Allmaras v. Mudge

Decision Date08 November 1991
Docket NumberNo. 90-275,90-275
Citation820 P.2d 533
PartiesJoseph ALLMARAS, Personal Representative of the Estate of John David Allmaras, deceased, Appellant (Plaintiff), v. Lisa Fern MUDGE; 71 Construction, a Wyoming corporation; and Kloefkorn-Ballard Construction/Development, Inc., a Wyoming corporation, Appellees (Defendants).
CourtWyoming Supreme Court

Joseph E. Darrah, Powell, for appellant.

Anthony A. Johnson of Retherford, Mullen, Rector & Johnson, Colorado Springs, Colo., for appellee 71 Construction.

Ann M. Rochelle of Williams, Porter, Day & Neville, Casper, for appellee Kloefkorn-Ballard Constr./Development, Inc.

Before URBIGKIT, C.J., and THOMAS, CARDINE, and GOLDEN, JJ., and BROWN, Ret. J.

URBIGKIT, Chief Justice.

Appellant, Joseph Allmaras (Allmaras), father and personal representative of the estate of John David Allmaras, by suit for wrongful death, appeals from a summary judgment granted to Kloefkorn-Ballard Construction/Development, Inc. (Kloefkorn-Ballard) and 71 Construction. We affirm the judgment favoring 71 Construction and reverse as to Kloefkorn-Ballard.


Allmaras raises one issue:

Did the trial court improperly exonerate the Appellee-contractors from their negligence; or at least concurrent negligence, in violating their duty to warn the traveling public of the construction hazards created by them which resulted in the death of Appellant's decedent under the circumstances?


For purposes of summary judgment, the pleadings, depositions, affidavits and exhibits established the following as generally undisputed facts.

On February 23, 1987, Paradise Valley Waste and Sewer District entered into an On June 23, 1987, Boatright-Smith signed a subcontract agreement with Kloefkorn-Ballard to install the asphalt, which required Boatright-Smith to begin work after Jackman-Jackman had finished. Because Boatright-Smith had become preoccupied in moving their asphalt plant, 71 Construction was asked to do this work.

agreement with contractor Kloefkorn-Ballard to do utility system improvement construction. Work was to be done on three different areas, but Schedule C was the area in which the accident occurred at the intersection of Dahlia Street and Valley Drive. Kloefkorn-Ballard, as contractor, entered into an agreement with Jackman-Jackman as a general subcontractor. When Jackman-Jackman had finished its work, the back-filled road surface was passable through the area, although unfinished and subject to settlement before asphalt repaving. The street was then unbarricaded and opened to traffic usage.

On August 18, 1987, John David Allmaras was killed while riding in a car driven by nineteen-year-old Lisa Fern Mudge (Mudge). Mudge lost control of the car as she approached the Dahlia Street and Valley Drive intersection. John David Allmaras was thrown from the car and the vehicle rolled over him. The Mudge vehicle was travelling south and the construction work had only occurred in the northbound lane.

On May 12, 1988, Allmaras filed suit against Mudge arguing that Mudge's negligence in driving at an excessive speed and while intoxicated was the direct and proximate cause of the death of his son. On January 9, 1989, Allmaras amended the complaint to include Kloefkorn-Ballard and 71 Construction. In that amended complaint, Allmaras claimed Kloefkorn-Ballard was the contractor and 71 Construction was a subcontractor at all relevant times for improvements to the Paradise Valley Water and Sewer District. The amended complaint claimed that both contractors had a duty, imposed both by contract and by law, to erect warning signs. In response, Kloefkorn-Ballard answered the amended complaint and brought Boatright-Smith and Jackman-Jackman into the litigation by cross-claim. During litigation, Allmaras settled with Mudge resulting in dismissal of the complaint against her. 1

On September 28, 1990, the trial court, finding there were no genuine issues of material fact and that all defending parties were entitled to summary judgment as a matter of law, granted summary judgment to Kloefkorn-Ballard, 71 Construction, Boatright-Smith and Jackman-Jackman. The trial court found as a matter of law that none of those contractor parties had a duty to warn southbound traffic of construction located in the northbound lane.


