*1 2001 WY6 Rawlinson, RAWLINSON, Aaron
Barbara and Kristen Rawlinson
and Adrienne minors, by through
Rawlinson, their mother, Barbara best friend
next (Plaintiffs),
Rawlinson, Appellants, BOARD OF PUBLIC
CHEYENNE
UTILITIES, Appellee
(Defendant). 00-36.
No. Wyoming.
Supreme
Jan.
14) its
Whether the district court abused finding appellants' discretion that later cause of action accrued no than June 23, 1995, than rather two-year purposes applying statute limitation, 1-89-118, Wyo.Stat. of - - against the of Public Board Utilities. follows: The BOPU lists the issues as properly 1. Whether District Court granted summary judgment in favor of the Board of Public Utilities based on the Gov- ernmental Claims Act statute of limita- tions? alternative,
2. In the whether the ree- summary judgment ord establishes be affirmed because the Plaintiffs should negli- produced no admissible evidence of gence the Board of Public Utilities? 3. Whether sanctions should be or- light Appellants' dered failure to designate pursuit a record and the of this appeal? frivolous
FACTS Before Barbara Rawlinson pur- Cheyenne, chased a home in a home inspec- Representing Appellants: K. Carol Watson report tor issued a written dated December Q. and Bernard Phelan of Phelan Watson 16, 1994, regarding a structural evaluation of Office, Cheyenne, Law WY. specified report pertinent the home. The part: space "soil in the crawl area was wet. Representing Appellee: Deborah Ford positive, A 'no-leak' condition cannot be es- Bostwick, LLC, Chey- Mincer of Murane & tablished because of the wet area." Follow- enne, WY. home, ing purchase LEHMAN, C.J., THOMAS, testified that she was aware of water Before early GOLDEN, KITE, as June 1995 and to inves- HILL and continued JJ. tigate space. the crawl She engaged engineers inspect proper- two KITE, Justice. ty, engineer report. and each issued a The [11] The sole issue before this Court is 28, 1995, report first was issued on June properly granted whether district court report the second was issued on summary judgment Cheyenne in favor of the engineers reported the home had (the BOPU) Board of Public Utilities con- property damage due to water cluding appellants' claim was time addition, employee an with the visited BOPU barred 'under Ms. Rawlinson's home 1997 and noted wet Act Claims statute of limitations. The order space. dirt in the crawl The BOPU received granting summary motion for BOPU's report the home had water judgment is affirmed. years, problems on and off for at least and, result, performed as a tests ISSUES to check for leaks. later, appellants present following [12] The Three and a half Ms. [T4] issue for our review: Rawlinson an itemized statement engi- suddenly quit working. The structural failing negligence for its to the BOPU sump unusual for a neer stated that it was hydrant and the a fire properly maintain abruptly stop pumping unless a pump to The follow- damage to her home. resulting flooding the base- constant source of water filed a com- day, she ing December *3 other simply up, such as a leak in the BOPU and several plaint against ment had dried defendants, of action. alleging various causes city system. Ms. Rawlinson con- water summaryjudg- fileda motionfor The BOPU 1998, 22, is the date of discov- tends that suspected she first ery as this was the date two-year limitation under claiming the ment standing responsible for her the BOPU was Act had Wyoming Claims Governmental result, she insists that problem. water As a an act of it had not committed expired and complied applicable statute of she with granted court negligence. The district judgment limitations. summary BOPU'S motion
the basis of her cause she the BOPU district claim became aware exceeded the court concluded that of action on June was entitled to that Ms. the statute of two-year property Rawlinson discovered 28, 1995, the date Ms. Rawlinson's limitations. judgment limitation and damage. as a son's discovery was erty damage in tions. We bar to admission that she was aware her claim under the statute of The BOPU agree. June June argues 1995 and Ms. Rawlin- 1995 should result date limita- prop- in a rule on the It declined to matter of law. Wyo undisputed that the It is [T8] underlying negligence claim. merits of applies Act ming Claims appeals to this Court. Ms. Rawlinson statutory procedure case. The claims this under REVIEW OF STANDARD provides as follows: Act (a) brought summary judg action shall be under No review a [T5] We court, light as the district governmental entity ment in the same un- this following and using the same materials upon the claim action is less Wyo Lieberman same standards. entity to the as an based is - LLC, 353, (Wyo.2000). 