Radosevich v. Board of County Commissioners
776 P.2d 747
Wyo.
1989
Check Treatment

*1 proceeding in a special A. an order made that such direction Robert remanded with all, exercised, truly right if affects a substantial is to at as option McCue’s be proceeding. made a appraisal appraisal special the is not respect first the with analysis the me My of the date of testator’s causes to conclude that the which was as ap- designation appraisal of those accepting the an is interlocu- death. While order just sense, the not match statute praisers tory does in the truest and further some respects, I am satisfied that quoted by in all request required relief was Robert nomi- appraisers were substantially a A. McCue before final order could be and, by personal representative nated the speculate perhaps I entered. that a com- sought, though approval court even seeking rights a of his plaint declaration ap- validity of the that did not affect the will, purchase the or an under offer furnished. praisal appraisers that those appraisal by followed a based personal representative rejection suggestion it is I that appalled am Consequent- result in a final order. could adopt appraisal accom- appropriate I addressed the resolution on ly, while have if a different method even plished by opinion, my in the majority merits made approved agreed upon by the heirs appeal this disposition would be dismiss me, no different the court. For interlocutory taken from an order as one a distribution different approving from is not final order as defined in Rule a if the provided by the testator from that 1.05, W.R.A.P. agree comport to it. That does not heirs recognizing power law property he sees person dispose of his

fit. beyond to go if the were

Certainly, or- option the real private public or a sale dered sold at sale option, I no apart would have difficulty the exercise discretion RADOSEVICH, John E. doing probate court whatever (Plaintiff), necessary fair to assure that a obtained as of date value was case, problem is not the sale. That OF COUNTY COMMIS- The BOARD be reversed and the COUNTY OF OF SIONERS apply, pur- directions to remanded with SWEETWATER, Wyoming; the Board appraisal initial poses option, County Solid Waste Sweetwater Williams, King, Milton B. Johnson, made W. Joe 1; No. District McKee, appraised the E. who Crank, and Robert Inc., Wyoming a & Fermelia ranch at the (Defendants). interest in the lands decedent’s Appellees corporation, $140,904.31 at time of his death a value No. 88-226. ($65 acre). my judgment, ap- In per Wyoming. Supreme Court of the value which Rob- praisal established right A. should have first ert McCue July 1989. property. real purchase the approving is from an order appeal This brings me to further appraisal, which I am not able

concern about case. identify any authority from this court pro- recognize an order

which would appraisal a final accepting an bate 1.05, pursuant to W.R.A.P. order Rule determines the an order as such judgment. It is prevents action and *2 Crank, (JFC).

Fermelia & Inc. Although variously parties, stated two main appeal: legal duty 1. What does a or landowner occupier light owe an invitee in our of City Casper, decision in O’Donnell v. of (Wyo.1985); 696 P.2d 1278 and disputed 2. Were there issues of materi- preclude al fact sufficient to judgment?

We affirm.

