Baros v. Wells
780 P.2d 341
Wyo.
1989
Check Treatment

*1 a Judgment a “when issue material Summary Without law, through Such as a as shown Motion for fact matter pleadings,” desig not out the but he does ability of Appellants also specify the fact over which nate or material summary judg- to a the district court enter disagreement, argue nor does Nation- appellee ment in favor of American summary for the issue. In his motion for In its Bank a motion such. al absent against appellee American Na for granting order motions Bank, appellant states that tional Newman ment, part: the district court concluded “[tjhere is no as to material fact” issue fact exist no of material “There issues contrary alleged position —a and Plaintiffs Joe and Gloria Gemelli reference this issue. This court will not are American National Bank entitled respond alleging consider issues error Mo- judgment as a of law. Their matter cogent supported by argu are which not Summary Judgment granted tion are for proper authority ment and citation of Mo- and Defendant Jane Rasmussen’[s] clearly v. not defined. Hance Judgment is denied. Summary tion for Straatsma, fact There exist issues material Reid, Tremblay (Wyo. v. regarding American National Plaintiff 1985); County Haddenham Board of right judgment. Though it has Bank’s County, 679 Commissioners Carbon Summary Judgment, not moved for cited (Wyo.1984) and cases there grant Summary may Judgment Court in. non-moving party when it is entitled and to do so result in same Affirmed. judicial the waste of resources.” agree. Although entry We

summary judgment there absent motion occurrence, entry

for should be rare summary judgment party in favor such a failure who moved for party

to do in favor of another likewise such, plaintiff who did not move for BAROS, Appellant (Plaintiff), Raymond subject to the same material facts who is issues, legal would result in additional already proceedings on issues decided (Defendant). WELLS, Appellee E. Eddie re judicial the matter and “waste sources.” No. 89-37. judg- summary In this motions Supreme Wyoming. Court of (1) appellees

ment Joe Newman, against appellant Gloria Gemelli Oct. (2) appellees Joe and Gloria Gemelli 2, 1989. Rehearing Denied Nov. Rasmussen, (3) appellant Ras- appellant against appellees mussen Joe and Gloria (4)

Gemelli, appellant Newman

appellee As not- American National Bank.

ed, Na- the case of Newman v. American dis-

tional Bank was consolidated

trict of Newman and Ras- court Gemelli.

mussen Joe Gloria

Issue of Material Fact an is

Appellant Newman lists as

sue whether or not the proper Gemelli is favor of Joe Gloria *2 prevailing party judg-

