Teton County Sheriff's Dept. v. Bassett

• Decision Date: 25 July 2000
• Docket Number: No. 98-343., No. 98-342
• Citation: 8 P.3d 1079
• Parties: BOARD OF COUNTY COMMISSIONERS OF TETON COUNTY, by and on Behalf of the TETON COUNTY SHERIFF'S DEPARTMENT, Appellants (Defendants), v. Rayce B. BASSETT and Patricia Bassett; and Michael Coziah and, Sonia Coziah, Appellees (Plaintiffs). State of Wyoming, by and on behalf of the Wyoming Highway Patrol, Appellant (Defendant), v. Rayce B. Bassett and Patricia Bassett; and Michael Coziah and, Sonia Coziah, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

8 P.3d 1079

BOARD OF COUNTY COMMISSIONERS OF TETON COUNTY, by and on Behalf of the TETON COUNTY SHERIFF'S DEPARTMENT, Appellants (Defendants), v. Rayce B. BASSETT and Patricia Bassett; and Michael Coziah and, Sonia Coziah, Appellees (Plaintiffs).

State of Wyoming, by and on behalf of the Wyoming Highway Patrol, Appellant (Defendant), v. Rayce B. Bassett and Patricia Bassett; and Michael Coziah and, Sonia Coziah, Appellees (Plaintiffs).

Nos. 98-342, 98-343.

Supreme Court of Wyoming.

July 25, 2000.

Representing Board of County Commissioners of Teton County, by and on behalf of the Teton County Sheriff's Department: Paul K. Knight of Mullikin, Larson & Swift LLC, Jackson, Wyoming.

Representing State, by and on behalf of the Wyoming Highway Patrol: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; Dennis M. Coll, Senior Assistant Attorney General; and Francisco L. Romero, Assistant Attorney General, Cheyenne, Wyoming.

Representing Appellees: David G. Lewis, Jackson, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY¹, and GOLDEN, JJ., and GRANT, D.J.

GRANT, District Judge.

These appeals are from the judgment on a jury verdict against officers of the Wyoming Highway Patrol and the Teton County Sheriff's Department after trial of appellees' claim that the officers were at fault in the establishment and operation of a roadblock to stop a fleeing suspect on U.S. Highway 89 north of Jackson, on March 15, 1995. Appellees were driving toward Jackson when they encountered the roadblock and, at the direction of the officers, passed through it just ahead of the high-speed flight of the suspect, Steve Ortega (Ortega), whose car crashed into appellees' vehicle just after it cleared the roadblock. Police had pursued Ortega, who was wanted in two jurisdictions and considered armed and dangerous, from Dubois where they first saw him.

These appeals present three issues: (1) whether the jury should have been instructed that police officers can be held liable to innocent bystanders who are injured when struck by the fleeing suspect, only if police conduct was extreme and outrageous; (2) whether the fleeing suspect who collided with appellees' car should have been included on the verdict form as an actor whose conduct would be compared by the jury in allocating fault pursuant to Wyo. Stat. Ann. § 1-1-109 (Lexis 1999), Wyoming's comparative fault statute; and (3) whether one of the officers was entitled to qualified immunity from suit. The district court held the police to the standard of the ordinarily prudent police officer in similar circumstances, refused to include Ortega among those whose fault was compared, and rejected the claim of qualified immunity. We will reverse and remand for trial with Ortega included on the verdict form as an actor whose conduct must be compared with that of the appellants in allocating fault, and with an appropriate instruction on proximate cause.

The Wyoming Highway Patrol pursued Ortega from Dubois at high speeds. Ortega repeatedly swerved from his own lane toward oncoming traffic, and otherwise presented a menace to the traveling public in an apparent attempt to cause a crash which would divert the pursuing officers or involve them in a crash. These efforts failed, but the officers were unable to stop Ortega making the roadblock necessary.

The Wyoming Highway Patrol requested that the roadblock be established at Moran Junction, but the Sheriff's deputies, who had been requested to assist, decided to establish the roadblock farther south, beyond the intersection of U.S. Highway 89 and Antelope Flats Road. At that location, they placed improvised road spikes in the hope that Ortega would turn off of the highway onto the road and be stopped when the spikes disabled his vehicle. Ortega did not turn off of the highway, and continued on until he was stopped by the crash just on the Jackson side of the roadblock.

As these events were unfolding, appellees, Michael Coziah (Coziah) and Rayce Bassett (Bassett), were enroute home from fishing at Coulter Bay. As they approached Moran Junction, where they would turn south toward Jackson, they passed several officers who were at the right of the road. These were Sergeant Wilson of the Wyoming Highway Patrol and park police whom he was briefing. None of these officers made any effort to warn appellees of the hazardous situation developing on U.S. Highway 89 onto which appellees' vehicle turned.

