State v. Dieringer

The STATE of and G. M.

Kinniburgh, Appellants

(Defendants), DIERINGER, Roberts,

Susan Bonnie Mark, Appellees

and Connie

(Plaintiffs).

No. 83-220.

Supreme Wyoming. Court of 8, 1985.

Oct.

ployee Wyoming is immune of the State of provisions from suit virtue Act, 1— Wyoming Claims Governmental §§ 39-101, W.S.1977, seq., whether the et Wyoming can claim a bar to this State of of a claim suit virtue of a settlement employee, also a different State pursuant provisions Claims Act. Further issues Governmental relating to error the dis- are asserted excluding additional witnesses trict court defendants; proffered by the and exhibits plaintiffs to establish that the failure of the Kinniburgh the defendant the actions of accident; proximate a cause of the were respect refusal to in- and error with to a concerning duty jury the the of an struct Finally appellants the adjacent landowner. assert error in the award of costs to judgment en- plaintiffs. We affirm the except by the trial court for tered awarded, which we will amount of costs require modified. to be Kinniburgh, pa- appellant, G. M. a Patrol, Wyoming Highway trolman for the primary relating to him asserts as the issue denying erred in his that the trial court he summary judgment for because motion provi- pursuant suit to the is immune from Wyoming sions of Governmental of appellant, Act. The the State Claims Wyoming, contends that it had further compromise and settlement of achieved a it; actions of the claims appellees, Dieringer, Bonnie Roberts Susan Mark, therefore barred as and Connie were trial Wyoming; of to the State granting the mo- erred in not State’s court appel- summary judgment. Both tion for part of the district Parker and Alan B. Minier of lants claim error on Glenn testimony of certain Applegate, Cheyenne, appel- excluding Hirst & court exhibits on the witnesses and certain lants. give proper ground that had failed to Honaker, Springs, and H. Rock Richard of such additional wit- timely notice Jackson, Goody, appellees. W. Keith prior appellees to nesses and exhibits to C.J., ROSE, pretrial THOMAS, in accordance with the court’s ROO- trial Before NEY, CARDINE, appellants assert as a further JJ. order. Both BROWN and must reversed judgment that this issue

THOMAS, Chief Justice. did not establish because the evidence patrolman was the conduct of primary questions which must be ap- injuries to proximate cause appeal in this are whether an em- resolved re- pellees, later, and the district court erred in About four hours at approximately p.m., 11:30 fusing grant appellees three riding their motion for a directed passengers in a verdict, vehicle which premised upon skidded on part was which ice, patch this control, out of went insufficiency in the evidence. As traffic, crossed over into the lane other appellants further issue the assert that the oncoming and was struck truck. All refusing give district erred appellees three injuries suffered severe jury relating their offered instruction suit, They accident. brought seeking responsibility to the of Clark’s recovery Kinniburgh, from Patrolman Jack Mix, Ready premises adjacent owner Oakley, Wyoming Highway De- highway, to the had been as a named partment, Wyoming, State of Clark’s party when the action was filed. The final Construction, Ready Mix and and Lynn asserted error issue both is Clark and Lewell Wyoming Clark. The awarding of the district court in State Highway Department and the State appellees. costs were named as co-defendants day February aOn mild water separate in the complaint counts of the running Highway was across near seeking recovery from Patrolman Kinni- property adjacent twon Jackson from burgh Jack Oakley, both whom were highway Ready Clark’s Mix. owned employees Wyoming. State of source apparently of this water At the time Jack Oakley employed melting temperatures snow. As the cooled Wyoming Highway the Depart- State day evening patch in the of that of black ment as the local maintenance foreman for began to the highway ice form on from Wyoming the Highway Department. State along highway tracked the by pass- water He was authorized to decide whether or not ing night began vehicles. As to and fall highway particular to sand any the at loca- temperatures dropped patch the more the tion, subject and he was not to the direction larger larger. of ice became It or Kinniburgh. Lynn control of Patrolman primarily forming right the in lane the of Clark Lewell corpo- Clark owned the highway as were the leaving travelers Mix, Ready of rate stock Clark’s and as Jackson, point just beyond the town at a flowing indicated the water across the beginning of a hill at crest the of a curve highway premises came from owned normally vehicles where would accelerate. trial, Ready Lynn Mix. to Clark’s Prior Clark, Clark, Ready Lewell and Clark’s Mix p.m. Around 7:30 a vehicle went out stipulated appellees appel- with the that the pit control and off into the road the borrow complaint lees’ these would it when encountered the ice. Patrolman prejudice. prior be dismissed Also Kinniburgh to the that was called scene of Wyoming, Wyoming trial the State State County deputy accident of the Teton Department, Highway and Jack Office. at Sheriff’s Marks the scene dismissing moved for order claims of that accident that other indicated vehicles appellees against because them site, had also skidded off road at that compromise and of those settlement claims. apparently they get able to were back granting The order this motion was entered reporting road on the difficul- without actually after trial. The ease went to At ty. deputy sug- that time sheriff only Kinniburgh trial then with Patrolman gested Kinniburgh that Patrolman should Wyoming as the State defendants. Wyoming Department Highway call judgments From entered favor of the Kinniburgh the area sanded. decided appeals appellees appropriate several that, articulating not to do his decision taken are which consolidated ease. language had undoubtedly offensive which impact jury. upon some He did not Kinniburgh’s will first We address report request the road or from suit. condition of claim he is immune He that 1-39-104, (1985 it W.S.1977 upon that be sanded. relies § 6 1-39-104,