and the is entitled to Bell, Roybal ment as a matter of law. 778 P.2d 108 Doud v. First Gillette, Interstate Bank (Wyo.1989). summary judg- We review a court, light ment in the same as the district using following the same materials and 108; Roybal, same standards. Conoco, Inc., Johnston v. (Wyo.1988). We examine the record from vantage point most favorable to the motion, party opposing give and we party the benefit of all infer- favorable may fairly ences which be drawn from the Borthwick, Blythe Blythe Daniel G. & Doud, 927; record. Albrecht Lewis, Wolf, Chey- Cheyenne, and Richard Zwaanshoek Holding Financiering, En enne, appellant. for B.V., Williams, Porter, Murphy of Patrick J. support The materials submitted in Neville, P.C., Day Casper, Stephen and in opposition to the motion for summa- Office, H. Graham of Jones & Graham Law ry judgment following reveal the facts. At Torrington, appellee. for injury, parties the time of Baros’ both were employed by Torrington. the Town of CARDINE, C.J., THOMAS, Before Torring- of the URBIGKIT, MACY, JJ., department, ton water and sewer and Ba- ROONEY, (Ret.). J. equipment opera- ros was a laborer/novice 29, 1983, Saturday, tor. On October MACY, Justice. called locating Baros to assist him in a leak appeal This is an from a They began a water service line. work granted appellee ment favor Eddie E. approximately p.m., 1:00 op- with Wells appellant Raymond Wells on Baros’ co-em- erating a leaking backhoe to uncover the ployee culpable negligence claim. Baros line. Baros worked in and out of the exca- injured in the employ- course of his vation, guiding placement Torrington ment with the Town of shoveling away backhoe bucket and dirt compensation injuries received for his from the uncovered line. water through compensation. worker’s Baros ini- usually climbed out of the excavation when action, seeking recovery tiated this further dug with the backhoe. Both Wells injuries supervisor/co-em- for his from his and Baros aware that the were arm and Wells, ployee, alleging culpable negli- tendency bucket of the backhoe had a gence exception under an to the exclusive drift to repairs the left and that were need- remedy provision Wyoming Work- problem. Although ed to correct this er’s Act as it then existed. tendency occurring to drift had been The district court determined that months, produced about six it had no harm- were no issues of material fact and that ful easily effect and had been corrected Wells was entitled to as a matter operator. operated Both men had of law. previously approximately backhoe —Wells We affirm. years a month twice for four and Baros simply: describes the issue between two and four times. genuine Was there a issue of material p.m., The accident occurred at about 4:00 on culpable negli- fact “the and, although it was later discovered that gence? serious, injuries the work con- Summary judgment proper only when tinued for more than an hour after the there are no injury. issues of material fact At the time of the Act, pensation must establish at Wells’ di- in the excavation was down oper- simple negligence; the coem- rection, standing as Wells more than to one side occasion, “culpa- ployee’s On conduct must constitute the backhoe. ated Doyle, Barnette suddenly negligence. lurched and violent- arm ble” left, striking (1981), abdo- Baros in the ly Wyo., repair post-accident inspection negligence” “culpable men. A the term defined system hydraulic revealed a of the backhoe misconduct.” We as “willful serious *3 the cause the sudden move- failure was context defined the term in this “willful” “ the machine. ment of purposely, as is ‘such done knowledge such a misconduct of —or additionally re- in the Materials dis- character as to evince a reckless had consumed one beer veal that Wells ” Id., quoting consequences.’ regard of job Baros prior going site and that Mine, Swigart Hamilton Coal pickup. in two beer cans Wells’ observed 485, 203, 206, 149 A.L.R. Wyo. Further, recognized that he Baros claimed (1943). danger of in a ditch while aggravating which distin- factor he remained and that ordinary guishes willful misconduct only directed in ditch because Wells is the of mind. actor’s state he felt he would him to do so.1 prove en- In order to that an actor has his if he had climbed out have lost misconduct, contrary gaged in willful one must Wells’ instructions. the ditch they mentioned as demonstrate that he acted a state of facts will be Additional specific approaches contentions of cul- mind that intent to do harm. relate to Baros’ mind, course, pable negligence. may difficult State of be prove. Accordingly, courts allow a 1986, repeal Wyo.Stat. its in Prior to party to establish that willful misconduct 27-12-103(a) (1977)provided exception an § by demonstrating that has occurred an provision of the remedy the exclusive intentionally committed an act actor Compensation Act for Wyoming Worker’s in of unreasonable character culpable negligence.2 Section co-employee is so a known or obvious risk that 27-12-103(a) provided: highly probable as to make it that harm provided in rights and remedies will follow. for an this act 27-12-101 to [§§ -804] (citations omitted), quoted in Id. at 1136 injuries his dependents Light Power Stephenson employments in incurred extrahazardous Pacific (Wyo. Company, rights reme- 1174-75 in lieu of all other Johnston, any making 1989), against employer contri- P.2d at 568-69. dies act, required by or his em- butions argues in the that the materials acting scope of their ployees within the record are sufficient to structure employees are employment unless the negli- issues as Wells’ factual supersede culpably negligent, but do not First, respects. he asserts gence in several rights to an any and remedies available drinking had been alcoholic bev- that Wells dependents employee and deposition in his that erages. Wells stated person. other day anticipated working that he had not Hombuckle, Bryant In at home he had had one beer statute, stat- (Wyo.1986), we discussed being called on the Other out ing: empty beer his observation of two than pickup, presented coemployee in Wells’ to recover cans order drinking, that Wells had been section of Worker’s Com-

under this provision remedy Although exclusive Baros stated Wells had directed 2. The current Act, Wyo. Wyoming remain in the while the backhoe him to ditch Worker’s deposition operating, (1977), co-employ- Wells testified in his Stat. 27-14-104 eliminates § allowing remain in the he erred in Baros to culpable negligence. liability for ee purposes of re- For hole. view, accept by Baros. the version offered out, deposition Q Coming he admitted in his. would knowledge drinking day get going of Wells out when the backhoe was though scrape even men dirt? worked side side for several hours before the piled up big enough A dirt When accident. Baros does not claim that Wells there, for the backhoe to would in any way impaired or under the go crawl out of would alcohol, and, given influence of even there and clean it out.

