Beard v. Brown

• Decision Date: 15 August 1980
• Docket Number: 5163 and 5183,Nos. 5162,s. 5162
• Citation: 616 P.2d 726
• Parties: David L. BEARD and Champlin Petroleum Company, Appellants (Defendants), v. Donald A. BROWN, Administrator of the Estate of Wallace Glenn Napier, Deceased, Appellee (Plaintiff). R. L. FRAILEY, INC., a corporation, Appellant (Defendant), v. Donald A. BROWN, Administrator of the Estate of Wallace Glenn Napier, Deceased, Appellee (Plaintiff). David L. BEARD and Champlin Petroleum Company, Appellants (Defendants), v. Patricia R. BULLER, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 726

616 P.2d 726

David L. BEARD and Champlin Petroleum Company, Appellants (Defendants), v. Donald A. BROWN, Administrator of the Estate of Wallace Glenn Napier, Deceased, Appellee (Plaintiff).

R. L. FRAILEY, INC., a corporation, Appellant (Defendant), v. Donald A. BROWN, Administrator of the Estate of Wallace Glenn Napier, Deceased, Appellee (Plaintiff).

David L. BEARD and Champlin Petroleum Company, Appellants (Defendants), v. Patricia R. BULLER, Appellee (Defendant).

Nos. 5162, 5163 and 5183.

Supreme Court of Wyoming.

Aug. 15, 1980.

Lawrence A. Yonkee, Redle, Yonkee & Arney, Sheridan, signed the brief of appellants Beard and Champlin Petroleum Company and appeared in oral argument on their behalf. Gary M. Greenhalgh, Greenhalgh, Bussart & West, Rock Springs, signed the brief of appellant R. L. Frailey, Inc. and appeared in oral argument on its behalf.

Robert A. Johnson, Rock Springs, signed the brief and appeared in oral argument on behalf of Brown, Administrator of the Estate of Napier. John C. Brooks and W. W. Reeves, Vlastos & Reeves, P. C., Casper, and John Zebre, Rock Springs, signed the brief of appellee Buller. W. W. Reeves, Casper, appeared in oral argument on behalf of Ms. Buller.

Charles E. Greenhawt, Russell, Greenhawt & Rummel, Rawlins, filed an Amicus Curiae brief on behalf of Stewart Scott Brazell, in support of appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

Each of these cases arises out of an automobile accident which occurred on an unimproved county road, ¹ known as Sweetwater County Road 4-26, at about 5:45 p. m. on July 26, 1975. Patricia Buller (Buller) was traveling westward on the road in her 1972 Dodge Colt station wagon, having left her place of employment with R. L. Frailey, Inc. (Frailey), ² at the end of the working day. ³ David Beard (Beard) was traveling eastward on this same road in a four-door 1974 Plymouth Fury, which was owned by his employer. Beard was a senior drilling engineer with Champlin Petroleum Company (Champlin) and was using the road to visit drilling sites which Champlin was developing and producing at various points along this county road.

Buller and Beard collided with one another at a point approximately one-half mile east of the junction of County Road 4-26 and State Highway 430. As a result of the collision, Buller suffered severe injuries and a passenger in her car, Wallace Glenn Napier, was killed. ⁴ Napier is represented in this suit by the administrator of his estate, Donald A. Brown (Brown) and all references to Napier's contentions in these appeals will be referred to with the name "Brown." Beard, who was wearing a seat belt, was not seriously injured.

Beard testified that as he was traveling eastward on the road he met two or three cars traveling in the opposite direction. He related that these cars kicked up a cloud of dust that hung over the westbound lane but did not totally obscure the eastbound lane. Beard stated that he had clear vision in his lane and first saw Buller's car as it emerged from the dust on the opposite side of the road. Beard testified that the Buller car came across the center of the roadway at a gradual angle into the path of his car. Beard applied his brakes and turned to the left ⁵ to avoid the Buller car but they nonetheless collided on Beard's side of the road. The cars collided right-front side to right-front side. The following diagram derived from the testimony of both Buller and Beard as well as a highway patrol officer who investigated the accident scene helps to explain the situation at the time of impact ⁶:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Buller testified that she was lost in a cloud of dust at the time of the accident and that she did not know for certain the position of her vehicle on the roadway at the time of the accident:

"A. Last thing I remember as I was looking over my right side headlight, and I was leaning forward attempting to find the side of the road, and at that point in time, I couldn't see. I could barely see the front of my car."

