Dubus v. Dresser Industries, 5648

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before ROSE; ROSE; ROONEY
• Citation: 649 P.2d 198
• Parties: J. Frederick DUBUS, Appellant (Plaintiff), v. DRESSER INDUSTRIES, a Delaware Corporation, W. S. Hatch Company, Inc., a Utah Corporation, Raymond S. Johnson, Doe One, and Doe Two, Appellees (Defendants).
• Docket Number: No. 5648,5648
• Decision Date: 04 August 1982

Page 198

649 P.2d 198 34 A.L.R.4th 504 J. Frederick DUBUS, Appellant (Plaintiff),
v.
DRESSER INDUSTRIES, a Delaware Corporation, W. S. Hatch Company, Inc., a Utah Corporation, Raymond S. Johnson, Doe One, and Doe Two, Appellees (Defendants). No. 5648. Supreme Court of Wyoming. Aug. 4, 1982.

Page 200

Burton W. Guetz and Larry R. Clapp, Fagan, Fagan & Clapp, Casper, for appellant.

G. G. Greenlee and Jo Sherman of Murane & Bostwick, Casper, for appellees Dresser Industries and Johnson.

Frank D. Neville, Richard L. Williams and Patricia M. Baird of Williams, Porter, Day & Neville, Casper, for appellee W. S. Hatch Co., Inc.

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

ROSE, Chief Justice.

The appellant, Dubus, brought an action against Dresser Industries, its employee Raymond Johnson, and W. S. Hatch Company for injuries sustained by Dubus on a highway located northwest of Riverton, Wyoming. On motion of the defendants-appellees, the trial judge ordered that summary judgment be entered against Mr. Dubus because the court found that he had not presented any issue of material fact as to appellees' negligence or liability. ¹ Responding to the summary disposition of his case the appellant raises the following issues for our review:

1. Did the trial judge err in granting appellees' motion for summary judgment?

2. Is the rescue doctrine applicable to the facts of this case?

We will hold that the trial judge erred in granting summary judgment in favor of appellees Dresser and Raymond Johnson, and we will reverse as to them. As to appellee W. S. Hatch Company, we will hold that the entry of judgment was proper and will affirm that portion of the court's order.

FACTS

The incident giving rise to this litigation occurred during the nighttime hours of January 10-11, 1979 in a cutbank area known as Circle Ridge Road on a highway located northwest of Riverton, Wyoming. On that night, two W. S. Hatch Company vehicles became disabled on a portion of the highway which intersects a cutbank. The highway was slippery and drifted over with blowing snow, and, while the skies were clear, heavy winds and cold temperatures had created ground blizzard conditions. A short time later, a Dresser Industries pickup, driven by Raymond Johnson, proceeded into the cut, and in order to avoid a collision with the jackknifed Hatch vehicle, Johnson was forced into a nearby snowbank where his pickup overturned, spilling a tire and some boxes of drill bits out onto the highway. After this mishap, Johnson and the drivers of the Hatch vehicles drove to a nearby town, but before leaving the scene they turned on the running lights on the Hatch vehicle and the emergency flashers on the Dresser pickup. They say that they also set out warning reflectors around both vehicles although this fact is disputed by Mr. Dubus.

That same evening, the appellant, Dubus, left Riverton for a drill site in the Circle Ridge area where he worked as a mud engineer. While proceeding down the highway he observed flashing lights in the roadway and, upon reaching the scene, Mr. Dubus stopped his vehicle to determine if anyone was injured or in need of assistance. In order to make this inquiry, Dubus stepped from his vehicle and walked along the highway toward the overturned Dresser pickup.

Page 201

While walking on the slippery, snow-covered road, his right foot suddenly struck something and he fell to the pavement with such a force that he was rendered unconscious. When he regained consciousness, Mr. Dubus observed a drill-bit box lying immediately adjacent to his right hip and right shoulder. The fall resulted in a severe hip injury as well as a broken leg, and Dubus also complains of back pain.

Appellant Dubus filed the present action alleging that the appellees were negligent in the following respects:

1. Failing to place or maintain flares and reflectors at the scene of the accident;

2. Failing to remain at the scene to warn approaching travelers; and

3. Failing to remove the drill-bit boxes which were strewn on the highway.

APPELLATE RULES FOR REVIEWING SUMMARY JUDGMENT

We have said many times that when reviewing the granting of summary judgment on appeal.

" '... (We) have exactly the same duty as the trial judge and, assuming the record is complete, we have exactly the same material and information in front of us as he did....' Seay v. Vialpando and Anderson, Wyo., 567 P.2d 285, 287; Hunter v. Farmers Insurance Group, Wyo., 554 P.2d 1239, 1244, and Knudson v. Hilzer, Wyo., 551 P.2d 680, 685." Timmons v. Reed, Wyo., 569 P.2d 112, 115 (1977).

