Bertagnolli v. Louderback

Decision Date21 April 2003
Docket NumberNo. 02-65.,02-65.
Citation67 P.3d 627,2003 WY 50
PartiesJoe BERTAGNOLLI, Appellant (Plaintiff), v. Max LOUDERBACK and Larry Westbrook, Appellees (Defendants).
CourtWyoming Supreme Court

Michael R. O'Donnell and Rhonda Sigrist Woodard of Woodard & O'Donnell, P.C., Cheyenne, Wyoming; and Sharon Rose of Lavery & Rose, P.C., Evanston, Wyoming, Representing Appellant.

Ford T. Bussart and Marvin L. Tyler of Bussart, West & Tyler, P.C., Rock Springs, Wyoming, Representing Appellees.

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

[¶ 1] Joe Bertagnolli was injured while working in General Chemical Corporation's trona mine in Sweetwater County. He filed suit against his co-employee supervisors, Max Louderback and Larry Westbrook, alleging they required him to work in an area of the mine generally known to be extremely dangerous and refused his request to "lock out," or turn off, the power to the shuttle belt machine (shuttle belt). The district court granted the supervisors' motion for summary judgment concluding they did not have knowledge of an unguarded sheave wheel which was the specific instrumentality of Mr. Bertagnolli's injury and, therefore, as a matter of law, they could not be liable for the injuries under Wyo. Stat. Ann. § 27-14-104(a) (LexisNexis 2001). We find questions of material fact existed regarding the supervisors' knowledge of the general risks of working near the shuttle belt and whether their actions met the requirements of the statute and constituted willful and wanton misconduct and, therefore, reverse.


[¶ 2] The parties agree only one issue is presented on appeal: Did the district court err in granting summary judgment in favor of the co-employee supervisors?


[¶ 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." Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 3, 49 P.3d 1011, ¶ 3 (Wyo.2002); see also S & G Investors, LLC v. Blackley, 994 P.2d 941, 943 (Wyo.2000). Evidence submitted by Mr. Bertagnolli in opposition to the supervisors' summary judgment motion consisted of lengthy affidavits, deposition excerpts, and exhibits which set forth his version of the events. The following summary of the facts is drawn from those materials.

[¶ 4] On November 13, 1996, Mr. Bertagnolli was instructed by his section foreman and direct supervisor, Mr. Westbrook, to shovel ore rubble in the west end of the shuttle belt area of the mine also known as the 702 area. Mr. Bertagnolli had worked at the mine for about two years but had never before worked in the shuttle belt area.

[¶ 5] The shuttle belt moves raw ore from the level of the mine on which mining occurs to lower levels where other equipment moves it to the surface. It resembles an open rail car with a long, continuous belt on top and travels up and down a track approximately forty to fifty feet in length by means of a steel cable attached to both ends of the car. The cable makes a large loop around several pulley wheels called "sheave wheels." The cable and sheave wheels are approximately twelve inches above the track. The cable runs through an electric motor called a "tugger" which can pull the shuttle belt in either direction on the rail track. An operator controls the movements of the shuttle belt from a level of the mine below where the shuttle belt is located. By maneuvering the shuttle belt back and forth, the operator aligns it over bins which receive ore from the bottom of the shuttle belt and then transfer the ore to a set of feeders that move it to another series of belts and on to the surface. In the east end, workers are protected from the movements of the steel cable by a series of steel walkway plates positioned over the cable. There is also a steel guardrail in the east end to keep workers away from the shuttle belt and its moving parts. On the west end, however, the steel cable is exposed, the sheave wheels are unguarded, no steel plates are in place over the cables, and there is very little clearance between the shuttle belt and the walls of the mine. Workers in the west end are unprotected from the dangers presented by the shuttle belt and its moving parts.