Cum.Supp.), provides pertinent immunity upon which which § relies, part perceived as follows: must be as encompassed limited to those situations not “(a) governmental entity public A and its exceptions. employees acting scope while within granted immunity lia- of duties are from State, Wyo., Oyler note that 618 We provided by bility except tort (1980), questioned P.2d 1042 the com- * *” through W.S. 1-39-105 1-39-112. immunity public employees, mon-law had adop- not been decided at the time of the 1-39-112, Kinniburgh concedes that W.S. tion of the Governmental Claims (1985 Cum.Supp.), provides: pertinent Act. The decisions at the time of governmental entity “A for dam- is liable of the act were Osborn v. adoption resulting from tortious conduct of Lawson, ages Wyo., 374 P.2d 201 acting law officers Commission, enforcement while Highway Price v. scope within the of their duties.” Wyo. opinion equivocal in Price is somewhat because contention, however, immunity It is his there was no need for this court to consider granted pursuant is W.S. contributory negligence (1985 Cum.Supp.), and 1-39- that § Daly, snowplow, Price if the driver of the exception extending only 112 creates an liability. proposi- was immune from That governmental entity and not clarified in Osborn substantially tion was public employee. According theory to his Lawson, supra, but it is there that exception there is no as to follows immunity employee clearly is enjoys more public employee, and he immuni- dependent upon immunity ty- made employer, Wyoming. the State of substantially We dealt with a identical denying petition rehearing claim in light In the of what we said in Lines, in Hamlin v. Transcon Lines, supra, togeth Hamlin v. Transcon denied, P.2d 606 reh. public er with the historical articulation of public employ- We there held that a employee immunity, in is clear that upon ee is not immune from suit based our adopting Wyoming Governmental analysis Wyoming of the entire Govern- legislature Claims Act the did not intend to mental Claims Act. public employee immunize the from suit. Hamlin v. Transcon To said in what we protection His is found in the of the Lines, that, supra, proposition we add the provide him a and to State to defense save given Wyoming the state of the at law indemnify against him him harmless and adoption Wyoming the time of the of the any judgment arising claim or out of an act Act, employee Governmental Claims of occurring scope or omission within the of enjoyed immunity the State that can best l-39-104(b), his duties in accordance with § be described as derivative from the immu- (1985 Cum.Supp.). W.S.1977 There was no nity Against legal of the State. that histo- refusing grant Kinniburgh’s error in mo ry drafting can we understand that summary judgment. tion for exceptions immunity of the and State summary judgment The motion for public employees legislature must have Wyoming specifi on behalf of the State of immunity assumed that when of the State cally provisions invokes the of 1-39- § by exception was withdrawn virtue of an 116(b), (1985 Cum.Supp.), W.S.1977 such as that there contained 1-39-112 § provides: immunity public employ- remained no for a “(b) immunity judgment ee in an action or a set- because that individual’s purely dependent upon immunity of the tlement under this act constitutes a com- claimant, light exceptions plete by the State. Read in this bar to action immunity by the same transaction or include both the State and the reason of public involved, subject employee grant of occurrence which was the matter claim, original against of the suit right or to sue contained in a covenant governmental entity public or the em- not Lopez. to execute. v. Arryo, ployee negligence gave whose rise to P.2d 626 claim.” addressing Without the unconscionability Wyoming The State of then asserts of position Wyoming State of of effect its settlement of the counts of the instance, we hold that the issue of the complaint relating Wyo- State claim State’s this action became ming, Wyoming Highway Depart- State by barred virtue of the Oakley settlement ment, and Jack bar is to this action. is resolved in the statute. Section 1-39- Dismiss, granted Motion to which was (1985 provides W.S.1977 Cum.Supp.), by Wyo- the court in favor of the State of a claim when is received the Insurance ming, Wyoming Highway Depart- State Department Claims Division of the of Ad- ment, stated, Oakley, report- Jack after ministration and Fiscal Control shall send ing the basis the settlement with the the claim to the company insurance insur- appellees: several ing risk involved for investigation and *“ n n However, it is not the intention adjustment. In this instance two referrals of Plaintiffs and said Defendants for the made, by that action the State against Court to dismiss claims the State effectively separate identified claims. We of Wyoming, Wyoming Highway State are legislature satisfied that the intended

