Summary 2005 WY 145

Summary of Decision issued November 9, 2006

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Case Name: City of Torrington v. Cottier

Citation: 2006 WY 145

Docket Number: 05-267

Appeal from the District Court of Goshen County, the Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Loyd E. Smith of Murane & Bostwick, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Michael E. Warren of Sawyer & Warren, PC, Torrington, Wyoming.

Issue: Whether the waiver of governmental immunity for the “operation” of public utilities found in W.S. § 1-39-108(a) extends to “maintenance” of public utilities.

Holding: Cottier obtained a judgment against the City of Torrington after his rental property was damaged by the backup of raw sewage. The City appealed claiming immunity under the Wyoming Governmental Claims Act.
Standard of Review: Resolution of the issue in the instant case requires interpretation and application of the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101. Statutory interpretation is a question of law which the Court reviews de novo.
Discussion: The City contends that Cottier’s claim for damages was precluded by governmental immunity. The City claimed it was immune from liability under the facts of the case. The WGCA is a close-ended tort claims act. Unless a claim falls within one of the statutory exceptions to governmental immunity, it will be barred. The City characterized the issue as one of maintenance versus operation to determine immunity. The Court determined the proper question was what the legislature meant by the phrase “operation of a public utility.” "Operation” was not defined by the legislature so the Court furnished the ordinary meaning of “the state of being operative or functional.” Testimony supported the meaning to include maintenance of the system. The Court has recognized that operation of a public utility entails keeping the sewer system free from blockage. The Court referred to South Cheyenne Water and Sewer District v. Stundon and Lore v. Town of Douglas as examples of the Court’s decisions in this area. The City attributed significance to the legislature’s use of the term “operation.” The Court was not persuaded stating that applying the plain and ordinary meaning of the term did not result in inserting words into the statute. “Operation of a public utility” is a broad concept which includes acts required to keep the utility functional. The Court distinguished their decision in Harbel from the instant case. The Court found in Harbel the operation of a vehicle distinct from maintenance of a motor vehicle. They stated the distinction would have been difficult to make in the context of public utilities.
Wyo. Stat. Ann. § 1-39-108 waives immunity for negligence in keeping the public utility operable or functional. If an obstruction in the line occurs and is not removed, the sewer lines are no longer functional or operable. The WGCA was intended to afford a remedy to persons injured by negligent public employees while avoiding the repeated litigation of the question of governmental immunity. The legislature intended for a public utility to be liable in circumstances relating to the operation of a public utility. Adoption of the reasoning urged by the City would render the intended waiver of immunity illusory. The Court found no error in the district court’s determination that the City’s negligent acts fell within the waiver of immunity provided by the statute.

Affirmed.

J. Burke delivered the decision.

Link to the case: http://tinyurl.com/y6tkny .