AUGUSTINE LOVATO, Appellant (Plaintiff), v. TIM CASE, Appellee (Defendant).
S-22-0053
IN THE SUPREME COURT, STATE OF WYOMING
December 1, 2022
2022 WY 151
OCTOBER TERM, A.D. 2022
Appeal from the District Court of Laramie County
The Honorable Catherine R. Rogers, Judge
Representing Appellant:
Justin Kallal and Jason Johnson of Davis, Johnson & Kallal, LLC, Cheyenne, Wyoming. Argument by Mr. Kallal.
Representing Appellee:
Gay Woodhouse, Christopher M. Brennan, and James O. Bardwell of Woodhouse Roden Ames & Brennan, LLC, Cheyenne, Wyoming. Argument by Mr. Brennan.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
KAUTZ,
[¶1] Augustine Lovato sued his co-employee, Tim Case, for running over him with a concrete truck while they were both working on a construction project in Cheyenne. The district court granted summary judgment to Mr. Case, concluding he was immune from liability because, under Wyoming law, Mr. Lovato’s sole remedy was workers’ compensation benefits. Mr. Lovato asserts genuine issues of material fact exist as to whether Mr. Case lost statutory immunity because his actions were willful and wanton. We affirm.
ISSUES
[¶2] We restate the issues for review as:
- Did the district court err by ruling that Mr. Case was not responsible for Mr. Lovato’s safety and work conditions because he was not Mr. Lovato’s supervisor?
- Did the district court err by ruling there were no genuine issues of material fact as to whether Mr. Case acted willfully and wantonly?
[¶3] Mr. Case, Mr. Lovato, and Ricky Bustos were employed by Knife River to work on a construction project at F.E. Warren Air Force Base near Cheyenne. Mr. Case operated a truck which transported wet concrete to the job site, and Mr. Lovato worked with a crew forming and finishing the wet concrete. Mr. Bustos was Knife River’s foreman on the job and acted in a supervisory role.
[¶4] Around 10 a.m. on June 19, 2017, Mr. Bustos directed the finishing crew and Mr. Case to move to a new concrete pour site. Mr. Bustos and Mr. Lovato walked in front of Mr. Case’s concrete truck. Mr. Bustos waved to Mr. Case, signaling him to move the truck forward. As he drove, Mr. Case felt a bump and thought he had hit a curb or a concrete form with the truck. In fact, he had run over Mr. Lovato, injuring his foot, leg, back, and shoulder. Mr. Case said he did not see Mr. Lovato in his truck’s path, and he admitted to using his cell phone to call the concrete or “batch” plant and possibly his girlfriend “around the time” of the accident.
[¶5] Mr. Lovato received benefits for his injuries through the Wyoming Workers’ Compensation Act,
STANDARD OF REVIEW
[¶6] A district court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
in the same light as the district court, using the same materials and following the same standards. We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties.
Id., ¶ 21, 455 P.3d at 1207 (citation omitted). “The immunity afforded co-employees under the Workers’ Compensation Act in no way alters this standard.” Ramirez v. Brown, 2020 WY 79, ¶ 12, 466 P.3d 285, 289 (Wyo. 2020).
[¶7] “‘The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment.’” Gowdy, ¶ 22, 455 P.3d at 1207 (quoting Hatton v. Energy Elec. Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 12 (Wyo. 2006)) (italics omitted). When the movant “does not have the ultimate burden of persuasion, it establishes a prima facie case for summary judgment by showing a lack of evidence on an essential element of the opposing party’s claim.” Id. (citations omitted). After the movant establishes a prima facie case for summary judgment, the burden shifts to the opposing party to present admissible evidence which demonstrates a genuine dispute as to a material fact for trial. Id., ¶ 23, 455 P.3d at 1207 (citing Hatton, ¶ 9, 148 P.3d at 12-13). See also,
[¶8]
[¶9] We have interpreted the “intentionally act” language in
Willful and wanton misconduct is the intentional doing of an act, or an intentional failure to do an act, in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know, or have reason to know that such conduct would, in a high degree of probability, result in harm to another.
Herrera, ¶ 18, 334 P.3d at 1230 (citing Bertagnolli, ¶ 15, 67 P.3d at 632) (emphasis omitted).
