Baros v. Wells

• Decision Date: 05 October 1989
• Docket Number: No. 89-37,89-37
• Citation: 780 P.2d 341
• Parties: Raymond BAROS, Appellant (Plaintiff), v. Eddie E. WELLS, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 341

780 P.2d 341

Raymond BAROS, Appellant (Plaintiff), v. Eddie E. WELLS, Appellee (Defendant).

No. 89-37.

Supreme Court of Wyoming.

Oct. 5, 1989.

Rehearing Denied Nov. 2, 1989.

Daniel G. Blythe of Borthwick, Blythe & Lewis, Cheyenne, and Richard Wolf, Cheyenne, for appellant.

Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, and Stephen H. Graham of Jones & Graham Law Office, Torrington, for appellee.

Before CARDINE, C.J., THOMAS, URBIGKIT, and MACY, JJ., and ROONEY, J. (Ret.).

MACY, Justice.

This is an appeal from a summary judgment granted in favor of appellee Eddie E. Wells on appellant Raymond Baros' co-employee culpable negligence claim. Baros was injured in the course of his employment with the Town of Torrington and received compensation for his injuries through worker's compensation. Baros initiated this action, seeking further recovery for his injuries from his supervisor/co-employee, Wells, and alleging culpable negligence under an exception to the exclusive remedy provision of the Wyoming Worker's Compensation Act as it then existed. The district court determined that there were no issues of material fact and that Wells was entitled to judgment as a matter of law.

We affirm.

Baros describes the issue simply:

Was there a genuine issue of material fact on the question of culpable negligence?

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. Roybal v. Bell, 778 P.2d 108 (Wyo.1989); Doud v. First Interstate Bank of Gillette, 769 P.2d 927 (Wyo.1989). We review a summary judgment in the same light as the district court, using the same materials and following the same standards. Roybal, 778 P.2d 108; Johnston v. Conoco, Inc., 758 P.2d 566 (Wyo.1988). 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. Doud, 769 P.2d 927; Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174 (Wyo.1988).

The materials submitted in support of and in opposition to the motion for summary judgment reveal the following facts. At the time of Baros' injury, both parties were employed by the Town of Torrington. Wells was superintendent of the Torrington water and sewer department, and Baros was a laborer/novice equipment operator. On Saturday, October 29, 1983, Wells called Baros to assist him in locating a leak in a water service line. They began work at approximately 1:00 p.m., with Wells operating a backhoe to uncover the leaking line. Baros worked in and out of the excavation, guiding Wells' placement of the backhoe bucket and shoveling dirt away from the uncovered water line. Baros usually climbed out of the excavation when Wells dug with the backhoe. Both Wells and Baros were aware that the arm and bucket of the backhoe had a tendency to drift to the left and that repairs were needed to correct this problem. Although this tendency to drift had been occurring for about six months, it had produced no harmful effect and had been easily corrected by the operator. Both men had operated the backhoe previously--Wells approximately twice a month for four years and Baros between two and four times.

The accident occurred at about 4:00 p.m., and, although it was later discovered that Baros' injuries were serious, the work continued for more than an hour after the injury. At the time of the accident, Baros was down in the excavation at Wells' direction, standing to one side as Wells operated the backhoe. On this occasion, the backhoe arm lurched suddenly and violently to the left, striking Baros in the abdomen. A post-accident inspection and repair of the backhoe revealed a hydraulic system failure was the cause of the sudden movement of the machine.

Materials in the record additionally reveal that Wells had consumed one beer prior to going to the job site and that Baros observed two beer cans in Wells' pickup. Further, Baros claimed that he recognized the danger of being in a ditch while a backhoe is operating and that he remained in the ditch only because Wells directed him to do so. ¹ Baros said he felt he would have lost his job if he had climbed out of the ditch contrary to Wells' instructions. Additional facts will be mentioned as they relate to Baros' specific contentions of culpable negligence.

