Daily v. Bone

• Decision Date: 09 November 1995
• Docket Number: No. 94-251,94-251
• Citation: 906 P.2d 1039
• Parties: Vicki Jo DAILY, Appellant (Plaintiff), v. Ingrid BONE, Administratrix, of the Estate of John Earl Bone, and Douglas Case, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1039

906 P.2d 1039

Vicki Jo DAILY, Appellant (Plaintiff), v. Ingrid BONE, Administratrix, of the Estate of John Earl Bone, and Douglas Case, Appellees (Defendants).

No. 94-251.

Supreme Court of Wyoming.

Nov. 9, 1995.

Robert W. Horn of Robert W. Horn, P.C., Jackson, and Steven D. Olmstead, Jackson, for Appellant.

R. Michael Mullikin of Mullikin, Larson & Swift, Jackson, for Appellees.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR and LEHMAN, JJ.

TAYLOR, Justice.

John Bone drove Douglas Case's snowmobile through a stop sign onto a major highway, causing a collision with Vicki Jo Daily's pickup truck. Although not physically injured, Vicki Jo Daily was emotionally traumatized by John Bone's abrupt death at the scene. Vicki Jo Daily sued John Bone's estate and Douglas Case alleging, inter alia, negligence and negligent entrustment. Perceiving an action grounded in negligent infliction of emotional distress, the district court granted summary judgment for John Bone and Douglas Case.

This case sounds in negligence and is remarkable only because the injuries are mental rather than physical. We reverse the summary judgment and remand for a trial on the merits.

I. ISSUES

Appellant, Vicki Jo Daily (Daily), stated the following issue in her opening brief:

I. Where the primary victim involved in a serious snowmobile/truck wreck and its aftermath suffers a mental injury in the occurrence, after experiencing the especially horrendous death of the operator of the snowmobile, may the victim seek compensation from the owner of the snowmobile and the estate of the deceased snowmobile operator for negligent infliction of emotional distress?

Appellees, Ingrid Bone, administratrix of John Bone's estate (Bone), and Douglas Case (Case), articulated the following issues:

I. Whether appellant has waived the right to appeal as to the court's judgment in favor of appellee Douglas Case on the theory of negligent entrustment.

II. Whether the alleged negligent acts of appellee John Bone, deceased, in causing an automobile/snowmobile collision constitute the legal and proximate cause of appellant's alleged psychic injuries.

III. Whether the claim of appellant comes within the limitations of the rule in Gates v. Richardson [719 P.2d 193 (Wyo.1986) ].

IV. Whether this Court should create an additional actionable claim for pure psychic injury beyond the limitations of the rule in Gates v. Richardson.

Thus challenged, Daily submitted a timely reply brief, positing two supplemental issues:

I. Does Gates v. Richardson prohibit compensation to a person who is a victim of negligence rather tha[n] a bystander observer of the consequences of negligence?

* * * * * *

II. Whether the appellant waived or abandoned her appeal of the summary judgment pertaining to defendant, Douglas Case?

II. FACTS

Bone, a fifty-six-year-old North Carolinian vacationing in Teton County, Wyoming, agreed to a snowmobile excursion with his friend, Case. Case, who had twenty years of snowmobiling experience, drove his own machine and provided Bone, a snow machine novice, with a high-performance machine for the trip. On the morning of February 4, 1993, Case and a friend found themselves waiting on their snowmobiles at the crest of a small hill, looking back across U.S. Highway 26 ¹ at Bone, who had stopped the machine he was driving on the trail, thirty or forty feet short of the highway.

U.S. Highway 26 was clear and dry on that February morning as Daily and her daughter drove south to honor a business commitment in Riverton, Wyoming. The speed limit on that stretch of road is fifty-five miles per hour, but Daily was proceeding at about forty-five miles per hour, having seen Case and being concerned about snowmobile traffic. Inexplicably, Bone then drove Case's snowmobile through a clearly posted "STOP" sign directly into Daily's path. Daily had no opportunity to avoid the impact, which all agree was directly attributable to operator error on Bone's part.

On impact, Daily saw Bone's helmet fly off as he was propelled on to the hood of her pickup, only to slide off as Daily stopped. Neither Daily nor her daughter sustained immediate physical injury, but Daily rushed to comfort and care for Bone, who was seriously injured. Daily cushioned Bone's head from the pavement, speaking to him reassuringly. Luckily, it seemed, an emergency medical technician arrived almost immediately and Daily assisted his efforts. However, Bone became agitated and was moved into an ambulance from which Daily was barred.

A medical evacuation helicopter circled the area and left without landing. Daily cannot remember who told her that Bone had died, but she does remember becoming distraught at the news and needing to be driven home. Thereafter, Daily's emotional equipoise deserted her, leaving her unable to work, fearful of leaving her home, and unable to relate well to others, including her husband and daughter. Daily was diagnosed as suffering from post traumatic stress disorder, depression and agoraphobia, all stemming directly from the accident. One expert calls her prognosis guarded, while another terms it positive "due mostly to her commitment to therapy and her desire to improve and master the feelings she is experiencing."

