Pickle v. Board of County Com'rs of County of Platte

• Decision Date: 10 November 1988
• Docket Number: No. 87-101,87-101
• Citation: 764 P.2d 262
• Parties: Willie Macon PICKLE, Linda Pickle, Michael Cathcart, Mary Cathcart, Phillip Cassera and Majorie Cassera, Appellants (Plaintiffs), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PLATTE, a political subdivision of the State of Wyoming, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 262

764 P.2d 262

Willie Macon PICKLE, Linda Pickle, Michael Cathcart, Mary Cathcart, Phillip Cassera and Majorie Cassera, Appellants (Plaintiffs), v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF PLATTE, a political subdivision of the State of Wyoming, Appellees (Defendants).

No. 87-101.

Supreme Court of Wyoming.

Nov. 10, 1988.

Bruce S. Asay of Kline, Buck & Asay, Cheyenne, for appellants.

Nicholas G. Kalokathis and David D. Uchner (argued) of Lathrop & Uchner, Cheyenne, for appellees.

Before CARDINE, C.J., THOMAS, URBIGKIT and MACY, JJ., and O'BRIEN, District Judge.

CARDINE, Chief Justice.

Appellants were forced to move out of their homes in the Colt Track Acres Subdivision in Platte County because their water and septic systems were inadequate. They sued the Board of County Commissioners of Platte County (Board) for negligent approval of the subdivision permit and negligent supervision of the subdividers. The district court entered summary judgment in favor of the Board, and the homeowners appeal, presenting the following issues: (1) whether the Board waived the defense of immunity; (2) whether the Board is entitled to immunity; (3) whether the summary judgment must be reversed because the record contains no explanation for the order entering summary judgment; and (4) whether the court erred by denying appellant's motion for summary judgment.

We reverse and remand.

FACTS

In January 1977, Donald and Vernell Britton applied for a subdivision permit for a parcel of land located west of Wheatland, Wyoming. During the permitting process, various individuals and public entities raised concerns about the high water table and poor drainage at the subdivision site. In response to these concerns, the county sanitarian recommended to the county planner that "evapotranspirational" septic systems be required on the subdivision lots and that the water wells be cased, sealed and grouted above ground. The sanitarian provided the developers with specifications for the evapotranspiration system, and the County granted the subdivision permit. The septic systems were apparently developed according to the specifications provided by the county sanitarian.

Appellants experienced no problems with the water and septic systems until 1984, when it became evident that the systems were not working adequately. In September 1984, the Department of Environmental Quality issued a notice of violation to the Pickles, owners of one of the homes, which required them to stop using their sewage system because raw sewage was leaking from the evapotranspiration beds. The other appellants experienced similar problems, including structural problems with their homes caused by the high water table. Appellants petitioned the Board, requesting that they revoke the subdivision permits and take action to remedy the problems; but the Board declined to act. Appellants then filed a claim with the Board under W.S. 1-39-113. The Board still failed to remedy the problems, and appellants filed this action in the district court.

The Board moved for summary judgment on the grounds of governmental immunity; appellants moved for summary judgment on the issue of liability. The court entered summary judgment in favor of the Board. The court's rationale does not appear in the record.

WAIVER OF IMMUNITY THROUGH FAILURE TO TIMELY ASSERT IT AS AN AFFIRMATIVE DEFENSE

The Board did not plead any affirmative defenses in its answer. Then, over a year after the complaint was filed, the Board raised the defense of governmental immunity in a motion to dismiss under Rule 12(b)(6), W.R.C.P., which they later converted to a motion for summary judgment. Appellants contend that the Board waived the defense of governmental immunity by failing to plead it in its answer as required by Rule 8(c), W.R.C.P. ¹

As a preliminary matter, we must determine whether governmental immunity is an "avoidance or affirmative defense" which may be waived under Rule 8(c) or whether the existence of governmental immunity creates a jurisdictional defect which cannot be waived and may be raised at any time. In this case, the question is complicated by the fact that two different types of governmental immunity are at issue. First, there is the question of whether the County enjoys common law "quasi-legislative" immunity from suit for its acts or omissions in approving the subdivision. Second, there is the question of whether the County has waived its tort immunity under the Wyoming Governmental Claims Act by purchasing liability insurance which covers appellants' claim.

