Thomas By Thomas v. South Cheyenne Water and Sewer Dist., No. 84-153

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtBefore THOMAS; CARDINE
Citation702 P.2d 1303
Docket NumberNo. 84-153
Decision Date15 July 1985
PartiesCharles Robert THOMAS, a minor By and Through his next friend and mother, Terry THOMAS, and Dennis Thomas and Terry Thomas, individually, Appellants (Plaintiffs), v. SOUTH CHEYENNE WATER AND SEWER DISTRICT, Appellee (Defendant), Tel, Inc., a Wyoming corporation, (Defendant).

Page 1303

702 P.2d 1303
Charles Robert THOMAS, a minor By and Through his next friend and mother, Terry THOMAS, and Dennis Thomas and Terry Thomas, individually, Appellants (Plaintiffs),
v.
SOUTH CHEYENNE WATER AND SEWER DISTRICT, Appellee (Defendant),
Tel, Inc., a Wyoming corporation, (Defendant).
No. 84-153.
Supreme Court of Wyoming.
July 15, 1985.

Larry Lawton of Lawton, Edwards & Johnson, Cheyenne, for appellants.

John C. Brooks and John I. Henley (argued), of Vlastos, Reeves, Murdock & Brooks, P.C., Casper, for appellee.

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

Page 1304

CARDINE, Justice.

This appeal is from a summary judgment granted South Cheyenne Water and Sewer District. We affirm.

Appellant raises a single issue:

"Is it error to grant summary judgment for a defendant when expert testimony establishes a standard for the area, and that the defendant has violated that standard?"

We have frequently reiterated our standard of review of summary judgments.

" 'When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record.' Reno Livestock Corporation v. Sun Oil Company (Delaware), Wyo., 638 P.2d 147, 150 (1981). See also, Blackmore v. Davis Oil Company, Wyo., 671 P.2d 334, 336 (1983).

"A summary judgment should only be granted where it is clear that there are no issues of material facts involved and that an inquiry into the facts is unnecessary to clarify the application of law. Johnson v. Soulis, Wyo., 542 P.2d 867 (1975). A material fact is one which has legal significance. Johnson v. Soulis, supra. It is a fact which would establish a defense. Wood v. Trenchard, Wyo., 550 P.2d 490 (1976). After the movant establishes a prima facie case the burden of proof shifts to the opposing party who must show a genuine issue of material fact, Gennings v. First Nat'l Bank of Thermopolis, Wyo., 654 P.2d 154 (1982), or come forward with competent evidence of specific facts countering the facts presented by the movant. Matter of Estate of Brosius, Wyo., 683 P.2d 663 (1984). The burden is then on the nonmoving party to show specific facts as opposed to general allegations. 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727, p. 538. The material presented must be admissible evidence at trial. Conclusory statements are not admissible. Bancroft v. Jagusch, Wyo., 611 P.2d 819 (1980). We give the party defending the motion the benefit of any reasonable doubt." Roth v. First Security Bank of Rock Springs, Wyoming, Wyo., 684 P.2d 93, 95 (1984).

For purposes of summary judgment, the pleadings, depositions, affidavits and exhibits established the following undisputed facts: Appellant Charles Thomas was being cared for by a neighbor. He was playing outdoors with two boys. One of the boys suggested they go to a water meter vault located on the property of a nearby ceramics shop because he had left a toy there. A meter vault is an excavation containing a meter sufficiently deep in the ground to prevent freezing. It is covered by a door hinged on one side that can be raised to read the meter, but is otherwise closed. The meter vault and cover were purchased, paid for, and installed by Tel, Inc. on land owned by Tel, Inc.

Appellant raised the cover and entered the meter vault. As he was climbing out, the vault door fell upon his hand causing amputation of two fingers. Appellant, his mother and stepfather sued Tel, Inc., the owner of the property, and South Cheyenne Water and Sewer District (hereinafter District) claiming that the open water meter vault was an attractive nuisance, that the appellees were negligent in the supervision and maintenance of the meter vault, and that damages--including punitive damages--ought to be awarded. The court granted summary judgment in favor of the District, on the grounds that the doctrine of attractive nuisance was not applicable

Page 1305

because the District had no right of control nor attempted to exercise control over the meter vault in question, and that the District did not owe a duty to appellant and, therefore, could not be negligent. Appellant abandoned his reliance upon the attractive nuisance doctrine in this appeal, we suspect, because the District was not a possessor of the land upon which the meter vault was located. The Restatement, Second, Torts, requires for liability to attach that the person charged be "a possessor of land." It was undisputed that appellee's situation did not satisfy this requirement. 1

Appellant settled with defendant Tel, Inc., and that claim was dismissed with prejudice. Appellant then appealed from the summary judgment granted appellee. Appellant based the appeal solely on the question of the applicability of Rule 704, W.R.E., to a summary judgment.

Appellant contends that his expert's affidavit precluded summary judgment on the basis of Rule 704, W.R.E., which provides that:

"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact."