Daily sued, alleging negligence and recklessness against Bone's estate while accusing Case of negligence and negligent entrustment. Case filed a motion for summary judgment pursuant to W.R.C.P. 56(b), asserting that Case was neither negligent nor negligent in entrusting his snowmobile to Bone. Bone's estate filed a similar motion, suggesting Daily is not a "permissible plaintiff" in a suit alleging negligent infliction of emotional distress and, in any event, arguing that Daily's injuries were not proximately caused by the impact with Bone.

Recognizing a suit "for various forms of negligence," the district court nonetheless concluded that lack of a familial relationship barred Daily from recovery for negligent infliction of emotional distress against Bone's estate and, consequently, barred any claim against Case. The district court also opined that no material factual issues would exist, even were negligent infliction of emotional distress a claim available to Daily.

III. DISCUSSION

A. SCOPE AND STANDARD OF REVIEW

Summary judgments are a beneficial tool for eliminating formal trials where only questions of law are at issue. Bryant v. Hornbuckle, 728 P.2d 1132, 1135 (Wyo.1986). Unadulterated issues of law must present themselves in the context of settled facts. Iberlin v. TCI Cablevision of Wyoming, Inc., 855 P.2d 716, 719 (Wyo.1993). Accordingly, where genuine issues of material fact exist, summary judgment is inappropriate. Hanna v. Cloud 9, Inc., 889 P.2d 529, 532 (Wyo.1995). Materiality is a function of a disputed fact's capacity to establish or refute an essential element of any asserted cause or defense thereto. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994).

Our perspective on factual matters in review of summary judgments affords a de novo review of the same record available to the district court. Forbis v. Minter, 869 P.2d 151, 152 (Wyo.1994). We indulge the materials of the party opposing summary judgment with every favorable inference which may fairly be drawn from the record. Tidwell v. HOM, Inc., 896 P.2d 1322, 1325 (Wyo.1995). A general reluctance to place our imprimatur upon summary judgments redoubles in negligence cases which often turn on the factual issue of whether an actor behaved reasonably under the circumstances. Calkins v. Boydston, 796 P.2d 452, 454 (Wyo.1990).

B. NEGLIGENCE

Three counts of Daily's complaint allege negligence. The elements of negligence are: (1) a duty, (2) a violation thereof, (3) which violation is the proximate cause of, (4) injury to the plaintiff. Thomas By Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1307 (Wyo.1985); Hines v. Sweeney, 28 Wyo. 57, 201 P. 1018, 1021 (1921).

1. DUTY

Without duty, negligence is not actionable. MacKrell v. Bell H2S Safety, 795 P.2d 776, 779 (Wyo.1990). The existence of duty is a question of law, making an absence of duty the surest route to summary judgment in negligence actions. Tidwell, 896 P.2d at 1325.

Had he been at the wheel of an automobile, Bone's duty to stop would be a foregone conclusion. Rogers v. Hansen, 361 P.2d 676, 678 (Wyo.1961). Because his vehicle was Case's snowmobile, the stop sign on Bone's trail only enhanced a pre-existing statutory duty of "yielding the right-of-way to all traffic in the main-traveled roadway." Wyo.Stat. § 31-5-801 (1994).

In Wyoming, duty may arise by operation of statute. Culver v. Sekulich, 80 Wyo. 437, 463, 344 P.2d 146, 156 (1959). The facts developed for summary judgment show, as a matter of law, that Bone owed a duty to motorists like Daily to avoid collision. Existence of that legal duty is sufficient to commend the factual issue of Bone's negligence in colliding with Daily to a jury's deliberation. Danculovich v. Brown, 593 P.2d 187, 190 (Wyo.1979).

2. VIOLATION OF DUTY

Automobile accidents involving violation of a duty to yield create issues of fact for examination by a jury. Brockett v. Prater, 675 P.2d 638, 641 (Wyo.1984); Wilhelm v. Cukr, 68 Wyo. 1, 23, 227 P.2d 988, 996 (1951). We can perceive no rational basis for withholding such factual matters from a jury merely because one vehicle happens to be a snowmobile.

3. PROXIMATE CAUSE

Whether the injury was the natural and probable consequence of Bone's collision with Daily is also a question of fact normally not to be taken from the jury. Lynch v. Norton Const., Inc., 861 P.2d 1095, 1099 (Wyo.1993). Typically, a causal link is sought between a defendant's tort and compensable physical injury to the plaintiff. Keehn v. Town of Torrington, 834 P.2d 112, 115 (Wyo.1992). Here, Bone's alleged negligence placed Daily, through no fault of her own, in the position of being the cause of Bone's demise. Somewhat...