Oyler v. State, 5296

CourtUnited States State Supreme Court of Wyoming
Citation618 P.2d 1042
Docket NumberNo. 5296,5296
PartiesJess OYLER and Susan Oyler, Appellants (Plaintiffs), v. The STATE of Wyoming and Anthony Malovich, Appellees (Defendants).
Decision Date29 October 1980

John B. Rogers, Cheyenne, for appellants.

John D. Troughton, Atty. Gen., Bruce A. Salzburg, Senior Asst. Atty. Gen., and Lawrence J. Wolfe, Law Clerk, Office of the Atty. Gen., Cheyenne, for appellees.


ROSE, Justice.

This appeal-resolved in the district court by judgment granting appellees' motion to dismiss as to both defendants, the State of Wyoming and Anthony Malovich-concerns a claim for damages allegedly suffered as a result of an offer of employment which never ripened. It poses the question of whether or not-given the posture of this case-the State of Wyoming and Mr. Malovich, 1 who made the job offer, enjoy immunity as a matter of law.

Plaintiffs filed a negligence action against the State and state official, Anthony Malovich, Director of the Wyoming Division of Criminal Investigation, 2 in the latter's individual capacity. The district court, on the ground of sovereign immunity, dismissed the complaint against both defendants. We will affirm the dismissal of the suit against the State, 3 but reverse the dismissal against the employee, Malovich, and remand that aspect of the case for further proceedings.

According to the plaintiffs-appellants' statement of the facts-which the defendants-appellees adopt-Jess and Susan Oyler both left jobs in Rawlins and moved to Cheyenne in reliance upon a job offer extended to Mr. Oyler by Mr. Malovich. Upon reporting to work, Mr. Oyler was first told that red tape was delaying the start of his employment. After Oyler had been waiting in Cheyenne for several days to begin his job, Malovich denied that he had ever offered employment to Oyler. Both of the Oylers managed to find work in Cheyenne, but at lower salaries than their jobs in Rawlins (and, in Mr. Oyler's case, lower than the salary promised for the State job). They sued to recover their financial loss resulting from the move made in reliance upon the Malovich job offer.


The trial court dismissed the amended complaint on the ground that it did not state a claim upon which relief could be granted since both parties enjoyed sovereign immunity.


Appellants correctly urge that the State has, through legislative enactment, waived its sovereign immunity "to the extent of the limits of liability insurance carried by the governmental entity," according to the provisions of § 1-39-118(b), W.S.1977, 1980 Cum.Supp., which is substantially the same as the section it replaced. 4 Appellants further argue that the State's liability insurance, in force during the incident complained of here, covered their claim and thus, to the extent of that coverage, sovereign immunity is not available as a defense to this action. 5

We cannot agree that the injury complained of is covered by insurance. The policy provides coverage for

"all sums which the Insured shall become legally obligated to pay as damages because of negligent acts, errors, or omissions of the paid employees of the law enforcement agency named in the declaration as follows:

"Coverage A-Personal Injury

"Coverage B-Bodily Injury

"Coverage C-Property Damage"

However, the policy defines "Personal Injury" as follows:

" 'Personal Injury' means false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, assault and battery, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States of America, or Canada, for which law enforcement officers may be held liable...."

The plaintiffs' "injury" does not, in our opinion, fall within this definition, and we are not presented with authority which would indicate that it does. Furthermore, the plaintiffs' alleged "injury" does not lie within the policy's definition of "property damage."

Appellants argue that there are material factual and legal questions relating to the insurance policy which were not and could not be appropriately resolved by a motion to dismiss, and, in this connection, the transcript of the hearing on the motion discloses that the State did not produce the policy until the day of the hearing on the motion. Even so, the policy was considered and the court must have found that it does not cover the alleged injury, in view of the fact that the Order Granting Motion to Dismiss recites that the complaint did not state a claim upon which relief could be granted since both defendants enjoyed sovereign immunity.

