Summary 2014 WY 16

Summary of Decision January 28, 2014

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: MARK S. HICKS, administrator and personal representative of the ESTATE OF JOHNNA R. HICKS v. TUENIS D. ZONDAG, M.D., and CENTRAL WYOMING NEUROSURGERY, LLC.

Docket Number: S-13-0107

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellant: Laurence W. Stinson, Stinson Law Group, P.C., Cody, Wyoming

Representing Appellee: Jeffrey C. Brinkerhoff, Brinkerhoff Law, Jeffrey C. Brinkerhoff, P.C., Casper, Wyoming

Date of Decision: January 28, 2014

Facts: The estate of Johnna Hicks sued Dr. Tuenis Zondag for negligently causing Mrs. Hicks’ death while he was treating her for severe chronic pain. It also claimed that the doctor’s employer, Central Wyoming Neurosurgery, LLC, should be held vicariously liable for his claimed negligence in causing her death. After a nine-day trial, a Natrona County jury found that Zondag was not negligent in his treatment of Hicks and returned a defense verdict. In its timely appeal from the judgment entered on that verdict, the estate poses one question: Did the district court commit reversible error by permitting Zondag and his codefendant to introduce the testimony of two expert witnesses on the doctor’s adherence to the appropriate standard of care for practitioners of pain medicine?

Issue: Did Appellant waive objections to cumulative testimony under Wyoming Rule of Evidence 403 by failing to object at trial after the district court denied a motion in limine on that basis?

Holdings/Conclusion: In its order on the motion in limine filed by Mrs. Hicks’ estate, the district court deferred a definitive ruling on whether the defense could call two standard of care experts until trial. That decision required the estate to object to the testimony of the second expert when the district court could make a meaningful determination under W.R.E. 403. When it did not object, it failed to preserve the issue for appellate review. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2013 WY 141

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: EVELYN DIFELICI, f/k/a EVELYN BARNES v. CITY OF LANDER

Docket Number: S-13-0046

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Fremont County the Honorable Norman E. Young, Judge

Representing Appellant: Sky D Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Thomas A. Thompson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Date of Decision: November 12, 2013

Facts: Appellant Evelyn DiFelici was injured when she fell after stepping into a hole drilled in the gutter of a street in the City of Lander. She sued the City, claiming that it was negligent in the operation of a public utility or service, and also that she was entitled to recover under a specific statute rendering cities and towns liable for injuries resulting from excavations or obstructions which make streets or sidewalks unsafe. The district court granted the City’s motion for summary judgment.

Issues: 1. Did the City’s failure to replace a grate over the drain inlet fall within the waiver of immunity for negligence of public employees in the operation of public utilities and services under Wyoming Statute § 1-39-108(a)? 2. Does Wyoming Statute § 15-4-307 provide a statutory basis on which Appellant was potentially entitled to recover from the City?

Holdings/Conclusion: The term “liquid waste” in Wyoming Statute § 1-39-108(a) does not include runoff or storm water, and there is thus no exception to immunity available to the Appellant. We also find that the hole drilled in the gutter of Washakie Street to drain water into a privately-owned irrigation ditch was maintenance of a street to compensate for weather conditions, and that the specific immunity of § 1-39-120 therefore also bars her claim. Finally, we conclude that Wyoming Statute § 15-4-307 does not create a cause of action based on the negligence of public employees of cities and towns for excavations or obstructions of streets. We therefore affirm.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2012 WY 126

Summary of Decision September 26, 2012

Justice Burke delivered the opinion for the Court. Reversed.

Case Name: RODNEY SHAFER, individually and d/b/a RENO TRANSPORT, and BRENDA SHAFER  v. TNT WELL SERVICE, INC.

Docket Number: S-11-0258

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Weston County, Honorable Michael N. Deegan, Judge

Representing Appellant: Brian J. Marvel and Ryan J. Schwartz, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.  Argument by Mr. Schwartz.

Representing Appellee: Terry L. Armitage and Curtis B. Buchhammer, Buchhammer & Kehl, P.C., Cheyenne, Wyoming.  Argument by Mr. Armitage.

