Duncan v. Town of Jackson, 94-177

Decision Date05 October 1995
Docket NumberNo. 94-177,94-177
Citation903 P.2d 548
PartiesEtta Mae DUNCAN, as Personal Representative of the Estate of David Willis Duncan, Appellant (Plaintiff), v. TOWN OF JACKSON, and its employees, Officer Larry Compton and Lt. David W. Foster, Appellees (Defendants).
CourtWyoming Supreme Court

Robert W. Tiedeken (argued), of Wolf & Tiedeken, Cheyenne; and Jeremy Michaels of Michaels & Michaels, Gillette, for Appellant.

Sara E. Van Genderen and R. Michael Mullikin (argued), of Mullikin, Larson & Swift, Jackson, for Appellees.

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

LEHMAN, Justice.

Appellant Etta Mae Duncan, Personal Representative of the Estate of David Willis Duncan, filed a wrongful death suit against appellees Town of Jackson and its employee Lieutenant David Foster (Lt. Foster). Town of Jackson and Lt. Foster were granted summary judgment by the trial court, and appellant appeals. The issue we decide concerns whether the district court erred in concluding that Lt. Foster owed no duty to the deceased, David Duncan.

We reverse and remand.

On June 21, 1992, a dispatcher for the Town of Jackson received a 911 call reporting that a dark red pickup with camper shell had gone off the west side of Highway 89 in front of the caller. The dispatcher conveyed the report to the Wyoming Highway Patrol dispatch center and broadcast the report over a radio channel heard by several law enforcement agencies in the Jackson area.

Lt. Foster of the Jackson Police Department was the first person to answer the broadcast. Lt. Foster, off-duty in his unmarked police car, radioed dispatch and relayed that he was responding to the report. Activating siren and emergency lights, Lt. Foster proceeded to the reported accident scene pursuant to an emergency response.

Upon arrival, Lt. Foster immediately located a reddish pickup with camper shell in a field approximately 1,000 feet off of the highway and down an embankment. After verifying the vehicle description with dispatch, Lt. Foster exited his car and proceeded down the embankment to investigate. About a quarter of the way down the embankment, Lt. Foster became concerned about his young son being left alone in his car, and he proceeded back up the embankment to his car and his son. Once he had secured his son, Lt. Foster once again proceeded down the embankment.

While Lt. Foster was proceeding down the embankment a second time, a Teton county deputy sheriff arrived on the scene. Instead of proceeding down the embankment to the vehicle in the field, Lt. Foster went back up the embankment to talk with the deputy sheriff. Lt. Foster and the deputy then checked for tire marks leaving the highway and used binoculars to check for signs of a broken fence in the field and damage to the vehicle rather than physically going down the embankment to check for injured occupants and examine the scene.

Within minutes, the ambulance crew arrived at the scene and was directed to return to Jackson. Dispatch was notified that the report was false and that it should cancel the report. Dispatch notified the Wyoming Highway Patrol that the report was canceled. The next morning, a ranch hand found David Duncan dead in the driver's seat of the pickup.

Appellant filed suit pursuant to the Wyoming Governmental Claims Act and Wrongful Death Act, alleging that Lt. Foster was negligent in investigating the fatal car accident. The district court granted summary judgment in favor of appellees, ruling that an off-duty police officer, not acting within the scope of his duties, is not liable to a plaintiff where no special relationship is established. Appellant timely appeals.

STANDARD OF REVIEW

When we review summary judgment, we follow our familiar standard of review:

"Summary judgment is appropriate when no genuine issue of material fact exists and when the prevailing party is entitled to have a judgment as a matter of law." Sandstrom v. Sandstrom, 884 P.2d 968, 971 (Wyo.1994). See also W.R.C.P. 56(c).

A genuine issue of material fact exists when a disputed fact, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. 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.

Thunder Hawk By and Through Jensen v. Union Pacific Railroad Company, 844 P.2d 1045, 1047 (Wyo.1992) (citation omitted). 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 which may fairly be drawn from the record. Kilmer v. Citicorp Mortgage, Inc., 860 P.2d 1165, 1167 (Wyo.1993). We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Thunder Hawk By and Through Jensen, 844 P.2d at 1047.

