Lovato v. Tim Case

Decision Date01 December 2022
Docket NumberS-22-0053
Citation520 P.3d 1144
Parties Augustine LOVATO, Appellant (Plaintiff), v. TIM CASE, Appellee (Defendant).
CourtWyoming Supreme Court

Representing Appellant: Justin Kallal and Jason Johnson of Davis, Johnson & Kallal, LLC, Cheyenne, Wyoming. Argument by Mr. Kallal.

Representing Appellee: Gay Woodhouse, Christopher M. Brennan, and James O. Bardwell of Woodhouse Roden Ames & Brennan, LLC, Cheyenne, Wyoming. Argument by Mr. Brennan.


KAUTZ, Justice.

[¶1] Augustine Lovato sued his co-employee, Tim Case, for running over him with a concrete truck while they were both working on a construction project in Cheyenne. The district court granted summary judgment to Mr. Case, concluding he was immune from liability because, under Wyoming law, Mr. Lovato's sole remedy was workers’ compensation benefits. Mr. Lovato asserts genuine issues of material fact exist as to whether Mr. Case lost statutory immunity because his actions were willful and wanton. We affirm.


[¶2] We restate the issues for review as:

1. Did the district court err by ruling that Mr. Case was not responsible for Mr. Lovato's safety and work conditions because he was not Mr. Lovato's supervisor?

2. Did the district court err by ruling there were no genuine issues of material fact as to whether Mr. Case acted willfully and wantonly?


[¶3] Mr. Case, Mr. Lovato, and Ricky Bustos were employed by Knife River to work on a construction project at F.E. Warren Air Force Base near Cheyenne. Mr. Case operated a truck which transported wet concrete to the job site, and Mr. Lovato worked with a crew forming and finishing the wet concrete. Mr. Bustos was Knife River's foreman on the job and acted in a supervisory role.

[¶4] Around 10 a.m. on June 19, 2017, Mr. Bustos directed the finishing crew and Mr. Case to move to a new concrete pour site. Mr. Bustos and Mr. Lovato walked in front of Mr. Case's concrete truck. Mr. Bustos waved to Mr. Case, signaling him to move the truck forward. As he drove, Mr. Case felt a bump and thought he had hit a curb or a concrete form with the truck. In fact, he had run over Mr. Lovato, injuring his foot, leg, back, and shoulder. Mr. Case said he did not see Mr. Lovato in his truck's path, and he admitted to using his cell phone to call the concrete or "batch" plant and possibly his girlfriend "around the time" of the accident.

[¶5] Mr. Lovato received benefits for his injuries through the Wyoming Workers’ Compensation Act, Wyo. Stat. Ann. §§ 27-14-101 through 27-14-806 (LexisNexis 2021). He also sued Mr. Case and Mr. Bustos, claiming they were liable as his co-employees "for reckless, willful, wanton and/or reprehensible conduct." Mr. Bustos settled his dispute with Mr. Lovato and was dismissed from the action. Mr. Case moved for summary judgment, claiming he was immune from civil liability because his actions were not willful and wanton. The district court granted Mr. Case's motion for summary judgment, and Mr. Lovato appealed. We will provide additional facts in our discussion of the issues, below.


[¶6] A district court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Wyoming Rule of Civil Procedure (W.R.C.P.) 56(a). We review the district court's order granting summary judgment de novo. Gowdy v. Cook, 2020 WY 3, ¶ 21, 455 P.3d 1201, 1206-07 (Wyo. 2020) (citing Bear Peak Res., LLC v. Peak Powder River Res., LLC, 2017 WY 124, ¶ 10, 403 P.3d 1033, 1040 (Wyo. 2017), and Int'l Ass'n of Fire Fighters, Local Union No. 5058 v. Gillette/Wright/Campbell Cnty. Fire Prot. Jt. Powers Bd., 2018 WY 75, ¶ 19, 421 P.3d 1059, 1064 (Wyo. 2018) ). We consider the summary judgment motion

in the same light as the district court, using the same materials and following the same standards. We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties.

Id. , ¶ 21, 455 P.3d at 1207 (citation omitted). "The immunity afforded co-employees under the Workers’ Compensation Act in no way alters this standard." Ramirez v. Brown, 2020 WY 79, ¶ 12, 466 P.3d 285, 289 (Wyo. 2020).