[¶10] To establish liability under
[¶11] The district court concluded Mr. Case was immune from liability under
Nonsupervisory Co-employee Duty of Safety
[¶12] The district court concluded that, because Mr. Case did not supervise Mr. Lovato’s work, he was not responsible for Mr. Lovato’s safety and work conditions. Many of our co-employee liability cases address whether a supervisor can be held responsible for his subordinate’s workplace injury when the supervisor was not present at, or immediately involved in, the accident. For example, in Ramirez, the questions were whether Mr. Ramirez’s supervisors, who were not directly involved in his workplace accident, had responsibility for his work conditions and whether they willfully disregarded the need to correct known safety hazards associated with the machine he was using when he was injured. Ramirez, ¶¶ 7, 19-23, 44-45, 466 P.3d at 288, 290-91, 296. In Hannifan v. Am. Nat’l Bank of Cheyenne, 2008 WY 65, ¶ 22, 185 P.3d 679, 689 (Wyo. 2008), we concluded there was evidence the co-employees had “direct supervisory authority for [the injured worker’s] safety and working conditions the day he was injured” even though they were not present and overseeing the worker when he was injured.
[¶14] Mr. Case, likewise, owed Mr. Lovato a duty to exercise due care while operating the concrete truck on Knife River’s jobsite. Cervelli v. Graves, 661 P.2d 1032, 1038 (Wyo. 1983) (“all drivers are to exercise due care under the circumstances in the operation of their vehicles“) (citing Miller v. Hedderman, 464 P.2d 544 (Wyo. 1970)). In general, “[d]rivers must . . . exercise a diligence commensurate with hazards disclosed under surrounding circumstances, and the lookout which . . . is . . . most effective in the light of all present conditions and those reasonably to be anticipated.” Jones v. Schabron, 2005 WY 65, ¶ 13, 113 P.3d 34, 38 (Wyo. 2005) (citing Downtown Auto Parts, Inc. v. Toner, 2004 WY 67, ¶ 6, 91 P.3d 917, 919 (Wyo. 2004), and Feltner v. Bishop, 348 P.2d 548, 549-50 (Wyo. 1960)) (some quotation marks omitted). The same is true in work settings. Employers and co-employees have a responsibility to “exercise the care and skill that a person of ordinary prudence would observe under the circumstances.” Ramirez, ¶ 18, 466 P.3d at 290. The dangers presented by specific work conditions are part of the circumstances considered in determining whether the co-employee exercised ordinary care. Case v. Goss, 776 P.2d 188, 192 (Wyo. 1989). This duty applies whether the co-employee supervises other employees or not. Consequently, the district court erred when it ruled Mr. Case was not responsible for Mr. Lovato’s workplace safety because he was not Mr. Lovato’s supervisor.
Willful and Wanton Misconduct
[¶15] According to Mr. Lovato, the evidence supports a reasonable inference Mr. Case acted willfully and wantonly by either intentionally running over him or driving while distracted. We can quickly dispatch Mr. Lovato’s suggestion there is a question of fact as to whether Mr. Case intentionally ran over him. Mr. Case testified he did not see Mr. Lovato in the truck’s path and accidentally ran over him. Adam Grill, an expert in large commercial vehicle operation who testified on Mr. Lovato’s behalf, stated he was not aware of any evidence showing Mr. Case intended to run over Mr. Lovato. We agree with Mr. Grill’s assessment of the evidence. At most, Mr. Lovato implied Mr. Case may have harbored a secret intent to run over him:
Q. . . . So[, do] you think Mr. Case had some ill will against you?
A. I don’t know. You’d have to ask him that. . . . I mean, someone run [sic] me over in a 52,000-pound truck and they [sic] could see me. I have my hard hat with the shovel over my shoulder and a vest on. . . . I had all my protective equipment on.
Q. How could he see you?
A. I was like 40 feet in front of the truck.
. . .
Q. How tall are you?
A. Six foot. . . . I don’t understand why, how he hit me anyway. Got a hard hat on, got a bright orange vest on, and then I had a shovel sticking over my shoulder like four feet. That’s what I thought to myself, like how does this dude hit someone that’s six foot? I don’t know how, but we’re here.
