Randolph v. Gilpatrick Const. Co., Inc.

Decision Date26 June 1985
Docket NumberNo. 84-180,84-180
Citation702 P.2d 142
PartiesArchie 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).
CourtWyoming Supreme Court

Daniel E. White, Cheyenne, for appellant.

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 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 information. Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). The party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Dudley v. East Ridge Development Company, Wyo., 694 P.2d 113 (1985). A material fact is one which, if proved, would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties. Samuel Mares Post No. 8, American Legion, Department of Wyoming v. Board of County Commissioners of the County of Converse, Wyo., 697 P.2d 1040 (1985). When examining the record on summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving to him all favorable inferences which may be drawn from the facts. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980).

In support of their motions for summary judgment, appellees filed affidavits of four civil engineers. All the engineers testified that the road signs and detour in the bridge construction area were in substantial compliance with law as required by § 31-5-112, W.S.1977 (November 1984 Replacement), which reads:

"The commission shall adopt a manual and specifications for a uniform system of traffic-control devices consistent with this act for use upon highways within this state. The uniform system shall correlate with and so far as possible conform to the system set forth in the most recent edition of the 'Manual on Uniform Traffic Control Devices for Streets and Highways' and other standards issued or endorsed by the federal highway administrator." 1

Typical of the engineers' testimony is the affidavit of George A. Dale, a civil engineer for the State Highway Department. He concluded the signs used at the detour were in substantial accordance with law and not the cause of the accident:

"4. Your affiant is familiar with the construction detour and traffic control devices in use at a bridge reconstruction site West of Riverton, Wyoming--Project Number TQF-030-3 (11).

"5. Your affiant is familiar with the rationale and installation of construction detours.

"6. The detour in place had to be designed to fit field conditions because of existing approaches to homes or semi-rural businesses and groups of trees, making it impossible to obtain a clear area of 500 feet on both ends of the bridge to be replaced.

"7. The 500 feet, we feel, is irrelevant because of the speed actually being driven by the plaintiff, which far exceeded the legal speed limit.

"8. Since the state standard plan was not totally applicable, the resident engineer and contractor used as a guide, the typical traffic control plan as outlined in the Manual of Uniform Traffic Control Devices for a two-lane detour around a bridge to be replaced which matched the field conditions almost exactly. Page 272, figure 6-2 1971 Edition. This Manual has been adopted by the State Highway Commission for use on all public highways within the State as mandated by State Statute (W.S. 36-5-113).

"9. Your affiant states that the only applicable deviation from state or federal standards was in the use of a curve warning sign rather than a turn warning sign with a recommended driving speed of under 30 M.P.H. In my opinion, this minor deviation would have no effect on the accident.

"10. The flashboards or barrels as shown on the state standard are taken care of in the Manual of Uniform Traffic Control Devices standard by a large far side arrow which was installed, but was not intended for an east-bound vehicle and therefore, in my opinion, was correctly installed and would have had no effect on the accident."

To the same effect is the affidavit of John...

To continue reading

Request your trial
15 cases
  • Toltec Watershed Imp. Dist. v. Johnston
    • United States
    • Wyoming Supreme Court
    • April 9, 1986
    ...on appeal, we review the judgment in the same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment ha......
  • England v. Simmons
    • United States
    • Wyoming Supreme Court
    • December 1, 1986
    ...on appeal, we review the judgment in the same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment ha......
  • Commercial Union Ins. Co. v. Stamper
    • United States
    • Wyoming Supreme Court
    • February 11, 1987
    ...on appeal, we review the judgment in the same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment ha......
  • Schutkowski v. Carey
    • United States
    • Wyoming Supreme Court
    • September 30, 1986
    ...on appeal, we review the judgment in the same light as the district court, using the same information. Randolph v. Gilpatrick Construction Company, Inc., Wyo., 702 P.2d 142 (1985); and Lane Company v. Busch Development, Inc.., Wyo., 662 P.2d 419 (1983). A party moving for summary judgment h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT