Ernest D. ROMERO; State of Wyoming; and Wyoming State Highway Department, Petitioners, v. Richard W. HOPPAL individually and as Personal Representative of Jean M. Hoppal, deceased; Michelle Hoppal, Anita Hoppal, and Greg Hoppal by their next friend, Richard W. Hoppal, Respondents.
No. 92-159
Supreme Court of Wyoming.
June 28, 1993.
DEFENSE COUNSEL: [A]s this Court is well aware, at the penitentiary, people don‘t earn a whole lot of money. If he can‘t get a job, $90 a month is considered very good pay, and most peoрle start at about $30 a month. That little bit of money from the penitentiary normally goes towards things like toiletries and minor necessities the penitentiary‘s not able to provide, and there‘s a fair amount of restitution due and owing.
Having received and considered this information, the court said:
COURT: Court finds that he will have the ability, even in the penitentiary, to pay a portion of [the restitutiоn] each month. Based on the Court‘s understanding that a person can make around $30 per month, the Court would order that he pay $10 of that per month toward his restitution.
It is clear that the order of the district court for restitution payments of $10 per month was reasonable in view of the amount of money Helmlinger could earn while incarcerated. Certainly, the trial court reasonably could conclude Helmlinger would have the ability to pay that amount, or a reasonable probability existed he would have the ability to pay that amount. In addition, the court reasonably could conclude, based on the amount of payments Helmlinger was able to make prior to his incarceration, that he would have the ability to make payments in the аmount of $10 per month after being paroled. Prior to revocation of his probation, Helmlinger had paid over $300 toward the restitution ordered. This is an adequate demonstration of ability to earn income and make payments to satisfy the obligation for restitution and also supports the district court‘s finding of ability to pay.
To summarize, the Amended Order of Revocation of Prоbation does not contain any unlawful requirement for restitution. Statutory authority is present for the court to order the payment of $10 per month as a condition of parole. The law, as we have now interpreted it, does not require a specific finding of either Helmlinger‘s ability to pay or a reasonable probability that he will have the ability to pay in order for the court to order restitution. In any event, the record satisfies the demands of
The Amended Order of Revocation of Probation is affirmed.
Josephine T. Porter, Sr. Asst. Atty. Gen., for petitioners.
Mitchell E. Osborn, Cheyenne, for respondents.
Robert W. Tiedeken of Wolf & Tiedeken and George Santini of Graves, Santini & Villemez, Cheyenne, for amicus curiae, Wyoming Trial Lawyers Ass‘n.
CARDINE, Justice.
This was an action by respondents Hoppal against petitioners, State of Wyoming and its employee, to recover persоnal injury and wrongful death damages. The State of Wyoming, claiming the bar of governmental immunity, moved for summary judgment. Respondents Hoppal moved also for summary judgment. The trial court denied the State‘s summary judgment motion and partially granted Hoppals’ summary judgment, holding immunity was not available to the State. We granted the State‘s petition for writ of certiorari to answer the following questiоn:
Whether
Wyo.Stat. § 1-39-120(a)(iii) , in effect at the time of the accident, bars respondents’ suit against petitioners when the collision occurred while the snowplow was in the process of maintaining the roadway to compensate for weather conditions.
We answer the question in the negative and affirm the district court‘s grant of partial summary judgment in favor of respondents.
On March 22, 1991, respondent Riсhard Hoppal was driving a 1988 Dodge Caravan westbound on Wyoming Highway 34 in Albany County, Wyoming (also known as Sybille Canyon Road). Decedent Jean Hoppal and respondents Michelle Hoppal, Anita Hoppal and Greg Hoppal were passengers in the vehicle. Ahead of the Hoppals on this highway, and traveling in the same direction, petitioner Ernest Romero, aсting within the scope and course of his employment with petitioner Wyoming State Highway Department, was operating a state snowplow plowing snow from the road.
As the two vehicles proceeded westbound, the Hoppal van began to pass the snowplow in an authorized passing zone. To allow additional room for Hoppal to pass, Mr. Romero pulled the snowplow toward the right shoulder. The snowplow‘s blade, still engaged with the road, dug into the asphalt, causing the snowplow to rotate and flip over onto its side into the traffic lane of the passing Hoppal van. The van collided with the snowplow, causing Jean Hoppal‘s death and respondents’ injuries.
The State moved for summary judgment claiming sovereign immunity. Rеspondents moved for partial summary judgment claiming the State had waived its immunity for state employees’ negligent operation of motor vehicles, including snowplows. In granting the respondents’ motion for partial summary judgment, the district court held that the State waived its immunity from suit for a state employee‘s negligent operation of a snowplow while plowing snow from state highways. The State, pursuant to Rule 13 of the Wyoming Rules of Appellate Procedure, petitioned for, and this Court granted, a writ of certiorari to review the district court‘s grant of respondents’ partial summary judgment.