Department and Kinniburgh G.M. as al the same connotation of the word “claim” leged in III Counts and IV Plaintiffs’ 1-39-116, (1985 Cum.Supp.), W.S.1977 Complaint and said claims not been as it intended for that word in § settled.” (1985 Cum.Supp.). W.S.1977 The settle- against ment of claim Oakley was not a In the “Release Covenant Not to Sue settlement reason the same transac- or Execute” attached to Motion to Dis- tion or occurrence subject which was the following miss the language is found: original matter of the against claim Kinni- however, agreement, “This is not intend- burgh. Those two claims had been identi- ed hereto to release separate fied and different the State claim against Wy- Wyoming, State of Wyoming. Consequently the settlement oming Department Highway against Oakley claim does not bar Kinniburgh G.M. for injuries and dam- the assertion of the claim Kinni- ages sustained Plaintiffs as a result l-39-116(b), burgh pursuant to W.S.1977 negligent intentional or or acts (1985 Cum.Supp.). The district court did omissions G.M. or other denying Summary not err in the Motion for agents employees or Judgment by of Wyoming. the State Patrol, Highway in alleged as III Counts * ”* * Complaint. and IV of Plaintiffs’ Kinniburgh Wyo- Both State complain ming excluding of error in addi- say canWe without fear of contradiction appellants tional witnesses whom the separate insurance carriers were de wished to call and additional exhibits which fending the claims asserted Jack ground wished to offer on the Kinniburgh. and Patrolman The comply pretrial they had failed to with the Wyoming accepted then the Re pretrial provided order in order. this lease and Covenant Not to Sue or Execute regard: above, by quoted limited the language as

and confirmed that in limitation its Motion All witnesses have been “WITNESSES. presented parties notify to Dismiss to the district court. named. The will each oth- 15, recognized writing That limitation was in the order in than July er not later entered which limited name any dismissal those additional witnesses address, alleged along claims “as in II a Counts and IV.” with detailed statement involving Wyo testimony In a case State of each. is not not of the That ming upheld summary, has reservation that is detailed statement. justified determining the trial court in have listed

