RB v. Big Horn Cnty. Sch. Dist. No. 3

Decision Date07 February 2017
Docket NumberS-16-0142
Citation388 P.3d 542,2017 WY 13
Parties RB, JR., an infant, BY AND THROUGH his next friends, Robby & Corrina BROWN, Appellants (Plaintiffs), v. BIG HORN COUNTY SCHOOL DISTRICT NO. 3, Appellee (Defendant).
CourtWyoming Supreme Court

Representing Appellants: Philip E. Abromats and Letitia C. Abromats of Philip E. Abromats, P.C., Greybull, Wyoming. Argument by Ms. Abromats.

Representing Appellee: Nicholas T. Haderlie and Christopher C. Voigt of Crowley Fleck PLLP, Sheridan, Wyoming. Argument by Mr. Haderlie.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

FOX, Justice.

[¶1] RB and his friends were enjoying some of the exhilarating qualities of ice on the sidewalk at Greybull Middle School when RB fell and suffered a broken tooth

, fractured nose, and some facial lacerations. He sued Big Horn County School District No. 3 (School District), alleging that it was negligent in failing to remove the ice that had accumulated on the sidewalk. The district court granted the School District's motion for summary judgment, and RB appeals. We affirm.

ISSUES

[¶2] 1. Is the failure to file a W.R.C.P. 56.1 statement of undisputed material facts fatal to RB's appeal?

2. Is the question of whether there was a natural accumulation of snow and ice a fact issue that should have been submitted to a jury?

3. Does the Greybull snow removal ordinance establish a heightened duty of care?

4. Is RB's comparative negligence a fact issue that must go to a jury?

FACTS1

[¶3] On February 20, 2014, RB and his classmates left the Greybull Middle School gymnasium after their P.E. class and were returning to the classroom building next door. While they were between buildings, RB and some friends spotted a patch of ice on the sidewalk and began running and sliding on it. According to one student, the group was having a contest to see who could slide the farthest, and another student testified that they were sliding to see who could "do the coolest trick." RB took his second turn to slide, lost his balance, and fell on the ice, breaking a tooth, fracturing his nose, and lacerating his face.

[¶4] The ice patch was described as large and of varying thickness. It was obvious and not hidden from view in any way. RB and other witnesses testified that it did not appear as if anyone had done anything to make the accumulation of ice worse than it would have been naturally. One witness, however, testified that the students, including RB, had taken snow from the grass and sprinkled it onto the ice in order to make it more slippery. Ice melt had been applied to the patch by School District maintenance personnel.

[¶5] The Town of Greybull had 0.01 inches of snow on February 20, 2014, the day of the accident. There was no snow the previous day. The greatest amount of precipitation received in Greybull in February was 0.08 inches on February 9. The maintenance director for the School District and other witnesses testified that the district's practice is to remove snow and apply ice melt daily when snow or ice is present. There is no evidence in the record that it failed to do so on the day of the accident.

STANDARD OF REVIEW

[¶6] We apply the following standard of review to a district court's grant of summary judgment in a negligence case:

We review a summary judgment in the same light as the district court, using the same materials and following the same standards. Gayhart v. Goody , 2004 WY 112, ¶ 11, 98 P.3d 164, 168 (Wyo. 2004). Summary judgment is proper only when there are no genuine issues of material fact, and the prevailing party is entitled to judgment as a matter of law. Id. ....
....
Summary judgments are not favored in negligence actions and are subject to exacting scrutiny. Erpelding v. Lisek , 2003 WY 80, ¶ 10, 71 P.3d 754, 757 (Wyo. 2003). However, even in negligence actions, "where the record fails to establish an issue of material fact, [and when the movant is entitled to judgment as a matter of law], the entry of summary judgment is proper." Allmaras v. Mudge , 820 P.2d 533, 536 (Wyo. 1991) (alteration in original) (citing MacKrell v. Bell H2S Safety , 795 P.2d 776, 779 (Wyo. 1990) ).

Amos v. Lincoln Cty. Sch. Dist. No. 2 , 2015 WY 115, ¶ 15, 359 P.3d 954, 958–59 (Wyo. 2015) (some citations omitted).

DISCUSSION
I. Is the failure to file a W.R.C.P. 56.1 statement of undisputed material facts fatal to RB's appeal?