FACTS garbage pit into which Radosevich

fell is located in County Sweetwater on county land leased from the Bureau Management. pit, of Land is a concrete approximately deep, 16 feet intended dumping during household trash periods primary when the facility landfill is closed. is a high along There two-foot concrete wall edge prevent one backing vehicles from pit. Appellant into the hauled trash to the pickup, landfill his as he had on numer- previous ous occasions. He backed his up pickup edge concrete wall of pit. He then climbed onto wall and began to throw trash from his truck into so, pit. doing While he lost his balance pit, suffering and fell into the an ankle James, John of W. James James and Appellant fracture. testified that he did Springs, appellant. Rock why not know he spec- lost his balance but (ar- Frank Day D. Neville and Stuart R. ulated that it of a because gued) Williams, Porter, Day Neville, & gust wind, slipped, he because Casper, County for Bd. of Sol- Sweetwater stepped backwards, he or because id Waste 1. Dist. No. the wall was narrow. Greenhalgh, Bussart, Ford T. Bussart Appellant testified that he was aware Rossetti, Springs, West & Rock for John- person standing that a on the wall could son, Crank, Fermelia & Inc. fall pit. off into the He also testified that despite his danger, awareness CARDINE, C.J., THOMAS, Before customary practice towas stand on the MACY, JJ., URBIGKIT and unloading wall when trash from his truck. ROONEY, J. Retired. Appellant negli- contends that the wall was CARDINE, Chief Justice. gently it that was too narrow safely to stand on should have been personal injury This inju- case arose from or, wider, alternatively, that it have appellant ries John Radosevich received impossible been on stand the wall. Since top when he fell from the of a wall into a accident, standing now unloads while garbage pit. concrete en- district court ground on the outside wall. summary judgment tered in favor of defen- County dants District, JFC, Sweetwater Solid Waste Dis- sued and the posal (District) Johnson, District No. 1 County Board Commissioners of Sweet- lant, design, unreasonably dangerous negligent per se County alleging water pit. negligently designed, or main- and maintenance constructed construction lessee, also claimed that tained. unreasonably liable for an occupier pro An land’s is to property. The Board condition against unreasonably tect an invitee dan County was dismissed Commissioners conditions, against gerous every con *3 appeal. dis- prior to this After the case injury. The risk mere fact that ceivable covery completed, was district injury occurred does not that a establish judgment appellees. granted summary unreasonably dangerous, nor condition was testimony danger does that was DISCUSSION departure or A from “known” “obvious.” dem- Appellant injury contends that his design in what is and construc reasonable dangerous the wall was a onstrates that tion under the circumstances must be and that since aware condition was shown to establish that condition is un danger, danger was obvious. reasonably dangerous. argues then our decision in O’Donnell jury contends that a trial is (Wyo. City Casper, 696 P.2d 1278 v. compare negligence to needed 1985), duty Wyo- in created an absolute from parties. appears While it the materi- ming created to obvious remove support summary judg- in als concludes the defendant. He therefore may in this plaintiff ment that case duty remove the that District had a to negligent, negligence of the danger; injury shows that obvious plaintiff automatically alone not re- does violated; lia- duty so District must be was to There quire apportion liability. a trial ble. question in must be a of material fact Appellant misinterprets the effect negligence; negli- regard to defendants’ That decision did not create O’Donnell. presumed gence of a defendant will be legal duties; plaintiffs it held that a new merely plaintiff injured. was because a choosing in to a known behavior encounter where, negli- summary judgment To avoid danger is evidence of and obvious here, negligence compared defendant has established that gence.1 This designed, simple pit if there is a and wall structures total fault under W.S. 1-1-109 Inc., U.S.A., maintained so as to be 718 constructed and trial. Jones v. Chevron 890, reasonably safe for its intended use—which (Wyo.1986). P.2d 898 prevent backing from into to vehicles was duty” rule advanced “absolute to pit plaintiff was incumbent —it any or appellant would make landowner condi produce facts which indicate that the im- occupier an of all invitees. To insurer designed, or constructed maintained tion as duty any to condi- pose an absolute remove dangerous. Plaintiffs unreasonably was injury possibly cause tion which could the follow response best illustrated of all effectively require removal would testimony: ing excerpt deposition from All walls structures. vertical artificial on, “If the wall stand was prevent have to razed order to would If have been wider. the wall was danger that someone the obvious on, designed not to stand there should inju- headlong into one suffer an walk prevent something you have been a— have to ry. Similarly, street curbs would standing on it.” from might trip, someone be removed because extreme, any been At the Bald assertions that it should have injured. fall and be tripped prevent injury or that the possible could be artificial condition which of, into, unreasonably over, ipso off must facto be fallen off run or bounced condition would, injured appel- dangerous someone causing according to was injury resulting preserved a between correct a known and 1. The decision distinction U.S.A., owner of natural causes. Jones Chevron natural artificial conditions. An Inc., duty (Wyo.1986). 718 P.2d still has no his invitees 890 MACY, are not question Justice, sufficient create a dissenting. Dube, fact. material Baldwin v. 751 P.2d majority disposes decision of this (Wyo.1988). Giving every favor- by determining appellees appellant as able inference to the non-mov- negligent law; i.e., as a matter of ing party, genu- we are unable to discern a dump pit present did not wall ine issue of material fact facts unreasonably dangerous condition for showing that the was wall when appellees, which occupiers land, purpose. used for its intended There protect owed to invitees to them from, appellant attempted of, no all until at least warn risk of harm. may wall, majority be that the gusty himself on the in a is correct its balance assessment of the high wind, reasonableness of the throwing while refuse from his construction, risk design, created stated, pickup. Simply the wall was not facility. maintenance This de- unreasonably dangerous shown to be an *4 termination, however, which was clear- designed condition as and constructed. ly court, by made the district would be Appellant asserts that numerous dis- better left a jury. puted of In support, issues fact exist. Normally the reasonableness or unrea- presented has us numerous references the by sonableness of risk created a defen- deposition testimony Briggs, of Kim jury question, dant’s conduct is a and a administrative assistant to and of plaintiff is entitled to jury submit the a Fermelia, principals Edward one of the of question of whether the conduct of a defen- However, presented JFC. he has not mate- comports dant with that of a reasonable dispute. rial which facts create a He has circumstances, under except man in the merely listed with which he facts dis- exceptional State, most cases. DeWald v. agrees. plaintiff A may not resist a sum- (Wyo.1986); 719 P.2d 643 Brockett Pra- v. mary judgment merely by motion identify- ter, 675 (Wyo.1984). P.2d 638 For ing testimony contrary is allega- which repeatedly reason we have stated that sum- complaint. tions in made To demon- mary judgment negligence in not favored genuine strate a issue of fact material re- TV, actions. Conway Guernsey v. Cable quires repeated more than assertions that a (Wyo.1986); 713 P.2d 786 O’Donnell v. prima defendant liable. After a facie City Casper, (Wyo.1985). 696 P.2d 1278 made, showing opposing has been party case, Under facts of this reasonable rely solely allegations argu- cannot on disagree minds could as to six- whether a pro- ment to defeat the motion. must public teen-foot deep dumping pit with a duce similar materials which controvert the high two-foot concrete barrier created prima in moving party’s facie facts unreasonably dangerous condition, espe- Baldwin, materials. 751 P.2d at 388. cially where it was apparently summary The judgment is affirmed. public to back their vehicles to the wall they

