Suit, аlleging wrongful death claims, was brought against the State of Wyoming, Department of Family Services (DFS) and Department of Education (DOE), by the survivors of two teenagers killed in an automobile accident on April 19, 1993. At the time of their death, Kary Mullins and Zachary Noecker were in the care of Normative Services, Inc. (NSI), a twenty-four hour care facility in Sheridan, Wyoming. The two
We affirm.
Appellants state two issues:
1. The District Court erred in finding that Edward A. Gillison was not a “public employee” pursuant to the immunity statutes.
2. The District Court erred when it found that NSI was an independent contractor for the State of Wyoming.
Appellees present the issues in this way:
1. Is the State of Wyoming liable under the Wyoming Governmental Claims Act for damages resulting from the negligence of the employee of an independent contractor?
2. Is the Department of Family Services entitled to judicial immunity in its role of monitoring children placed in a twenty-four hour care facility pursuant to a court order?
3. Did Appellants release any claims they may have had against the State of Wyoming by releasing the persons they claim to be agents of the State?
FACTS
Normative Services, Inc. is a private, nonprofit corporation certified by the State as a residential treatment facility and to provide educational services. Zachary Noecker was voluntarily placed in NSI’s day treatment program pursuant to a consent decree entered by the Sheridan County District Court. Kary Mullins was admitted to NSI’s residential program on the order of the Washakie County District Court on a CHINS (Child in Need of Supervision) petition. The care of both children was paid for by the Department of Family Services аnd the Department of Education; DOE paid for the cost of educating the youths, and DFS paid the residential component as well as the cost of counseling.
On April 19,1993, Edward Gillison, a counselor/educator employed by NSI, was driving Mullins, Noecker and other NSI students to the Sheridan County YMCA for recreation when his car crossed the center line and collided with an oncoming vehicle. Gillison, Mullins and Noecker lost their lives in the accident.
Gillison’s insurance company, State Farm Mutual Automobile Insurance Company, reached a settlement with Diana Cline, personal representative of Zachary Noecker, and James and Carrie Mullins, persоnal representatives of Kary Mullins (collectively, appellants). In return, appellants released all claims against Gillison and NSI. Appellants subsequently filed suit against the State of Wyoming, DFS and DOE (appellees), аlleging that Gillison and NSI fell within the statutory definition of “public employee” contained in the Governmental Claims Act. W.S. l-39~103(a)(iv) (Supp.1996). Appellants claim that Gillison, as a public employee, was negligent in the operation of a motor vehicle while acting within the scope of his duties, thereby rendering the State of Wyoming liable through the Department of Family Services and the Department of Education under W.S. 1-39-105 (1988).
Both parties filed motions for summary judgment. After a hearing on the motions, on December 14, 1995, the district court granted summary judgment in favor of ap-pellees. Appellants timely filed this appeal.
STANDARD OF REVIEW
Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56;
Rue v. Carter,
DISCUSSION
Claims against the State must be brought pursuant to the Wyoming Governmental Claims Act (Claims Act). Under the Claims Act, sovereign immunity is the rule, and gov-émmental liability is the exception. W.S. 1-39-104(a) (1988). Unless a stаtutory exception is applicable, no liability will attach. Id.
Appellants claim appellees are liable under § 1-39-105 of the Claims Act, which provides: “A governmental entity is liable for damages resulting from bodily injury, wrongful dеath or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any motor vehicle, aircraft or watercraft.” The act defines “public employee” as “any officer, employee or servant of a governmental entity, including elected or appointed officials, peace officers and persons аcting on behalf or in service of a governmental entity in any official capacity, whether with or without compensation.” W.S. 1-39-103(a)(iv)(A) (Supp.1996). The term does not include an independent contractor exceрt contract physicians in specified circumstances. W.S. l-39-103(a)(iv)(B) (Supp. 1996). A “governmental entity” means “the state, University of Wyoming or any local government.” W.S. 1 — 39—103(a)(i) (Supp. 1996). “Local government” is defined as “cities and towns, cоunties, school districts, joint powers boards, airport boards, public corporations, community college districts, special districts and their governing bodies, all political subdivisions of the state, and their agenciеs, instrumentalities and institutions.” W.S. l-39-103(ii) (Supp.1996).
The dispositive issue is whether NSI or Gillison are “public employees” under the Claims Act. Appellants must establish that either NSI or Gillison was a public employee — an officer, employee or servant of the State, DFS or DOE, and not an independent contractor — or their claims will be barred by the Claims Act. In Wyoming, the overriding element in determining whether one is an employee or independent contractor is whether the employer has a right to control the details of the work whereby liability is sought to be established.
Stephenson v. Pacific Power & Light Co.,
Ordinarily the determination of whether a master-servant relationship exists is a question of fact for the jury, but it becomes a matter of law when the pertinent facts are not in dispute and but one reasonable inference can be drawn.
Barnes v. Fernandez,
In making their argument, appellants rely on Wyoming statutes and rules which govern licensing and certification of shelter care facilities and which mandate minimum standards for educational providers. Specifically, appellants argue that the DFS and DOE control the daily operation of NSI through DFS-promulgated Standards for Certification, DFS’ authority to approve individual service plans for children-in-placement, DFS’ and DOE’s authority to approve individual education plans, monitoring of NSI’s operation and methodology by local DFS caseworkers, and the ability to terminate the contract with NSI for noncompliance with statutory and regulatory mandates. Further, appellants argue that DFS and DOE must retain this level of control because they have a non-delеgable statutory duty to protect the safety and welfare of children who are placed in alternative care facilities.
Our examination of the record leads us to conclude that there are nо genuine issues of material fact with respect to the retention of control by appellees over the details of the work performed by NSI. “As a practical
The DFS official primarily responsible for certification of children’s care facilities testified that no one from DFS attended NSI board meetings, DFS had no power to hire or fire NSI employees and was not involved in hiring or firing decisions. DFS caseworkers, along with representatives from the school district and NSI, collaborated in develoрing individual written plans for children-in-placement. Caseworkers also reviewed monthly reports and conducted six-month reviews of a child’s placement, but beyond that DFS did not involve itself in the details of treatment. DFS could voice concerns about the manner in which NSI provided its services; but if the disagreement was not settled, the court which ordered placement of the child resolved the issue.
DOE required that physical education bе included in the curriculum for students but did not specify how often or where such activity was to take place. Neither DFS nor DOE mandated that the children be transported to the YMCA for recreation. No one at DFS was cоnsulted about the decision to transport the youths on April 19, 1993, nor was there any requirement that DFS be consulted about such a decision. Trips off site for recreation using personal vehicles were subject to apрroval by an NSI program director or manager. DFS standards contained no provision regarding transportation of students.
In sum, the undisputed facts illustrate that NSI was fully in control of deciding how to conduct its day-to-day operations in order to successfully perform its obligations under the contracts with DFS and DOE. Thus, as a matter of law, NSI was an independent contractor, and neither NSI nor its employee Edward Gillison was a “public employeе” under the Claims Act. Having so determined, we need not decide the additional issues raised by appellees.
CONCLUSION
We find that no genuine issue of material fact existed in this ease and that appellees were entitled to judgment as a matter of law.
Affirmed.