O'Donnell v. City of Casper

• Decision Date: 18 March 1985
• Docket Number: No. 83-107,83-107
• Citation: 696 P.2d 1278
• Parties: Michael O'DONNELL, Appellant, (Plaintiff), v. CITY OF CASPER, a municipal corporation; et al., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1278

696 P.2d 1278

Michael O'DONNELL, Appellant, (Plaintiff), v. CITY OF CASPER, a municipal corporation; et al., Appellees (Defendants).

No. 83-107.

Supreme Court of Wyoming.

March 18, 1985.

W.W. Reeves and John C. Brooks of Vlastos, Reeves, Murdock & Brooks, Casper, for appellant.

Richard L. Williams and Frank D. Neville of Williams, Porter, Day & Neville, P.C., Casper, for appellee City of Casper.

Michael J. Sullivan and J. Kenneth Barbe of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellees Suzuki Motor Co., Ltd. and U.S. Suzuki Motor Corp.

Before THOMAS, C.J., ROSE, ROONEY and BROWN, JJ., and RAPER, J. (Retired).

BROWN, Justice.

Appellant was seriously injured in a motorcycle accident in Casper, Wyoming. In a lawsuit that followed appellant asserted that the City of Casper was negligent in the maintenance of its streets, and that Suzuki Motor Company had negligently designed the motorcycle involved and was also liable on the theory of strict liability. The trial court granted a summary judgment in favor of appellees.

We will reverse.

The issues are:

1. "Whether the district court erred in concluding that Casper was not negligent as a matter of law.

2. "Whether the district court erred in concluding that Suzuki Motor Company, Ltd. and U.S. Suzuki Motor Corporation were not negligent as a matter of law.

3. "Whether the district court erred in failing to apply the strict products liability standard set forth in § 402A of the Restatement of Torts to the plaintiff's claim against defendants Suzuki Motor Company, Ltd. and U.S. Suzuki Motor Corporation."

On July 8, 1977, appellant Michael O'Donnell was driving Darryl Davis' motorcycle, with permission, on Mariposa Boulevard in Casper, Wyoming. Appellee, City of Casper, had resurfaced Mariposa Boulevard about a month before, and gravel left over from the project remained on the street. ¹ As a result of vehicular travel on Mariposa, ridges and piles of gravel accumulated. As appellant proceeded along the boulevard about five to ten miles per hour, Donald Walford suddenly pulled his automobile from a parking place on the street and into the path of appellant. In order to avoid hitting the Walford vehicle appellant veered to the left, and then had to correct back to the right to avoid hitting vehicles parked on the other side of the street. In making those two quick manuevers appellant rode into loose gravel which caused him to "fishtail" and run into a larger accumulation of gravel. Appellant felt his choices were to lay the motorcycle down, or run into a parked automobile on the opposite side of the gravel. He chose the latter alternative. After hitting the parked vehicle appellant rolled across its hood, falling to the ground, and was engulfed in flames.

Suit was brought against appellee City of Casper (City hereinafter) for negligent failure to maintain its streets. Suit was also filed against appellees Suzuki Motor Company, Ltd. and U.S. Suzuki Motor Corporation (Suzuki hereinafter) for breach of warranty and strict liability in the design, manufacture and sale of its motorcycles. Later, negligent design of the motorcycle was added as an issue.

We have established certain basic principles that are applicable in reviewing the propriety of granting a summary judgment. Summary judgment is a drastic remedy that is not frequently granted, and as a general rule is not appropriate in negligence actions. Keller v. Anderson, Wyo., 554 P.2d 1253 (1976). When a summary judgment is granted by the trial court we must review the entire record in order to determine whether summary judgment was proper. Wyoming Insurance Department v. Sierra Life Insurance Company, Wyo., 599 P.2d 1360 (1979). This court has the same duty as the trial court; assuming the record is complete, we have the same material before us as the trial court. Seay v. Vialpando, Wyo., 567 P.2d 285 (1977); and Minnehome Financial Company v. Pauli, Wyo., 565 P.2d 835 (1977).

An appellee has a heavy burden in defending a summary judgment because appellate courts must look at the record from the viewpoint mostfavorable to the party opposing the motion, giving him all favorable inferences to be drawn from the facts contained in affidavits, exhibits, depositions and testimony. Dubus v. Dresser Industries, Wyo., 649 P.2d 198 (1982); and Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). Summary judgment is proper only when it is clear that no issue of material fact is involved and inquiry into the facts is not desirable to clarify application of law. Stephens v. Sheridan Public Employees Federal Credit Union, Wyo., 594 P.2d 473 (1979). See also Rule 56, Wyoming Rules of Civil Procedure. Furthermore, the party seeking the summary judgment has the burden of demonstrating that there is no genuine issue of material fact, and as a matter of law the movant is entitled to judgment. Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350 (1974).