“EXHIBITS. required All exhibits will be that the detailed their exhibits. statement of tes Plaintiffs’ timony provided. marked before trial. with of the witnesses not sequence in and defendants’ arguments numbers Even in briefs and to this court sequence. letters in appropriate appellants specified signif have not notify the other not later party Each will testimony icance of the of these additional July any than 1983 of other exhibits by explaining clearly witnesses what the use in the and furnish intended for case purpose necessity testimony of that same, feasible, copies or if not justi would have in the been case. We are inspection. make the same available for deeming fied in the claim of error with objection is filed and Unless written respect to the additional exhibits waived 22, 1983, July later than all served not because no offer of such was made exhibits noticed exhibits which have been will be Consequently at the trial. we cannot reach admissible without further foundation.” respect prejudice. conclusion with (Emphasis original.) In their next claim of error the appellants they complied claim that appellants plaintiffs insist that the failed to requirement pretrial with this order establish sufficient evidence that by placing their notice of additional wit- action of Patrolman was a nesses and exhibits the mail addressed to proximate cause of the accident. Unless July appellees on 1983. people disagree reasonable could not judge the district When first advised the question, proximate question is a cause appellants of his intention to exclude the by the Buckley be resolved trier of fact. v. exhibits, additional witnesses and he stated Bell, Wyo., 703 P.2d 1089 and au you that “notification Court is that thorities therein cited. Since causation is a notify somebody by particular a date of a question of fact to be resolved the trier happening, mailing. Mailing is not no- fact, essentially challenges this issue tification this instance.” At the trial the sufficiency support of the evidence to appellants proof made an offer of concern- finding jury. In resolving that con ing the additional witnesses. The district accept tention we must as true the evidence judge then denied proof the offer of party, giving every successful grounds: First, three the offer itself was reasonably inference which can favorable form; proper second, drawn, and we leave out of considera give opposing had failed to notification to contrary tion evidence the unsuccessful 15; by July third, appel- counsel party. E.g., Pine Creek Canal No. 1 v. give lants had failed to a “detailed state- Stadler, Wyo., (1984); 685 P.2d 13 Ander testimony opposed ment of the to a Bauer, (1984); Wyo., 681 P.2d 1316 son summary.” Landmark, Inc. v. Stockmen’s Bank & Co., (1984);

The trial court in has Trust determining requirements Grosskopf Grosskopf, Wyo., discretion pretrial discovery Specifically of adherence to or this record reveals Caterpillar reported ders. Tractor Co. v. Dona that when the first accident oc hue, Wyo., patch curred the of ice was about one hun Caldwell Co., Ltd., Wyo., long just v. Yamaha Motor to hundred feet after 7 648 P.2d dred two (1982), slick, quoting extremely 519 p.m. Ford Motor v. Kuh It was black ice and Co. bacher, (1974). Wyo., making skating 518 P.2d the road “as slick an ice 1255 Fur thermore, jurisprudence it is our rule of rink.” The evidence disclosed that other uphold gone will this court the action of the cars had also off the road. It was appears trial court if reason in the dark and the ice was in an area of limited visibility, people supports record which the trial court’s de which caused to be sur Phillips, prised by termination. it. ABC Builders v. Patrolman was Wyo., (1981). investigated 632 P.2d 925 In this instance told when he the first accident

9 that the road was slick and should be sand- ble. A violation of duty constitutes Usually negligence. ed. the Maintenance Division of Highway Department “However, such a landowner is not con-