As appellees approached the roadblock, surprised officers began frantically gesturing for them to go through as a deputy sheriff moved his car for their passage. Ortega, approaching at 100 miles per hour or more, went through the same opening, smashing into Coziah's car which was going approximately thirty miles per hour. Coziah and Bassett were injured, and Ortega was arrested.

Appellees sued the Wyoming Highway Patrol and Sheriff's officers alleging that they were negligent in pursuing Ortega, failing to warn appellees of the danger, and in operating the roadblock. At the close of the evidence, appellants sought instruction to the jury that the officers could be liable only if their conduct was extreme and outrageous, citing DeWald v. State, 719 P.2d 643 (Wyo. 1986). They also objected to the absence of Ortega from the verdict form as a non-party actor whose fault must be compared with that of appellants. The State moved for judgment for Sergeant Wilson on the basis of qualified immunity.

In rulings which are the basis of these appeals, the district court refused appellants' motion for judgment as to all but two of the named officers, ruled that DeWald did not apply in the circumstances shown by the evidence, rejected the claim of qualified immunity, and refused to include Ortega as an "actor" on the grounds that his conduct was willful and wanton, citing Danculovich v. Brown, 593 P.2d 187 (Wyo.1979). The verdict form included as those whose fault should be compared Coziah, who was driving appellees' car, the Wyoming Highway Patrol, the Sheriff's officers, and as a non-party, the National Park Service. The jury allocated 0% fault to Coziah, 40% fault to the Wyoming Highway Patrol, 20% fault to the Sheriff's officers, and 40% fault to the National Park Service.

Alleged errors in instructions and form of verdict are reviewed to determine if the instructions present an accurate statement of the governing law. Betts v. Crawford, 965 P.2d 680, 686 (Wyo.1998) (quoting State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 832 (Wyo.1994)

). We review denial of the motion for judgment as a matter of law taking as true all of the non-moving party's evidence with its reasonable inferences, affording no deference to the district court's determination, to inquire whether a reasonable jury could reach but one verdict. Anderson v. Duncan, 968 P.2d 440, 442 (Wyo.1998).

Since it is dispositive, we turn first to the question of whether Ortega, whose conduct was willful and wanton or intentional, should have been included among the actors whose fault would be determined and compared with that of the other actors by the jury in apportioning fault among the actors as required by Wyo. Stat. Ann. § 1-1-109. Appellees contend, and the district court held, that Ortega's willful and wanton or intentional conduct could not be compared with the conduct of appellants, citing Danculovich for the proposition that the conduct of a willfully and wantonly negligent, or by necessary implication, intentional tortfeasor ("willful actor") cannot be compared under Wyo. Stat. Ann. § 1-1-109 with that of a merely negligent ("negligent") actor because the two varieties of conduct, willful and negligent, differ not merely in degree but in kind and therefore cannot be compared. We disagree for several reasons.

Unlike the version before the 1994 amendment to Wyo. Stat. Ann. 1-1-109, which used "negligence," its present iteration introduces the more inclusive term "fault" and defines it as including conduct that is "in any measure negligent" eliminating degrees or varieties of negligence consistent with one of the purposes of the statute, that is to ameliorate the harshness of the doctrine of contributory negligence. The comparative negligence statute remedied the injustice of the doctrine of contributory negligence by stating that a plaintiff's negligence prevents recovery only in proportion as it causes plaintiff's damages.

The use of the word "includes" is significant because "includes" generally signifies an intent to enlarge a statute's application, rather than limit it, and it implies the conclusion that there are other items includable, though not specifically enumerated. Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 4, 86 L.Ed. 65 (1941); Paramount Gen. Hosp. Co. v. National Medical Enterprises, Inc., 42 Cal.App.3d 496, 117 Cal.Rptr. 42, 47 (1974); Freedom Newspapers, Inc. v. Tollefson, 961 P.2d 1150, 1154 (Colo.App.1998); Schwab v. Ariyoshi, 58 Haw. 25, 564 P.2d 135, 141 (1977); Janssen v. Janssen, 331 N.W.2d 752, 755-56 (Minn.1983); Zorba Contractors, Inc. v. Housing Authority of City of Newark, 282 N.J.Super. 430, 660 A.2d 550, 551 (1995); Matter of Estate of Corwin, 106 N.M. 316, 742 P.2d 528, 529 (1987); North Carolina Turnpike Authority v. Pine Island, Inc., 265 N.C. 109, 143 S.E.2d 319, 327 (1965); Lucke v. Lucke, 300 N.W.2d 231, 234 (N.D.1980); Bradshaw v. Joseph, 164 Vt. 154, 666 A.2d 1175, 1176 (1995).

Appellees insist this is not so because the words "reckless," "wanton," "culpable" or "intentional" were stricken from the definition of "fault" in Senate File No. 35² evincing clear intent that they were not included in the definition of "fault" as conduct "in any measure negligent." This argument reads more into the deletion than we think justified. It leaves unexplained the legislature's expansion of "negligence" to "fault" which includes conduct "in any measure negligent." It may be as reasonable to...