[¶ 6] When Mr. Bertagnolli was instructed to shovel the shuttle belt area clean, he and Mr. Westbrook were standing in the west end. Mr. Bertagnolli asked whether he was expected to do the work while the shuttle belt was operating, and Mr. Westbrook responded in the affirmative. Mr. Bertagnolli then requested the belt be "locked out" so it could not be turned on while he was in harm's way. Mr. Westbrook left to discuss the matter with Mr. Louderback, the shift supervisor. The supervisors came back together, and Mr. Louderback advised Mr. Bertagnolli the belt would not be locked out. Mr. Bertagnolli stated he would not work in the area unless the belt was locked out, and Mr. Louderback told him, if he did not do the job, he could be fired. Mr. Bertagnolli asked that the union steward be contacted to resolve the matter. Mr. Louderback instructed Mr. Westbrook to notify the union steward, and then they both left the area. Mr. Bertagnolli, believing he could be fired for refusing to work, started to shovel the ore debris in the west end of the shuttle belt area while he waited for the union steward to arrive.

[¶ 7] John "Bud" Dolce, one of Mr. Bertagnolli's crew mates, walked by the shuttle belt area a couple of hours later. He called to Mr. Bertagnolli and told him he was shoveling in "an unsafe area that needed to be locked out." Mr. Bertagnolli told Mr. Dolce he had been ordered by Mr. Louderback to do this job and he had requested a union steward. About an hour or so later, while Mr. Bertagnolli was working approximately five feet behind the rail car, the car started to travel back towards him, and the cable beneath his feet began to move. He threw his shovel to the left and tripped when he stepped back to grab his wheelbarrow. He stuck his right foot behind him to catch his balance, and his boot caught in the pinch point between one of the steel cables and the sheave wheel. The wheel completely severed the back portion of Mr. Bertagnolli's right foot. Over the following three years, Mr. Bertagnolli underwent eleven surgeries to repair his foot. In the end, these efforts were unsuccessful, and in October of 1999 his right leg was amputated just below the knee.

[¶ 8] Mr. Bertagnolli filed suit against the supervisors under § 27-14-104(a) alleging they willfully, wantonly, and intentionally ordered him to work in close proximity to operating equipment with known dangers of amputation and death and for refusing to turn off the electricity to the equipment after being specifically requested to do so. The supervisors moved for summary judgment contending they could not be liable for Mr. Bertagnolli's injuries because they did not know the sheave wheel that severed the back portion of his foot was unguarded. For purposes of the summary judgment, the parties orally stipulated that the legal standard for co-employee liability should be based on § 27-14-104(a) and the willful and wanton misconduct standard. In their briefs submitted to this court, they agree, under § 27-14-104(a), liability is imposed on co-employees who commit intentional acts or willful and wanton misconduct.

[¶ 9] After the summary judgment hearing, the district court granted the supervisors' motion concluding Mr. Bertagnolli presented no evidence that they had knowledge prior to his accident that the sheave wheel was unguarded. Consequently, the supervisors could not be found to have violated § 27-14-104(a) or the willful and wanton misconduct standard and, at most, were negligent. This appeal followed.


[¶ 10] When a motion for summary judgment is before this court, assuming there is a complete record, we have exactly the same duty and materials as did the district court and must follow the same standards. Hoblyn v. Johnson, 2002 WY 152, ¶ 11, 55 P.3d 1219, ¶ 11 (Wyo.2002). The propriety of granting summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and the prevailing party is entitled to judgment as a matter of law. Id. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all the favorable inferences which may be drawn from the facts contained in affidavits, depositions, and other materials appearing in the record. Id.

[¶ 11] The party moving for summary judgment bears the initial burden of establishing a prima facie case for a summary judgment. If the movant carries this burden, the party opposing the summary judgment must come forward with specific facts to demonstrate that a genuine issue of material fact does exist. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 10, 25 P.3d 511, ¶ 10 (Wyo.2001). A material fact has been defined as a fact upon which the outcome of the litigation depends in whole or in part. Hoblyn, 2002 WY 152, ¶ 11,55 P.3d 1219, ¶ 11.

A. Co-employee Liability

[¶ 12] In order to determine whether a disputed issue of material fact existed in this case, we must first clarify the standard for co-employee liability against which the evidence is to be measured. Wyoming's co-employee liability law under the worker's compensation statutes has evolved over the past several decades. This court's discussion in Mills v. Reynolds, 837 P.2d 48, 52 (Wyo.1992), includes a concise review of the relevant historical developments. The Wyoming Constitution provides employers who contribute to the worker's compensation fund immunity from liability for employees injured on the job. Wyo. Const. art. 10, § 4.

[¶ 13] However, in 1974, this court recognized and adopted the common law doctrine that...

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