Beard testified that he was traveling about 40 mph at the time of the collision. This is also the speed he reported to the investigating officer at the scene. Buller testified that she was traveling 25-30 mph, although she had told the investigating officer at the scene that she was traveling 50 mph.

The testimony at trial established that County Road 4-26 was, in fact, a county road but that both Champlin and Frailey had participated in grading and watering the road so as to make it suitable for their use. The grading was done to smooth the road and the water was used to enhance compaction and reduce dust. The purpose of the grading and watering was to make the road passable for large trucks delivering construction materials, et cetera, to both Frailey's worksite and to Champlin's various worksites, as well as to make the road more passable for the employees who used it. ⁷ No grading or watering had been performed on the road immediately prior to the occurrence of the accident.

Brown sued both Buller and Beard, asserting that both were negligent in operating their automobiles. Brown joined Frailey and Champlin asserting that both Buller and Beard were acting within the scope of their respective employments. Frailey disputes that Buller was acting within the scope of her employment, claiming that the mere fact that she received two extra hours of pay to compensate for her driving to and from work did not make these trips within the scope of her employment. Champlin, on the other hand, concedes that Beard was acting within the scope of his employment, and thus Champlin may be held to pay for any negligence attributable to Beard.

Buller crossclaimed against Beard alleging he was negligent in operating his motor vehicle. Brown claimed and Buller crossclaimed against Champlin and Frailey on the theory they had negligently maintained County Road 4-26.

These three cases were consolidated and tried together in the district court. The judgment produced three separate appeals and they were also consolidated for this court's consideration. The following is a concise statement of each of these three appeals. However, the issues are so interrelated that it is convenient and more understandable to treat them as though they were one case.

Appeal Number 5162

Beard and Champlin are appealing the jury's findings that (1) Champlin was negligent in maintaining the road, and (2) Beard was negligent in operating his motor vehicle, vis-a-vis the appellee-Buller.

Appeal Number 5163

Frailey is appealing the jury's findings that (1) it was negligent in maintaining the road, and (2) Buller was acting within the scope of her employment at the time of the collision, vis-a-vis the appellee-Brown.

Appeal Number 5183

Beard and Champlin are appealing the jury's findings that (1) Champlin was negligent in maintaining the road, and (2) Beard was negligent in operating his motor vehicle, vis-a-vis the appellee-Brown.

In this appeal, we are confronted with several, difficult negligence issues: (1) Are the appellants Frailey and Champlin liable to the appellees Buller and Brown because of their failure to maintain Sweetwater County Road 4-26 in a safe condition? (a) What duty did Frailey and Champlin have in that regard, (b) Whom did the duty protect, and (c) If there was in fact a duty, was the failure to perform it the direct cause of appellees' damages? (2) Was appellee-Buller acting within the scope of her employment at the time of the collision, hence making Frailey liable for her negligence on the basis of respondeat superior? (a) Was Buller within the scope of her employment on the basis that she was paid by Frailey two extra hours of compensation to travel to and from work? (3) Is there evidence from which a jury could find that appellant-Beard was negligent?

A theory of recovery upon which both Buller and Brown relied sought to hold Frailey and Champlin liable under the black-letter rule set out in Restatement of the Law of Torts 2d, § 323 (1965):

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

"(a) his failure to exercise such care increases the risk of such harm, or

"(b) the harm is suffered because of the other's reliance upon the undertaking." (Emphasis added.)

Based on this theory of recovery, the jury was instructed by the trial judge as follows:

"INSTRUCTION NO. 3

"Brown also claims damages from Frailey and Champlin, or either of them, and Buller also claims damages from Champlin arising out of the same collision, which Brown alleges were sustained because Frailey and Champlin, or either of them, and which Buller alleges were sustained because Champlin agreed to maintain, and thereafter negligently maintained the county road on which the collision occurred, and that such negligence was, either wholly or partially, a direct cause of Napier's death, Buller's injuries, and any damages sustained by them. Both Defendants have denied they agreed to maintain the road, and denied that it was negligently maintained by them.

"Brown must prove, by a preponderance of the evidence, in support of his claim for damages, from either or both Defendants, all of the following only insofar as they pertain to Napier "1. That Frailey and Champlin, or either of them, undertook, either gratuitously or for a consideration, to maintain the county road.

"2. That in undertaking such maintenance either or both of them recognized, or should have recognized, that such maintenance was necessary for Napier's and Buller's protection.

"3. That the negligent failure of either or both of them to maintain the road either increased the risk of...