Andersen v. Two Dot Ranch, Inc., 00-67.

• Citation: 49 P.3d 1011,2002 WY 105
• Decision Date: 12 July 2002
• Docket Number: No. 00-67.,00-67.
• Parties: Kathy A. ANDERSEN, as Personal Representative of the Estates of Jared Steffen, Decedent, and Robert Dean Yates, Decedent; and Jody McCampbell, Individually and as Conservator for Caleb Steffen, a Minor Child, Appellants (Plaintiffs), v. TWO DOT RANCH, INC., a Wyoming corporation; and Maria Lopez Hernandez, Appellees (Defendants).
• Court: United States State Supreme Court of Wyoming

49 P.3d 1011

2002 WY 105

Kathy A. ANDERSEN, as Personal Representative of the Estates of Jared Steffen, Decedent, and Robert Dean Yates, Decedent; and Jody McCampbell, Individually and as Conservator for Caleb Steffen, a Minor Child, Appellants (Plaintiffs), v. TWO DOT RANCH, INC., a Wyoming corporation; and Maria Lopez Hernandez, Appellees (Defendants).

No. 00-67.

Supreme Court of Wyoming.

July 12, 2002.

Representing Appellants: L.B. Cozzens of Cozzens, Warren & Harris, P.L.L.P., Billings, Montana; Matthew F. McLean of Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P., Billings, Montana; and Stephen L. Simonton of Simonton & Simonton, Cody, Wyoming.

Representing Appellee Two Dot Ranch: Cody L. Balzer of Balzer Carman Murdock, P.C., Casper, Wyoming.

Representing Appellee Hernandez: Katherine L. Mead of Mead & Mead, Jackson, Wyoming.

Representing Amicus Curiae Wyoming Stock Growers Association and Wyoming Wool Growers Association: Harriet M. Hageman and Kara Brighton of Hageman & Brighton, Cheyenne, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

KITE, Justice.

[¶ 1] Three vehicles collided with a cow on a state highway in an area posted as open range resulting in two fatalities. The plaintiffs,² representing the deceased and surviving passengers of the third vehicle, sued Two Dot Ranch, Inc. (Two Dot), the owner of the cow, and Maria Lopez Hernandez, the driver of the second vehicle. The district court granted summary judgment for all defendants. We affirm the summary judgment on the claims against Two Dot because allowing livestock on an unfenced highway in posted open range is not evidence of negligence. We reverse the summary judgment in favor of Ms. Hernandez because genuine issues of material fact exist regarding the care she exercised in warning other motorists of the danger and remand the case for further proceedings.

ISSUES

[¶ 2] We restate the issues presented by the parties as follows:

1. In light of Wyoming's historical adherence to the open range doctrine and statutory provisions regulating grazing and pasturing of livestock, does a livestock owner owe a duty of care to protect the motoring public by preventing his livestock from wandering onto an unfenced road in a posted open range?

2. If there is such a duty, did genuine issues of material fact exist regarding the reasonableness of Two Dot's actions which precluded summary judgment?

3. Did genuine issues of material fact exist precluding summary judgment with regard to the reasonableness of Ms. Hernandez's efforts to warn other motorists of the dead cow in the road?

FACTS

[¶ 3] Pursuant to our standard of review for summary judgments, we recite the facts from the vantage point most favorable to the plaintiffs, as the party opposing the motions, awarding them all the favorable inferences which may be drawn from those facts. S & G Investors, LLC v. Blackley, 994 P.2d 941, 943 (Wyo.2000).

[¶ 4] Highway 294 connects the highway from Belfry, Montana, to Cody, Wyoming, with the highway from Cody, Wyoming, to Powell, Wyoming. Portions of Highway 294 run through Bureau of Land Management (BLM) land commonly known as the North Badlands pasture. Two Dot operates a ranch headquartered about seventeen miles north of Cody and grazes livestock on land leased from the BLM in addition to its own land. The accident occurred on the stretch of Highway 294 which runs through the North Badlands pasture. This area is open range and, accordingly, unfenced. Signs notify travelers that livestock may be on the road.

[¶ 5] Two Dot had historically leased the North Badlands pasture; however, in 1994 the BLM decided to restrict grazing in that area to rejuvenate the pasture. Two Dot continued to maintain cattle in adjoining, fenced pastures. On May 4, 1994, a range management specialist for the BLM discovered approximately thirty-seven head of Two Dot's black Angus cattle in the North Badlands pasture. The cattle appeared to have escaped from the adjoining pasture through a gate with a broken lock. Although Two Dot did not have permission at the time to graze its cattle in the North Badlands pasture, it had an informal agreement with the BLM which allowed it to remove stray livestock without penalty if accomplished in a timely manner. After repairing the lock on May 4, 1994, the BLM agent informed Two Dot of the unconfined cattle.