Date of Decision: September 26, 2012

Facts: Appellant, Rodney Shafer, was injured when his tractor-trailer collided with a pickup owned by Appellee, TNT Well Service, Inc. (“TNT”), and driven by Melvin Clyde.  Mr. Shafer and his wife, Brenda, brought suit against TNT, asserting theories of negligence and vicarious liability for damages resulting from the accident.  The district court granted summary judgment to TNT on all of the Shafers’ claims.  The Shafers challenge that decision in this appeal. 

Issues: The parties raise the following issues:  Did the district court properly determine there was no genuine issue of material fact that Mr. Clyde’s employment with TNT Well Service, Inc. was terminated prior to the accident?  Should this Court adopt the duty recognized in Restatement (Second) of Torts § 317 and, if so, whether a duty of reasonable care can be imposed on the Appellee under the facts of this case?  Did the district court properly determine that the entrustment of a vehicle to Mr. Clyde was terminated prior to the accident and, if not, is there a genuine issue as to whether the entrustment was negligent?

Holdings: The Court found that summary judgment was erroneously granted with respect to the Shafers’ claims of negligent supervision and negligent entrustment.  Reversed and remanded for further proceedings consistent with this opinion.

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

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it was issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

Summary 2011 WY 24

Summary of Decision February 14, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Union Pacific Railroad Company v. Caballo Coal Company

Citation: 2011 WY 24

Docket Numbers: S-10-0112, S-10-0113

URL: http://tinyurl.com/6kfzlx8

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

Representing Union Pacific Railroad Co.: Howard P. Olsen, Jr. and Steven W. Olsen of Simmons Olsen Law Firm, P.C., Scottsbluff, Nebraska.

Representing Caballo Coal Co.: Richard A. Mincer and Billie LM Addleman of Hirst Applegate, LLP, Cheyenne, Wyoming.

Date of Decision: February 14, 2011

Facts: Union Pacific Railroad Company (UP) appeals from the district court’s order granting summary judgment in favor of Caballo Coal Company (CCC) on UP’s claim that it was entitled to be indemnified for payments it made to one of its employees who was injured on CCC property. In a cross appeal, CCC claims the district court erred by granting summary judgment in favor of UP on CCC’s counterclaim for attorney fees.

Issues: Whether the court erred in granting Caballo’s motion for summary judgment on the ground that Caballo had no duty to UP’s employee. Whether the district court should have granted UP’s motion for partial summary judgment on the reasonableness of its settlement with Mr. Riecke.

Holdings: General contract interpretation principles apply to indemnity agreements. The language of the parties expressed in their contract must be given effect in accordance with the meaning which the language would convey to reasonable persons at the time and place of its use. Where there is an express indemnity provision, its parameters are derived from the specific language of [the] contract. Under the terms of their agreement, CCC was obligated to indemnify UP for any loss, damages, etc. arising from the operation of the trains over the tracks to the extent that they result from any negligence or wrongful act or omission of CCC’s officers, employees or agents. This type of provision, which grounds the right to indemnification upon the indemnitor’s negligence, is common. By contrast, there are indemnification agreements where the indemnitor agrees to indemnify the indemnitee for all losses, regardless of fault. Provisions of this sort that exculpate the indemnitee from the consequences of his own negligence are disfavored by the courts and strictly construed. UP’s and CCC’s agreement did not include an all-inclusive right to indemnification and allowed for indemnification only when the indemnitor’s negligence, wrongful act or omission resulted in the indemnitee’s loss. It is not, therefore, the sort of indemnification provision to which the rule of strict construction applies. Under the plain language of the indemnification provision, UP had to establish that CCC’s negligence, wrongful act or omission resulted in that loss. In that respect, an allegation of CCC’s negligence was a condition precedent to its liability under the indemnification agreement.

The district court properly granted summary judgment to CCC because UP did not make any showing that CCC’s negligence caused its employee’s injury. However, the district court erred by granting summary judgment in favor of UP on CCC’s claim for attorney fees because no motion had been filed and CCC was not given notice or an opportunity to be heard on the matter. Affirmed in part and reversed and remanded in part.

Chief Justice Kite delivered the opinion for the court.

Summary 2010 WY 75

Summary of Decision issued June 9, 2010

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

Case Name: Lake v. D & L Langley Trucking, Inc.

Citation: 2010 WY 75

Docket Number: S-09-0094

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Lake: Bernie Q. Phelan, Cheyenne, Wyoming.

