Summary 2007 WY 175

Summary of Decision issued November 2, 2007

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Case Name: Berry v. Tessman

Citation: 2007 WY 175

Docket Number: S-07-0027

Appeal from the District Court of Hot Springs County, Honorable Gary P. Hartman, Judge

Representing Appellant (Defendants): Michael C. Steel and Jacob L. Brooks of Lonabaugh and Riggs, Sheridan, Wyoming.

Representing Appellee (Plaintiffs): David B. Hooper of Hooper Law Offices, Riverton, Wyoming.

Date of Decision: November 2, 2007

Issue: Whether the district court erred in determining that a landowner had a legal duty to protect a visitor to her property from marmot holes on the premises?

Facts/Discussion: Berry contested the district court’s determination that she was liable for damages sustained when Tessman, a guest in her RV park, injured herself by stepping into a marmot hole on the property. Berry also contested the amount of damages awarded by the district court.
The elements a plaintiff must establish to maintain a negligence action include: the defendant owed the plaintiff a duty to conform to a specified standard of care; the defendant breached the duty of care; the defendant’s breach of the duty of care proximately caused injury to the plaintiff; and the injury sustained by the plaintiff is compensable by money damages. Some factors utilized in determining the existence of a duty include the foreseeability of harm to the plaintiff; the closeness of the connection between the defendant’s conduct and the injury suffered; the 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 the burden upon the defendant; the consequences to the community and the court system; and the availability, cost and prevalence of insurance for the risk involved.
A landowner in Wyoming owes a general duty to act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the risk. Landowners do not have a duty to protect from known and obvious dangers. There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well known to the person injured as they are to the owner of the facilities in question. Additionally, an owner of property has no duty to his invitees to correct a known and obvious danger resulting from natural causes. It is possible to remove a hazard from the ambit of this rule by aggravating the hazard, thereby significantly altering it from a naturally occurring condition that would be encountered off the premises. A plaintiff may show that an otherwise naturally occurring condition does not fall within this rule by showing that the defendant created or aggravated the hazard; that the defendant knew or should have known of the hazard; and that the hazardous condition was substantially more dangerous than it would have been in its natural state.
There is no reason the known and obvious danger rule should not apply to the ubiquitous hazard posed by the holes of burrowing animals. Appellee has not shown that her circumstances warrant a finding that the marmot hole she stepped in was anything other than a naturally occurring, known and obvious danger, from which Appellant had no duty to protect her. She has also not shown that Appellant owed her any other duty that would support a finding of negligence here. The trial court found that Appellant acted in a reasonable manner in attempting to minimize the danger from such holes on her property by filling them regularly and by having the animals trapped whenever they became a nuisance.

Holding: A landowner does not have a duty to protect a guest on her property from a naturally occurring, known and obvious hazard she has not aggravated if she has not, through her own undertaking, created an expectation in her guests that they will be protected from such a hazard. Appellants did not create or aggravate the marmot hole that caused Appellee’s injuries, nor did Appellants undertake any act that could have caused Appellee to rely reasonably on a heightened expectation of safety or special protection from marmot holes on her property.

Reversed and remanded.

C.J. Voigt delivered the opinion for the court.

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