Kobielusz v. Wilson

• Decision Date: 12 June 1985
• Docket Number: No. 84-94,84-94
• Citation: 701 P.2d 559
• Parties: Joe KOBIELUSZ, Appellant (Plaintiff), v. Willard V. WILSON and Wilson Herefords, a Wyoming corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 559

701 P.2d 559

Joe KOBIELUSZ, Appellant (Plaintiff), v. Willard V. WILSON and Wilson Herefords, a Wyoming corporation, Appellees (Defendants).

No. 84-94.

Supreme Court of Wyoming.

June 12, 1985.

Harry E. Leimback, Casper, for appellant.

William S. Bon of Schwartz, Bon, McCrary & Walker, Casper, for appellees.

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

CARDINE, Justice.

This was an action to recover damages for personal injuries brought by Joe Kobielusz, appellant, against Willard Wilson and Wilson Herefords, a Wyoming corporation. From a summary judgment in favor of Wilson, Kobielusz appeals.

We reverse.

The sole question presented for our determination is whether there was a genuine issue of material fact as would prevent entry of summary judgment.

Joe Kobielusz owned and lived upon a tract of land adjoining and immediately south of the Wilson Herefords Ranch near Thermopolis, Wyoming. On May 7, 1980, Mrs. Kobielusz observed from a window of their home a fire burning onto their property from the north. Joe Kobielusz rushed to fight the fire, which, when he arrived, was burning his pasture, pump house and power pole. Joe Kobielusz and a neighbor, Gordon Legerski, put out the fire. In the course of fighting and putting out the fire, Joe Kobielusz suffered burn injuries to his feet for which recovery of damages is sought in this action.

Summary judgment is a useful tool for disposing of litigation in which there are no real issues or questions of fact that ought to be determined in a trial. Larsen v. Roberts, Wyo., 676 P.2d 1046 (1984). It is, however, a drastic remedy which, when granted, deprives a litigant of a right to trial. It, therefore, ought to be utilized with caution and restraint. Weaver v. Blue Cross-Blue Shield of Wyoming, Wyo., 609 P.2d 984 (1980); Keller v. Anderson, Wyo., 554 P.2d 1253 (1976). Negligence cases usually involve mixed questions of law and fact concerning the existence of a duty, the standard of care required of a reasonable person, and proximate cause and are ordinarily not susceptible to summary adjudication. Keller v. Anderson, supra; Gilliland v. Steinhoefel, Wyo., 521 P.2d 1350 (1974).

We have before us the same material as was before the trial court; and, on appeal, our duty is the same as that court in determining whether summary judgment is appropriate. In making this determination, we must view the evidence in a light most favorable to the party opposing the motion for summary judgment and give to that party the benefit of all favorable inferences that might be drawn therefrom. Schepps v. Howe, Wyo., 665 P.2d 504 (1983). Although we have held inferences contrary to direct testimony may not ordinarily support a finding, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334 (1983); Forbes Company v. MacNeel, Wyo., 382 P.2d 56 (1963), that determination usually depends upon the quality of evidence creating the inference and the direct testimony. A party moving for summary judgment carries the burden of establishing that there is no genuine issue of material fact; and, if upon the record there is doubt as to the existence of issues of material fact, that doubt must be resolved against the party carrying the burden. Western Surety Company v. Town of Evansville, Wyo., 675 P.2d 258 (1984).

The evidence in this case is in the form of affidavits and depositions and, when viewed in a light most favorable to appellant, establishes that in the early part of May of each year it had been the practice of Wilson to clear irrigation ditches by setting fire to and burning the weeds in the ditches. One of these ditches ran toward appellant's property. Erwin Stoffers, an employee of Wilson Herefords Ranch at the time of this incident, stated in his affidavit:

"2. That on or about May 7, 1980, I observed Willard Wilson in the area where a fire was burning approximately three hundred yards north of the Joe Kobielusz property line. At that time the fire was burning on the north side of a road running across the Wilson Herefords property.

"3. Then shortly after the day that I seen the fire burning along the roadway, I visited with Mr. Joe Kobielusz and he advised me that he had been injured in attempting to put out a fire that had reached his property from the Wilson property."