Summary judgment is proper when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. Baros v. Wells, 780 P.2d 341 (Wyo.1989); Farr v. Link, 746 P.2d 431 (Wyo.1987). A material fact is one which would establish or refute an essential element of the cause of action or defense asserted by the parties. Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174 (Wyo.1988); Johnston v. Conoco, Inc., 758 P.2d 566 (Wyo.1988). We review a summary judgment in the same light as the trial court, using the same materials and following the same standards. Baros, 780 P.2d 341; Roybal v. Bell, 778 P.2d 108 (Wyo.1989). We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Baros, 780 P.2d 341; Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo.1989). The character and classification of Wyoming summary judgment law is comprehensively analyzed in Cordova v. Gosar, 719 P.2d 625 (Wyo.1986). See Davenport

v. Epperly, 744 P.2d 1110 (Wyo.1987). "Although summary judgments are not favored in negligence actions, where the record fails to establish an issue of material fact [and when the movant is entitled to the judgment as a matter of law], the entry of summary judgment is proper." MacKrell v. Bell H sub2 S Safety, 795 P.2d 776, 779 (Wyo.1990). See also W.R.C.P. 56(c). Applying our standard of review, we examine the record to determine whether summary judgment in favor of 71 Construction and Kloefkorn-Ballard was appropriate. We must decide whether, as a matter of law, 71 Construction owed Allmaras a duty and whether a factual issue exists as to Kloefkorn-Ballard's liability. Cordova, 719 P.2d 625.


Under Wyoming law, the tort of negligence must be based upon the breach of a duty where that breach proximately caused an injury to the plaintiff. Beard v. Brown, 616 P.2d 726 (Wyo.1980). Whether a legal duty exists is a question of law. Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303 (Wyo.1985). Because we hold that 71 Construction had no duty to Allmaras for signs and road conditions at the construction site, summary judgment in favor of 71 Construction is appropriate.

While the control over the construction site could be a material fact, there was nothing beyond the allegation by Allmaras that 71 Construction controlled the site. Its repaving function was performed on oral order from Boatright-Smith and the re-paver had not commenced work at the accident site before the accident happened, although it did start preparation for repaving early the next morning. In Thomas by Thomas, we upheld summary judgment in favor of the South Cheyenne Water and Sewer District because the district had no control over the accident's area and therefore owed no duty. We are faced with a similar situation here with respect to pre-accident participation at the accident scene by the repaving subcontractor.

The deposition testimony offered in support of its motion for summary judgment indicated 71 Construction had not exercised control of the area by the time of the accident. That evidence was not factually disputed by Allmaras. " 'After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact * * * or come forward with competent evidence of specific facts countering the facts presented by the movant.' " Id. at 1304 (quoting Roth v. First Sec. Bank of Rock Springs, Wyo., 684 P.2d 93, 95 (Wyo.1984)). It is indisputable that 71 Construction never exercised control over the site prior to the accident.

Although Allmaras claimed 71 Construction had contractual and legal duties, there was nothing beyond the allegation to support that claim. Nowhere within the oral work order is the source for the contractual duty pinpointed. Additionally, Allmaras presents no legal authority that would create such a duty under the circumstances of this case involving that oral order with respect to the paving to be done on a day work basis.

"Liability must be based upon duty." Thomas by Thomas, 702 P.2d at 1307; accord Medlock v. Van Wagner, 625 P.2d 207 (Wyo.1981). "If duty has not been established, there is no actionable negligence." Thomas by Thomas, 702 P.2d at 1307. Because it is unquestionable that 71 Construction exercised no control over the general job or this specific site prior to the time of the accident, no duty to Allmaras could have arisen. As a matter of law, summary judgment was appropriate in favor of 71 Construction because it had no duty to users of the street where it had not yet commenced its repaving work. Davenport, 744 P.2d 1110. We affirm summary judgment in favor of 17 Construction.


In considering the issue of liability of Kloefkorn-Ballard, we analyze the same

negligence elements as stated in the previous section. In granting Kloefkorn-Ballard's motion for summary judgment, the trial court determined Kloefkorn-Ballard owed no duty to the decedent and, further, that the acts of Kloefkorn-Ballard were not the proximate cause of John David Allmaras' death. Summary judgment is inappropriate, however, if a duty exists and if there is a genuine issue whether that duty was breached or whether that breach caused the injury.

A. Duty.

Did a duty exist? The trial court found that there was no duty to warn because the car in which John David Allmaras rode was travelling southbound and the street...

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