Thunder Hawk By and Through Jensen v. Union Pacific R. Co., 91-279

• Decision Date: 29 December 1992
• Docket Number: No. 91-279,91-279
• Citation: 844 P.2d 1045
• Parties: Alexander Henry THUNDER HAWK, Jr., BY and THROUGH his Guardian Ad Litem, Georg JENSEN; by and through his Conservators, Alexander Henry Thunder Hawk, Sr., and Iona Thunder Hawk; and Alexander Henry Thunder Hawk, Sr. and Iona Thunder Hawk, individually, Appellants (Plaintiffs), v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 1045

844 P.2d 1045

Alexander Henry THUNDER HAWK, Jr., BY and THROUGH his Guardian Ad Litem, Georg JENSEN; by and through his Conservators, Alexander Henry Thunder Hawk, Sr., and Iona Thunder Hawk; and Alexander Henry Thunder Hawk, Sr. and Iona Thunder Hawk, individually, Appellants (Plaintiffs), v. UNION PACIFIC RAILROAD COMPANY, a Utah Corporation, Appellee (Defendant).

No. 91-279.

Supreme Court of Wyoming.

Dec. 29, 1992.

Rehearing Denied Feb. 3, 1993.

Ronald E. Triggs, Cheyenne, WY, for appellants.

Bradley T. Cave and Joe M. Teig of Holland & Hart, Cheyenne, WY, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, and GOLDEN, JJ.

MACY, Chief Justice.

Alexander Thunder Hawk, Jr. (Alex) suffered a traumatic below-the-knee amputation of his left leg as a result of a rail yard accident. Alex, by and through his guardian ad litem and conservators, sued Union Pacific Railroad Company for negligent, grossly negligent, and willful and wanton misconduct. Alex's parents joined the lawsuit by asserting claims for Alex's medical expenses and for their own emotional trauma. The district court granted summary judgments in favor of Union Pacific on all claims.

We reverse in part, affirm in part, and remand.

The issues which we must address on appeal are:

(1) Whether the district court erred by granting a summary judgment adverse to Alex's claim that Union Pacific owed a duty of reasonable care to him under the attractive nuisance doctrine;

(2) Whether the district court erred by granting a summary judgment adverse to Alex's claim that Union Pacific acted in willful or wanton disregard for his safety on July 20, 1989; and

(3) Whether the district court erred by granting a summary judgment adverse to the parents' claims for negligent infliction of emotional distress and for Alex's medical expenses.

On July 20, 1989, Alex, who was then six years old, went with two friends to play in Crow Creek near the Ames Overpass in west Cheyenne, Wyoming. After playing for an undetermined period of time, Alex and his friends climbed up the embankment adjacent to the creek. Four sets of Union Pacific railroad tracks, which run longitudinally east and west, lie on top of that embankment. Alex crossed the northernmost tracks, as well as the adjacent tracks, and began playing on a train located on the third set of tracks. Unbeknown to Alex, the train on the third set of tracks, later identified as the NPSE1-20, had been stopped by the train operations manager for the purpose of removing transient riders. Once three transient riders were located and removed, the manager cleared the NPSE1-20 for departure. When the NPSE1-20 began to leave, Alex jumped from the car on which he was playing. His left leg landed in the path of the train and was severed just below the knee.

Alex, by and through his guardian ad litem and conservators, filed a complaint against Union Pacific on June 29, 1990, alleging that his injuries were proximately caused by Union Pacific's negligent, grossly negligent, and willful and wanton misconduct. The parents joined the complaint by asserting individual claims for Alex's medical expenses and for emotional trauma. Alex and his parents prayed for general, special, and punitive damages. Union Pacific answered the complaint by generally denying all allegations material to liability.

Following the initial pleadings, the parties engaged in extensive discovery. As discovery proceeded, Union Pacific filed three summary judgment motions. Union Pacific first filed a summary judgment motion on May 21, 1991, to challenge the parents' claims for negligent infliction of emotional distress. Union Pacific filed a partial summary judgment motion on July 30, 1991, to challenge Alex's claim that Union Pacific owed a duty of reasonable care to him under the attractive nuisance doctrine. Finally, Union Pacific filed a summary judgment motion on March 10, 1992, to challenge Alex's claim that his injuries were proximately caused by Union Pacific's willful and wanton misconduct. Union Pacific filed supporting briefs with each motion, to which it attached relevant exhibits. Alex and his parents filed briefs in opposition to each motion, to which they attached relevant exhibits.