[¶7] The School District filed a motion for summary judgment, an accompanying brief, and a Rule 56.1 statement. In response, RB filed a Brief in Opposition to Motion for Summary Judgment, which included a statement of facts with citations to the record, but RB did not file a separate Rule 56.1 statement of material facts at that time. One day later, on the morning of the hearing on the School District's motion for summary judgment, RB filed his Rule 56.1 statement. At the hearing, the School District moved to strike, and the district court granted the motion and struck RB's Rule 56.1 statement.

[¶8] The School District argues that we should not review the district court's decision striking RB's Rule 56.1 statement because RB did not raise the issue.2 We agree.

Because RB did not appeal the issue in his opening brief, we will not decide whether the district court abused its discretion in striking the statement. See Ultra Res., Inc. v. McMurry Energy Co ., 2004 WY 121, ¶ 11, 99 P.3d 959, 963 (Wyo. 2004). The School District also contends that RB's failure to file a Rule 56.1 statement is "fatal to this appeal."

[¶9] Rule 56.1 provides:

Upon any motion for summary judgment pursuant to Rule 56 of the Rules of Civil Procedure, in addition to the materials supporting the motion, there shall be annexed to the motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried.
In addition to the materials opposing a motion for summary judgment, there shall be annexed a separate, short and concise statement of material facts as to which it is contended that there exists a genuine issue to be tried.
Such statements shall include pinpoint citations to the specific portions of the record and materials relied upon in support of the parties' position.

(Emphasis added.)

[¶10] "[S]tatements of undisputed facts under W.R.C.P. 56.1 do not establish those facts standing alone. Rule 56.1 statements are only intended ‘to identify just what facts are actually in dispute.’ " Herling v. Wyo. Mach. Co. , 2013 WY 82, ¶ 62, 304 P.3d 951, 966 (Wyo. 2013) (internal citation omitted). The purpose underlying rules such as W.R.C.P. 56.1 is to provide a tool "for district courts, permitting them to efficiently decide summary judgment motions by relieving them of the onerous task of hunt [ing] through voluminous records without guidance from the parties." N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc. , 426 F.3d 640, 649 (2d Cir. 2005) (internal quotation marks and citations omitted). However, district courts may decline to rely on such statements and may examine the evidence submitted by the parties independently. Id . ("[T]he district court declined to rely solely on the parties' ... statements, and instead ‘scour[ed] ... the record’ independently.").

[¶11] In Grynberg v. L & R Exploration Venture , 2011 WY 134, ¶ 21, 261 P.3d 731, 737 (Wyo. 2011), we stated that "a party's failure to comply with Rule 56.1 by pointing out to the district court the facts creating a genuine issue of material fact may be fatal to an appeal." (Emphasis added.) There, L & R moved for summary judgment but failed to file its Rule 56.1 statement. Id . Ms. Grynberg did not object until after the district court heard and ruled on the motion, and we affirmed the district court's ruling that the objection was waived. Id .

[¶12] Here, however, the School District did raise RB's noncompliance with Rule 56.1 in a timely fashion. Nonetheless, the belated filing of RB's Rule 56.1 statement, and its subsequent removal from the record, is not fatal to his appeal. While the Rule 56.1 statement was stricken by the district court and continues to be stricken because RB did not appeal that issue, RB's argument for reversal of the summary judgment order is not based on a contention that disputed issues of fact existed; rather, he argues that the School District was not entitled to judgment as a matter of law. We accept the School District's statement of undisputed facts, along with RB's concession that those facts do not differ materially from those he attempted to present, and conclude that, under these circumstances, his failure to file a Rule 56.1 statement is not fatal to his appeal. The facts are adequately presented to allow us to address the issues of law.

II. Is the question of whether there was a natural accumulation of snow and ice a fact issue that should have been submitted to the jury ?

[¶13] To establish negligence, a plaintiff must prove that (1) the defendant owed the plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is compensable by money damages. Valance v. VI Doug, Inc. , 2002 WY 113, ¶ 8, 50 P.3d 697, 701 (Wyo. 2002). "The application of the natural accumulation rule relates to the threshold question of whether a duty exists...." Selby v. Conquistador Apartments, Ltd. , 990 P.2d 491, 494 (Wyo. 1999). Typically, the question of the existence of a duty is a question of law determined by the courts. Id .

[¶14] In Wyoming, we apply the natural accumulation rule to premises liability claims. That rule provides:

[A] proprietor is not considered negligent for allowing the natural accumulation of ice due to weather conditions where he has not created the condition. The conditions created by the elements, such as the forming of ice and falling of snow, are universally known and there is no liability where the danger is obvious or is as well known to the plaintiff as the
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