Thomas By Thomas v. South Cheyenne Water and Sewer Dist.

Decision Date15 July 1985
Docket NumberNo. 84-153,84-153
Citation702 P.2d 1303
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).
CourtWyoming 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.

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 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 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.

In support of the motion for summary judgment, appellee District filed an affidavit of Floydine Gay, a secretary for the District, which stated that the business records reflected all visits by District personnel to the meter involved. It was read by meter reader Tracy Long on April 15, 1982 and again on May 10, 1982. No other District personnel were at the vault during the interim. She further stated that the meter vault

"is owned by and under the exclusive control of the water user or property owner, and is on land owned by persons or entities other than the District."

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.

"On appeal appellants attempt to salvage their expert's opinion by relying on cases applying Rule 703 of the Federal Rules of Evidence, adopted in 1975. This rule was intended to broaden the acceptable bases of expert opinion, but it was not intended, as appellants seem to argue, to make summary judgment impossible whenever a party has produced an expert to support its position. Even Rule 703 requires that the grounds relied on by an expert must be 'a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.' " (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 ...

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