Summary 2011 WY 127

Summary of Decision September 12, 2011


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Case Name: Weber v. State

Citation: 2011 WY 127

Docket Number: S-10-0049

URL: http://www.blogger.com/goog_1809106292

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge

Representing Appellant (Plaintiff): Vance Countryman, Lander Wyoming; Cynthia Van Fleet of Wind River Law Center, Riverton, Wyoming.

Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Thomas W. Rumpke, Senior Assistant Attorney General.

Date of Decision: September 12, 2011

Facts: Appellant was severely burned by hot mineral water when he lost consciousness in the steam room at the Star Plunge in Hot Springs State Park. He brought a personal injury action, naming C & W Enterprises, Inc., d/b/a the Star Plunge; a Star Plunge principal, Wolfgang Luehne; and the State of Wyoming as defendants. The State moved for summary judgment on a number of grounds, including that it was immune from suit pursuant to the Wyoming Governmental Claims Act. The district court determined the State was immune and granted summary judgment in its favor, but did not rule on any of the State’s other theories of non-liability. Appellant appealed.

Issues: Whether the district court erred by ruling that the State was immune under the circumstances presented here because its activities did not fall within the waiver for operation and maintenance of a public park under Wyo. Stat. 1-39-106 (2011).

Holdings: The Wyoming Governmental Claims Act is a “close-ended tort claims act,” meaning that the general rule in Wyoming, as stated in Wyo. Stat. 1-39-104(a), is the government is immune from liability. Therefore, unless a claim falls within one of the statutory exceptions to governmental immunity stated in Wyo. Stat. 1-39-105 through 1-39-112, it is barred. Appellant asserts his claims fall within the waiver of immunity for operation and maintenance of a public park found in § 1-39-106.

Wyo. Stat. Ann. 36-8-301 et seq. govern Hot Springs State Park. Wyo. Stat. Ann. 36-8-304, specifically authorizes the State to lease park lands and provide hot spring water to lessees. On its face, the legislation envisioned that the operation of Hot Springs State Park would include leasing property to private persons who would provide facilities for the public to use the hot mineral water. The statute also contemplates the State would regulate those buildings and improvements, approve building plans, specify materials, and provide hot mineral water to the facilities. Thus, when § 36-8-304 is read in conjunction with § 1-39-106, it is obvious that the legislature intended to waive immunity for the State’s alleged negligence in approving its lessee’s (the Star Plunge’s) design and construction of the Vapor Cave and in supplying the water.

Also, in addition to the typical regulatory inspections, the Concession and Revenue Manager for the State conducted annual inspections of the Star Plunge as part of the State’s role as owner and lessor of Hot Springs State Park property. The lease between the Star Plunge and the State specifically required the Star Plunge to comply with the rules and regulations adopted by the agency that oversees state parks and the agency that oversees health regulations. Under these circumstances, the State’s operation and maintenance of Hot Springs State Park included overseeing and/or inspecting its lessee’s property. Wyo. Stat. 1-39-106 waives immunity for public employee negligence in this role.

Although the State is not immune under the circumstances presented here, this does not mean to suggest that the State will ultimately bear liability for Appellant’s injuries. The concepts of immunity and liability seem to have been conflated in this case. Immunity prevents the State from being sued in the first place. Even though the State is not immune, there may be other legal principles which insulate it from liability. Issues such as whether the State had a duty to provide for the safety of patrons on the leased property, whether the duty had been delegated to the lessee, whether any duty was breached, and/or whether any breach was the proximate cause of Appellant’s injuries will have to be addressed to determine whether the State is liable in this case. Those questions were not decided by the district court and are not fully joined at this time. The sole issue that has been fully presented to this Court is the question of whether the legislature waived immunity under the Wyoming Governmental Claims Act and it is concluded that it did.

Reversed and remanded.

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

J. Golden, joined by J. Hill, dissented. Wyo. Stat. 36-8-304 (2011) does not mandate the State lease land for concessionaires to open bath houses. The statute only provides that the State “may” lease land. Thus, while the statute establishes the general purpose of the Park to be the establishment of baths and bathhouses for the public to enjoy the healing properties of the mineral water, it does not mandate leasing property as a means of carrying out that objective. Thus, under the statutory mandate, the existence of Star Plunge is not necessary to the operation the Park. The State can, and does, fulfill the purposes of the Park without any particular concessionaire. Because the lease to Star Plunge, and specifically the existence of the Vapor Cave, is not essential to the functionality of the Park, governmental immunity has not been waived on the ground that ensuring the safety of the Vapor Cave is part of the operation of the Park.

The remaining question is whether ensuring the safety of the Vapor Cave is part of the maintenance of the Park. In other words, is ensuring the safety of the Vapor Cave a necessary action to keeping the Park in a state of good repair? By his argument, Appellant asks the Court to find that maintaining the Park includes maintaining facilities owned and operated by third parties on leased land within the Park. The definition should not be extended so far. The State’s maintenance of the Park extends only to land within the direct control of the State. Maintenance of the Park does not include maintaining land leased to third parties.

Appellant also attempts to impose liability on the State under landlord-tenant principles. He does not, however, point to any statutory provision in support of his argument that the State loses its immunity because it is the owner and lessor of the property on which Star Plunge sits. Presumably, then, Appellant must be arguing that being a landlord falls within the category of operating the Park. Leasing property is not required for the functioning of the Park so it is not an operational undertaking by the State.

In essence, Appellant’s argument that the State was negligent in the operation and maintenance of the Park by not ensuring the Vapor Cave was safe is an attempt to make the State the guarantor of people’s safety wherever they might be within the confines of Park land. The scope of the terms “operation” or “maintenance” should not be extended to that degree. Ensuring the safety of the Vapor Cave was not part of the operation or maintenance of the Park.