Peterson v. Wyoming Game and Fish Com'n

• Decision Date: 05 November 1999
• Docket Number: No. 97-182.,97-182.
• Parties: Clayton E. PETERSON, Jr., and Tanya Peterson, Appellants (Plaintiffs), v. WYOMING GAME AND FISH COMMISSION, Wyoming Game and Fish Department, Appellees (Defendants).
• Court: Wyoming Supreme Court

989 P.2d 113

Clayton E. PETERSON, Jr., and Tanya Peterson, Appellants (Plaintiffs), v. WYOMING GAME AND FISH COMMISSION, Wyoming Game and Fish Department, Appellees (Defendants).

No. 97-182.

Supreme Court of Wyoming.

November 5, 1999.

Representing Appellants: James Richard McCarty, Casper; and Keith P. Tyler, Casper.

Representing Appellees: William U. Hill, Attorney General; John W. Renneisen; Deputy Attorney General; Thomas C. Wilson, Senior Assistant Attorney General; and Jennifer A. Cudworth, Assistant Attorney General.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR,¹ JJ.

THOMAS, Justice.

The sole issue in this appeal evolves out of the contention that a Wyoming Game and Fish warden, serving as a Bear Management Officer, was a peace officer so as to invoke the waiver provision found in Wyo. Stat. Ann. § 1-39-112 (Lexis 1999) of the Wyoming Governmental Claims Act pertaining to peace officers. Clayton E. Peterson, Jr. and Tanya Peterson (the Petersons) seek to recover for Mr. Peterson's injuries when he was mauled by a bear that was the subject of bear management activities of the Wyoming Game and Fish Commission (Game and Fish), which the Petersons contend were negligently performed. The Petersons seek to have Wyo. Stat. Ann. § 7-2-101(a)(iv) (Michie Repl. 1995) construed broadly to include a warden's activities as the Bear Management Officer within the functions of a peace officer. We agree with the district court that the statute should not be construed so broadly, and we affirm the Order Granting Defendant's Motion for Summary Judgment.

In the Brief of Appellants, filed by the Petersons, the articulated issue is:

Whether Section 7-2-101(a)(iv)(C) is meant to be read in the conjunctive or in the disjunctive, that is, does the comma between the word "felony" and the word "during" mean "or" or "and".

This Statement of the Issues is found in the Brief of Appellees, filed on behalf of the Game and Fish:

I. As a matter of statutory construction, whether the comma between the words "felony" and "during" stated in the definition of "peace officer," pursuant to Wyo. Stat. § 7-2-101(a)(iv)(C), should be interpreted to mean an "or" or "and".

II. Whether the particular duty of managing bears as a Game and Fish bear management officer falls within the traditional definition of "peace officer" and whether this activity under the particular facts of this case falls within the intent of the legislature in adopting Wyo. Stat. § 1-39-112.

III. Whether injury by a grizzly bear is an inherent risk assumed by appellant when hunting in grizzly bear country, thereby barring appellant from recovery pursuant to the Recreational Safety Act, Wyo. Stat. § 1-1-121, et seq.

On July 3, 1978, the federal government captured a grizzly bear and placed a radio collar on it so that it could be used as a research bear in the Yellowstone ecosystem. The animal was designated as Bear 34. Some time later, Bear 34 became a research bear in the Livestock Interaction Study of the Game and Fish. On May 17, 1991, Bear 34 was recaptured by Game and Fish personnel in order to inspect it. They discovered that Bear 34 had a cut on its neck associated with the previous placement of the radio collar, and the wound was infected. The Game and Fish personnel treated the wound with antiseptic and released Bear 34.

Bear 34 was captured and released by Game and Fish personnel three times between July 1994 and September 1994 for the purpose of monitoring the bear. During that period of time, the Game and Fish personnel became aware that Bear 34 had been killing livestock on nearby ranches, and they learned that Bear 34 was deaf. Despite this information, the Game and Fish personnel never classified Bear 34 as a nuisance bear, nor was it removed from the habitat.

On September 20, 1994, while hunting elk near the Pacific Creek area in Teton County, Mr. Peterson was attacked by Bear 34. Peterson shot the bear, but he failed to kill it. After Peterson shot Bear 34, it grabbed and mauled him, causing serious injuries. The bear was mortally wounded, and it subsequently was found and destroyed by Game and Fish personnel.

On April 18, 1995, the Petersons filed a Complaint naming the Game and Fish and ten of its unidentified personnel as defendants. The thrust of the Petersons' action was that the Game and Fish personnel were negligent with respect to their maintenance and supervision of Bear 34. A motion for summary judgment was filed on May 3, 1996, in which the Game and Fish contended that the Petersons' claims were barred by the Recreation Safety Act and that the allegations did not bring the Petersons' claims within any exception to the Wyoming Governmental Claims Act. On May 13, 1997, the district court granted the motion for summary judgment on the premise that the Game and Fish personnel doing "bear management" work did not come within the peace officer exception to the Wyoming Governmental Claims Act. The thrust of that ruling was that the State of Wyoming had not waived immunity from the action brought by the Petersons. The Petersons appeal from the Order Granting Defendant's Motion for Summary Judgment.