responds Highway when the Patrol re- negligent sidered for allowing the natu- sanded, quests that an area be ral accumulation of ice due to weather Maintenance Division would take if action conditions where he has not created the it were informed about such a hazard. The Further, condition. danger when the patch grew larger by p.m., ice 11 when the arising from a natural accumulation of accident in this instance occurred. When snow and ice is obvious or at least as got the ambulance driver out of his ambu- well known to the driver of a vehicle itas down, lance he fell there difficulty landowner, is to the there duty exists no getting gurney loaded into the ambu- to remove the danger or plaintiff warn lance, difficulty getting the ambu- its existence.” underway. lance After that Officer Kinni- principles applicable in this burgh requested sanding of the road. instance are first that an instruction which go He did not have to back to the area to is not by sustained the evidence should not investigate any night. other accidents that given. Gilveli, Wyo., Hernandez v. 626 In light of this information in the (1981); Brown, P.2d 74 Wyo., Beard v. 616 record, difficulty concluding we have no (1980); P.2d 726 Rhoads, Gilliland v. there was more than sufficient evi- Wyo., (1975). 539 Furthermore, P.2d 1221 jury dence to entitle the to conclude that give court should refuse to a tendered Kinniburgh’s in not requesting conduct instruction erroneously states the that the road be sanded earlier awas sub- Harris, Wyo., law. Edwards v. 397 P.2d in bringing stantial factor about the harm (1964). State, See Wyo., Evans v. appellees. to these (1982); State, P.2d 1214 Nimmo v. State, Wyo., 607 P.2d 344 Simms v. appellants’ complaint next re (1972), cert. denied 409 U.S. respect lates to their asserted error with 886, 104, 93 S.Ct. L.Ed.2d the failure of the trial give court to jury agree We duty instruction on the of care with the trial court that the record is not Ready owed Clark’s Mix. sufficient this instance Clark’s justify a conclusion that Ready defendant, Mix had there was been named as a unnecessarily dangerous stipulation condition created complaint to dismiss the question. the landowner on the land prior as to it was made to the trial. In simply The evidence was to the effect that assessing comparative negligence, how coming approach the water was out of the ever, Ready of Clark’s Mix premises road to the Ready of Clark’s Mix jury. had to be submitted to the Board of highway may and onto the and its source County Campbell Commissioners plowed have been snow which had been Ridenour, Wyo., County v. from Clark’s access road. The creation of (1981), reh. denied 627 P.2d 163 condition, however, specifically instruction which the of portion described the evidence. That respect duty fered with to the of Clark’s dealing the instruction of a Ready Mix reads as follows: premises adjacent public landowner of to a landowner, Ready “A such as Clark’s way apparently derives from Timmons v. principals, Lynn Mix and its and Lewell Reed, Wyo., 123-124 Clark, proximity which is in close to a in which we said: public highway, must exercise reasonable general applicable type “The rule injury traveling pub- care avoid of case now before us is stated in Re- arising unnecessarily dangerous lic from statement, 2d, Torts as follows: conditions created the landowner on “ land, consequences possessor subject ‘A where of land is to liabili- reasonably ty physical failure to do so are foreseea- for harm to others outside of They complain that the bill of costs 1. activity an carried the land caused of the summons included costs for service realizes or which he by him thereon Oakley, and complaint on Jack Lewell and an will involve unreason- realize should Mix, Clark, Ready de- Lynn and Clark’s under physical harm to them able risk plaintiffs settled. fendants with whom activi- though conditions the same of those costs is $5.55. The total amount place.’ at a neutral ty carried on were therefore, defendant, appellants complain is considered of costs 2. The “The injury, subpoenas on wit- only a risk as to for service of created awarded to have testify by resulting damage not called to nesses who were respect with Those witnesses were anything appellees. cannot be called his conduct Gaudet, Brackin, Oak- Chris Jack The Charles negligent. more than [Citation.] Zimmer, Lyman, Nan- ley, Dr. Dennis public Bob proximity in to a close landowner Olsen, The total and Debbie Conover. care ette reasonable highway must exercise awarded for service of amount of the costs public traveling injury to the to avoid subpoenas was $12.00. these unnecessarily dangerous arising from land, by him on the created conditions complain that costs appellants The 3. consequences of a failure to where mileage fees and awarded for witness reasonably are foreseeable. do so [Cita- who were not called paid for witnesses duty consti- A violation of this tions.] testify by plaintiffs. These witnesses added.) negligence.” (Emphasis tutes Brackin, Gaudet, Chris Jack were Charles Olsen, Zimmer, Nanette Oakley, Bob dealing the obvious dan- portion That amount of The total Debbie Conover. from v. Platte ger rule is derived Sherman under this item is $223.86. costs issue Wyo., 642 P.2d County, in issue The instruction which was complain that costs appellants 4. The case read: days when for witnesses for were awarded appear at the trial. did not the witnesses prem- of land or occupant

