State v. Dieringer, 83-220

• Decision Date: 08 October 1985
• Docket Number: No. 83-220,83-220
• Citation: 708 P.2d 1
• Parties: The STATE of Wyoming and G. M. Kinniburgh, Appellants (Defendants), v. Susan DIERINGER, Bonnie Roberts, and Connie Mark, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

Page 1

708 P.2d 1

The STATE of Wyoming and G. M. Kinniburgh, Appellants (Defendants), v. Susan DIERINGER, Bonnie Roberts, and Connie Mark, Appellees (Plaintiffs).

No. 83-220.

Supreme Court of Wyoming.

Oct. 8, 1985.

Glenn Parker and Alan B. Minier of Hirst & Applegate, Cheyenne, for appellants.

Richard H. Honaker, Rock Springs, and W. Keith Goody, Jackson, for appellees.

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

THOMAS, Chief Justice.

The primary questions which must be resolved in this appeal are whether an employee of the State of Wyoming is immune from suit by virtue of the provisions of the Wyoming Governmental Claims Act, §§ 1-39-101, et seq., W.S.1977, and whether the State of Wyoming can claim a bar to this suit by virtue of a settlement of a claim against a different State employee, also pursuant to the provisions of the Wyoming Governmental Claims Act. Further issues are asserted relating to error by the district court in excluding additional witnesses and exhibits proffered by the defendants; the failure of the plaintiffs to establish that the actions of the defendant Kinniburgh were a proximate cause of the accident; and error with respect to a refusal to instruct the jury concerning the duty of an adjacent landowner. Finally the appellants assert error in the award of costs to the plaintiffs. We affirm the judgment entered by the trial court except for the amount of costs awarded, which we will require to be modified.

The appellant, G. M. Kinniburgh, a patrolman for the Wyoming Highway Patrol, asserts as the primary issue relating to him that the trial court erred in denying his motion for summary judgment because he is immune from suit pursuant to the provisions of the Wyoming Governmental Claims Act. The appellant, the State of Wyoming, further contends that it had achieved a compromise and settlement of any claims against it; the actions of the appellees, Susan Dieringer, Bonnie Roberts and Connie Mark, therefore were barred as to the State of Wyoming; and the trial court erred in not granting the State's motion for summary judgment. Both appellants claim error on the part of the district court in excluding the testimony of certain witnesses and certain exhibits on the ground that they had failed to give proper and timely notice of such additional witnesses and exhibits to the appellees prior to trial in accordance with the court's pretrial order. Both appellants assert as a further issue that this judgment must be reversed because the evidence did not establish that the conduct of patrolman Kinniburgh was a proximate cause of the injuries to the appellees On a mild day in February 1981, water was running across Highway 22 near the twon of Jackson from property adjacent to the highway owned by Clark's Ready Mix. The source of this water apparently was melting snow. As the temperatures cooled in the evening of that day a patch of black ice began to form on the highway from water tracked along the highway by passing vehicles. As night began to fall and the temperatures dropped more the patch of ice became larger and larger. It was primarily forming in the right lane of the highway as travelers were leaving the town of Jackson, at a point just beyond the crest of a hill at the beginning of a curve where vehicles normally would accelerate.

and the district court erred in refusing to grant their motion for a directed verdict, which in part was premised upon this insufficiency in the evidence. As a further issue the appellants assert that the district court erred in refusing to give to the jury their offered instruction relating to the duty and responsibility of Clark's Ready Mix, the owner of premises adjacent to the highway, which had been named as a party when the action was filed. The final issue asserted by both appellants is error on the part of the district court in awarding costs to the appellees.

Around 7:30 p.m. a vehicle went out of control and off the road into the borrow pit when it encountered the ice. Patrolman Kinniburgh was called to the scene of that accident by a deputy of the Teton County Sheriff's Office. Marks at the scene of that accident indicated that other vehicles also had skidded off the road at that site, but apparently they were able to get back on the road without reporting any difficulty. At that time the deputy sheriff suggested that Patrolman Kinniburgh should call the Wyoming Highway Department to have the area sanded. Kinniburgh decided not to do that, articulating his decision in offensive language which undoubtedly had some impact upon the jury. He did not report the condition of the road or request that it be sanded.

