: 05-249

Appeal from the District Court of Lincoln County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiff): Sharon M. Rose of Lavery & Rose, P.C.; Evanston, Wyoming; and Elizabeth Greenwood of Pinedale, Wyoming.

Representing Appellee (Defendant): Patrick J. Murphy and Jakob Z. Norman of Williams, Porter, Day & Neville, Casper, Wyoming.

Date of Decision: August 29, 2006

Issues: Whether the trial court erred in failing to recognize a duty of care from an employer to innocent third parties who are injured, or in this case, killed by its employees who are exhausted due to the working conditions imposed by the employer and thus fall asleep at the wheel. Whether the trial court erred in granting summary judgment and summarily dismissing Appellant's negligent misrepresentation claim.

Holdings: Whether a legal duty exists is a question of a law, and absent a duty, there is no liability Duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. A duty may arise by contract, statute, common law, or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. The legal question to be answered by the court is whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other - or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. Some of the key policy factors to be considered are: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.

In the present action, Appellant argues that an employer has an obligation to ensure that the conditions of employment do not cause an employee to become fatigued and, to the extent that they do, the employer has a duty to take reasonable actions to protect the traveling public from the foreseeable consequences of those employees traveling from their worksite. Essentially, the question of duty that we must determine in this case is whether Appellee's actions and/or inactions prior to the accident created a foreseeable risk of harm that the employer had a duty to guard against.

The foreseeability of harm factor is essentially a consideration of proximate cause. Proximate cause is explained as the accident or injury must be the natural and probable consequence of the act of negligence. In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff's injuries. If the original wrong furnished only the condition or occasion, then it is the remote and not the proximate cause, notwithstanding the fact that there would have been no loss or injury but for such condition or occasion. Thus, in the present action the question then is whether or not Appellee's conduct was a substantial factor in bringing about the death of the decedent. Or more precisely, a showing of causation necessitates a showing that work was a substantial contributing factor to fatigue. This means that for an employer to be liable for the actions of a fatigued employee on a theory of negligence, the fatigue must arise out of and in the course of employment because to hold otherwise would charge an employer with knowledge of circumstances beyond his control. The scope of an employer's duty is bound by activity that the employer can actually control within the employment relationship.

Appellant contends that the accident was a foreseeable consequence of Appellee's conduct. Specifically, she claims that it was foreseeable that the large influx of workers into the remote, rural area where the Appellee's plant was located would cause traffic problems and that despite being aware of this, Appellee required its employees to work long hours and make long commutes. She argues that workers who were commuting and working twelve to fourteen hours a day would not have sufficient time in the day to take care of life activities and still get sufficient sleep. Given these conditions, Appellant contends that without employer supplied alternatives such as bus transport, it was foreseeable that sleep deprived workers would likely fall asleep and cause injury to other travelers on the roads.

The most obvious factor within the employer's control that could cause fatigue in an employee is the number of hours the employee is required to work. On the day of the accident and those preceding it, the commuting driver worked his normal shift of ten hours. A ten-hour shift within a twenty-four-hour period is not, on its face, an objectively unreasonable period of work. There is no evidence that Appellee had notice that the driver was fatigued on the day of the accident. Appellant seeks to expand the hours of work to include the time of his commute claiming that Appellee "required" him to make the lengthy drive to and from the plant citing Appellee's refusal to allow its employees to ride buses provided for commuters. First, Appellant cites no authority for the proposition that Appellee was required to provide its employees with alternatives, such as busing, to commuting. Furthermore, Appellee did, in fact, provide an alternative to long distance commuting for its employees: it provided its employees, including the driver, with a daily thirty dollar subsistence payment to partially offset the cost of taking lodging closer to the worksite. The driver, however, elected to pocket that money and commute every day from his home in Evanston. That was a voluntary choice made by the driver. Additionally, Appellant fails to address a significant factor: the driver's decision to work a second job. After returning to Evanston upon completion of his work day for Appellee, he would go to a second job at a restaurant. On the night before the accident, he stated that he returned home about 8:30 p.m., went to work his second job, and got to bed around 11:00 p.m. Certainly, the second job had an affect on his ability to get rest, if not actual sleep. He admitted that he normally got only about five to six hours of sleep a night. Nevertheless, Appellant neglects to discuss the consequences of the second job in her brief. An employer has every reason to assume that the employee, upon reporting to work, had received sufficient rest. The burden is on an employee to manage his own time to ensure that he was capable of performing his job. The driver in the present action elected to expend a significant portion of his time making a lengthy commute and working a second job. These were voluntary decisions made by him for which he is responsible. Under these circumstances, it cannot be said that his employment was the substantial factor in contributing to fatigue. Thus, the decedent's injuries were not the "natural and probable consequence of" any acts of negligence by Appellee in the course of the driver's employment; rather, the decisions and conduct of the driver were the substantial factor that brought about the injuries. Since the harm to Appellant's decedent was not a foreseeable consequence of Appellee's actions (or inactions), no duty will be imposed.

Appellant suggests that the Industrial Development Information and Siting Act, Wyo. Stat. Ann. §§ 35-12-101 through 35-12-119, may provide a basis for finding a duty of care on the part of Appellee or, at a minimum, satisfy the factor of finding a "policy of preventing future harm" in favor of imposing a duty. Appellant's argument is moot insofar as it relates to foreseeability. As for the claim that the Act could be an independent basis for imposing a duty, Appellant has failed to provide a cogent argument. Her brief does not contain a statement of the issue setting forth this claim. W.R.A.P. 7.01(d). The Act is cited once in Appellant's main brief and no analysis of the Act's language within the context of this case is provided. She does present some semblance of an analysis in her reply brief. However, the reply brief is not the proper forum for that argument. A reply brief is intended "to allow the appellants the opportunity to address issues and arguments raised by the appellees. Given the lack of cogent argument, the matter will not be considered.

Finally, Appellant contends that the district court erred in dismissing a negligent misrepresentation claim. Her claim is that even if there was no duty of care, Appellee might be liable for the negligent misrepresentation made by its project manager when he informed Appellee's employees that they could not ride the buses provided by the general contractor. Appellant did not plead negligent misrepresentation, and the district court did not rule on such a claim. She contends that the claim is sufficiently implicit in her complaint to have given notice of it. That may be; however, there is nothing in the record establishing that the claim was made to the district court. We generally will not consider issues raised for the first time on appeal.

Under the circumstances of this case, the defendant employer did not owe a duty to the plaintiff's decedent. The district court order granting the defendant summary judgment is affirmed.

J. Hill delivered the opinion for the court.