Abrogation of Governmental Immunity

Introductorily, we acknowledge that in Wyoming the state of the law of governmental immunity in related areas at all times relevant hereto was as follows:

Immunity is removed as a defense to tort actions at all levels of government below the State itself. Oroz v. Board of County Commissioners of Carbon County, Wyo., 575 P.2d 1155, 1158 (1978). In so holding, we determined that the genesis of the doctrine of governmental immunity is in Russell v. The Men of Devon, 2 Term.Rep. 667, 100 Eng.Rep. 359 (1788), an old English case which is almost universally credited with being the mother of the concept. We reasoned that if immunity could be court-created, it could be court-abrogated. 7

State Immunity Retained

We have retained immunity from tort actions for the State in any amount not covered by insurance unless the State's permission to sue has been granted. This was done on the theory that state immunity is a creature of the constitution and cannot be court-abrogated. 8 Worthington v. State, Wyo., 598 P.2d 796 (1979).

State Employee Liability 9

This leaves us with a misty and hazy area yet to be clarified and defined-namely, what to do with the question which asks whether or not, and under what circumstances, the State's employees are or are not immune from tort liability. We paid glancing recognition to this fuzzy area of law when, in Retail Clerks Local 187 v. University of Wyoming, Wyo., 531 P.2d 884 (1975) (having held that suit against the state university administrative officials and board members in their official capacity was a suit against the State), we said that the immunity question in a suit against these board and administrative officials individually was not so clear. We quoted the United States Supreme Court, where the Court said:

" 'As to what is deemed a suit against a state, the early suggestion that the inhibition might be confined to those in which the state was a party to the record (citations) has long since been abandoned, and it is now established that the question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record (citations).' In re State of New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057."

We also cited Anderson v. Argraves, 146 Conn. 316, 150 A.2d 295, 297; and Stucker v. Muscatine, 249 Iowa 485, 87 N.W.2d 452, 456.

We then quoted the following from Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944, 947 (1937), 113 A.L.R. 1504:

" ' * * * While a suit against state officials, and, in particular, the Director of the Department of Public Works and Buildings, is not necessarily a suit against the state, the constitutional inhibition cannot be evaded by making an action nominally one against the servants or agents of the state when the real claim is against the state itself, and it is the party vitally interested. * * *' " 531 P.2d at 887.

At common law, the principal and agent are both liable for their tortious acts-the agent because he or she is the wrongdoer-the principal because of wrongdoing or by dint of the doctrine of respondeat superior. In the realm of state torts, respondeat superior is not the exception to immunity but, rather, is inherently rejected by it. 10 Even so, in certain instances, such as some of those hereinafter discussed or where immunity has been abrogated (as in Wyoming with governmental entities other than the State itself, Oroz, supra), the public employee may be liable for wrongdoing.

Bad Faith, Intentional Torts, False Imprisonment and the Civil Rights Act

At the outset, any classification of those deeds which are not immune from public employees' tort liability must first recognize acts done in bad faith, intentional torts, false imprisonment and violation of rights under the Civil Rights Act, 42 U.S.C.A. § 1983. Minge, supra, fn. 10, at pages 247-248, puts it this way:

"... There is also probably no immunity for acts done in bad faith, intentional torts or false imprisonment. (Davis, Administrative Law §§ 26.03, 26.04 (Supp.1970). See also Handler & Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv.L.Rev. 44 (1960); Van Alstyne, A Study Relating to Sovereign Immunity 406-11 (Calif. Law Revision Comm'n 1963) (false imprisonment); Restatement (Second) of Torts §§ 35, 41 (1965) (false imprisonment).) Although no Wyoming cases have discussed liability in these last three areas, in one case a sheriff's surety was held liable for a 22 hour, illegal search of the plaintiff's premises. (Lynch v. Burgess, 40 Wyo. 30, 273 P. 691 (1929).) Presumably the surety was only liable if the sheriff was liable and it would appear that the sheriff was guilty of false imprisonment. In another case the court said that a deputy-sheriff who effects an irregular and illegal abduction does so in his role as a private individual. (Kingen v. Kelley, 3 Wyo. 566, 28 P. 36 (1891).) Presumably, acting as a private individual he would be liable. (Cf. Ellis v. Wyoming Game & Fish Comm'n, 74 Wyo. 226, 286 P.2d 597 (1955).) Finally, it should be noted...

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