Representing D&L Langley Trucking: Scott E. Ortiz of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Facts/Discussion: This was an appeal from a personal injury negligence case. Lake was involved in a car accident with Whited, employee of D&L Trucking. Lake alleged that Whited negligently attempted to pass him as he was making a left hand turn thereby causing the collision. The case was tried to a jury where the jury found Lake eighty-six percent at fault for the accident.

Sufficiency of the evidence: The Court found substantial and competent evidence supporting the jury’s findings, including that Whited never saw a turn signal on Lake’s pickup; Lake’s testimony that he was not paying attention and began his left turn without checking his mirrors; and the physical evidence that Lake turned into the tractor-trailer when the front of the tractor was already more than fifteen feet past the front of the pickup. Lake argued the accident would not have happened if Whited had not passed in an intersection and that because passing in an intersection violated state statute, the majority of fault must be Whited’s. The Court stated that although Whited passed at an intersection, it does not make him strictly liable for the accident. Lake’s culpability must also be considered. The jury calculated both party’s culpability as instructed. It then determined the fault of each party in regard to causation of the accident. The jury concluded that Lake bore more responsibility for the accident. Sufficient evidence supported the jury’s allocation of negligence.
Alleged surprise in closing argument: Lake also suggested a new trial was warranted because the comments in the closing argument of defense counsel regarding the application of § 31-5-205(a)(ii) constituted a surprise which ordinary prudence could not have guarded against. Given the strength of the evidence, the Court stated it was doubtful any different result would be obtained from a new trial.
Jury misconduct: Lake argued the misconduct was the rendering of an impermissible quotient verdict based upon an affidavit suggesting the jury agreed to average individual estimated fault. The Court agreed with the district court’s determination that it could not consider the affidavit because it violated W.R.E. 606(b). The rule is a codification of a common law rule that the testimony of a juror cannot be received to impeach the verdict in which he has concurred. Legislative history explicitly contradicts Lake’s argument that the juror affidavit in the instant case was admissible.
Lake also argued that because the jury requested a calculator and it did not award any damages, the jury could only have been using the calculator to compute an averaged percentage of fault for the respective parties. The fact the jury may have used a quotient process for determining fault does not warrant the presumption the jury ultimately rendered an impermissible quotient verdict. The validity of a quotient verdict is determined by whether the jury agreed beforehand to be bound by the result reached.

Conclusion: The district court did not abuse its discretion in denying Lake’s motion for a new trial. The evidence was sufficient to support the verdict. If there was any error on the part of defense counsel in closing argument as alleged by Lake, such error was not prejudicial under the facts and circumstances of the case. There was no evidence supporting Lake’s presumption that the jury rendered an impermissible quotient verdict.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2c48z8g .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 40

Summary of Decision issued April 2, 2010

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

Case Name: Fuentes v. Jednat

Citation: 2010 WY 40

Docket Number: S-09-0009

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Appellant Fuentes: William R. Fix and Jenna V. Manraccia of William R. Fix, PC, Jackson, Wyoming.

Representing Appellee: Katherine L. Mead and Bradford S. Mead of Mead & Mead, Jackson, Wyoming for Margred and Paul Jednat; and Laurence W. Stinson of Bonner Stinson, PC, Cody, Wyoming for James Lewis.

Facts/Discussion: While they were driving in downtown Jackson, Fuentes and her daughter were rear-ended by a drunk, eighteen-year-old Jonathan Jednat. Jonathan was living with his uncle James Lewis in Jackson and driving a car Lewis had given to Jonathan’s parents for Jonathan’s use.
Fuentes argued that her claim against Jonathan’s relatives was a new claim and not a renewal of the case against Jonathan. She relied upon a theory of negligent entrustment arguing that because it is a different kind of breach of the duty of reasonable care than is driving while under the influence, the damages claimed are different. The Jednats argued that since Fuentes and her daughter have recovered their damages once, they cannot recover again.
The Court rejected Fuentes’ position. In her action against Jonathan, she presented evidence on all of her injuries and her daughters’ injuries, and damages resulting from the accident. The jury determined those damages and returned a verdict in her favor. Fuentes failed to establish how the damages caused by the Jednats’ and Lewis’ alleged fault differed from the damages resulting from Jonathan’s fault. When a judgment includes a determination of the entirety of recoverable damages suffered by the plaintiff for an indivisible injury and provides for their recovery by the plaintiff against one or more of the defendants, payment of the full amount of recoverable damages constitutes a satisfaction of the plaintiff’s rights against all tortfeasors legally responsible for the plaintiff’s indivisible injury.