Summary judgment is proper when there is no disputed question of material fact and summary judgment should be entered as a matter of law.
We review summary judgments in the same light as the district court, using the same materials and following the same standards. Summary judgment is proрer only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. Elmore v. Van Horn, 844 P.2d 1078, 1081 (Wyo.1992) (quoting Zmijewski v. Wright, 809 P.2d 280, 282 (Wyo.1991)).
At the time of this accident,
A governmental entity is liable for damages resulting from bodily injury, wrongful death 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. [emphasis added]
Wyoming Statute 1-39-120(a)(iii) provided:
(a) The liability imposed by
W.S. 1-39-105 through1-39-112 does not include liability for damages caused by:*
*
*
(iii) The maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.
In holding that
I believe that the words “motor vehicles,” as used in
1-39-105 , and “the maintenance, including maintenance to compensate for weather cоnditions of any * * * highway[,] roadway * * *,” as used in1-39-120 , are mutually exclusive and that the waiver of immunity, attached to “motor vehicles” in “105,” is not affected by the assertion of immunity in “120” in its reference to maintenance.* * * Clearly, the word maintenance [in
W.S. 1-39-120(a)(iii) is] a noun and not a verb [and] means that the maintenance is not the act of maintaining, but rather the result of any said act.
In light of recent legislative enactments, we find the district court‘s rеasoning persuasive. In 1991, the legislature amended
(a) The liability imposed by
W.S. 1-39-106 through1-39-112 does not include liability for damages caused by:*
*
*
(iii) The maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, highway,
roadway, street, alley, sidewalk or parking area. [emphasis added]
The statement of purpose in the enacting clause explains the amendment to
AN ACT to amend
W.S. 1-39-120(a) introductory paragraph relating to thе Wyoming Governmental Claims Act; providing that the liability of governmental entities for damages resulting from negligent operation of vehicles includes vehicles engaged in specified construction and maintenance activities; and providing for an effective date.
1991 Wyo. Sess. Laws, ch. 34 § 1 (emphasis added).
The State concedes that the legislature‘s amendment of
The State argues that the district court‘s interpretation of these statutes is inconsistent in that it allows immunity for failure tо maintain a roadway to compensate for weather conditions, but no immunity for the actual maintenance itself. We fail to perceive the inconsistency. Hoppals respond that the State‘s position would allow it to successfully assert immunity even if a highway maintenance employee or a snowplow operator negligently turned his vehicle into onсoming traffic or if a highway design engineer should rear-end another vehicle on his way to a bridge job. We think respondent‘s argument is well taken.
The State next points to an affidavit given by the sponsor of the legislation which deleted the reference in
The State also cites two prior cases from our court, Oroz v. Board of County Comm‘rs, 575 P.2d 1155 (Wyo.1978) and Soles v. State, 809 P.2d 772 (Wyo.1991). The State contends that in Oroz, the court addressed the issue of whether the county was immune from suit for the negligent maintenance of a county highway. Based on Oroz, the State argues: “Certainly, if the court considers the growth of trees along the side of a roadway to be ‘maintenance,’ the operation of a snowplow, while clearing slush off the highway is within the reach of the immunity granted for mainte-
Soles v. State, involved a suit against the State to recover damages when a person was injured on a stairway that the State, allegedly, negligently inspected. Soles, 809 P.2d at 772-73. The district court found that the State was immune from suit and granted summary judgment in favor of the State, and this court affirmed. Soles, 809 P.2d at 772. The plaintiffs in Soles sought to overcome the State‘s immunity by utilizing
The State argues that the definition from Soles, shows that maintenance means the act of maintaining or keeping something in a state of repair and therefore includes the negligent operation of a motor vehicle in the act of plowing snow. The State mispercеives the application of Soles. In Soles we were construing a different section of the statute,
The legislature‘s subsequent amendment of
Affirmed.
THOMAS, J., filed a dissenting opinion.
THOMAS, Justice, dissenting.
I cannot agree with the result of the majority opinion, which affirms the grant of a partial summary judgment entered by the trial court in favor of the respondents. According to the majority, the waiver of immunity for negligence in the Wyoming Governmental Claims Act set forth in
At the time of the occurrence that led to this case,
Exclusions from waiver of immunity.
(a) The liability imposed by
W.S. 1-39-105 through1-39-112 does not include liability for damages caused by:(i) A defect in the plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area;
(ii) The failure to construct or reconstruct any bridge, culvert, highway,
roadway, street, alley, sidewalk or parking area; or
(iii) The maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.
In 1991,
Exclusions from waiver of immunity.
(a) The liability imposed by
W.S. 1-39-106 through1-39-112 does not include liability for damages caused by:(i) A defect in the plan or design of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area;
(ii) The failure to construct or reconstruct any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area; or
(iii) The maintenance, including maintenance to compensate for weather conditions, of any bridge, culvert, highway, roadway, street, alley, sidewalk or parking area.