“An owner or amount in issue here cannot discern the We obligation pro- not ises does appellants sim- position because against dangers that are tect his invitees days paid for more ply is that fees were are so obvious known to them or that actually appeared, but than the witnesses may reasonably apparent points example simply out specific the one expected dangers.” such to discover days but testified on two that the witness Graves, Wyo., 661 P.2d In Cervelli days. No fee for five paid a witness in- pointed that this we out given. information is specific further only own- applies suits struction expert appellants complain that 5. premises pertains to those ers of the per day were of more than $25 witness fees persons upon come the land and subse- who special cir- showing a without allowed injuries because quently sue sustained payment of such for the actual cumstances of ice or snow on of an accumulation complained of were The amounts fees. premises. testimony five for the assessed as costs circumstanc hold that in these We at the trial. These physicians who testified complained of did es the instruction $2,145.64. significant, totaling are amounts the law which was present a statement of complain of the award appellants 6. in respects, instead was correct all pretrial conference with of costs for part part, and that further correct in the amount of $60. doctor supported proposed instruction was correctly The district complain evidence. of the award appellants 7. proposed instruction. give discovery depositions. refused These of costs $1907.75. amounts total the matter of costs. Finally, we address complain Finally 8. appellants object Specifically the transcript of Kin- for a categories: award of costs following of costs in the award

H niburgh’s testimony at trial in days the amount those on which the witnesses attend ed, $260.00. if they even did testify not day. that appellants have not shown the pre award of costs to the record that of the witnesses for whom vailing party pursuant is authorized the fees of they complain paid were 54(d),W.R.C.P., 1-14-124, Rule W.S. § did not requisite attend the number of 1977. previously This court has said that days. We- shall separately address the proper the costs to be assessed the question of expert the witness gener fees party who lost the case are very clearly ally, that, but it appear does respect established in either the statute or the rule. payment of a fee for expert witness, Roberts Company Construction v. Von l-14-102(b), W.S.1977, requires that the driska, Wyo., expert give testimony which is admitted as appellants offered material Therefore, evidence the ease. the costs dealing assistance in terms of with these awarded for physician who did issues in not tes Harrison, their brief. In Hecht v. tify proper are not 279, 290, costs Wyo. 5 under the 40 P. 306 statute. We conclude that there only noted that was an “not must there be harm in abuse of error, discretion it the district important awarding but must be so court in as to question. merit the appellate $60 consideration of the tri bunal, and to take something more than respect With to costs of dis nominal value complaining party.” from the covery depositions, espouse we the rule respect specific With contentions of that if the discovery deposition is reason appellants, we hold that costs should ably necessary preparation for the not be awarded upon par for service fees case, then there is no abuse of discretion on ties with party whom the successful has part judge district in awarding settled. In the showing absence of a that such example, costs. See for Bailey v. it was not reasonable to obtain the attend Brau, Inc., (7th Meister 535 F.2d 982 Cir. ance of ultimately witnesses who were not 1976); Collins, F.Supp. 443 1010 Griffin prevailing called party, which the (S.D.Ga.1978); George Hall, Inc., R. v. Su presented have not in this in perior Co., Inc., Trucking F.Supp. 532 985 stance, permissible we hold that it was (N.D.Ga.1982); Kraeger v. University the district court to award costs for the Pittsburgh, F.Supp. (W.D.Pa.1982); 233 subpoenas. service of those According to Mississippi Cooperative Wade Exten provisions witnesses are Service, (N.D.Miss. sion 64 F.R.D. 102 entitled attending to receive fees for before 1974); Mastrapas v. New York Insur court, and therefore even if the witness Life Co., (E.D.Mich.1982). ance F.R.D. testify, does not the cost is If incurred. respect With to the exercise of discretion was reasonable for the witness to be sub costs, however, as to such the burden must poenaed then the award of costs for attend upon party seeking be the award of ing before the appropriate, court is and we justify costs to to the district court that have not been directed to anything reasonably those costs were necessary for record which would demonstrate an abuse preparation of the case for If trial. part of discretion on the of the district depositions trial, are introduced at judge in or awarding the costs of witness fees purposes are used for mileage impeachment or for witnesses who were not refreshing called. If the recollection of a at a witness did not witness attend before ordinarily satisfy the court then the trial that would a witness fee would not payable day. record, demonstrating they burden of This how ever, reasonably necessary. does not disclose when Other uses of the witnesses at tended, days deposition only pro on which in connection with the trial Consequently ceedings testified. there summary was no such as motions for abuse of judgment might persuade discretion on the of the dis serve the dis judge trict in awarding witness depositions fees for trict court that the were rea