11 ming.com writing P.3d 356 within two itemized statement vantage (2) act, alleged the record from the We examine of the date opposing party omission, point except most favorable to the that a cause of error motion, give party the bene and we not more than two action be instituted may fairly (2) act, inferences that alleged fit of all favorable years after omission, Id. The review be drawn from the record. can es- if the claimant error involving act, summary judgment grant alleged error or omis- that the tablish question of law is de novo. Id. sion was: within Not discoverable
DISCUSSION (2) year period; or a two when the is whether particular alleged unusually dry, and she had ceased her could be covery Rawlinson, of her lawn in an effort to determine flooding problems. On was city The determinative coming into her basement damage was discovered or discovery of the claim occurred the summer the date she realized argues that supply. According to Ms. tortfeasor of 1998 had been issue the date of dis- was discovered. the cause this case from the when a Wyo.Stat.Ann. Wyoming precedent that failure to vided mental suit. Davis v. 829 (Wyo.1985). of due (ii) entity (2) year period despite the exercise The claimant failed diligence. 1-89-118(a) within the file a claim with the § City Casper, 710 error or omission 1-89-1183(a)(LEXIS is unequivocal is an two-year period pro- absolute bar to to discover the within the P.2d govern- holding 1999). are of limitations Statutes [191 Rawlinson had sump pump, which Ms. stale basement, courts from pragmatic devices to save to remove water from installed 16 Housen, changed by although litigation. Duke v. P.2d flood
claim denied, (Wyo.), damage, there no new cert. caused additional U.S. (1979). 'act, omission," 100 S.Ct. L.Ed.2d Such or a fresh statutory of such would cause the represent legislative public poli statutes period to start anew." Id. They cy controlling right litigate. Id.
ing
without
they may have on when the cause of action
involved are
must
arose
at 340.
claim. Id. When a statute of
are
injury
arbitrary by
give
and when the time
considered,
applicable
regard
full force to the
and the amount of
*4
only significant
to the merits of the
their
judicial remedy.
the nature and extent of
very
expired
applicable
money damages
nature,
in
limitations is
the effect
particular
589 P.2d
statutes
and we
pursu
tations
means
with information which should lead them to
applied
believe
such as water
in cases where there is an
from the first time claimants are
statutory period. Absent such a
subsequent
to
they
to the facts
should commence.
determine
have a claim. The occurrence of
incident does not extend the
seepage,
The statute
in
when the
this
there would be no
ongoing
case,
When Waid
statute of
begins
Ms. Rawlin-
chargeable
conclusion,
condition,
to run
limi
is
chargeable
knowledge
son was
with
of an
Wyoming prece
[T10] Settled
"act, error or
when
omission"
she discovered
Wyoming
discovery
dent confirms that
is a
property damage.
discovery in
Her claimed
Company
state. Amoco Production
v. EM
might
legally respon
that the
1998
be
Partnership Company, 2
Nominee
P.3d
"act,
a new
sible is not
error or omission"
(Wyo.2000).
delays
rule
statutory
that would cause the
the accrual of the cause of action
cases
begin anew.
infury
damage
which the
or
is not immediate
Industries,
ly apparent. Nowotny
1997).
This rule
Inc.,
protects
933 P.2d
v. & Contract
an
L
injured person
B
ilar claim in which several homeowners
(Wyo.1984),
In
Anderson v.
this Court addressed a sim
Bauer,
681 P.2d
bring
who would otherwise be barred from
sought
property damage
to recover for
ing
simply
an action
because he is unaware of
occurred as a
In
result of water
injury.
case,
an
450 A.2d
Kalke,
(Wyo.1985),
Pennsylvania
Metzger
court further refined this rule:
v.
709 P.2d
case,
malpractice
principal
plaintiff
"It does not matter whether a
is medical
as the
authority
argument.
recognize
legally responsi
that someone
be
for her
We
aware
(LEX-
injury.
Wyo.Stat.Ann.
or should
ble for his
Once he knows
under
1-8-107
1999),
injury,
malpractice
know the cause of that
he must inves
the medical
statute of
IS
limitations,
"act,
tigate
might
plaintiff
discovers an
error
the situation and ascertain who
legally culpable."
by
v.
or omission" when he learns that his harm
be
Redenz
Redenz
wrongful conduct of the
resulted from the
Pa.Super.
