Summary 2010 WY 109

Summary of Decision issued August 4, 2010

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

Case Name: Rice v. Collins Communication, Inc.

Citation: 2010 WY 109

Docket Number: S-09-0007

Appeal from the District Court of Campbell County, the Honorable Dan R. Price, II, Judge.

Representing Appellant Rice: Jeffrey A. Tennyson of Jeffrey A. Tennyson, PC; and Heather Noble, Jackson, Wyoming.

Representing Appellees: Stuart R. Day and Ryan J. Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming for Collins Communication, Inc.; Roger E. Shumate and James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming for Communication Technologies, Inc.; Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming for Campbell County Board of County Commissioners, Campbell County Sheriff and Campbell County Emergency Management Coordinator; and Tom. C. Toner of Yonkee & Toner, LLP, Sheridan, Wyoming for Gillette Wright/Campbell County Fire Protection Joint Powers Board.

Facts/Discussion: Rice’s commercial building caught fire in Campbell County. Because of a failure in the communications/paging system used by the county, almost half an hour passed before there was any formal response to the fire. Rice’s building and its contents were almost totally destroyed. Rice filed suit against several county entities as well as two communications companies alleging negligence.

Collins/ComTech duty of care: Rice claimed that Collins and ComTech owed him a duty of care based upon the Restatement (Second) of Torts. The Court has adopted the Restatement view of voluntary undertakings in the “Good Samaritan” context. Under Rice’s argument, a private corporation doing business with a government entity would owe a duty to a private citizen. The Restatement does not contemplate that sort of expansion. Both Collins and ComTech were supplying services at the request of the county. The Court reviewed the district court’s utilization of the eight factor test to determine the existence of a duty and agreed with its conclusions. The Court addressed in further detail factors one and two.
Governmental immunity – scope of duties: As in Sponsel, the Court applied the same statutory construction rule in the instant case. Although Sponsel recognized that the enumerated utilities in the statute is not an “exclusive” list, the Court could not extend the list to the fire page system at issue in part because of the Court’s holding in Huitt which says that firefighting is not similar to or of the same genre as “gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation.” Although the fire page system is not firefighting, the Court rejected Rice’s argument that it qualifies as a public utility. Section 1-39-108 cannot be construed to make a public service of all things that are a “public responsibility.”
Governmental immunity – tortuous conduct of peace officers: Rice claimed that Sheriff Pownall assumed a duty to provide and maintain the communication system, to alert law enforcement and firefighters in the event of an emergency, and to provide a reliable and dependable means for his agency and may other agencies within Campbell County to have interoperable communications in times of emergency. According to Rice, when the Sheriff failed to heed the advice and warnings of private companies that maintained and upgraded the system, he was negligent. Decisions by an elected official regarding expenditures on equipment, type of equipment and replacement parts are within the purview of an elected official’s discretion. The testimony by the Sheriff assured the Court that he knew the system was out of date, and that he was taking steps, in good faith, to replace it.
Governmental immunity – negligent operation of building: Rice also claimed that the County Defendants were not entitled to immunity from liability under §1-39-106. The district court found the section inapplicable, stating the facts do not indicate a building was involved in this instance. The failure of a “repeater” did not implicate negligence in the operation of a building in which it was housed. Rice argued the buildings were various tower sites that house the actual repeaters, transmitters and other communication equipment. Assuming a problem occurred with communication equipment, that equipment does not qualify as a “building” as contemplated by the statute. That communication equipment does not operate as part of the building structure and accordingly its failure does not extend the waiver to any negligence associated with the operation of that communication equipment within the building.

Conclusion: The district court was affirmed on all issues. First, Collins and ComTech owed no duty of care to Rice in operating and maintaining an emergency communications system for Campbell County, when the failure of that system delayed the fire department’s response to the fire that led to the destruction of Rice’s building and property. As to the three governmental immunity claims Rice brought on appeal, there is no waiver of governmental immunity in any of those claims. For purposes of this appeal, the fire page system cannot be considered a public utility under the statute; Sheriff Pownall acted in good faith and within the scope of his duties, and did not exhibit tortuous conduct, and the communication equipment at issue cannot be classified as a “building” for purposes of the statute. Finding no duty, Rice’s fifth and final argument regarding proximate cause was not addressed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2dsec7u .

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