Evelyn Difelici, f/n/a Evelyn Barnes v. City of Lander
2013 WY 141
| Wyo. | 2013Background
- Plaintiff Evelyn DiFelici fell into a 3-inch diameter hole in the gutter of a City of Lander street at night while walking her dog and suffered hip and back injuries.
- Two city employees had drilled the hole (pre-1989) to drain street water into a concrete pipe/irrigation ditch (Wilson Ditch); a grate originally covered the hole but was missing for years before the fall.
- The City learned of the uncovered hole before 1995 and replaced the grate only after DiFelici’s injury.
- DiFelici sued the City alleging negligence under the Governmental Claims Act waiver for operation of public utilities/services (Wyo. Stat. § 1-39-108(a)) and liability under Wyo. Stat. § 15-4-307 for unsafe streets caused by excavations/obstructions.
- The district court granted summary judgment for the City; the Wyoming Supreme Court reviewed statutory interpretation issues about the scope of “liquid waste” and the interplay of the Claims Act and § 15-4-307.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1-39-108(a) (waiver for negligence in operation of public utilities/services) covers the drilled hole/drainage and missing grate | DiFelici: the hole/drain was part of a liquid waste collection/disposal system (storm/street drainage), so waiver applies for negligence in operation | City: "water" and "liquid waste" refer to domestic water/sewer systems, not storm runoff; even if drainage, the missing grate concerns street safety/maintenance barred by § 1-39-120 immunity | Held: § 1-39-108’s "liquid waste" does not include storm/runoff; claim also barred by § 1-39-120 maintenance immunity |
| Whether the drilled hole constituted "maintenance" of a street (§ 1-39-120) or operational utility activity (§ 1-39-108) | DiFelici: replacing the grate is part of operating a drainage system or storm system; failure to replace is negligent operation | City: the hole drained water adequately; the grate related to pedestrian safety and thus is maintenance of the street (weather compensation) covered by immunity | Held: drilling the hole drained street water into irrigation and the missing grate was maintenance to compensate for weather conditions; § 1-39-120(a)(iii) bars recovery |
| Whether § 15-4-307 (liability for excavations/obstructions making streets unsafe) creates a cause of action against cities for negligent acts of their employees | DiFelici: the City created the excavation (hole) so § 15-4-307 provides liability regardless of Claims Act immunities | City: § 15-4-307 applies to third-party creators of obstructions, not to acts of the municipality or its employees; Claims Act governs suits against municipalities | Held: § 15-4-307 applies to persons/entities other than the municipality (requires joining the person who created the condition); it does not create a cause of action for negligence by city employees against the city |
Key Cases Cited
- State v. Stovall, 648 P.2d 543 (Wyo. 1982) (held prior Claims Act provision applied to negligent maintenance of state highways)
- City of Albuquerque v. Redding, 605 P.2d 1156 (N.M. 1980) (initially treated storm drainage grates as part of "liquid waste" system under NM Tort Claims Act)
- Bybee v. City of Albuquerque, 896 P.2d 1164 (N.M. 1995) (overruled Redding; distinguished sewage/waste systems from storm runoff and rejected treating runoff as "liquid waste")
- Mathewson v. City of Cheyenne, 61 P.3d 1229 (Wyo. 2003) (discussed presumptions against implied statutory repeal)
- Rock v. Lankford, 301 P.3d 1075 (Wyo. 2013) (statutory interpretation principles cited by the court)