Conclusion: The Court found no genuine issue of material fact and the Jednats and Lewis were entitled to judgment as matter of law. Neither Fuentes nor her daughter has a claim against the Jednats or any other possible defendant in the case, including Lewis.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/yafphhz .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2009 WY 135

Summary of Decision issued November 6, 2009

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

Case Name: Collings v. Lord

Citation: 2009 WY 135

Docket Number: S-08-0225

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

Representing Appellant (Plaintiff): Mark W. Harris of Harris Law Firm, Evanston, Wyoming

Representing Appellee (Defendant): Raymond W. Martin of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming

Issues: Whether the District Court erred in granting summary judgment and concluding that no genuine issue of material fact existed that Appellee’s negligence was not a cause of Appellant’s injuries.

Facts: Appellant seeks recovery for injuries sustained while using Appellee’s table saw during restoration of a home owned by Appellee.

Holdings: In order to maintain a claim of negligence, a plaintiff must prove: 1) the defendant owed the plaintiff a duty of reasonable care; 2) the defendant breached the duty; and 3) the defendant’s breach was the proximate cause of injury or loss to the plaintiff. In order for proximate cause to exist, “the accident or injury must be the natural and probable consequence of the act of negligence. In fact, the ultimate test of proximate cause is foreseeability of injury. In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff’s injuries. Proximate cause is a question of fact in the usual case, reserved for the determination by the trier of fact, unless the evidence is such that reasonable minds could not disagree.

In the present case, the Appellant made no showing of neglect or failure to perform a duty by the Appellee. There is no substantial evidence in the record that shows that the accident was a foreseeable consequence of Appellee’s conduct. Rather, the evidence presented to the district court shows that neither party knows exactly what caused the saw blade to bind. Specifically, Appellant could not identify what Appellee did, if anything, to cause the kickback and resultant injury to Appellant. Appellee knew of Appellant’s prior experience with both table saws and dado blades. As to the particular task at hand, Appellant assured Appellee he understood what needed to be done. In fact, there is evidence on the record as to Appellant’s experience as a cabinet maker and carpenter – in the past, Appellant had actually taken precautions to eliminate and/or reduce the risk of the potential and obvious danger of using dado blades. He was familiar with and in the past had made and used “push sticks” when using dado blades. The purpose of a “push stick,” according to Appellant, is to prevent the operator’s hands from coming into contact with the dado blades – the exact scenario in the instant case. By Appellant’s own account, not keeping wood straight in alignment with the fence and blade on the table saw can cause a bind – the only “input” into keeping a piece of wood in alignment is the operator, who manually pushes the wood across the saw. Appellee was not pushing the wood with Appellant, and, accordingly, did not proximately cause his injuries.

Appellant fails on appeal to show any genuine issue of material fact on the element of causation, and, as such, Appellee is entitled to judgment as a matter of law.

Affirmed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/yflgjxc

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 93

Summary of Decision issued July 28, 2009

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

Case Name: Loredo v. Solvay America, Inc.

Citation: 2009 WY 93

Docket Number: S-08-0030; S-08-0031; S-08-0032

Appeal from the District Court of Sweetwater County, the Honorable Jere A. Ryckman, Judge.

Representing Appellants Loredo: P. Richard Meyer and Pamela T. Harvey of Meyer & Williams, PC, Jackson, Wyoming.

Representing Appellees: Joe M. Tieg, Paula A. Fleck and Susan L. Lyndrup of Holland & Hart, LLP, Jackson, Wyoming for Appellees Solvay America, Inc. and Gilbert Pacheco; and Richard A. Mincer, Richard G. Schneebeck and Lindsay A. Woznick of Hirst Applegate, PC, Cheyenne, Wyoming for Joy Technologies, Inc.