I

A municipal corporation in Wyoming owes a duty to the traveling public to keep its streets and sidewalks in a reasonable safe condition and in reasonably good repair. Bieber v. City of Newcastle, 242 F.Supp. 457 (D.Wyo.1965).

" * * * The most generally accepted rule in this country is that municipalities, which have full and complete control over the streets within their corporate limits * * * are liable for damages for injuries sustained in consequence of their failure to use reasonable care in keeping them in a reasonably safe condition for public travel * * *." Opitz v. Town of City of Newcastle, 35 Wyo. 358, 362, 249 P. 799, 800 (1926).

The trial court in the case before us was of the opinion that the City had no duty to the traveling public if the dangerous condition of the street was known and obvious. The court, referring to the obvious danger rule, said:

" * * * [W]henever the danger is obvious or at least as well known to the plaintiff as the defendant, there is no duty to remove the danger or warn of its existence."

We will address three reasons why the rule announced by the trial court is inappropriate: 1) cases previously decided by this court can be distinguished from the case before us; 2) the rule was developed before comparative negligence was adopted in Wyoming; and 3) the rule recited in prior cases was overbroad and not dispositive of those cases.

The history of the obvious danger rule in Wyoming reveals that its nature is unclear and its application inconsistent. ² In one context the obvious danger rule has had the effect of negating any duty owed by a defendant. In another context the rule is a species of contributory negligence or assumption of risk.

A majority of earlier cases discuss the obvious danger rule, treating it as a factor in determining whether the plaintiff was contributorily negligent or had assumed the risk of the danger. Loney v. Laramie Auto Co., 36 Wyo. 339, 255 P. 350 (1927); Chicago and Northwestern Ry. Co. v. Ott, 33 Wyo. 200, 237 P. 238 (1925); In Carney Coal Co. v. Benedict, 22 Wyo. 362, 140 P. 1013 (1914). In 1966, in the context of when a directed verdict would be upheld, we determined that a defendant's duty could be negated by an obvious danger. McKee v. Pacific Power and Light Company, Wyo., 417 P.2d 426 (1966). In two later cases we said that an obvious danger is a factor to be considered in determining contributory negligence. Continental Motors Corporation v. Joly, Wyo., 483 P.2d 244 (1971); and Berry v. Iowa Mid-West Land and Livestock Company, Wyo., 424 P.2d 409 (1967).

Before the advent of comparative negligence it did not make any difference whether an obvious danger was viewed as negating a defendant's duty, or whether it constituted contributory negligence or assumption of risk. The result was the same; contributory negligence or assumption of risk barred a plaintiff's recovery.

Since comparative negligence was adopted it makes a great difference how an obvious danger is viewed. If an obvious danger negates a duty, a defendant cannot be negligent. On the other hand, if a duty is not negated, then the obvious danger is a factor to be considered by the trier of fact in comparing plaintiff's and defendant's negligence. This court has not been consistent in its application of the obvious danger rule since comparative negligence. ³

In Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976), plaintiff was a guest at defendant's resort cabin. Plaintiff knew that the path there was icy, unlit, and rough, but used it anyway, and fell down. Plaintiff brought suit for damages for his injuries against the owner. Summary judgment for defendant was affirmed. The court found that the obvious danger rule relieved defendant of a duty to remove the ice and snow from the path. Justice Rose in his dissenting opinion observed that the obvious danger rule was not always an absolute bar to plaintiff's recovery, and should be a factor in determining plaintiff's percent of negligence.

In Brittain v. Booth, Wyo., 601 P.2d 532 (1979), plaintiff was injured when the sides of an excavation in which he was working fell on him. The majority held that plaintiff assumed the risk of such accidents, and reasoned that since under comparative negligence, plaintiff's assumption of risk is to be compared to defendant's negligence, the jury verdict must stand finding plaintiff contributorily negligent. The court acknowledged that the pit was obviously dangerous because the sides were neither shored nor sloped, and thus likely to cave in. The obvious danger rule, however, was not invoked to remove defendant's duty. Rather, the obviousness went to the question of plaintiff's contributory negligence. Justice Rose dissented, but he, too, consistent with his position in Bluejacket, would have evaluated plaintiff's behavior in light of the nature of the condition. The entire court thus treated the obvious danger rule as an expression of contributory negligence rather than negation of duty.

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