In contemplating an appeal from a summary judgment we must also inquire from the viewpoint most favorable to the party opposing the motion. Timmons v. Reed, supra, 569 P.2d at 116; Shrum v. Zeltwanger, Wyo., 559 P.2d 1384, 1387 (1977); Bluejacket v. Carney, Wyo., 550 P.2d 494, 497 (1976). It is settled that, in a summary judgment proceeding, the moving party has the burden of proving the absence of any genuine issue of material fact. Mealey v. City of Laramie, Wyo., 472 P.2d 787, 792 (1970); Kover v. Hufsmith, Wyo., 496 P.2d 908, 910 (1972). Finally, we are reminded that negligence claims do not lend themselves readily to summary adjudication. See: Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350, 1352 (1974); Forbes Company v. MacNeel, Wyo., 382 P.2d 56, 57 (1963).

Given these guidelines, it became incumbent upon the movants, Dresser, Johnson, and W. S. Hatch, to show this court that appellant's claims of negligence were unsupported and thus presented no genuine issues of material fact.

WAS ENTRY OF SUMMARY JUDGMENT PROPER?

One of the allegations of negligence has to do with the charge that the appellees failed to place reflectors, flares or other warning devices around their disabled vehicles. In urging this position, Dubus relies on § 31-5-959(a), W.S.1977, which provides:

"(a) Whenever any motor truck, passenger bus, truck tractor, trailer, semitrailer or pole trailer is disabled upon the traveled portion of any highway or the shoulder thereof outside of any municipality at any time when lighted lamps are required on vehicles the driver of such vehicle shall display the following warning devices upon the highway during the time the vehicle is so disabled on the highway except as provided in paragraph (b):

"(i) A lighted fusee, a lighted red electric lantern or a portable red emergency reflector shall be immediately placed at the traffic side of the vehicle in the direction of the nearest approaching traffic.

"(ii) As soon thereafter as possible but in any event within the burning period of the fusee (fifteen (15) minutes), the driver shall place three (3) liquid-burning flares (pot torches), or three (3) lighted red electric lanterns or three (3) portable red emergency reflectors on the traveled portion of the highway in the following order:

"(A) One (1) approximately one hundred (100) feet from the disabled vehicle in the center of the lane occupied by such vehicle and toward traffic approaching in that lane.

Page 202

"(B) One (1) approximately one hundred (100) feet in the opposite direction from the disabled vehicle and in the center of the traffic lane occupied by such vehicle.

"(C) One (1) at the traffic side of the disabled vehicle not less than ten (10) feet rearward or forward thereof in the direction of the nearest approaching traffic. If a lighted red electric lantern or a red portable emergency reflector has been placed at the traffic side of the vehicle in accordance with paragraph (I) (subdivision (a)(i) ) of this section, it may be used for this purpose." (Emphasis added.)

Even though the statute repeatedly refers to oncoming traffic as being the class of motorists that the statute is designed to protect from crashing into a disabled vehicle, Mr. Dubus argues that this statute obligated the appellees to set flares, reflectors, and other warning devices in a position capable of warning him (while walking in the vicinity) of the hazards that had been deposited on the highway including debris such as that over which he fell. He also argues that when he arrived at the accident scene, he saw no warning flares or reflectors, even though appellees say that they placed reflectors on the highway in the vicinity of their vehicles.

The first question to be resolved is this: Who is § 31-5-959(a) intended to protect? The answer is to be found in the language of the statute itself, where it becomes clear that the legislature intended to require the owner of a disabled vehicle to set flares or reflectors so that others operating vehicles on the highway are warned of the dangers occasioned by stalled and disabled vehicles. Keeping this in mind, we must then ask-under the facts of this case-was there a breach of duty that defendants owed the plaintiff as a result of the alleged failure to comply with § 31-5-959(a)? And, if there was a breach of duty, we must then inquire whether or not the breach was a proximate cause of appellant's injuries.

The statute which defines the conduct of those whose vehicles are disabled on the highway did not create a duty of care which the defendants owed to this plaintiff.

The determination of the existence of a duty of care is a question of law. Medlock v. Van Wagner, Wyo., 625 P.2d 207 (1981), citing Maxted v. Pacific Car & Foundry Company, Wyo., 527 P.2d 832 (1974); Distad v. Cubin, Wyo., 633 P.2d 167 (1981). See also: Zanetti Bus Lines, Inc. v. Logan, Wyo., 400 P.2d 482 (1965); Michel v. Valdastri, Ltd., 59 Haw. 53, 575 P.2d 1299 (1978); Webster v. WXYZ, 59 Mich.App. 375, 229 N.W.2d 460 (1975).

In Distad v. Cubin, supra, we said, with reference to whether or not the breach of a statute, ordinance or regulation would constitute evidence of negligence, that this would be determined by the rule announced in Restatement of Torts 2d, including § 286, 287, 288A, 288B and 288C. We went on to quote the Restatement rule applicable here when we referred to §...