Black v. William Insulation Co., Inc.

• Decision Date: 29 August 2006
• Docket Number: No. 05-249.,05-249.
• Citation: 141 P.3d 123,2006 WY 106
• Parties: Peggy Ann Cook BLACK, Individually and as Personal Representative of the Estate of Richard Black, Deceased, Appellant (Plaintiff), v. WILLIAM INSULATION COMPANY, INC., a Wyoming corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

141 P.3d 123

2006 WY 106

Peggy Ann Cook BLACK, Individually and as Personal Representative of the Estate of Richard Black, Deceased, Appellant (Plaintiff), v. WILLIAM INSULATION COMPANY, INC., a Wyoming corporation, Appellee (Defendant).

No. 05-249.

Supreme Court of Wyoming.

August 29, 2006.

COPYRIGHT MATERIAL OMITTED

Representing Appellant: Sharon M. Rose of Lavery & Rose, P.C.; Evanston, Wyoming; and Elizabeth Greenwood of Pinedale, Wyoming. Argument by Ms. Rose.

Representing Appellee: Patrick J. Murphy and Jakob Z. Norman of Williams, Porter, Day & Neville, P.C.; Casper, Wyoming. Argument by Mr. Murphy.

Before VOIGT, C.J., and GOLDEN, HILL^*, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] On January 21, 2004, David Ibarra-Viernes fell asleep while operating his motor vehicle on U.S. Highway 189. The vehicle crossed the center line and collided with another vehicle, killing Richard Black (decedent). Peggy Ann Cook Black (Black), individually and as personal representative of the estate of her late husband filed a wrongful death action against Ibarra-Viernes's employer, William Insulation Company, Inc. (WIC), alleging that it negligently required Ibarra-Viernes to commute long distances and work long hours without providing proper training or safeguards, breaching a duty to the public to prevent its employees from traveling to or from work when exhausted and tired. The district court granted WIC's motion for summary judgment concluding that there was no duty owed by WIC to the decedent under the circumstances. We agree and affirm.

ISSUES

[¶ 2] Black sets out two issues on appeal:

1. Did the trial court err in failing to recognize a duty of care from an employer to innocent third parties who are injured, or in this case, killed by its employees who are exhausted due to the working conditions imposed by the employer and thus fall asleep at the wheel[?]

2. Did the trial court err in granting summary judgment and summarily dismissing Appellant's negligent misrepresentation claim[?]

WIC responds with the following statement:

Whether the District Court correctly granted summary judgment to the defendant/employer when it found that Wyoming law does not, and should not, impose a legal duty of reasonable care on Wyoming employers to protect the motoring public from the negligence of their off-duty employees when those off-duty employees drive to-and-from their Wyoming worksites in their personal vehicles outside the scope of their employment.

FACTS

[¶ 3] In 2003, WIC was hired as a subcontractor on an expansion project (the project) at the Exxon/LaBarge Shute Creek Plant (the Plant). The Plant is located in a remote area of southwest Wyoming approximately twenty-six and forty miles from the nearest population centers, Green River and Kemmerer respectively. Given the remoteness of the worksite, WIC provided a thirty dollar per day subsistence pay to each of its employees to defer part of the cost of a motel room or apartment in Green River or Kemmerer. WIC did not require its employees to spend the money on lodgings. The employees were free to spend it (or not) as they deemed fit. Another alternative was provided by The Industrial Company (TIC), the general contractor on the project. TIC arranged for buses to transport its employees daily to and from Evanston, Green River, and Kemmerer and the Plant. The buses were made available by TIC to the employees of its subcontractors; however, WIC's project manager erroneously informed his employees that they could not ride the buses because there was only room for TIC's employees.¹

[¶ 4] Ibarra-Viernes was hired by WIC in the fall of 2003 and by January of 2004, he was working on the project.² Ibarra-Viernes received the thirty dollars a day subsistence pay from WIC but he elected to make the commute from his home in Evanston, Wyoming, to the plant, which was ninety miles away. Ibarra-Viernes carpooled with a group of co-workers, who took turns driving. Ibarra-Viernes's work schedule was Monday through Friday, 7 a.m. to 5:30 p.m. with a half hour lunch and no, or minimal, breaks. In addition to his employment with WIC, Ibarra-Viernes worked a second job at night washing dishes at a restaurant.³