Bidache, Inc. v. Martin, 899 P.2d 872, 873-74 (Wyo.1995) (quoting Adkins v. Lawson, 892 P.2d 128, 130 (Wyo.1995)). We review the grant of summary judgment without according any deference to the district court's decisions on issues of law. Halpern v. Wheeldon, 890 P.2d 562, 564 (Wyo.1995); Tidwell v. HOM, Inc., 896 P.2d 1322, 1325 (Wyo.1995). Summary judgment is not favored in negligence actions and is subject to more exacting scrutiny. Tidwell, at 1325 (citing MacKrell v. Bell H2S Safety, 795 P.2d 776, 779 (Wyo.1990)). However, even in negligence actions, summary judgment may be appropriate, especially if a plaintiff cannot establish the existence of a duty on the part of a defendant. Tidwell, at 1325. We will affirm a grant of summary judgment if it can be sustained on any legal ground appearing in the record. Bidache, at 874 (citing Moncrief v. Louisiana Land & Exploration Co., 861 P.2d 516, 523 (Wyo.1993)).

This standard of review is applicable only to the designated record that has been transmitted to this court; materials not designated but included in the record will not be considered. W.R.A.P. 3.05. In the instant case, the record relied upon by appellees was not designated. Therefore, this court is hindered in its review because we do not have before us all of the information the trial court had. Nevertheless, we apply our standard of review to the record transmitted to us, giving all favorable inferences to appellant.

DISCUSSION

Although the issue of duty is usually decided by the district court as a matter of law, we have held that when the duty issue involves questions which are basic issues of fact, it should be resolved by the jury. In Halpern, at 565, we stated:

In order to recover in any negligence action, a plaintiff must establish that the defendant owed a duty of care to him. See Roybal v. Bell, 778 P.2d 108, 111 (Wyo.1989). Generally, the issue of duty is decided by the court as a matter of law. Id. In certain instances, however, the duty issue involves questions which are basic issues of fact. For example, in Thunder Hawk by and through Jensen v. Union Pacific Railroad Company, 844 P.2d 1045 (Wyo.1992), we adopted the Restatement (Second) of Torts § 339 (1965) as the test to be utilized in determining whether a defendant owes a duty to a child trespasser under the "attractive nuisance" doctrine. 844 P.2d at 1048-49. In Thunder Hawk by and through Jensen, we stated that genuine issues of material fact existed with regard to whether the defendant owed a legal duty to the child trespasser and ruled that those issues should be resolved by the jury. Id.

In order to resolve this appeal, we must determine whether the duty issue in this case is purely a question of law where the basic facts are undisputed or whether the duty issue can be determined only by resolving basic facts, similar to the situations in Thunder Hawk by and through Jensen v. Union Pacific Railroad Co., 844 P.2d 1045 (Wyo.1992) and Halpern.

As a preliminary matter, we acknowledge that appellant may prevail only if she has alleged sufficient facts to establish that Lt. Foster was acting within his scope of duties at the time he responded to the emergency bulletin. Wyoming Statute 1-39-112 (1988 Rpl.) provides that "[a] governmental entity is liable for damages resulting from tortious conduct of peace officers while acting within the scope of their duties." Section 1-39-103 (1992 Cum.Supp.) defines "scope of duties" as meaning "performing any duties which a governmental entity requests, requires or authorizes a public employee to perform regardless of the time and place of performance." Thus, appellant must allege sufficient facts to put into dispute that Lt. Foster owed a duty to Mr. Duncan, and demonstrate that such duty was within his scope of duties as a peace officer.

Duty sufficient to support a negligence action may be engendered by common law, statute or contract. Tidwell, at 1325. In Wyoming, peace officers acting within the scope of their duties have a common law duty to act as reasonable peace officers of ordinary prudence under like circumstances. Keehn v. Torrington, 834 P.2d 112, 114 (Wyo.1992); Brown v. Avery, 850 P.2d 612, 615 (Wyo.1993).

In its summary judgment order, the district court concluded that based upon Hill v. Park County, 856 P.2d 456 (Wyo.1993), "it is apparent that an off-duty police officer not acting within the scope of his duties, is not liable to a plaintiff where no special relationship is established." We disagree. In Hill, we concluded that the appellant had failed to establish any common law duty or any other duty which required an off-duty police officer to corral or warn traffic of stray animals on or near a public roadway, other than the actions taken by him. As such, no issues of material fact remained, and appellees were entitled to judgment as a matter of law....

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