Hurst v. State

• Decision Date: 09 April 1985
• Docket Number: No. 84-159,84-159
• Citation: 698 P.2d 1130
• Parties: Louise HURST, Executrix of the Estate of Ivan Barnett, Deceased, and Executrix of the Estate of Marie Barnett, Deceased; and as Administratrix of the Estate of Cliff Barnett, Deceased, Appellant (Plaintiff), v. The STATE of Wyoming; the State Board of Parole of Wyoming; John Lang, Chief Parole Officer; and unknown parole officers and employees of the State Board of Parole of Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1130

698 P.2d 1130

Louise HURST, Executrix of the Estate of Ivan Barnett, Deceased, and Executrix of the Estate of Marie Barnett, Deceased; and as Administratrix of the Estate of Cliff Barnett, Deceased, Appellant (Plaintiff), v. The STATE of Wyoming; the State Board of Parole of Wyoming; John Lang, Chief Parole Officer; and unknown parole officers and employees of the State Board of Parole of Wyoming, Appellees (Defendants).

No. 84-159.

Supreme Court of Wyoming.

April 9, 1985.

Bert T. Ahlstrom, Jr., Cheyenne, for appellant (plaintiff).

Bruce A. Salzburg, Freudenthal Law Offices, P.C., Cheyenne, for appellees (defendants).

Before THOMAS, C.J., and ROSE, ROONEY, BROWN and CARDINE, JJ.

CARDINE, Justice.

This is an appeal from a summary judgment granted in a case sounding in negligence. We affirm.

Appellant raises the following issue:

"Whether the district court judge erred in granting the defendants' Motion for Summary Judgment under the facts and circumstances of this case."

Robert Dale Henderson, a convicted felon, was granted parole by the Wyoming State Board of Parole on July 31, 1981. His parole was to end on February 25, 1982. After his marriage to Donna Barnett Holcomb, he was, in December 1981, granted permission to leave the state of Wyoming. It was disputed whether his trip to Ohio was a permanent move with permission and instructions to mail in his final two monthly reports to his probation officer or whether he left on a ten-day travel permit which would have expired December 10, 1981. Regardless, he moved to Adams County, Ohio where, on January 21, 1982, he murdered Marie, Ivan, and Cliff Barnett, the mother, father and brother of his new wife. He pled guilty to the aggravated murder of these three people on August 5, 1983. He also admitted to committing a total of nine other murders in several states between January 21 and February 5, 1982. Appellant filed suit against the state of Wyoming and various state board of parole employees alleging that:

" * * * [T]he Defendants are liable for damages to the Plaintiff for the tortious conduct of the Defendant and Defendant's employees while in the scope of their employment, said negligent conduct being as follows:

"A. In authorizing and permitting Robert Dale Henderson to leave the State of Wyoming and travel to Ohio without obtaining the prior permission of the State of Ohio, pursuant to Section 7-13-401, et seq. of the Wyoming Statutes, 1977, and in violation of the Interstate Compact for Supervision of Parolees and Probationers as ratified by Chapter 34, Session Laws of Wyoming, 1939, Section 11-411, Wyoming Compiled Statutes, 1945.

"B. In failing to notify or contact officials in the State of Ohio and in particular, Adams County, Ohio, when the said Robert Dale Henderson failed to return to the State of Wyoming on December 10, 1981, pursuant to the authorization given to him by his Parole Officer."

Both sides submitted affidavits in support of their position; these affidavits referred to reports and other documents which were not attached nor submitted to the court. ¹ The district court granted summary judgment for the defendants, holding that although neither the claim of judicial immunity nor sovereign immunity barred appellant's claim, nevertheless, summary judgment should be granted the State on the theory that the acts of the State and its employees were a remote and not the proximate cause of the murders as a matter of law.

Summary judgment is only appropriate upon a dual finding that there is not a genuine issue as to a material fact and that the prevailing party, as a matter of law, is entitled to judgment. Seamster v. Rumph, Wyo., 698 P.2d 103 (1985).

If a judgment is sustainable on any legal ground appearing in the record, it must be sustained. 37 Gambling Devices (Cheyenne Elks Club and Cheyenne Music and Vending, Inc.) v. State, Wyo., 694 P.2d 711 (1985); Valentine v. Ormsbee Exploration Corp., Wyo., 665 P.2d 452 (1983); Agar v. Kysar, Wyo., 628 P.2d 1350 (1981). We, therefore, affirm the grant of summary judgment in this case, not upon the grounds stated by the trial court, but because governmental immunity is a bar to appellant's cause of action or claim.