Facts/Discussion: Jose Loredo was rendered a quadriplegic by injuries he suffered in 2002 when tons of rock fell on him in a Sweetwater County trona mine. At the time of the incident, Loredo was operating a roof bolting machine manufactured by Joy Technologies, Inc. (Joy).
In Case No. S-08-0030, Jose Loredo, his wife, Yolanda and his son Alexander sought review of the grant of summary judgment dismissing Loredo’s claims against Solvay America (the parent company of Loredo’s immediate employer, Solvay Chemicals.)
In Case No. S-08-0031, Loredo sought review of the grant of summary judgment to his co-employee/supervisor, Pacheco.
In Case No. S-08-0032 Loredo sought review of summary judgment in favor of Joy Technologies.
Claims against Solvay America: The Court concluded that the district court’s analysis was sound and correct in concluding that Solvay America as parent corporation of Solvay Chemicals, was not so involved in the day-to-day operations of Solvay Chemicals, as they related to the event that caused Loredo’s injuries so as to pose a genuine issue of material fact whether Solvay America assumed an independent legal duty vis-à-vis Loredo.
Claims against co-employee Gilbert Pacheco: The Court noted that the matter of co-employee liability and the meaning conveyed by § 27-14-104(a) had been before the Court recently and it referenced Bertagnolli v. Louderback and Hannifan v. American National Bank of Cheyenne because they played a significant role in the resolution of the instant matter. In the instant case, the Court agreed with the district court that Loredo informed Pacheco of his concerns over the machinery’s problems but that Pacheco never threatened Loredo with a disciplinary action for notifying him of the defect. At the moment of the injury, Pacheco did not know where Loredo was or what he was doing. Pacheco’s actions did not rise to the level of purposeful and reckless disregard of consequences to Loredo’s safety.
Claims against Joy Technologies: As the Court said in O’Donnell, the surest route to summary judgment in negligence actions arises from the inability to establish the existence of a duty on the part of the defendant. Common knowledge and years of experience should have warned Loredo that traveling under the unbolted mine ceiling exposed him to sudden rock falls. Nothing in the manufacture or design of the roof bolter caused the ceiling to collapse. Nothing about it was defective by the omission of a canopy. The roof bolter did not have any defects and met with mine safety regulations; and Loredo was injured while using the bolter in a manner that was not anticipated or appropriate under applicable policies and regulations.

Conclusion: The Court concluded the district court correctly determined that there was no genuine issue of material fact apparent in the record on appeal that Pacheco acted willfully, wantonly, or intentionally so as to contribute to Loredo’s injuries. Thus, as a co-employee, he remained immune from Loredo’s action against him. Loredo failed to establish that Joy owed a duty to provide a product that protected him from falling rock.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/m5sxm8 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 57

Summary of Decision issued May 22, 2008

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

Case Name: Hendricks v. Hurley

Citation: 2008 WY 57

Docket Number: S-07-0178

Appeal from the District Court of Laramie County, the Honorable Nicholas G. Kalokathis, Judge.

Representing Appellant (Plaintiff): Bruce S. Asay of Associated Legal Group, LLC, Cheyenne, Wyoming.

Representing Appellees (Defendants): Raymond W. Martin of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Facts/Discussion: Ryan Hendricks was electrocuted after touching an ungrounded well head at his grandparents’ home. Ryan’s mother filed a claim against the grandparents, the Hurleys, alleging they failed to use reasonable care in inspecting the well and supervising Ryan.

Summary Judgment on the Duty to Inspect: The Hurleys had a duty to disclose only if they knew or had reason to know of the defects. Mrs. Hendricks presented no admissible evidence other than her own assertions. In light of the failure to prove a duty, the district court properly granted summary judgment for the Hurleys on Mrs. Hendricks’ first negligence claim.
Negligent Supervision: Mrs. Hendricks asserted a general common law duty to supervise relying on Daniels and Dellapenta. The Court disagreed noting that the determining factor in both cases was the foreseeability of harm to the plaintiff. In the instant case, the Court concluded that there was no evidence showing the Hurleys knew or had reason to know about the dangerous condition of the well. Absent evidence establishing a genuine issue of material fact on the question of whether immediate emergency assistance would have saved Ryan, the summary judgment was appropriate.
Negligent Infliction of Emotional Distress: Absent proof the Hurleys knew or had reason to know of the dangers that existed because of the faulty wiring, Mrs. Hendricks cannot recover for negligent infliction of emotional distress. The limited exception recognized in Larsen was not applicable in the instant case.
Loss of Consortium: In Wyoming, a claim for loss of consortium is derivative of the injured party’s claim. Since the injured party’s claim failed, the loss of consortium claim was properly dismissed.