Prior to its repeal in 1986, Wyo.Stat. § 27-12-103(a) (1977) provided an exception to the exclusive remedy provision of the Wyoming Worker's Compensation Act for co-employee culpable negligence. ² Section 27-12-103(a) provided:

The rights and remedies provided in this act [§§ 27-12-101 to -804] for an employee and his dependents for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer making contributions required by this act, or his employees acting within the scope of their employment unless the employees are culpably negligent, but do not supersede any rights and remedies available to an employee and his dependents against any other person.

In Bryant v. Hornbuckle, 728 P.2d 1132 (Wyo.1986), we discussed this statute, stating:

In order to recover against a coemployee under this section of the Worker's Compensation Act, a plaintiff must establish more than simple negligence; the coemployee's conduct must constitute "culpable" negligence. In Barnette v. Doyle, Wyo., 622 P.2d 1349, 1362 (1981), we defined the term "culpable negligence" as "willful and serious misconduct." We defined the term "willful" in this context as " 'such as is done purposely, with knowledge--or misconduct of such a character as to evince a reckless disregard of consequences.' " Id., quoting Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203, 206, 149 A.L.R. 998 (1943).

The aggravating factor which distinguishes willful misconduct from ordinary negligence is the actor's state of mind. In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm. State of mind, of course, may be difficult to prove. Accordingly, courts allow a party to establish that willful misconduct has occurred by demonstrating that an actor has intentionally committed an act of unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow.

Id. at 1136 (citations omitted), quoted in Stephenson v. Pacific Power & Light Company, 779 P.2d 1169, 1174-75 (Wyo.1989), and Johnston, 758 P.2d at 568-69.

Baros argues that the materials in the record are sufficient to structure genuine factual issues as to Wells' culpable negligence in several respects. First, he asserts that Wells had been drinking alcoholic beverages. Wells stated in his deposition that he had not anticipated working that day and that he had had one beer at home before being called out on the job. Other than his observation of two empty beer cans in Wells' pickup, Baros presented no evidence that Wells had been drinking, and he admitted in his deposition that he had no knowledge of Wells drinking on the day of the accident, even though the men worked side by side for several hours before the accident. Baros does not claim that Wells was in any way impaired or under the influence of alcohol, and, even given the benefit of all favorable inferences, this evidence simply fails to structure a factual issue of willful misconduct.

Second, Baros relies upon Wells' deposition testimony that Baros' presence in the excavation was contrary to safety policy established by Wells. As previously noted, there is a conflict in the testimony as to whether or not Wells directed Baros to remain in the hole at the time of the accident. In describing Baros' presence in the excavation, Wells testified:

A * * * I should have thought of it at the same time but I didn't. We were tired, and it was getting late. Ray had been in and out of the hole several times. Ray could have just as easily have got out of the hole and then motioned me into the hole as do what he did: stayed in the hole, then motioned me into it.

Q He should have stayed in the hole?

A No, he should have got out of the hole.

Q Why do you say that?

A It is standard operating practices that if you don't have room enough to get away from a backhoe in a hole, stand away at the end of the bucket or whatever, you get out of the hole.

Q Is that standard operating practice for whom?

A For the city, my crew.

Q Where does that policy originate?

A From me.

Q You are responsible for that policy?

A Yes. It is unwritten, but everybody knows about it.

In describing the procedure used to dig the hole, Baros testified:

Q So you had not been in the ditch at all that day?

A I was coming in and out.

Q Coming in and out, and you would get out when the backhoe was going to scrape dirt?

A When dirt was piled up big enough for the backhoe to be in there, I would crawl out of there, and he would go in there and clean it out.

* * * * * *

Q Was that a standard procedure, that you would get the dirt piled up big enough for the backhoe to get it out, and then what you would do is you would get out of the ditch and let the backhoe do it?

A That's right.

With respect to his presence in the hole at the time of the accident, Baros stated:

I would say he made about five or six passes through there, and he stopped. So I went back down there, down in the thing, and he told me, he says, "Ray, Hell, I wouldn't be coming in and out of there." He said, "Just stand off to one side." And he says, "Hell, I won't hit you anyway."

In a later affidavit, Baros stated that it was his perception that, if he had climbed out of the ditch against Wells' direction, he might have lost his job. At the time of his deposition, however, Baros testified:

Q And do you think that you would have gotten...