Mr. Lovato’s speculation as to Mr. Case’s state of mind was insufficient to establish a question of fact about whether Mr. Case intended to run over him. Johnston v. Conoco, Inc., 758 P.2d 566, 569-70 (Wyo. 1988). See also, Formisano, ¶ 4, 246 P.3d at 289 (“‘Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact.’” (quoting Hatton, ¶ 9, 148 P.3d at 12-13)) (other citations omitted).
[¶16] Mr. Lovato also asserts he presented evidence of willful and wanton misconduct by showing Mr. Case drove while distracted and failed to keep a proper lookout while driving on a crowded construction site, in clear violation of known safety rules. The district court ruled Mr. Lovato’s allegations simply raised the specter of ordinary negligence and did not create a genuine issue of material fact as to whether Mr. Case’s conduct was willful and wanton. We agree.
[¶17] As we explained above, to prove willful and wanton misconduct by a co-employee the injured worker must demonstrate the co-employee knew of a serious risk posed by an unsafe condition and willfully disregarded the need to take action to protect the worker from the risk despite the high likelihood of harm. Ramirez, ¶ 16, 466 P.3d at 290 (citing Bertagnolli, ¶ 16, 67 P.3d at 633, and Herrera, ¶ 21, 334 P.3d at 1231). Generalized knowledge of a possible risk is insufficient to establish the co-worker knew about a hazard. Id., ¶ 25, 466 P.3d at 292 (citing Vandre v. Kuznia, 2013 WY 127, ¶ 18, 310 P.3d 919, 923–94 (Wyo. 2013)). Thus, an injured worker cannot establish the particularized knowledge requirement by simply showing his co-employee knowingly violated general safety regulations or standards. Id. (citing Hannifan, ¶ 7, 185 P.3d at 684; McKennan v. Newman, 902 P.2d 1285, 1287-88 (Wyo. 1995); and Poulos v. HPC, Inc., 765 P.2d 364, 366 (Wyo. 1988)).
[¶18] In Smith v. Throckmartin, 893 P.2d 712, 713 (Wyo. 1995), Mr. Throckmartin used a backhoe to load sand into a truck while Mr. Smith stood in the truck and broke up clumps of sand with a metal bar. “During the loading process, the backhoe struck the metal bar Smith was holding, and Smith lost his balance and fell from the sanding truck,” suffering serious injuries. Id. To establish a genuine issue of material fact as to whether Mr. Throckmartin knew the procedure was inherently dangerous and highly probable to cause harm, Mr. Smith presented evidence showing Mr. Throckmartin knowingly violated their employer’s safety standards. Id. at 715. We stated, “[w]hile these asserted violations may constitute evidence of ordinary negligence, they do not demonstrate a state of mind consistent with culpable negligence, which requires knowledge or obviousness of a high probability of harm.” Id. at 716 (quoting Poulos, 765 P.2d at 366) (emphasis omitted). Mr. Smith, Mr. Throckmartin, and other employees had performed the same procedure many times without any problems, which demonstrated it was not highly likely to cause harm. Id. at 715 (citing Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo. 1986)).
[¶19] Mr. Vandre was injured when an asphalt paving machine driven by one of his co-employees hit him as he walked along the shoulder of a road. Vandre, ¶¶ 3-9, 310 P.3d at 920-21. He sued the co-employees who decided to move the machine. Id. Although the co-employees were aware there was a potentially dangerous “blind spot” in front of the machine when it was being moved, they did not take any precautions to mitigate the dangerous condition. Id., ¶¶ 5-6, 18, 310 P.3d at 921, 923-24. We held that although the co-employees’ conduct could be considered negligent, it “[did] not rise to the level of willful misconduct.” Id., ¶ 18, 310 P.3d at 923-24.
[T]he risk that someone would be hit by the paver during mobilization was a mere possibility that had never happened before. The danger involved in driving the paver was not obvious and the risk of [Mr.] Vandre’s injuries were not highly probable. Simply put, the co-employee[s’] . . . actions were not an extreme departure from ordinary
care in a situation where a high degree of danger was apparent.