so could pit. throw trash into the foreseeability of members public ac- URBIGKIT, J., in concurs the result. standing tually gar- on the wall to throw bage pit similarly presents into the jury a ROONEY, Retired, J. filed a question. court, The district to the extent concurring opinion. decided, it so and now this Court have J., MACY, dissenting usurped jury’s filed a opinion. by deciding function these factual matters of law. ROONEY, Justice, concurring. Retired deciding In this case in the manner in by in I concur said Chief Justice does, majority which it thereby avoids Additionally, I Cardine. affirm for the rea- necessity considering the actual bas- my dissenting opinion (joined sons in stated upon es granted which the district court by Raper, Retired) in Justice O’Donnell v. judgment and the actual issues City Casper, (Wy.1985). presented 696 P.2d 1278 parties appeal. to this

751 O’Donnell, 696 held said, course, Court In P.2d we that this We have ground in upon any legal that those situations which a case may decide danger operated negate rule a Ldtzenberger v. the record. appearing v. of a defendant owner (Wyo.1985); 1152 Hurst 698 P.2d behalf Merge, occupier narrowly In the limited to (Wyo.1985). P.2d 1130 State, 698 existing conditions case, majority naturally had the instant re- question and that otherwise obviousness ill-advisedly jury decided the a danger apportioning factor in negligence, it would becomes garding appellees’ defen- negligence plaintiff between and a the issues forced address comparative negligence our immunity Dis- under governmental for the Waste dant U.S.A., Inc., In application known Jones posal statute. Chevron District 890, re- respect (Wyo.1986), P.2d we rule with and obvious O’Donnell, stating holding upon our appellees. was affirmed liability both grant- grounds that the district court that: summary judgment and which ed obvious-danger apply rule does not [T]he to this parties arguments their directed condition is created when * * * Court. or his Even if the owner servants. perfectly was obvious to [the district court determined jury, it is the function of the plaintiff], District entitled to the Waste comparative negligence stat- under immunity general governmental grant ute, compare negligence l-39-104(a) (1977) provided Wyo.Stat. § *5 defendant]. [the Act Governmental Claims Wyoming produce any appellant failed to and that Note, Assumption Risk also See bring Dis- would the Waste evidence which Danger Primary or Rule. the Obvious exceptions posal District within Risk?, Assumption XVIII Secondary Although the dis- Note, in that Act. (1983); contained L.Rev. 373 Land & Water correct in this may have been Qualified trict court Danger Rule—A The Obvious determination, complex questions Assumption Secondary Adoption relationship respect to the XXI Analysis, Land & Water L.Rev. Risk District and Disposal between the Waste (1986). the district reliance JFC, liabili- potential direct or vicarious as rule obvious Disposal ty erroneous, and, of the Waste al- defense was absolute (1977) and 1-39-108 Wyo.Stat. implies effect though majority opinion § (1977) (repealed 1-39-111 Wyo.Stat. much, say so. The sum- explicitly it should § inquiry required 1986). comprehensive cannot be af- mary judgment this case resolution of the district court’s to assess alternatively on the obvi- premised firmed undertaken will here complete as a to recov- danger rule bar ous legitimate to affirm for a basis a search ery. District. respect to Waste judgment I reverse the would determined, for trial. remand court further The district in the inherent that the appel- facility known and obvious

lant, liability both and therefore pre- Disposal District and JFC Waste i.e., rule; by the obvious cluded operated complete danger rule as a of the dis- recovery. This rationale bar court, urged as an addi- which is also trict concur- affirmance tional basis (Retired), is Rooney ring opinion of Justice contrary to our recent decisions clearly this issue.