[¶ 5] Ibarra-Viernes completed his regular shift on Tuesday, January 20, 2004, and returned to Evanston at 8:30 p.m. He then worked his second job before going to bed around 11:00 p.m. Ibarra-Viernes rose at 4:00 a.m. to get his vehicle and collect his co-workers for the daily commute to the Plant where he worked his normal shift. The carpool, with Ibarra-Viernes driving, left the Plant around 6:00 p.m. Shortly thereafter near milepost 25 on U.S. Highway 189, Ibarra-Viernes's vehicle crossed the centerline and collided head-on with a vehicle in which Black's decedent was a passenger.

[¶ 6] On December 7, 2004, Black filed a wrongful death action in the district court against WIC. She alleged that WIC owed a duty of care to other travelers on the highway to prevent injury caused by employees who had become exhausted after being required to commute long distances and work long hours. Black claimed that WIC breached that duty and was negligent by, among other things, "failing to take precautionary measures to prevent employees from becoming so exhausted that they pose a threat of harm to the traveling public and failing to provide alternative transportation to its exhausted employees or in the alternative, failing to provide living quarters to its employees within a reasonable distance from the plant site." WIC filed a motion for summary judgment. After a hearing, the district court granted the motion concluding that WIC did not owe a duty to the decedent. Black appeals that determination.

STANDARD OF REVIEW

[¶ 7] When we review the granting of a summary judgment, we employ the same standards and use the same materials as were employed and used by the trial court. 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 favorable inferences that may fairly be drawn from the record. Summary judgment is appropriate only 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. 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. We review a grant of summary judgment deciding a question of law de novo and afford no deference to the trial court's ruling.

Burnett v. Imerys Marble, Inc., 2005 WY 82, ¶ 10, 116 P.3d 460, 462 (Wyo.2005) (quoting Act I, LLC v. Davis, 2002 WY 183, ¶ 9, 60 P.3d 145, 148 (Wyo.2002)).

DISCUSSION

[¶ 8] We recently set out in detail the analytical framework for determining whether a duty exists:

"Whether a legal duty exists is a question of a law, and absent a duty, there is no liability." Bevan v. Fix, 2002 WY 43, ¶ 46, 42 P.3d 1013, 1027 (Wyo.2002) (quoting Bowen v. Smith, 838 P.2d 186, 198 (Wyo. 1992) (Brown, J., concurring)).

"`"Duty" is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.'" [Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 44, 49 P.3d 1011, 1024 (Wyo.2002) (quoting Gates v. Richardson, 719 P.2d 193, 195 (Wyo.1986)).] * * * A duty may arise by contract, statute, common law, "or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff." Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 384 (Wyo.1995). The legal question to be answered by the court is

"`"whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other — or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court." . . .'"

Thomas By Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1307 (Wyo.1985) (quoting Prosser, Law of Torts, § 37 at 206 (4th ed.1971) and Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1280 (Wyo.1983)).

In deciding whether to adopt a particular tort duty, a court's focus must be much broader than just the case at hand:

"[T]he courts have merely `reacted to the situation in the way in which the great mass of mankind customarily react,' and that as our ideas of human relations change the law as to duties changes with them. Various factors undoubtedly have been given conscious or unconscious weight, including convenience of administration, capacity of the parties to bear the loss, a policy of preventing future injuries, the moral blame attached to the wrongdoer, and many others. Changing social conditions lead constantly to the recognition of new duties. No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." Prosser & Keaton on Torts, § 53, pp. 357-359 (5th ed.1984).

"* * * The judge's function in a duty determination involves complex considerations of legal and social policies which will directly affect the essential determination of the limits to government protection. Consequently, * * * the imposition and scope of a legal duty is dependent not only on the factor of foreseeability ([Cunis v. Brennan] 56 Ill.2d 372, 375, 308 N.E.2d 617) but involves other considerations, including the magnitude of the risk involved in defendant's conduct, the burden of requiring defendant to guard against that risk, and the consequences...