Id. See also, Formisano, ¶ 26, 246 P.3d at 293 (“While there certainly was some possibility of Gaston falling asleep and causing an accident, we cannot say . . . these circumstances were such that a reasonable person would know, or have reason to know, that such conduct would, in a high degree of probability, result in harm to another.“).
[¶20] In Poulos, 765 P.2d at 365, Mr. Poulos died after inhaling toxic fumes while cleaning tanks at an oil well site. His estate sued his co-employees for wrongful death. Id. at 365-66. We held that some of the co-employee defendants were immune from liability because, although they were generally aware of the risk to workers from exposure to toxic fumes and the safety rules designed to minimize that risk, there was no evidence they knew of the particular danger Mr. Poulos faced on the day he died. Id. at 366. However, there were genuine issues of material fact as to whether the on-site supervisor could be found culpably negligent. Id. at 366-67. The supervisor testified he had personally entered the tanks prior to Mr. Poulos’ deadly exposure and the fumes made him feel “worse than drunk.” Id. at 367. Despite this experience, he allowed Mr. Poulos to work in the tank without taking “steps to ensure [Mr.] Poulos’ safety.” Id. We reversed the district court’s order granting summary judgment to the supervisor, stating the “trier of fact could reasonably find a known or obvious risk presenting a high probability of harm.” Id.
[¶21] When compared to our precedent, Mr. Lovato’s summary judgment evidence does not establish a genuine issue of material fact as to whether, under the circumstances, Mr. Case was aware his actions were highly likely to result in harm to co-employees. Mr. Grill opined the accident was preventable and Mr. Case ran over Mr. Lovato because he was inattentive. According to Mr. Grill, Mr. Case violated industry standards for safely operating a commercial motor vehicle by failing to keep a proper lookout for pedestrians and maintain a safe distance between the vehicle and pedestrians. Mr. Grill also stated Mr. Case failed to clear the area before he started moving by getting out of the truck and looking around or signaling his intent to move by honking the horn, flashing the lights, or yelling. A representative for Knife River testified company policy required concrete truck drivers to utilize hands-free devices when using cell phones.
[¶22] The evidence demonstrated Mr. Case, through his training and experience, was generally aware driving while distracted and failing to keep a proper lookout on a job site violated safety rules. He learned the “cardinal” safety rule to avoid distracted driving through his commercial driver license (CDL) training and specific on-the-job training with Knife River. He also acknowledged the safety rules were mandatory because they protected “people [from getting] hurt.” Mr. Case stated he did not see Mr. Lovato when he looked out of the windshield and checked his mirrors, but he did not get out of his truck to clear the area or signal his intent before he moved the truck. Mr. Case also admitted he kept his cell phone in his pocket while he worked, and it was set to vibrate when he received a call, text, or email. This testimony indicated Mr. Case did not use a hands-free device. Mr. Lovato asserts the evidence shows Mr. Case was talking on his cell phone when he ran over Mr. Lovato. The record is not clear on that fact;1 however, we
[¶23] This evidence could certainly support a conclusion Mr. Case was negligent. See, e.g., Downtown Auto Parts, ¶ 6, 91 P.3d at 919-20 (a driver acts negligently if he fails to keep a lookout commensurate with the surrounding circumstances) (citation omitted); Blakeman v. Gopp, 364 P.2d 986, 988-89 (Wyo. 1961) (the duty of reasonable or ordinary care requires a driver to maintain a safe distance from pedestrians or bicyclists). As we said in Smith and Poulos, violations of safety standards “may constitute evidence of ordinary negligence[;]” however, “they do not demonstrate a state of mind consistent with” co-employee liability, “which requires knowledge or obviousness of a high probability of harm.” Smith, 893 P.2d at 715-16 (quoting Poulos, 765 P.2d at 366) (emphasis omitted).
[¶24] To establish Mr. Case was liable under
CONCLUSION
[¶25] The district court incorrectly ruled that Mr. Case, as a non-supervisory co-employee, had no responsibility for Mr. Lovato’s safety on the job site. However, it correctly ruled Mr. Lovato did not present evidence showing Mr. Case knew his actions presented a serious risk to Mr. Lovato or it was highly probable harm would result if he disregarded the risk.
[¶26] We affirm the district court’s summary judgment in favor Mr. Case.