Thomas By Thomas v. South Cheyenne Water and Sewer Dist.
Decision Date | 15 July 1985 |
Docket Number | No. 84-153,84-153 |
Citation | 702 P.2d 1303 |
Parties | 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). |
Court | Wyoming Supreme Court |
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.
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.
" 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).
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 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
(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.
Depositions of these directors were not taken. The District does not design, supply, manufacture, specify, or furnish requirements for meter vault covers. The District contends it has no duty to design or require a particular type of cover. Appellant contends that a duty should be imposed upon the District to design, specify, maintain, and supervise the meter vaults.
She also stated that the only interest of the District is that the meter vaults be frostproof and accessible for periodic readings. The meter pits are constructed and installed by persons over which the District has "no right of control, nor attempts to exercise any control."
The affidavit by Tracy Long, a meter reader, corroborated the affidavit of Ms. Gay, stating that on April 15, 1982, he took a reading of the meter, opened the cover, recorded the numbers on the meter and closed the lid. He states further that he had returned to the meter pit on May 10, 1982, and that to his knowledge no readings were taken by personnel during the interim period of time.
Appellant contends that his expert's affidavit established the dangerousness of this vault cover, particularly when this conclusion was supported by a detailed description of the object showing the items of danger. 2 Looking at the evidence in a light most favorable to appellant, we accept the testimony that the meter vault cover was heavy and cumbersome; that it was "totally inappropriate" for its use; and that it was "unreasonaly dangerous."
The case of Merit Motors, Inc v. Chrysler Corp., 569 F.2d 666 (D.C.Cir.1977), is pertinent. Although that case involves Rule 703 3 rather than 704, F.R.E., the underlying rationale is applicable to the present case.
(Footnotes omitted.) (Emphasis added.) Id. at 672-673.
To hold that Rule 704, W.R.E., prevents a court from granting summary judgment merely because of an expert's conclusion that has no basis in or out of the record would seriously undermine the policies of Rule 56, W.R.C.P. Rule 704 allows testimony on ultimate issues, Louisell & Mueller, Federal Evidence § 395, but that ...
To continue reading
Request your trial-
First Wyoming Bank, N.A., Jackson Hole v. Continental Ins. Co.
...for negligence: (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 req......
-
Brooks v. Zebre
...the defendant to the plaintiff. 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 questio......
-
Lynch v. Norton Const., Inc.
...no reasonable basis 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 assertio......
-
Allmaras v. Mudge
...Beard v. Brown, 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,......