Governmental immunity has long been accorded agencies granting parole, releasing prisoners or supervising them on parole, we suspect out of necessity more than any other reason. The numbers of prisoners these agencies must move through the prison system to parole or release is substantial. And, in the vast majority of cases, we know there will always come a time when prisoners have served their sentences and must be released. To place liability upon an agency charged with this duty has long been held unacceptable, it being said that:

"Governmental immunity from liability for injuries caused by negligently released individuals has been based on state constitutions and the Eleventh Amendment to the United States Constitution, on state statutes providing for immunity in connection with the release of a prisoner * * * and on the common-law doctrine of sovereign immunity." (Footnotes omitted.) Anno., Governmental Tort Liability for Injuries Caused by Negligently Released Individual, 6 A.L.R.4th 1155, 1159 (1981).

This court was asked to abolish the doctrine of governmental immunity still available to the state of Wyoming in Worthington v. State, Wyo., 598 P.2d 796 (1979). The court made one of its latest pronouncements concerning the substantial policy reasons for leaving the matter to the legislature when it stated:

" * * * [T]his matter can be far better handled by a legislature to carve out and classify those areas in which the doctrine of immunity shall be abolished and those areas in which it should be retained. If this is not left in the hands of the legislature, this court would be forced to settle the possible areas in which the doctrine should not apply on a case-by-case basis with unnecessary confusion and expense to claimants and to the State." At p. 805.

About the time of publication of the Worthington opinion, the Wyoming legislature had determined those areas in which governmental immunity should be abolished by the adoption of the Wyoming Governmental Claims Act, § 1-39-101, et seq., W.S.1977, Cum.Supp.1984. The Wyoming Governmental Claims Act reaffirmed and retained immunity from claims in tort against governmental entities and their employees. Unless that immunity was expressly waived ², immunity was to be the rule; liability was to be the exception and then only when expressly provided for within the Wyoming Governmental Claims Act.

In this case, the parole board granted parole to Henderson. While free on parole, and two months before his total release, he was granted permission by his parole officer to leave the state of Wyoming. Suit against the parole board and the parole officers was based upon granting permission to leave the state of Wyoming and failing to notify the authorities in Ohio. Such suit is barred by the doctrine of governmental immunity unless that immunity is waived by the Wyoming Governmental Claims Act, § 1-39-101, et seq., supra. We have searched the act and found one statute that might be claimed to grant an exception to that immunity. That statute, § 1-39-112, W.S.1977, Cum.Supp.1984, provides:

"A governmental entity is liable for damages resulting from tortious conduct of law enforcement officers while acting within the scope of their duties."

With respect to the effect of § 1-39-112, supra, upon the doctrine of governmental immunity, it was stated:

"This section exposes the governmental entity to broader liability than the other exceptions. The section permits the government to be liable for assault, battery, false arrest, malicious prosecution, abuse of process, libel, slander, defamation and perhaps deprivation of civil rights, to name a few. While such broad liability is probably desirable in order to adequately protect the public against police tyranny, the statute has some troubling aspects. Note the term 'law enforcement officer' is undefined." Comments, Wyoming's Governmental Claims Act: Sovereign Immunity With Exceptions--A Statutory Analysis, XV Land and Water L.Rev. 619, 629 (1980).

The question here to be resolved is whether the members of the parole board and the parole officers, at the time of this incident and with respect to the activities complained of, were "law enforcement officers" within the meaning of § 1-39-112, supra.

If possible, words contained in a statute must be given their plain and ordinary meaning. State Board of Equalization v. Tenneco Oil Company, Wyo., 694 P.2d 97 (1985). The fundamental rule of statutory construction is to determine legislative intent. State Board of Equalization v. Tenneco Oil Company, supra; State v. Stovall, Wyo., 648 P.2d 543 (1982). A statute must be viewed in terms of its objective and purpose. Wyoming State Treasurer v. City of Casper, Wyo., 551 P.2d 687 (1976). Although this act should be liberally construed,

" * * * a liberal construction does not require that words be accorded a forced, strained, or unnatural meaning, or warrant an extension of the statute to the suppression of supposed evils or the effectuation of conjectural objects and purposes not referred to, nor indicated in any of the terms used." Crawford, Construction of Statutes § 238 at 451-452 (1940).

The legislature did not define law enforcement officer. Black's Law Dictionary (5th ed. 1979) defines law enforcement officer as: "Those whose duty it is to preserve the peace." Peace officer is variously defined

" * * * by statute in the different states; but generally it includes sheriffs and their deputies, constables, marshals, members of the police force of cities, and other officers whose duty is to enforce and preserve the public peace. In general, any person who has been given general authority to make arrests. Generally a 'peace officer' is a person designated by public authority to keep...