The road crossing Wilson's property from his barns and buildings to the railroad tracks is a private road. A witness, Gordon Legerski, in his deposition, stated:

"Mr. Wilson has got a road that goes up over the railroad track, I think, right down from his barns and you couldn't, I couldn't see beyond that and I didn't know if it started down below that. But there is a road that goes up to the tracks where he goes over the tracks. And from there to our place why it was burned there."

In the spring of 1981, Joe Kobielusz and Wilson were out together and burned weeds in the area of the drain ditch and railroad tracks. It was not windy. They had everything under control, and encountered no problems.

Mr. Wilson stated in his deposition that in May 1982:

"[W]e did have employees that was burning an irrigation ditch within our property and the railroad property.

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"That was in '82. And they did try to control it and I'm the one that brought the attention. It happened during the noon hour. Wind did come up.

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"Everyone was at dinner and gone so, you know, the men were, so that's the reason they left."

This fire also spread to the south and east onto the property of Joe Kobielusz.

Both Joe Kobielusz and Gordon Legerski testified in their depositions about a conversation with Erwin Stoffers concerning the fire on May 7, 1980. Stoffers was an employee of Wilson at the time. The conversation occurred shortly after the fire. Gordon Legerski stated that Stoffers

" * * * said that he thought the fire was started on Willard's property, or up along the right-of-way there [b]ecause they were burning their ditches along the edge of the pasture * * *."

After being told not to speculate, the witness stated:

"As far as I know it started on Willard's property, according to Ed."

Joe Kobielusz testified in his deposition as follows:

"Q. Now why do you think Mr. Wilson started that fire?

"A. One of his hired men told me he did.

"Q. And who is that?

"A. Erv Stoffers.

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"A. Well he just said by God, Joe, I hate to see you laid up like this. And I asked him, I says well, I wonder who started that fire there. And he told me Wilson did.

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"Q. Did he say he had anything to do with it, that is Stoffers?

"A. No, he was riding a tractor around there someplace, doing something on the tractor, he said. And he seen him start it." (Emphasis added.)

Appellee Wilson states his position to be:

"[T]he evidence relied upon by the plaintiff to create an issue was either, inadmissible hearsay, speculation or at best, merely raised inferences which would not stand against affirmative and uncontradicted testimony to the contrary."

The affirmative and uncontradicted testimony to which appellees refer are the affidavits of Willard Wilson and employees of Wilson Herefords in which they state that they did not start the fire of May 7, 1980. First, the statements of Stoffers are not inadmissible hearsay as appellees claim. Rule 801(d)(2)(D), W.R.E., provides:

"(d) A statement is not hearsay if:

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"(2) The statement is offered against a party and is * * * (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship * * *."

Such statement is not hearsay because its admission does not depend upon trustworthiness nor necessity but upon a basic philosophy of the adversary system that whatever a party to an action says or does should be receivable in evidence against him. 4 Louiselle and Mueller, Federal Evidence § 411 at 59. At the time the fire of May 7, 1980, occurred, Erwin Stoffers was employed as a ranchhand by Wilson. On the day this incident occurred he had been feeding livestock. Ranchhands employed by Wilson cleared irrigation ditches by burning weeds and irrigated crops through those ditches. Thus, the statements made by Erwin Stoffers to Joe Kobielusz and Gordon Legerski were statements by an agent or servant of Wilson concerning a matter within the scope of his agency or employment and made during the existence of the relationship. Unless excludable for some other reason, it would appear at least at this stage of the proceedings that the statements by Stoffers to Kobielusz and Legerski are admissible in evidence.

Appellees, nevertheless, contend that the effect of all of the evidence, including these statements, is to create an inference only that Wilson started the fire of May 7, 1980; they further contend that this inference is, for purposes of summary judgment, overcome by the direct statement of Wilson that he did not start the fire. Thus, appellees state that

"[e]ven assuming that a reasonable inference in the plaintiff's favor might be drawn from the facts presented, under well established Wyoming law, such inferences disappear in the face of the unequivocal statements contained in the affidavits * * *."

They cite Blackmore v. Davis Oil Company, supra, which quoted from Forbes Company v. MacNeel, supra, 382 P.2d at 57, for this proposition, this court stating:

"Inferences contrary to direct testimony are not ordinarily sufficient to support a finding."

An inference is said to be:

"[A] process...