[¶ 6] Four days later, on the evening of May 8, 1994, the cattle were still in the North Badlands pasture. Dennis and Betty Wagner were traveling west on Highway 294 at approximately 9:00 p.m. when they encountered a group of black Angus cattle on the road. Despite taking evasive maneuvers, the Wagners hit one of the cows. Their vehicle was still operable, so they continued on to their residence in Clark. There is some dispute as to where the Wagners left the cow which may still have been alive when they left the scene. Mr. Wagner testified the cow was on the right shoulder along the edge of the highway when they drove away. However, after returning home, Mrs. Wagner called the sheriff's office to report the accident and stated there was "a dead cow in the middle of the road."

[¶ 7] Later that night, Ms. Hernandez and her family left Clark traveling east on Highway 294. Ms. Hernandez encountered the cow lying in the middle of the road. Since the black cow blended with the road and the night, she was unable to avoid hitting it.

[¶ 8] Meanwhile, Robert Yates, his girlfriend Jody McCampbell, and her children Jared and Caleb Steffen were also traveling east on Highway 294 some distance behind the Hernandez vehicle. The parties dispute what happened next. Ms. Hernandez claimed that all her passengers were still in her vehicle when the third vehicle struck the cow. Ms. McCampbell, however, stated that, as they approached the scene, a boy waving his arms appeared in their lane of travel. Mr. Yates, who was driving the third vehicle, moved into the other lane to avoid the boy and collided with the cow. At the scene, Ms. Hernandez apparently made statements to police officers which indicated she had sent her son Anthony to warn oncoming traffic although she now denies making any such statements. Mr. Yates and Jared died as a result of the injuries they sustained in the accident. Ms. McCampbell and Caleb were injured but survived.

[¶ 9] The plaintiffs filed suit claiming negligence against Two Dot, the Wagners,³ and Ms. Hernandez. Two Dot and Ms. Hernandez successfully moved for summary judgment. The district court ruled in favor of Ms. Hernandez concluding there was insufficient evidence to determine whether she, or her son at her direction, acted unreasonably in attempting to warn oncoming traffic. The court noted there was insufficient evidence to determine where Anthony was in relation to the cow or where the cow was located on the road when the third vehicle hit it. From that, the district court determined a jury could not reasonably conclude Ms. Hernandez acted in an unreasonable manner. The district court also granted Two Dot's motion for summary judgment concluding no duty was owed to motorists traveling through open range. The plaintiffs appealed to this court.

STANDARD OF REVIEW

[¶ 10] Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. Bachmeier v. Hoffman, 1 P.3d 1236, 1240 (Wyo.2000). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all the favorable inferences which may fairly be drawn from the record. Id. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Scherer Construction, LLC, 2001 WY 23, ¶ 15, 18 P.3d 645. We do not accord any deference to the district court's decision on issues of law. Id.

DISCUSSION

Two Dot Ranch

[¶ 11] In order to maintain a claim of negligence, a plaintiff must prove that "the defendant was under a duty of care to protect the plaintiff from injury; the defendant breached that duty; the plaintiff suffered actual injury or loss; and the defendant's breach of the duty proximately caused the injury or loss." Roberts v. Klinkosh, 986 P.2d 153, 156 (Wyo.1999). We must determine whether Two Dot owed any duty of care to protect the plaintiffs from suffering injury as a result of colliding with livestock wandering on an unfenced roadway in posted open range. "[W]hether a duty exists and the scope of that duty are questions of law for the court." Kobos By and Through Kobos v. Everts, 768 P.2d 534, 541 (Wyo.1989); see also Vassos v. Roussalis, 658 P.2d 1284, 1287 (Wyo.1983)

. If no duty is established, there is no actionable claim of negligence. Davis v. Black Hills Trucking, Inc., 929 P.2d 532, 534 (Wyo.1996).

[¶ 12] The district court concluded there was no duty because the accident occurred in an open range⁴ area. The plaintiffs argue the open range doctrine does not excuse a livestock owner from the exercise of reasonable care in pasturing his cattle and applies only to claims for damage caused by trespass of the livestock, thus questioning its relevance to this case. Two Dot counters that the open range doctrine effectively immunizes it from any claims of negligence arising from pasturing its cattle in open range. The Wyoming Stock Growers Association and the Wyoming Wool Growers Association, through their amicus brief, assert a duty of ordinary care already applies to both "enclosed" and "open range" livestock owners. However, ...