Amos v. Lincoln Cnty. Sch. Dist. No. 2, S-14-0283

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtHILL, Justice.
Citation2015 WY 115
PartiesRICHARD J. AMOS, JR., Wrongful Death Personal Representative of TAYLOR J. AMOS LYSAGER, deceased, Appellant (Plaintiff), v. LINCOLN COUNTY SCHOOL DISTRICT NO. 2; and LINCOLN COUNTY BOARD OF COUNTY COMMISSIONERS, for the County of Lincoln, Wyoming, Appellees (Defendants).
Decision Date21 August 2015
Docket NumberS-14-0283

2015 WY 115

RICHARD J. AMOS, JR., Wrongful Death Personal Representative of
TAYLOR J. AMOS LYSAGER, deceased, Appellant (Plaintiff),
COMMISSIONERS, for the County of Lincoln, Wyoming, Appellees (Defendants).



August 21, 2015

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

Representing Appellant:
James K. Lubing and Leah Corrigan of Lubing & Corrigan, LLC, Jackson, WY.
Argument by Ms. Corrigan.

Representing Appellees:
Stuart R. Day of Williams, Porter, Day & Neville, P.C., Casper, WY for Appellee Lincoln County School District No. 2; and Thomas A. Thompson* and Phillip R. Wulf of McPherson, Kelly, & Thompson, LLC, Rawlins, WY; for Appellee Lincoln County Board of County Commissioners.
Argument by Messrs. Day and Wulf.

Before BURKE, C.J., and HILL, **KITE, DAVIS, and FOX, JJ.

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*Order allowing withdrawal of counsel and substitution of counsel entered on December 31, 2014.

** Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5, § 5 of the Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015) she was reassigned to act on this matter on August 4, 2015.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

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HILL, Justice.

[¶1] Five-year-old Taylor Lysager was attending a community basketball game at a former school building in Etna, Wyoming, when an unsecured lunchroom bench fell on him, causing a fatal head injury. Taylor Lysager's personal representative filed a wrongful death action against Lincoln County School District No. 2 (School District), the Town of Thayne, Wyoming, and the Lincoln County Board of County Commissioners (Lincoln County). The district court dismissed Lincoln County from the action without prejudice based on Lincoln County's affidavit of non-involvement. The court thereafter entered summary judgment for the School District after finding no genuine issues of material fact on the questions of breach of duty and proximate cause. Plaintiff appeals both orders.

[¶2] We conclude that the order dismissing the action against Lincoln County is not a final appealable order and dismiss Plaintiff's appeal from that order. As to the order granting the School District summary judgment, we find that while the material facts are largely undisputed, reasonable minds might differ on the conclusions to be drawn from those facts. This precludes summary judgment, and we therefore reverse.


[¶3] The dispositive issues presented by this appeal are:

1. Did the district court err in granting the School District's motion for summary judgment?
2. Is the district court's order granting Lincoln County's motion to dismiss without prejudice a final appealable order?


A. Ownership of the Metcalf School Building

[¶4] In 2008, the School District completed construction of a new school in Etna, Wyoming. With the completion of this new school, the School District stopped using the Metcalf School in Etna, leaving that building vacant. The School District listed the Metcalf School building for sale and upon doing so was approached by area residents who expressed a desire to convert the school into a community center. Those residents formed a group, referred to herein as the "Community Group," that went by various names, including Etna Community Center Group, North Lincoln Community Center Group, and the Star Valley Community Center. After the Community Group presented its ideas for the Metcalf School building to the School District, the District decided to give the Community Group an opportunity to find a way to acquire the building.

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[¶5] In April 2009, the Community Group approached the Lincoln County Board of County Commissioners with a proposal to have Lincoln County support the Community Group in an application for a Wyoming community facilities grant for the Metcalf School building. Lincoln County agreed to pay for a feasibility study and sponsor the Community Group's facilities grant and loan application. To that end, the Lincoln County Board of County Commissioners held a public meeting on August 11, 2009 and voted to approve the grant application, agreeing to the condition that if the grant were awarded, Lincoln County would assume ownership of the Metcalf School building. Because the grant application required documentation verifying that ownership of the Metcalf School building would transfer to Lincoln County, the School District executed a Purchase Agreement, which bore an August 2009 date and was signed by the chairman of the School District's Board of Trustees. That Purchase Agreement was submitted with the August 2009 grant application but was not yet approved by Lincoln County or signed by a representative of Lincoln County.

[¶6] On January 28, 2009, the State Loan and Investments Board approved the community facilities grant for the Metcalf School building. On March 3, 2010, Lincoln County and the School District, each acting through its respective board, agreed to terms of a purchase agreement for the sale of the building to Lincoln County. On April 2, 2010, a quitclaim deed dated March 31, 2010, was recorded with the Lincoln County Clerk transferring ownership of the Metcalf School building from the School District to Lincoln County.

B. Use of the Metcalf School Building and Taylor Lysager's Accident

[¶7] At the end of July 2009, while Lincoln County was still considering the community facilities grant application, the School District changed the locks on the Metcalf School building and gave the Community Group keys to the building. Shortly thereafter, before the grant was approved and ownership of the Metcalf School building had been transferred to Lincoln County, numerous groups, working through the Community Group, began using the building for their activities. One group that frequently used the building was the Town of Thayne's Recreation Program, which used the facility for activities such as volleyball and basketball. These activities took place in a part of the building that served the dual purpose of providing both a lunchroom and gymnasium. To accommodate both uses, the area was equipped with heavy tables and benches that folded into the wall and, for safety purposes, were then latched into place and locked with a key. The gymnasium also incorporated an elevated stage with storage rooms on each side of the stage.

[¶8] On February 9, 2010, the Town of Thayne held one of its basketball games in the Metcalf School building. Taylor Lysager, who was five years old on that date, attended the game with his grandparents, and during the game was playing with other children on

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the stage. It is unknown who did it or when it was done, but a lunchroom bench had been removed from the gymnasium wall and placed in one of the storage rooms adjacent to the stage, propped against the wall. While playing, Taylor slid into that storage room and into the lunchroom bench propped against the wall. The bench tipped over and fell on top of Taylor, and he suffered a basal skull fracture, which the coroner reported likely caused death instantly.

C. Wrongful Death Action

[¶9] On April 12, 2011, Taylor Lysager's personal representative filed a wrongful death action against the School District, the Town of Thayne, and Lincoln County. On June 15, 2011, Lincoln County filed an affidavit of noninvolvement in lieu of an answer. On October 25, 2011, the district court entered an order dismissing Lincoln County from the action based on the affidavit of noninvolvement. The court specified that the dismissal was without prejudice and commented:

The statute of limitation issue is of particular concern and the Court specifically finds the plaintiff has done what they can at this time but if there is a factual basis discovered at a later time in the proceedings so Lincoln County can be "reinstated" in this action and plaintiff shall not be denied their day in Court because of a limitation claim. It is specifically found the claim and action against Lincoln County was timely filed. At this time, the Court finds there are not enough facts to show that Lincoln County is responsible but if facts come forward or are discovered that show that Lincoln County is responsible, either directly or indirectly, Lincoln County shall be reinstated as a Defendant[.]

[¶10] The action against the Town of Thayne and the School District continued, and on April 19, 2013, the School District filed a motion for summary judgment. It argued that because the School District had turned over possession and maintenance of the Metcalf School building to the Community Group, the District owed no duty to Taylor Lysager and was thus entitled to judgment as a matter of law. On December 11, 2013, the district court issued a decision letter...

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