[¶7] " ‘The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment.’ " Gowdy, ¶ 22, 455 P.3d at 1207 (quoting Hatton v. Energy Elec. Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 12 (Wyo. 2006) ) (italics omitted). When the movant "does not have the ultimate burden of persuasion, it establishes a prima facie case for summary judgment by showing a lack of evidence on an essential element of the opposing party's claim." Id. (citations omitted). After the movant establishes a prima facie case for summary judgment, the burden shifts to the opposing party to present admissible evidence which demonstrates a genuine dispute as to a material fact for trial. Id., ¶ 23, 455 P.3d at 1207 (citing Hatton , ¶ 9, 148 P.3d at 12-13 ). See also, W.R.C.P. 56 (c)(2) ("A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.").


[¶8] Article 10, § 4(c) of the Wyoming Constitution and the Workers’ Compensation Act generally provide compensation to employees injured in extrahazardous jobs regardless of fault; in return, employers are immunized from liability for their employees’ work-related injuries. Section 27-14-104(a) extends that immunity to co-employees for ordinary negligence. "The rights and remedies provided in this act for an employee ... for injuries incurred in extrahazardous employments are in lieu of all other rights and remedies against any employer ... or their employees acting within the scope of their employment unless the employees intentionally act to cause physical harm or injury to the injured employee[.]" Id.

[¶9] We have interpreted the "intentionally act" language in § 27-14-104(a) to mean willful and wanton misconduct. Bertagnolli v. Louderback, 2003 WY 50, ¶ 15, 67 P.3d 627, 632 (Wyo. 2003). See also, Herrera v. Phillipps, 2014 WY 118, ¶ 18, 334 P.3d 1225, 1230 (Wyo. 2014) (the statutory standard for co-employee liability is the equivalent of willful and wanton misconduct) (citation and quotation marks omitted).

Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.

Herrera, ¶ 18, 334 P.3d at 1230 (citing Bertagnolli, ¶ 15, 67 P.3d at 632 ) (emphasis omitted).

[¶10] To establish liability under § 27-14-104(a), an injured worker must prove the co-employee he seeks to hold accountable "(1) [had] knowledge of the hazard or serious nature of the risk involved, (2) [was responsible] for the injured [worker's] safety and work conditions, and (3) willful[l]y disregard[ed] the need to act [to protect the injured worker's safety] despite the awareness of the high probability that serious injury or death may result." Bertagnolli, ¶ 16, 67 P.3d at 633. See also, Herrera, ¶ 21, 334 P.3d at 1231 (discussing Bertagnolli ). To survive summary judgment, the injured worker must demonstrate a genuine issue of material fact exists as to each of the three elements of willful and wanton misconduct. Ramirez, ¶ 16, 466 P.3d at 290.

[¶11] The district court concluded Mr. Case was immune from liability under § 27-14-104(a) because: 1) as a non-supervisory co-employee, he bore no responsibility for Mr. Lovato's safety, and 2) the evidence did not demonstrate Mr. Case "was aware his operation of the concrete truck would, with a high degree of probability, result in harm to another." We conclude the district court was mistaken about Mr. Case's duty to Mr. Lovato, but summary judgment was still appropriate because Mr. Lovato did not present evidence that Mr. Case acted in reckless disregard of a known and highly probable risk to Mr. Lovato.

Nonsupervisory Co-employee Duty of Safety

[¶12] The district court concluded that, because Mr. Case did not supervise Mr. Lovato's work, he was not responsible for Mr. Lovato's safety and work conditions. Many of our co-employee liability cases address whether a supervisor can be held responsible for his subordinate's workplace injury when the supervisor was not present at, or immediately involved in, the accident. For example, in Ramirez, the questions were whether Mr. Ramirez's supervisors, who were not directly involved in his workplace accident, had responsibility for his work conditions and whether they willfully disregarded the need to correct known safety hazards associated with the machine he was using when he was injured. Ramirez, ¶¶ 7, 19-23, 44-45, 466 P.3d at 288, 290-91, 296. In Hannifan v. Am. Nat'l Bank of Cheyenne, 2008 WY 65, ¶ 22, 185 P.3d 679, 689 (Wyo. 2008), we concluded there was evidence the co-employees had "direct supervisory authority for [the injured worker's] safety and working conditions the day he was injured" even though they were not present and overseeing the worker when he was injured.

[¶13] Supervising co-employees do not, however, shoulder the entire legal responsibility for the safety of a worksite. In Formisano v. Gaston, 2011 WY 8, ¶¶ 26-27, 246 P.3d 286, 293 (Wyo. 2011), two co-employees, Mr. Gaston and Mr. Formisano, decided to drive a significant distance home after working a long day at a mine. Id., ¶¶ 9-12, 246 P.3d at 289-90. Mr. Gaston fell asleep while driving and wrecked the company vehicle. Id., ¶ 12, 246 P.3d at 290. Mr....

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