When only questions of law are presented to the court, a summary judgment is an appropriate remedy because it eliminates the necessity for a formal trial. Raymond v. Steen, 882 P.2d 852, 856 (Wyo.1994); Bryant v. Hornbuckle, 728 P.2d 1132, 1135 (Wyo.1986). We are satisfied that there is no genuine issue of material fact present in this case. Summary judgment, therefore, is appropriate if the prevailing party was entitled to judgment as a matter of law. Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas By Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303, 1304 (Wyo.1985)

); Bidache, Inc. v. Martin, 899 P.2d 872, 873 (Wyo.1995) (quoting Thunder Hawk By and Through Jensen v. Union Pacific Railroad Co., 844 P.2d 1045, 1047 (Wyo.1992)); Sandstrom v. Sandstrom, 884 P.2d 968, 971 (Wyo. 1994). Statutory interpretation involves a question of law, and our review in such a case is plenary. Thomas v. Thomas, 913 P.2d 854, 855 (Wyo.1996); Butts v. Wyoming State Bd. of Architects, 911 P.2d 1062, 1065 (Wyo.1996). No deference is accorded to the decision of the district court on issues of law. Hermreck v. United Parcel Service, Inc., 938 P.2d 863, 866 (Wyo.1997); Griess v. Office of the Atty. Gen., Div. of Criminal Investigation, 932 P.2d 734, 736 (Wyo.1997).

The Petersons' theory in the district court, reiterated in this appeal, is that this case comes within one of the statutory exceptions to sovereign immunity articulated in the Wyoming Governmental Claims Act. Under the Wyoming Governmental Claims Act, immunity is the rule, and liability is the exception. Newberry v. Board of County Com'rs of Fremont County, 919 P.2d 141, 145 (Wyo.1996); Vigil v. Ruettgers, 887 P.2d 521, 524 (Wyo.1994). Liability exists only when the statute recognizes an exception to sovereign immunity. May v. Southeast Wyoming Mental Health Center, 866 P.2d 732, 736 (Wyo.1993); Veile v. Board of County Com'rs of Washakie County, 860 P.2d 1174, 1177 (Wyo.1993). In the absence of a statutory exception, no liability attaches to the state or its employees. Cline v. State, Dept. of Family Services, 927 P.2d 261, 263 (Wyo.1996); Harbel v. Wintermute, 883 P.2d 359, 363 (Wyo.1994).

The exception that the Petersons endeavor to invoke is found in Wyo. Stat. Ann. § 1-39-112:

A governmental entity is liable for damages resulting from tortious conduct of peace officers while acting within the scope of their duties.

The definition of a peace officer for purposes of this exception to the Wyoming Governmental Claims Act is set forth in Wyo. Stat. Ann. § 7-2-101(a)(iv)(C):

(a) As used in W.S. 7-2-101 through 7-2-105:

* * *

(iv) "Peace officer" means:

* * *

(C) Game and fish law enforcement personnel qualified pursuant to W.S. 9-1-701 through 9-1-707 and when enforcing Wyoming felony statutes following observation or discovery of the commission of a felony, during the performance of their statutory duties, or while responding to requests to assist other peace officers performing their official duties[.]

The question squarely presented is the correct interpretation of Wyo. Stat. Ann. § 7-2-101(a)(iv)(C).

The Petersons' argument is that the statutory definition should be given a broad construction to the end that there are a series of requirements separated by a comma or a conjunction. Under the Petersons' theory, a Game and Fish law enforcement officer who is qualified pursuant to Wyo. Stat. Ann. §§ 9-1-701 through 9-1-707 (Michie Repl. 1995) is a peace officer "when enforcing Wyoming felony statutes following observation or discovery of the commission of a felony;" "when engaged in the performance of his statutory duties;" or "while responding to requests to assist other peace officers performing their official duties * * *." The Game and Fish argues to the contrary seeking a narrow construction of the statute. Under its theory, the phrase "during the performance of their statutory duties" is simply a modifier of the phrase "when enforcing Wyoming felony statutes following observation or discovery of the commission of a felony * * *." Under its construction, a qualified Game and Fish employee would be a peace officer: (1) "when enforcing Wyoming felony statutes following observation or discovery of the commission of a felony" and "during the performance of their statutory duties;" or (2) "while responding to requests to assist other peace officers performing their official duties * * *."

Our rules relating to the interpretation of statutes demand that we abide by the plain meaning of the statute if its language is clear and unambiguous. JA v. CJH, 923 P.2d 758, 761 (Wyo.1996) (quoting Deloges v. State ex rel. Wyoming Workers' Compensation Div., 750 P.2d 1329, 1331 (Wyo. 1988)

); Rue v. Carter, 919 P.2d 633, 635 (Wyo.1996). The statute...