About four hours later, at approximately 11:30 p.m., the three appellees were riding as passengers in a vehicle which skidded on this patch of ice, went out of control, crossed over into the other lane of traffic, and was struck by an oncoming truck. All three appellees suffered severe injuries in that accident. They brought suit, seeking recovery from Patrolman Kinniburgh, Jack Oakley, the Wyoming State Highway Department, the State of Wyoming, Clark's Ready Mix and Construction, and Lynn Clark and Lewell Clark. The Wyoming State Highway Department and the State of Wyoming were named as co-defendants in the separate counts of the complaint seeking recovery from Patrolman Kinniburgh and Jack Oakley, both of whom were employees of the State of Wyoming.

At the time Jack Oakley was employed by the Wyoming State Highway Department as the local maintenance foreman for the Wyoming State Highway Department. He was authorized to decide whether or not to sand the highway at any particular location, and he was not subject to the direction or control of Patrolman Kinniburgh. Lynn Clark and Lewell Clark owned the corporate stock of Clark's Ready Mix, and as indicated the water flowing across the highway came from premises owned by Clark's Ready Mix. Prior to trial, Lynn Clark, Lewell Clark, and Clark's Ready Mix stipulated with the appellees that the appellees' complaint against these parties would be dismissed with prejudice. Also prior to trial the State of Wyoming, Wyoming State Highway Department, and Jack Oakley moved for an order dismissing claims of the appellees against them because of a compromise and settlement of those claims. The order granting this motion was entered after the trial. The case actually went to trial then with only Patrolman Kinniburgh and the State of Wyoming as defendants. From judgments entered in favor of the several appellees appropriate appeals were taken which are consolidated in this case.

We will first address Kinniburgh's claim that he is immune from suit. He relies upon § 1-39-104, W.S.1977 (1985 "(a) A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1-39-105 through 1-39-112. * * *"

Cum.Supp.), which provides in pertinent part as follows:

Kinniburgh concedes that § 1-39-112, W.S.1977 (1985 Cum.Supp.), provides:

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

It is his contention, however, that immunity is granted pursuant to § 1-39-104, W.S.1977 (1985 Cum.Supp.), and that § 1-39-112 creates an exception extending only to the governmental entity and not to the public employee. According to his theory it follows that there is no exception as to the public employee, and he enjoys immunity.

We dealt with a substantially identical claim in denying the petition for rehearing in Hamlin v. Transcon Lines, Wyo., 697 P.2d 606 (1985), reh. denied, 701 P.2d 1139 (1985). We there held that a public employee is not immune from suit based upon our analysis of the entire Wyoming Governmental Claims Act.

To what we said in Hamlin v. Transcon Lines, supra, we add the proposition that, given the state of the law in Wyoming at the time of the adoption of the Wyoming Governmental Claims Act, an employee of the State enjoyed immunity that can best be described as derivative from the immunity of the State. Against that legal history we can understand that in drafting the exceptions to immunity of the State and public employees the legislature must have assumed that when immunity of the State was withdrawn by virtue of an exception such as that contained in § 1-39-112 there remained no immunity for a public employee because that individual's immunity was purely dependent upon the immunity of the State. Read in this light the exceptions to immunity include both the State and the public employee involved, and the grant of the immunity in § 1-39-104, upon which Kinniburgh relies, must be perceived as limited to those situations not encompassed by the exceptions.

We note that Oyler v. State, Wyo., 618 P.2d 1042 (1980), which questioned the common-law immunity of public employees, had not been decided at the time of the adoption of the Wyoming Governmental Claims Act. The pertinent decisions at the time of the adoption of the act were Osborn v. Lawson, Wyo., 374 P.2d 201 (1962); and Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309 (1946). The opinion in Price is somewhat equivocal because there was no need for this court to consider contributory negligence on the part of Price if Daly, the driver of the snowplow, was immune from liability. That proposition was substantially clarified in Osborn v. Lawson, supra, but it is there that the immunity of the employee is more clearly made dependent upon the immunity of the employer, the State of Wyoming.

In the light of what we said in Hamlin v. Transcon Lines, supra, together with the historical articulation of public employee immunity, it is clear that in adopting the Wyoming Governmental Claims Act the legislature did not intend to immunize the public employee from suit. His protection is found in the duty of the State to provide him...