Rosenberg, 360
520 A.2d
1)
However,
was not BOPU's period, ther the was wet. After an incident home done when water flooded the linson had neers linson gence. The gence closed the soil seepage. The first period despite her exercise of due dili- section to determine the cause of the water hired the first of two structural act, alleged discovery provision nor the due dili- The record shows that Mrs. (ii) error majority, pre-purchase she did not discover December negligence the crawl or omission statute. engineer discoverable within however, basement, Mrs. Raw- space inspection within issued a if June of her home either applies which dis- it of 1995 during of her report Raw- engi- i) nei- it home's water the summer in an was unusual and would pump abruptly stopped, he remarked that foundation had been made. Mrs. Rawlinson engineer been fed from a constant source of had seconds even after extensive abnormally, cyeling gallons same simply day attempt system. sump pump inwas According learned dried to discover the source of her 1998 was Mrs. Rawlinson later on that had ceased to water her lawn her up, that the basement, like a leak seemed to be metereological While the structural appear unusually dry, city of water When repairs had he remarked as if it had water that changed every working to the sump city's data, hydrant approximately at near her home 28, 1995, in on which he determined June Thus, actual same time. Mrs. Rawlinson's that some of the water was caused error or omis- draining downspout toward the house. earliest, reported "ponding place adds to the that date: He also sion took at the 1998. On she had ground water next to the foundation and report, migrates samples into the residence." The and soil tested in an both water whole, indicates that the first struc- attempt read as whether fluoride and determine engineer improper tural believed that down- chloride in the water could indicate its source shedding spouts as well as water off city water. filed her written claim She ground ponding with on December 1998. Based water was residence *7 seepage. water Rawlin- source of the me, I cannot determine as on the facts before Mrs. deposition in that the summers not son testified a matter of law that Mrs. Rawlinson did wet, unusually of and 1997 were attempt diligence in an to un- exercise due groundwater and she believed rain Further, and/or injury. I of her do cover the cause seepage in the source of the her home was that under the cireumstances not believe standing in her basement. led to initially Mrs. Rawlinson was unreasonable began repairs to her home to Mrs. Rawlinson seep- believing that the source of the water seepage problems that took solve the water age in was rainwater her basement during months. In of place the summer groundwater. 1997, engineer by a structural hired second majority's reasoning is I believe the [1 27] report a in which he Mrs. Rawlinson issued mistakenly equates it dis erroneous because groundwater rain drain- indicates that and/or covery discovery the cause of with of probably the ing into the home is source of undisputed damage. is that Mrs. Raw- It In June of seepage in her linson knew she had water for first visited Mrs. Rawlinson's home 28, 1995; however, basement on June equipment. Af- purportedly to test new simultaneously dis not mean that she does that the homeowner had ter informed act, error or covered the omission experiencing problems for two been (BOPU's gives rise to her cause of action years, further tests on or BOPU conducted hydrant)2 maintain its failure to near the residence twice more majority apply and I address the date of under the cir- 2. The statute is difficult to because, of this case while both cumstances the actual act, error, or omission question, 20 injury cause on that of both his its majority by improperly applying knew errs identity date and his failure to determine the
non-analogous cases to the facts before us. manufacturer of the bench seat within the hold, to as we thing one for this court is four-year statute of limitations barred his have, of water properly Mrs. Rawlinson's case could claim. concurrently alert a basement is sufficient they potential analogized plaintiff in No- plaintiff have a be to that of to the fact builder, against their their cause of action wotny seepage in if she had known the water seller, negligently county plann city inspector, or the her basement er;3 quite another to determine hydrant yet it is fire failed to deter maintained law, identity party seep mine the who exercised a matter of of water as hydrant until after age in is sufficient to concur dominion over the basement rently they plaintiff However, alert a to the fact that expired. had when claims potential cause of action have majority opinion improperly in its labels knowledge Mrs. Rawlinson's lack of on June hydrant. to maintain its BOPU for failure Associates, Mills P.C. 910 P.2d thauer v. matter of law. Hiltz This able flouts the standard quiry notice can we resolve the ed facts exist which 1989). Otherwise, "[olrdinarily, entering a person court v. Garlow, Moreover, has Christian, Spring, 824 P.2d should have been held that 768 P.2d specify v, reviewing only (Wyo.1996); Bred Robert W. majority when reason if uncontrovert- Seilbach placed question (Wyo.1992); this issue. opinion Horn, in jured by governmental actions and the tax payers therein Nowotny and works a serious ming of her 28, 1995, merely that of the both contrary her truly respective equities potential precedent was-a infury-it I of the state of cannot concur. to the stated as lack of tortfeasor and the claimant misconstrues our knowledge purpose between Wyoming." rather Act: than what injustice persons in identity "to balance holding in this case 4 Thus, cause Wyo on it summary judgment on the issue of when a run statute of limitations commences inappropriate."
would
910P.2d at
be
Hiltz
(citing
Borg-Warner Corp.,
Palmer v.
(Alaska 1990)).
propriately
appellant
Bauer,
(Wyo.
v.
3. See Anderson
BOPU were its must have (Wyo.1985). prior flooding occurred Mrs. Rawlin- son's basement in June of 1995. 1-39-102(a)(LEXIS 1999). Wyo.Stat.Ann.