benefit of all favorable issue of willful misconduct. dence Second, simply Baros relies fails to structure a factual inferences, this evi- deposi- Q # Was for the backhoe to would [*] that a get [*] standard the dirt [*] get piled up big [*] procedure, out, [*] presence tion that Baros’ then what would do is contrary excavation safety policy out of the ditch and let the backhoe do noted, previously established Wells. As it? *4 testimony there is a conflict in the as to A right. That’s

whether or not Wells directed Baros to respect to presence With in the hole in remain the hole at the time of the acci- the time of the Baros stated: describing presence dent. In in Baros’ I would he made about five or six excavation, Wells testified: passes through there, stopped. * * * A thought I should have of it at So I went back down in down same time but didn’t. We were thing, me, and he told says, “Ray, he tired, getting Ray and it was late. had Hell, coming I wouldn’t be in and out of in been and out of the hole several times. said, there.” He “Just stand off to one Ray just easily got could have have “Hell, says, side.” And he I won’t hit out of the hole and then motioned me you anyway.” into the hole as do stayed what he did: affidavit, In a later Baros stated that hole, then motioned me into it. that, perception was his if he had climbed Q stayed He should have in the hole? direction, out of the ditch Wells’ he No, got A he should have out of the might have lost his At the time of his hole. however, deposition, Baros testified: Q Why you say do that? Q And do think gotten said, have if fired he had “You A operating practices It is standard ditch,” don’t need to out of the that if don’t have room you did? get away hole, from a stand away at the end of the bucket or whatev- er, you get out of the hole. for whom? Q Is that standard operating practice me say there is a doubtful on that because A [*] Well, [*] good friends, but, [*] my experience [*] [*] I would other [*] places you city, probably

A would have. For the crew. Q policy originate? Where does that agree that, We with the district court might while this evidence well establish A From me. negligence part and, on the of Wells Q responsible You are poli- for that matter, Baros, it does not make out a cy? case Wells. unwritten, A Yes. every- but perception Baros’ as to his body knows about it. he would lose his if he came out of the describing procedure dig used to bearing question hole on the hole, Baros testified: possessed requisite whether Wells state Q So had not in the been ditch at finding culpable negli- of mind for a day? all that gence. The evidence indicates the men had coming A I working in and out. been for several hours and were tired, disregarded consequences of Ba- lessly They the end task. near Johnston, 758 P.2d 566. ros. See Wells, relaxed they, particularly precautions. safety While usual Finally, Baros relies an accident unreasonable, cul- may have been conduct report for the mu- investigation prepared than un- more pable “involves public director of works nicipality’s conduct; willful- involves reasonable investigation conclud- committee practice having 728 P.2d at 1137. ness.” a worker ed that “ex- excavated a backhoe is hole regarding can be The same dangerous.”3 apparently tremely hole Wells him into the claim that sent that the conclusion reached contends main- knowing the in need of backhoe was genu- is sufficient to structure committee undisputed tenance. precludes summary issue which ine factual (and that, Baros) had known negli- culpable tendency of the boom for some time party opposing A a motion for sum- gence. left, reason to to drift to the mary judgment must forward with come in the anticipate that it would malfunction genu- facts to show that there is a specific deposition, manner which it did. In his Conclusory issue. statements are ine prob- stated that did not know Hadley, Pace v. sufficient. the backhoe was serious lem with Sterling, Stundon v. drifting dangerous. itself was not agree Even if we were reported the testified that he had dangerous, activity extremely that this mechanic, it had drifting to the Town’s equate negli- that does repaired pressures not been due to work record to gence. nothing There *5 affidavit, scheduling conflicts. anticipated or realized indicate that of the jump that sudden Wells stated the of serious nature the risk involved the happened never to backhoe had willfully disregarded such risk. that he depo- any operators. the other of argues that in this case Baros the facts same He stated that sition is to the effect. HPC, analogous to those in Poulos v. operated and was he had the backhoe Inc., (Wyo.1988), we wherein drifting but that aware culpable negligence of held that an issue knowledge any tendency of the backhoe of presented of to the trier should have been Again, failure “jump.” to the evidence of suggested a In that record fact. maintain, undoubtedly properly to while con- aware that a frac tank supervisor was support negligence, a does claim of sent a toxic fumes and nonetheless tained “intentionally not demonstrate that a died as in to clean The worker worker act charac- committed an of unreasonable deter- exposure to the fumes. We result of risk of known or obvious ter plaintiff had mined in Poulos that highly proba- so as make it that is creating genuine fac- presented evidence will 728 that harm follow.” ble supervisor dispute as whether tual 1136. P.2d at dangerous situa- highly aware of 367. tion. Id. at dem- argued the evidence Baros also and tired. onstrates that Wells was hurried showing in has not such a indicating nothing in There is applicable to instant case. More did hurry. fact, While Wells bar, Wells was comments are our case tired, we do not that both men were respect state two defendants Poulos infer- supports that fact an believe alone we sustained for whom that, fatigued as noted the evidence ence that Wells was so ment. We while indi- safely may have regarding those defendants incapable of the backhoe risk, negligence, it did not demonstrate that, knowing reck- cated of Additionally, operating. the committee respect report, we note that the hoe was With 3. better have known investigating reported Baros in- stated that should also committee place in the hole in the first practice for a than to be them it common formed operation. equipment was in the back- worker to be in excavation while 346 HPC, Inc., Poulos v. culpable neg- (Wyo.1988);