The district court granted each of Union Pacific's summary judgment motions. By an order entered on November 4, 1991, the district court granted the July 30, 1991, partial summary judgment motion. As to this motion, the district court ruled that Alex was a trespasser or at most a bare licensee to whom Union Pacific owed a duty not to willfully or wantonly harm and that the attractive nuisance doctrine could not be invoked under the facts of the case to elevate the standard of care. By an order entered on April 16, 1992, the district court granted the May 21, 1991, and March 10, 1992, summary judgment motions. As to these motions, the district court ruled that no evidence existed to show that Union Pacific breached its duty not to willfully or wantonly harm Alex and that the parents could not maintain a claim for negligent infliction of emotional distress under the undisputed facts of the case. The parents' claim for Alex's medical expenses and their joint claim with him for punitive damages necessarily fell as a summary judgment was granted against their underlying causes of action. Alex and his parents appeal.

A summary judgment is appropriate when no genuine issue of material fact exists to preclude disposition of a case as a matter of law. W.R.C.P. 56. A genuine issue of material fact exists when a disputed fact, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Allmaras v. Mudge, 820 P.2d 533 (Wyo.1991). The party moving for summary judgment bears the initial burden of establishing a prima facie case for a summary judgment. If the movant carries this burden, the party opposing the summary judgment must come forward with specific facts to demonstrate that a genuine issue of material fact does exist. Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704 (Wyo.1987).

This Court evaluates the propriety of a summary judgment by employing the same standards and by using the same materials as employed and used by the lower court. We examine the record in the light most favorable to the party opposing the summary judgment, giving that party all favorable inferences which may fairly be drawn from the record. Baros v. Wells, 780 P.2d 341 (Wyo.1989). If upon such review no genuine issue of material fact is found to exist, we will uphold the summary judgment under any legal theory properly supported by the record. Equality Bank of Evansville, Wyoming v. Suomi, 836 P.2d 325 (Wyo.1992). However, if a contrary finding is made, we will reverse the summary judgment.

November 4, 1991, Order

The real battle in this case is over what duty of care Union Pacific owed to Alex on July 20, 1989. In its November 4, 1991, order, the district court determined that Union Pacific owed no duty to Alex other than not to injure him willfully or wantonly. Alex does not contend on appeal that he was other than a trespasser or bare licensee on the date in question; however, he does contend that the district court erred by granting a summary judgment adverse to his claim that Union Pacific owed a duty of reasonable care to him under § 339 of the RESTATEMENT (SECOND) OF TORTS, popularly referred to as the attractive nuisance doctrine. ¹

Wyoming's seminal case on the attractive nuisance doctrine is Afton Electric Company v. Harrison, 49 Wyo. 367, 54 P.2d 540 (1935). In Afton Electric Company, Mack Harrison, a nine-year-old boy, climbed an electric light pole and was fatally electrocuted by uninsulated electric wires. His estate sued Afton Electric Company under the attractive nuisance theory and received a judgment of $3,500. 49 Wyo. at 372, 54 P.2d 540. Afton Electric Company appealed. Writing for the Court on appeal, Justice Blume explained that the attractive nuisance doctrine was an exception to the common-law rule that land possessors owe no duty to trespassers or bare licensees other than not to willfully or wantonly injury them. 49 Wyo. at 374-75, 54 P.2d 540. He noted that courts "have thrown a protective arm [a]round children of tender years" by requiring land possessors to exercise reasonable care for the safety of child trespassers under certain circumstances. 49 Wyo. at 375, 54 P.2d 540. Applying § 339 of the first RESTATEMENT OF TORTS, ² the court concluded that whether Afton Electric Company should be held liable when it had reason to know that immature children played on or about an abnormally constructed electric light pole was a question for the fact finder. 49 Wyo. at 377 & 382, 54 P.2d 540. The court affirmed the judgment for Mack Harrison's estate. 49 Wyo. at 384, 54 P.2d 540.

Since our decision in Afton Electric Company, some courts have abandoned the common-law classifications of trespasser, licensee, and invitee in favor of imposing a general duty on land possessors of reasonable care under the circumstances. Wyoming, however, adheres to the common law. Yalowizer v. Husky Oil Company, 629 P.2d 465 (Wyo.1981); Maher v. City of Casper, 67 Wyo. 268, 219 P.2d 125 (1950). Therefore, whether or not the attractive nuisance doctrine applies in a child trespasser case remains as a valid concern.

Our review of Wyoming case law reveals that this Court has encountered the attractive nuisance doctrine on at least three occasions since 1936. Thomas By Thomas v. South Cheyenne Water and Sewer District, 702 P.2d 1303 (Wyo.1985); Stilwell v. Nation, 363 P.2d 916 (Wyo.1961); Wilson v. City of Laramie, 65 Wyo. 234, 199 P.2d 119 (1948). We have not, however, directly had the opportunity to adopt what is now the most widely accepted statement of the doctrine. We take that opportunity today. The RESTATEMENT (SECOND) OF TORTS § 339 (1965) provides:

A possessor of land is...