Obviously the only change was to delete the reference to ”
Liability; operation of motor vehicles, aircraft and watercraft.
A governmental entity is liable for damages resulting from bodily injury, wrongful death 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.
Neither of these statutory provisions is ambiguous, and there is certainly nothing ambiguous about the number 5, which later was changed to the number 6 by amendment. The majority opinion seems to treat the reference in
In Parker Land and Cattle Co. v. Wyoming Game and Fish Comm‘n, 845 P.2d 1040, 1044 (Wyo.1993), in connection with a comprehensive review of rulеs of statutory construction, we said:
For example, “It is generally held that statutes authorizing suit against the state are to be strictly construed, since they are in derogation of the state‘s sovereignty.” Harrison v. Wyoming Liquor Comm‘n, 63 Wyo. 13, 24-25, 177 P.2d 397, 399 (1947); accord Retail Clerks Local 187 v. Univ. of Wyoming, 531 P.2d 884, 886 (Wyo.1975). Thus, we require in this particular area of the law that evidence of legislative intent be both unequivocal and textual. Retail Clerks Local 187, 531 P.2d at 886 (“We find no words of clear or direct consent to suit against thе state contained in these statutes, and consent must be clearly shown“). (Footnote omitted.)
We also have frequently repeated the rule that every word, clause, and sentence must be construed so that no part is inoperative or superfluous when read in pari materia. E.g., Vanasse v. Ramsay, 847 P.2d 993 (Wyo.1993); Parker Land and Cattle Co. v. Wyoming Game and Fish Comm‘n, 845 P.2d 1040 (Wyo.1993); Wyo. Ins. Guar. v. Allstate Indem., 844 P.2d 464 (Wyo.1992); Johnson v. State Hearing Examiner‘s Office, 838 P.2d 158 (Wyo.1992); Matter of ALJ, 836 P.2d 307 (Wyo.1992); Schulthess v. Carollo, 832 P.2d 552 (Wyo.1992); State By and Through Dep‘t of Family Services v. Jennings, 818 P.2d 1149 (Wyo.1991); Matter of Paternity of JRW, 814 P.2d 1256 (Wyo.1991); City of Laramie v. Facer, 814 P.2d 268 (Wyo.1991). By contrast, the majority opinion offers a liberal construction of the Wyoming Tort Claims Act, and does not givе effect to the unambiguous provisions of
This case is a peculiarly appropriate one in which to apply the doctrine articulated in Wetering v. Eisele, 682 P.2d 1055, 1061 (Wyo.1984):
We further must assume that the legislature did not intend futile acts and that its amendment of the statute indicated some change in the existing law was intended. DeHerrera v. Herrera, supra [565 P.2d 479 (Wyo.1977)]; Jordan v. Delta Drilling Company, supra [541 P.2d 39, 78 A.L.R.3d 1215 (Wyo.1975)]; and In re Kosmicki, Wyo. 468 P.2d 818 (1970).
There seems little question that the New Mexico Tort Claims Act was available to the Wyoming legislature when the Wyoming Governmental Claims Act was adopted, and at least one scholar has suggested that it served as a model for the Wyoming statute. Lawrence J. Wolfe, Wyoming‘s Governmental Claims Act: Sovereign Immunity With Exceptions—A Statutory Analysis, 15 Land and Water L.Rev. 619, 623 (1980). Yet, the New Mexico Tort Claims Act never has provided immunity for maintenance of highways.
In the Brief of Plaintiffs/Respondents the following argument appears:
If a Wyoming snowplow driver is immune from liability, regardless of the circumstances, just because he is involved in “maintenance“,
§ 1-39-105 and§ 1-39-120 are in conflict. Therefore, to reconcile the language of these statutes,§ 1-39-120 must be read and applied only to exclude liability when damages are “caused by the maintenance“.
Brief of Plaintiffs/Respondents at 7.
It is in following this analysis that I am persuaded the plaintiffs are entitled to a trial in this case. The apparent conflict between the two statutes, both of which are to be given effect if reconciliation is possible, is resolved by recognition that the facts must determine which statute applies. If the accident was caused by Romero while acting negligently in the operation of the snow plow as a motor vehicle, there is no immunity. If the accident was caused by Romero while acting negligently in “[t]he maintenance, including maintenance to compensate for weather conditions, of any * * * highway, * * *,” then immunity pertains. The jury must decide what Romero was doing at the time of the accident. This resolution affords recognition, and application, of the foregoing principles of statutory interpretation.
I would reverse the decision of the district court granting a partial summary judgment on the question of sovereign immunity. The presence or absence of immunity should be resolved by the finder of fact based upon proper instructions.