state mind consistent P.2d 566 of Stephenson knowledge ligence requires high (Wyo.1988); that, Co., of Light probability harm. We al- 779 Power P.2d Pacific though of those defendants both (Wyo.1989). Comparable 1169 cases con- harm, possibility aware of the of sidering culpable negligence a defense suggesting they no evidence knew the de- compensation payment to the of worker’s gree danger presented particular by are Matter benefits died. Id. at Meredith, frac tank in which the Smith (Wyo.1987); P.2d 874 743 bar, Similarly, in 366. the case at there is Co., 1, Motor Brannan Wyo. 72 260 aware Wells was Swigart (1953); Hamilton v. Coal P.2d 757 danger degree presented the defec- Mine, 485, (1943); Wyo. 59 143 203 P.2d circumstances; i.e., tive backhoe under the Swenson, 293, and Fuhs v. Wyo. 58 131 high probability there was harm. (1942).1 Here must find a Thus, present failed to place to sandwich case between our mind, requisite state of factual issue cases, summary judgment John- affirmed and Wells entitled to a as a ston, Stundon, 566; 317; 758 P.2d P.2d 736 matter law on the claim Bryant, 728 P.2d and our re- negligence. cases, Stephen- summary judgment versed son, Poulos, 1169;

Affirmed. 364; P.2d P.2d Wessel, P.2d URBIGKIT, J., dissenting filed a In analysis of intrinsic facts of each of opinion. cases, these conclusion that URBIGKIT, Justice, dissenting. majority cognitively weighs the evidence upholds justify summary judgment This is another case which and fails to con entered an whether an considering fine the review jured employee co-employee who sued a presented issue culpable negligence. majority ap- the evidence fair inferences to proves procedural disposition without be derived from that evidence. Baldwin v. t trial and do not. I dissent because Dube, (Wyo.1988); Davenpor majority confuses the “most beneficial Epperly, *6 inference standard” with burden of the Wierdsma, Greenwood v. 741 P.2d 1079 proof plaintiff which must bear at tri- (Wyo.1987); Bryant, By 728 P.2d majority al. up The sets a standard of way quick example, of the shows then, review for by superintendent the being had a beer before result, does follow the established stan- called out on The majority the misses dard. point they the when evidence “this simply fails to structure a factual issue of The of be- willful The misconduct.” inference most ing by summary judgment decided jury favorable to the could been a source recent of considerable review superintendent infer “intentionally with Barnette v. by commencing this court Doyle, committed an of act unreasonable charac (Wyo.1981) and fol- Hombuckle, Bryant disregard ter in v. known or risk by lowed 728 P.2d obvious great Sterling, highly proba that is so as to make it Stundon v. (Wyo.1986); 1132 736 v. (Wyo.1987); by going ble that Bettencourt Pride harm will follow” onto a Service, Inc., Well (Wyo. potentially dangerous 722 site drink after v. 1987); Hadley, Bryant, Pace 742 P.2d (Wyo. ing. 1283 728 P.2d at 1136. The Inc., 1987); Mapco, v. weight jury Wessel given to be should be a deci Conoco, Inc., modest, Johnston nominal, sion and it could Annotation, Wanton, Willful, generally Right Against 1. See Direct Fellow Maintain Action Coemployee Reckless Conduct Liability Law, As Ground Employee Injury by For or Death Work- Covered of Despite Bar (1968). Workers’ Compensation, men's 21 A.L.R.3d 845 Annotation, (1987) A.L.R.4th 888 Q. anything Did do did summary judg major. The one issue —what injury? do to simply whether there is cause ment review permit jury evidence sufficient to viable injury? I do to cause the A. What did culpable negli the existence to consider Q. Yes. gence co-employee. Cordova Go by letting I him A. made a mistake sar, (Wyo.1986). stay the hole. majority accepts This as that the true Q. What else? superintendent, under disclosed circum- A. That’s stances, operated a which knew Q. Why the backhoe hit him? did malfunctioning and a worker was ordered ItA. malfunctioned. into a hole cleared that malfunc- severely tioning That backhoe backhoe. Q. How it malfunction? did injured employee. majority up- hydraulically to A. It malfunctioned judgment against summary holds the pressure against one where giving injured reportedly after worker backhoe had cylinder, and the started inferences “the benefit all favorable it, drift, jumped and when corrected it may fairly which be drawn pres- due to the fact there no back Interstate record.” See Doud First cylinder leak- sure one that was