The affidavit by Lawrence E. Carlson, a doctor of engineering, stated that the meter vault cover was most likely used for aerospace application; that it was not appropriate as a cover in this case; and that it would be

"inconvenient, if not difficult, for a meter reader to operate and is not standard. It was most likely not latched shut after routine meter readings." (Emphasis in original.)

He also stated that meter vault covers are "commonly specified by the water district." He stated that Boulder, Colorado provides covers to their customers and that Denver, Colorado requires one of several different types to be used. He stated that the meter vault cover in this case was totally inappropriate for its use and was unreasonably dangerous.

An affidavit by the attorney for appellant stated

"[t]hat the undersigned verily believes that the depositions of the directors of water services in southeast Wyoming will establish the standard of care set out above, and the violation of said standard of care by the Defendant South Cheyenne Water and Sewer District."

Depositions of these directors were not taken. The District does not design, supply, manufacture, specify, or furnish...

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31 practice notes
  • Allmaras v. Mudge, No. 90-275
    • United States
    • United States State Supreme Court of Wyoming
    • November 8, 1991
    ...616 P.2d 726 (Wyo.1980). Whether a legal duty exists is a question of law. Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303 (Wyo.1985). Because we hold that 71 Construction had no duty to Allmaras for signs and road conditions at the construction site, summary judgmen......
  • First Wyoming Bank, N.A., Jackson Hole v. Continental Ins. Co., No. 90-258
    • United States
    • United States State Supreme Court of Wyoming
    • January 19, 1993
    ...(1) duty, (2), violation of that duty, (3) proximately causing, (4) injury to plaintiff. Thomas v. South Cheyenne Water & Sewer District, 702 P.2d 1303 (Wyo.1985); Beard v. Brown, 616 P.2d 726 The term "duty" has been defined as an obligation, the performance of which is required by law. An......
  • Brooks v. Zebre, No. 88-263
    • United States
    • United States State Supreme Court of Wyoming
    • May 17, 1990
    ...Guinand v. Atlantic Richfield Company, 485 F.2d 414 (10th Cir.1973); Thomas by Thomas v. South Cheyenne Water and Sewer District, 702 P.2d 1303 (Wyo.1985); Hughes v. Housley, 599 P.2d 1250 (Utah 1979). The issue of whether a duty is owed is strictly a question of law. McClellan v. Tottenhof......
  • Lynch v. Norton Const., Inc., No. 92-285
    • United States
    • United States State Supreme Court of Wyoming
    • October 25, 1993
    ...therefor, are insufficient to prevent a summary judgment. Rissler, 794 P.2d at 95; Thomas by Thomas v. South Cheyenne Water Sewer Dist., 702 P.2d 1303, 1307 (Wyo.1985). The affidavit of plaintiffs' expert witness in this case contained nothing more than his bare assertions that Norton was n......
  • Request a trial to view additional results
31 cases
  • Allmaras v. Mudge, No. 90-275
    • United States
    • United States State Supreme Court of Wyoming
    • November 8, 1991
    ...616 P.2d 726 (Wyo.1980). Whether a legal duty exists is a question of law. Thomas by Thomas v. South Cheyenne Water and Sewer Dist., 702 P.2d 1303 (Wyo.1985). Because we hold that 71 Construction had no duty to Allmaras for signs and road conditions at the construction site, summary judgmen......
  • First Wyoming Bank, N.A., Jackson Hole v. Continental Ins. Co., No. 90-258
    • United States
    • United States State Supreme Court of Wyoming
    • January 19, 1993
    ...(1) duty, (2), violation of that duty, (3) proximately causing, (4) injury to plaintiff. Thomas v. South Cheyenne Water & Sewer District, 702 P.2d 1303 (Wyo.1985); Beard v. Brown, 616 P.2d 726 The term "duty" has been defined as an obligation, the performance of which is required by law. An......
  • Brooks v. Zebre, No. 88-263
    • United States
    • United States State Supreme Court of Wyoming
    • May 17, 1990
    ...Guinand v. Atlantic Richfield Company, 485 F.2d 414 (10th Cir.1973); Thomas by Thomas v. South Cheyenne Water and Sewer District, 702 P.2d 1303 (Wyo.1985); Hughes v. Housley, 599 P.2d 1250 (Utah 1979). The issue of whether a duty is owed is strictly a question of law. McClellan v. Tottenhof......
  • Lynch v. Norton Const., Inc., No. 92-285
    • United States
    • United States State Supreme Court of Wyoming
    • October 25, 1993
    ...therefor, are insufficient to prevent a summary judgment. Rissler, 794 P.2d at 95; Thomas by Thomas v. South Cheyenne Water Sewer Dist., 702 P.2d 1303, 1307 (Wyo.1985). The affidavit of plaintiffs' expert witness in this case contained nothing more than his bare assertions that Norton was n......
  • Request a trial to view additional results

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