Randolph v. Gilpatrick Const. Co., Inc., No. 84-180

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before THOMAS; BROWN
• Citation: 702 P.2d 142
• Parties: Archie Laverne RANDOLPH, Jr., Appellant (Plaintiff), v. GILPATRICK CONSTRUCTION COMPANY, INC., a Wyoming corporation; State of Wyoming and the State Highway Commission of Wyoming, Appellees (Defendants).
• Docket Number: No. 84-180
• Decision Date: 26 June 1985

Page 142

702 P.2d 142 Archie Laverne RANDOLPH, Jr., Appellant (Plaintiff),
v.
GILPATRICK CONSTRUCTION COMPANY, INC., a Wyoming corporation; State of Wyoming and the State Highway Commission of Wyoming, Appellees (Defendants). No. 84-180. Supreme Court of Wyoming. June 26, 1985.
Rehearing Denied Aug. 26, 1985.

Daniel E. White, Cheyenne, for appellant.

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Cameron S. Walker of Schwartz, Bon, McCrary & Walker, Casper, for appellee Gilpatrick Const. Co., Inc.

A.G. McClintock, Atty. Gen., and Lawrence A. Bobbitt, III, Senior Asst. Atty. Gen., Cheyenne, for appellee State of Wyo.

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

BROWN, Justice.

This appeal results from a summary judgment granted in favor of appellees in a negligence action which arose from a single car accident in a construction area. Appellant Archie Laverne Randolph, Jr., was injured when his car went out of control and struck a pile of railroad ties while he was driving through a bridge construction area on November 21, 1976.

Appellant initially filed suit on November 19, 1980, against Michael Hays, a Riverton police officer, the City of Riverton, Gilpatrick Construction Company, Inc., and the State of Wyoming, alleging liability for property damage and personal injuries sustained in the car accident. The state was dismissed by stipulation on January 19, 1981. The trial court dismissed the complaint against the remaining defendants on September 20, 1982, finding that appellant had failed to prosecute the case for a period in excess of six months. Appellant sought review of the dismissal in this court, and we reinstated the case in Randolph v. Hays, Wyo., 665 P.2d 500 (1983).

In 1982, the Wyoming legislature waived sovereign immunity to permit appellant to bring his action against the state by special act. Ch. 24, S.L. of Wyoming, 1982. Appellant subsequently filed a new complaint on May 6, 1983, against the State of Wyoming and the Wyoming Highway Commission (hereinafter collectively referred to as the state). This action was joined with appellant's suit against Officer Michael Hays, the City of Riverton, and Gilpatrick Construction Company pursuant to court order on October 13, 1983. Gilpatrick Construction Company, the state and the City of Riverton all moved for summary judgment. The motions were granted by the trial court on April 2, 1984.

Trial was had against the remaining defendant, Officer Michael Hays, on May 22, 1984. The jury found that Officer Hays had acted negligently, but that such negligence was not the proximate cause of appellant's accident and resultant injuries.

Appellant seeks review of the summary judgment granted in favor of appellees Gilpatrick Construction Company and the state, and raises this single issue:

"Whether or not the trial court erred in granting the motions for summary judgment filed by the appellees."

We will affirm.

The facts show that on the evening of November 20, 1976, appellant and two friends, Greg Conner and John Burton, were "celebrating" in Riverton, Wyoming. The three companions visited several bars in Riverton and continued such activity until about 2:30 a.m. on November 21, 1976. Sometime after 3:00 a.m. on November 21, the three were spotted by Officer Michael Hays proceeding west out of Riverton toward Dubois, Wyoming, in appellant's car, a 1968 Chevrolet Camero. Officer Hays clocked appellant's vehicle at 90 miles per hour. Officer Hays pursued the vehicle west through the bridge construction detour and stopped the vehicle on the west end of the detour.

After Officer Hays stopped the vehicle, a dispute ensued between the officer and the three companions as to how fast the vehicle was actually going and the accuracy of the officer's radar gun. Mr. Conner then suggested that a speed test be conducted to check the accuracy of the radar in Officer Hays' patrol car. Officer Hays agreed to this test even though there was no operating speedometer in appellant's car by which to check the radar. Mr. Conner and Officer Hays sat in the patrol car as appellant and Mr. Burton sped off westbound in appellant's car and reached a speed in excess of 90 miles per hour on the radar. The car then turned around, heading back eastbound in the direction of the patrol car and the bridge construction detour. It is unclear how fast appellant's vehicle was traveling

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when it passed the patrol car the second time. The radar in the patrol car indicated appellant's speed was at least 100 miles per hour. Mr. Conner recalled the vehicle was going too fast to negotiate the detour. Mr. Dick Mabie, one of appellees' expert witnesses, stated in his affidavit that appellant's "most probable speed * * * was 90 m.p.h., giving [appellant] the benefit of any doubt with a minimum of 70 m.p.h." At the summary judgment hearing, appellant's counsel agreed that appellant's speed was somewhere between 60 and 103 miles per hour. In any event, appellant was unable to slow the car down to safely drive through the detour. The car crashed through a pile of railroad ties and traveled 81 feet until it stopped in or near a canal. Mr. Burton died as a result of the injuries he sustained in the accident and appellant suffered serious injury.

As stated earlier, appellant's only issue on appeal is whether the trial court erred in granting summary judgment in favor of appellees Gilpatrick Construction Company, Inc. and the state. When reviewing summary judgment on appeal, we examine the judgment in the same light as the district court, using the same...