Holding: Mrs. Hendricks failed to prove a duty. Absent evidence on the question of whether immediate emergency assistance would have saved the victim, summary judgment was appropriate. The limited exception recognized in Larsen was not applicable. The loss of consortium claim was properly dismissed because the injured party’s claim failed.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/6rf3v6 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 19

Summary of Decision issued February 22, 2008

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

Case Name: State, Dep’t of Corrections v. Watts; State, Dep’t of Corrections v. Watts

Citation: 2008 WY 19

Docket Number: S-07-0050; S-07-0095

Appeal from the District Court of Fremont County, the Honorable Nancy J. Guthrie, Judge

Representing Appellants: Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, DeputyAttorny General; Misha Westby, Senior Assistant Attorney General; C. Levi Martin, Senior Assistant Attorney General.

Representing Appellee: David B. Hooper and Tom A. Glassberg of Hooper Law Offices, PC, Riverton, Wyoming.

Facts/Discussion: Watts brought a wrongful death suit after his wife, who was a contract nurse at the Wyoming Honor Farm, was murdered by an inmate. The State moved for summary judgment claiming they were immune from suit pursuant to the WGCA.

Jurisdiction: Generally, the denial of a motion for summary judgment is not an appealable final order. The Court has recognized an exception to the general rule when a district court refused to dismiss a case on the basis of qualified immunity. The Court has jurisdiction to consider the appeal of the district court’s order denying the State’s motion for summary judgment therefore the writ of review was superfluous and was dismissed as unnecessarily granted.
Section 1-39-106: Questions of statutory interpretation are matters of law. The Act is considered a close-ended tort claims act. The Court reviewed previous cases noting that there are two groups of cases which construe the act in terms of strict or liberal construction of the WGCA. More recent cases state the principle that it is a close-ended act in which immunity is the rule and liability is the exception. The Court concluded the general rule in Wyoming is that the government is immune from liability and unless a claim falls within one of the statutory exceptions, it will be barred. The Court used their standard rules of statutory construction to determine whether the legislature intended that immunity be waived for a particular claim. The Court stated that the statute waived immunity for the State’s negligence in making the building functional. The Court reviewed cases from New Mexico and Maine. They concluded that the clear and unambiguous language of § 1-39-106 within the context of the WGCA indicated that the legislature intended to limit the waiver of immunity to negligence associated with the function of the building structure and did not intend to extend the waiver to negligence associated with operation of the penal institution within the building. Because Watts did not argue that any particular physical defect in the building resulted in his wife’s death, his claim does not fall within the parameters of § 1-39-106.

Holding: Section 1-39-106 did not waive the State’s immunity for negligence in the operation of the corrections system. Instead, it specifically limits the exception to matters associated with the physical building itself. Because Mr. Watts’ claims did not pertain to the physical condition of a building at the Wyoming Honor Farm, the State was entitled to judgment as a matter of law.
Case No, S-07-0050, writ of review, was dismissed. Case No. S-07-0095, appeal, was reversed and remanded to the district court.

Reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/yuz6fy .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 16

Summary of Decision issued February 8, 2008

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

Case Name: Glenn v. U.P.R.R. Co.

Citation: 2008 WY 16

Docket Number: S-07-0016

Appeal from the District Court of Sweetwater County, the Honorable Nen R. James, Judge

Representing Appellant (Plaintiff): Frederick J. Harrison, Frederick J. Harrison, PC, Rawlings, Wyoming.

Representing Appellee (Defendant): Mark C. Hansen, U.P.R.R.Co., Denver, Colorado; George E. Lemich, Lemich Law Center, Rock Springs, Wyoming.