Legislative immunity rests upon the premise that

"no legislator can be expected to discharge his duties with the resolution and dedication they require unless he is freed from the constant threat of legal action and potential monetary liability for each exercise of his legislative judgment." Bruce v. Riddle, 464 F.Supp. 745, 748-49 (D.S.C.1979).

The doctrine prevents the judiciary from invading the province of the legislature. Because it raises separation of powers considerations and limits the power of courts, we conclude that it is a jurisdictional bar which cannot be waived. The Board did not waive the issue of legislative or quasi-legislative immunity.

Immunity under the Wyoming Governmental Claims Act, in contrast, is immunity from liability, not immunity from suit. W.S. 1-39-102. Its purpose is to protect public revenues, not to protect government officials from the burden of defending lawsuits. The district courts have subject matter jurisdiction to hear claims filed under the act. W.S. 1-39-117. In Texas Gulf Sulphur Company v. Robles, Wyo., 511 P.2d 963, 965 (1973), we defined an affirmative defense as "a direct or implicit admission of plaintiff's claim and assertion of other facts which would defeat a right to recovery." Governmental immunity from tort liability falls within this definition. W.S. 1-39-104. We conclude that for pleading purposes under Rule 8(c), W.R.C.P., immunity under the Wyoming Governmental Claims Act is an "avoidance or affirmative defense." In the present case, it should have been pleaded by the Board in its answer.

The Board's failure to plead the defense, however, is not fatal. The question of whether an omitted affirmative defense may be raised for the first time by a motion for summary judgment is addressed in 2A Moore's Federal Practice p 8.28 (1987). The author states:

"[T]here is a split in authority as to whether a defendant may, subsequent to filing an answer, move for summary judgment on the basis of an affirmative defense omitted from the answer. While some cases hold that an affirmative defense not raised in the answer is waived and, therefore, not available as a basis for a summary judgment motion, other holdings provide that, absent prejudice to plaintiff, an affirmative defense may be raised by a motion for summary judgment regardless of whether it was pleaded in the answer or not. The latter position is more in keeping with the general purpose of the Federal Rules to avoid decisions based on pleading technicalities rather than the merits of a case." (Footnotes omitted.)

We agree that the latter position is preferable to a mechanistic application of the waiver rule. The controlling consideration is whether the adverse party is prejudiced by the moving party's delay in raising the defense. Appellants have alleged no prejudice in this respect, and the record discloses none. We conclude that the trial court did not err in allowing the Board to raise the omitted defense of statutory immunity by a motion for summary judgment.

APPELLANTS' CLAIM

The Board argues that appellants' claim does not sound in tort. We reject this assertion. The thrust of appellants' claim, as we understand it, is that the Board acted negligently by failing to exercise reasonable care in processing and reviewing the subdivision application. As evidence of the Board's negligence, appellants claim that the Board failed to comply with W.S. 18-5-306(a)(iv), which states that the Board shall require written certification of a licensed Wyoming engineer that the proposed sewage disposal system is adequate and safe.

The elements of the tort of negligence are a duty and a violation of that duty proximately causing injury. Beard v. Brown, Wyo., 616 P.2d 726 (1980). The existence of a duty is a question to be decided as a matter of law. Caterpillar Tractor Company v. Donahue, Wyo., 674 P.2d 1276 (1983). The court must decide whether, upon the facts in evidence,

" 'such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other--or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.' " Id. at 1280, quoting Prosser, Law of Torts § 37, p. 206 (4th ed. 1971).

Although there is no scientific formula for determining whether a duty to exercise care exists in a particular case, the following factors are relevant:

"(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342, 83 A.L.R.3d 1166 (1976)." Gates v. Richardson, Wyo., 719 P.2d 193, 196 (1986).

As we explained in Gates, the first two factors are rather vague and not often useful;...