Gillette, Bank ing. holding say a jury The effect of that is to su- There was an obvious conflict possibly could not infer the pervisor’s jump comment that un- “intentionally committed an of unrea- act expected and the accident committee’s sonable character in of known vestigation report: risk that is so as to make or obvious generally agreed highly probable that harm will follow.” backhoe, problem mechanical at 1136. The record is operators all were aware high proba- unchallenged danger, of known accordingly. In this of it and used it risk, bility unjustified in accident from overcompensated in operator direction, and written knowing what was trying to correct the “drift” the buck- Damage inju- did the stars then occur. et, causing to strike the man in the ry danger, direction and dis- followed Although problem the mechanical hole. regard. actually did not cause backho[e] could contributing factor it was than include find more casual why the accident occured [sic]. knowing operation of superintendent’s Therefore, a mechanical in addition to malfunctioning ordering a backhoe after physical error problem, there was a hole fellow into excavation *7 made, explained. which can be safety doing so a violation of the when ditch As explained for such sewer work. Also standard and as what regard to his directions participants evidence was that both injury: at the time his occurred jury might reasonably in- tired. The have hurried work ferred the you to do Q. you are told When [sic] safety abandoning acknowledged pre- supervisor] something did [your —what cautions. say? said, running up He “I wouldn’t be A. history of the unre- Clearly, the known Just pile dam of dirt. and down this “jump” [sic] paired “jump” and I you.” I hurt to one side. won’t off employee may severely injured the nothing, just say yes no or went didn’t superintendent’s have relation to some stayed corner and up to that little mind or his to an obvious state of shovel, I just sat there supervisor danger. operating it because explained: watched in, standing I there on that cor- had caved A. was was a lot of dirt that before, I was watch- ner like I stated shoveling all that dirt out. he was ing him take the dirt out. employee also indicated: Q. Taking the dirt out? Well, A. I learned that when we was Right. A. out, it digging that hole had caved Q. you And saw the backhoe come to four more feet south of about three you? ditch, so, actually, it regular our main ' No, looking I didn’t. I was at him. A. on, us area to so when it left a wide work this, I brought he the bucket like When pipe already had did it covered our watching him. he came just discovered. With a shovel there, cleaning. I and he was back down Thereafter, employee explained in some five or six would he about looking up opera- he at the detail that was there, through stopped. passes equipment tor and and never saw buck- So I went back down down swinging et it hit him. me, thing, says, “Ray, he he told worker, injured super- Before he Hell, coming in I wouldn’t be and out of safety policy: intendent violated his own said, He “Just stand off to one there.” operating practices A. It is standard “Hell, says, he I hit side.” And won’t if room don’t have okay, I I you anyway.” So hole, get away from a backhoe stand digging, dug, I started and went off away at the end of the bucket or whatev- the one There was a little bank on bank. er, you get out of the hole. example, the corner of that. For this is Q. practice Is that standard right the hole. There was a little bank for whom? here, up. I and this is where stood city, my A. For the crew.

Q. originate? policy Where does that Q. Now, you doing A. From me. what were when got hit with the backhoe? Q. responsible poli- You are for that cy? A. I couldn’t tell if I stand-

ing up laying unwritten, down or what. All I can every- A. Yes. I remember is didn’t have no—I didn’t body knows about breathing. even know if I was All I appropriate I conclude a case is good is I felt a hand here like the know begins for a to decide when this court grabbed me. Lord had ahold of factfinding during culpable negligence re- Q. Indicating your right arm. You frequently if our stated criteria of view felt a hand? summary judgment, Davenport, 744 P.2d A. Yes. going prece- to be said to have dence. Q. [your supervisor’s] Was

hand? Accordingly, I dissent. Yes, top,

A. out on because catching myJ

and was wind.

Q. you got That was after hit? Right.

A.

Q. you doing What were when

got hit?