Facts/Discussion: Glenn was injured while closing the “dump doors” of a rail car in a UPRR coal train. He filed suit, claiming that his injury was the result of the railroad’s negligence. The district court granted summary judgment in UPRR’s favor and Glenn appealed. The propriety of a summary judgment is evaluated by employing the same standards and by examining the same material as the district court.
Duty Owed: Wyoming law has long recognized that a railroad has a duty to exercise ordinary and reasonable care and prudence in the operation of its railway, and to take those usual, ordinary, precautionary measures which a prudent, reasonable person would take. The Court reviewed the cases from Wyoming and other jurisdictions and concluded that UP owed Glenn a duty to provide rail cars that were reasonably safe for their intended use.
Duty Breached: The Court’s review of the evidence suggested that the allegedly dangerous condition was not obvious. Glenn’s co-worker, the only other witness to the event, agreed that more coking coal spilled from the car in question than from previous cars. It is up to the jury to decide if Glenn was negligent in failing to perceive an obvious danger and to compare his negligence, if any, to UP’s negligence, if any.
Proximate Cause: The Court has stated that the ultimate test of proximate cause is foreseeability of injury which is usually a question of fact reserved for the trier of fact’s determination unless the evidence is such that reasonable minds could not disagree.
Compensable Injury: There appeared to be no dispute that Glenn suffered an injury compensable in damages.

Holding: The Court stated that sufficient evidence existed in the record to create genuine issues of material fact with regard to each of the four elements of Glenn’s negligence claim against the railroad. The district court erred in granting summary judgment in favor of UP.

Reversed and remanded.

J. Burke delivered the decision.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2007 WY 175

Summary of Decision issued November 2, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

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.

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

Summary 2007 WY 69

Summary of Decision issued April 27, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation." It was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library.]

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

Case Name: Long v. Daly; Daly and BNSF

Citation: 2007 WY 69

Docket Number: 06-118

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

Representing Appellant (Plaintiff): Frank J. Jones, Wheatland, Wyoming.

Representing Appellees Craig and Sue Daly (Defendants): Patrick J. Murphy of Williams, Porter, Day & Nevile, PC, Casper, Wyoming.

Presenting Appellee BNSF Co: Paul Kapp and Lay Lynn Bestol of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming. Argument by Ms. Bestol.

Issues: Whether there were genuine issues of material fact which preclude the granting of Summary Judgment in favor of Defendants in this negligence case. Whether the Defendant BNSF Co. owes a duty of reasonable care to Plaintiff and did it broach that duty by failing to inspect, repair and maintain its right of way fence.

Facts/Discussion: Long was injured when the vehicle he was driving struck a cow that was lying on the highway. He filed a complaint for negligence against Craig and Sue Daly, the owners of the cow and the property from which it escaped, and BNSF, the owner of the railroad track located between the Dalys’ pasture and the highway.
Standard of Review: When reviewing an order granting summary judgment, the Court considers the record de novo. To maintain a claim of negligence, a plaintiff must prove: the defendant owed the plaintiff a duty of reasonable care, the defendant breached the duty and the defendant’s breach was the proximate cause of injury or loss.
BNSF Duty of Care: Long claimed BNSF owed a duty of care based on Wyo. Stat. Ann. § 37-9-304(a). The purpose of the statute was to protect the livestock owner from harm to their livestock. The Court noted that Long did not fall into the class of persons whose interest the statute was intended to protect. Therefore, they declined to hold that the statute imposed a duty of care on BNSF. The district court correctly concluded BNSF owed no duty to Long and summary judgment was proper.
Summary Judgment for the Dalys: The dispute on appeal was not over the applicable law and whether the district court correctly applied it. In order to establish negligence on the part of a livestock owner, evidence must be presented showing how the livestock got onto the road and that the owner, by failing to exercise reasonable care, permitted that to happen. The Dalys presented detailed affirmative evidence showing that the section of fence from which the cattle escaped was carefully and soundly built. The Court agreed with the district court’s conclusion that the Dalys had made a prima facie showing that they exercised due care in constructing and maintaining their fence. The burden then shifted to Long. His evidence was insufficient to satisfy his burden because it was speculative and focused mostly on a section of fence that did not belong to the Dalys and over which they had no duty of care.

Holding: Long did not fall into the class of persons that Wyo. Stat. Ann. § 37-9-304(a) was intended to protect, so BNSF owed no duty to Long and summary judgment was proper. The Dalys presented evidence which the district court concluded shifted the burden to Long. The evidence provided by Long to refute the showing was insufficient to satisfy his burden. The Court held the summary judgment was proper.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2kob3g .