Troyer v. State, Dept. of Health and Social Services, Div. of Vocational Rehabilitation

• Decision Date: 14 July 1986
• Docket Number: No. 86-17,86-17
• Citation: 722 P.2d 158
• Parties: Earnest L. TROYER and Charlyne Troyer, Appellants (Plaintiffs), v. STATE of Wyoming, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF VOCATIONAL REHABILITATION, Appellees (Defendants), Welding & Machine, Inc., Charles W. Emswiler, Dutton-Lainson, a Nebraska corporation (Defendants).
• Court: Wyoming Supreme Court

Page 158

722 P.2d 158

Earnest L. TROYER and Charlyne Troyer, Appellants (Plaintiffs), v. STATE of Wyoming, DEPARTMENT OF HEALTH AND SOCIAL SERVICES, DIVISION OF VOCATIONAL REHABILITATION, Appellees (Defendants) Welding & Machine, Inc., Charles W. Emswiler, Dutton-Lainson, a Nebraska corporation (Defendants).

No. 86-17.

Supreme Court of Wyoming.

July 14, 1986.

John E. Stanfield (argued), Smith, Stanfield & Scott, Laramie, John B. Speight, Hathaway, Speight & Kunz, Cheyenne, for appellants.

Bruce A. Salzburg (argued), Freudenthal, Salzburg & Bonds, Laramie, for appellees.

Before THOMAS, C.J., and BROWN, CARDINE and URBIGKIT, JJ., and GUTHRIE, J., Retired.

CARDINE, Justice.

Appellant Ernest Troyer, a victim of multiple sclerosis, suffered back injuries when an elevator in his home malfunctioned. He brought suit against the seller of the elevator, the manufacturer of the component part which failed, and the Division of Vocational Rehabilitation of the Wyoming Department of Health and Social Services (division), which had procured and inspected the elevator on appellant's behalf. The district court granted the division's motion to dismiss with prejudice on grounds that the claim was barred by the Wyoming Governmental Claims Act (Claims Act). We must decide whether the "health care provider" exception to the Claims Act permits the claim against the division and in the alternative whether the Claims Act is unconstitutional under several provisions of the Wyoming and United States constitutions.

FACTS

Since this is an appeal from a dismissal on the pleadings, we must accept the allegations in the amended complaint as true. Gates v. Richardson, Wyo., 719 P.2d 193 (1986). According to the amended complaint, appellant entered into a program with the Division of Vocational Rehabilitation to assist him in his saw-sharpening business. It was difficult for appellant to go from his garage to his workshop in a wheelchair because the garage was situated above the workshop. The division, therefore, agreed to help him select, install and finance an elevator.

The division insisted that appellant solicit bids; and he did so, receiving them from both the Otis Elevator and Montgomery Elevator companies. But, because these bids exceeded budget limitations, the division asked appellant to get a third bid; and he complied. This bid, from Charles W. Emswiler and Welding & Machine, Inc. (Emswiler), was lower than the other two; and the division accepted it.

In the process of constructing the elevator, Emswiler selected and installed a Strongarm Electric Winch, manufactured by the Dutton-Lainson Company. The winch contained a warning label which stated: "CAUTION 1. NOT FOR MOVING HUMANS. NEVER USE IN APPLICATION WHERE PERSONS WOULD BE POSITIONED ON OR UNDER THE LOAD." Emswiler cut off the warning label and ignored it. The division paid Emswiler for the elevator after a division representative inspected it.

On July 17, 1984, when appellant was sitting in his wheelchair in the elevator, the winch failed, and the elevator fell to the ground. Appellant suffered several compression fractures of his vertebrae and other special and general damages. He filed a complaint against Emswiler on January 14, 1985, and submitted a claim to the division on July 10, 1985. After the claim was rejected by the division, appellant amended his complaint by adding both the division and the manufacturer, Dutton-Lainson Company, as defendants.

The division filed a motion to dismiss on October 3, 1985, on grounds that the claim was barred by the Claims Act. The district court agreed and ordered a dismissal with prejudice on December 16. The court certified, under Rule 54(b), W.R.C.P., that there was no just cause for delay, so the dismissal became immediately appealable even though all the claims had not been adjudicated.

Appellant contends that the Claims Act does not bar his action against the division because the health care provider exception of § 1-39-110, W.S.1977, Cum.Supp.1985, applies. In the alternative, he argues that the Claims Act violates Art. 1, § 8 and Art. 10, § 4 of the Wyoming Constitution as well as the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution.

THE GOVERNMENTAL CLAIMS ACT

The parties agree that unless one of the exceptions to the Governmental Claims Act applies, this action against the State is barred by § 1-39-104(a), W.S.1977, Cum.Supp.1985, which provides in part:

"A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1-39-105 through 1-39-112."

The only exception argued by appellant is found in § 1-39-110, supra, which states:

"A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of health care providers who are employees of the governmental entity while acting within the scope of their duties."

The plaintiff's claim can withstand a motion to dismiss under this exception only if, under the plaintiff's allegations: (1) the division employees who caused his harm were health care providers; and (2) they were acting within the scope of their duties when they caused it.

Under the broad definition of "scope of duties" found in § 1-39-103(a)(iv), W.S.1977, Cum.Supp.1985, an employee acts within the scope of his duties when he performs

"any duties which a governmental entity requests, requires or authorizes a public employee to perform * * *."

The division personnel were authorized by their employer to purchase and inspect the elevator and were, therefore, acting within the scope of their duties.

The critical question presented for our determination is whether, under § 1-39-110, supra, the employees who allegedly caused appellant's harm were health care providers. Normally, a plaintiff should name the particular governmental employees in his complaint so that the court can determine whether they were health care providers. See Comment, Wyoming's Governmental Claims Act: Sovereign Immunity with Exceptions--A Statutory Analysis, 15 Land & Water L.Rev. 619, 631 (1980). But appellant has not done so. Throughout his claim, he consistently directs his allegations to the "State of Wyoming," by which he means the division. Specific employees are mentioned in only two places in the amended complaint; and, even then, the references are too vague to identify them as health care providers. ¹

Appellant contends that the division's general responsibility is health care; and, therefore, all of its employees must be classified as health care providers regardless of whether they were providing health care at the time of the incident causing his harm. We cannot accept this argument. Section 1-39-110, supra, does not focus on the general roles of agencies, departments, divisions or other subdivisions of the State. By its terms, the exception focuses upon the employees. They are the ones who must be health care providers for the exception to apply, and that is true even though the State may be vicariously liable for the acts of its employees.

Appellant's second argument is that the particular division employees, whoever they were, acted as health care providers when they arranged for his elevator; and, because they acted as health care providers, they were health care providers for purposes of the statutory exception. We agree with appellant's logic, but we must examine the correctness of the premise before we can accept the conclusion. We must ascertain whether the division employees acted as health care providers when they supervised the purchase of the elevator.

The term health care provider is not defined in the definition section of the Governmental Claims Act, § 1-39-103, W.S.1977, Cum.Supp.1985, and we are faced with a challenge similar to the one that confronted us in Hurst v. State, Wyo., 698 P.2d 1130 (1985). In that case, we had to interpret the term "law enforcement officer" as used in § 1-39-112, W.S.1977, Cum.Supp.1985, without the benefit of a statutory definition. We started our analysis with the proposition that

"[i]f possible, words contained in a statute must be given their plain and ordinary meaning." Id. at 1132. See also State v. Stovall, Wyo., 648 P.2d 543, 544 (1982).

Appellant contends in his brief that the term health care provider is ambiguous, but he has not offered any statutory provisions in the Claims Act which give it two possible meanings. In fact, there is no reason why the plain and ordinary dictionary meaning of the term is impossible to apply. According to Webster's Third New International Dictionary (1981), the noun "care" means "responsibility for or attention to safety and wellbeing." When used as an adjective, "health" means "of, relating to, or engaged in welfare work directed to the cure and prevention of disease." "Disease" is defined as

"an impairment of the normal state of the living animal or plant body or of any of its components that interrupts or modifies the performance of the vital functions, being a response to environmental factors, * * * to specific infective agents, * * * to inherent defects of the organism, * * * or to combinations of these factors."

Summarizing and combining these ordinary definitions, a health care provider is one who cures or prevents impairments of the normal state of the body.

When the division employees financed and inspected the elevator, they were not attempting to cure or prevent appellant's multiple sclerosis. They were merely providing a means of transportation which enabled him to work despite the disease. Appellant argues that by allowing him to work, the elevator combatted his feelings of uselessness and thereby became a crucial part of his health care program. But this argument proves too much. Under this analysis, any kind of vocational training, business loan, or other governmental largess given an...