sonably necessary, but it argued would not be re In the only brief is that it was for quired instance, to so conclude. In this the convenience advantage plaintiffs and however, the record does not demonstrate trial, at may description be a bad occurred, any that of these events and the expenditures that necessary are and appellees showing made no other with re proper, appellants further contend spect establishing taking that the that there authority awarding is no for depositions reasonably necessary was for transcript. costs of such judge The trial preparation of the case for trial. Even obviously position is in the best to draw a though many depositions were no conclusion as to expenditure whether this appellants, expense ticed necessary proper. was and Because the transcript justified also must be because appellants any have failed to make showing parties rely upon often can the filed tran of an abuse of the district court’s discretion script preparing in terms of for trial. Be regard, in that we hold that this was a appellees cause the did not establish on the proper item of costs. deposi record that the claimed costs for transcripts reasonably tions or were neces We turn to the matter of the sary prepare trial, the case for we can expert respect witness fees with to which not sustain the exercise of the district rely upon Buttrey Food costs, awarding court’s discretion in such Coulson, Wyo., Stores Division v. they and must judg be deleted from the 20 A.L.R.4th 419 In that case ment for appellees. costs favor of the we said that we did not know the amount

Substantially ap the same rule is expert fee, awarded for the witness and plicable respect with to the award of costs since there was no evidence as to the rea subpoenaed those witnesses who were sonableness of the unknown fee the trial to attend testify. but did not We note court committed an abuse of discretion in instance, however, this that of those wit awarding any amount in excess of $25. nesses of complaint whom is made one of justices Two dissented they because were those witnesses was called appel willing to conclude that the amount was testify. lants to Three of them were not inappropriate expert for an witness fee permitted testify because notice of their for an orthopedic surgeon. In this instance testimony given had not been timely the dollar amounts of the witness fees manner, ruling that was not made specified, and since the record does the district court they already until had any complaint not disclose that was made appeared Finally, for trial. the conclusion to the respect district court with to the not to call three of the other witnesses was fees, excessive amount of those the district appeared reached after quite had and court did not abuse its discretion in award possibly because the trial court had indi ing these as Apparently appel costs. day cated after the first of trial that in its costs, objected lants to the award of and judgment negligence already had been es there is an indication that a letter was tablished. Because of the familiarity of respect letter, written with to them. That judge the trial dynamics with the however, record, is not a of this trial, we sustain his exercise of discretion we do not know objection what the was in awarding these costs. called to the attention of the district ap court. It is the burden of the appellant Kinniburgh pellant produce upon called a record appel- as an adverse witness which we early presents. lees can decide the he appellees Sharp the trial. The issues then Sharp, Wyo., transcript obtained a 671 P.2d 317 testimony his therein; during use the trial. Scherling We are not advised authorities cited v. Kil by the appellants’ gore, Wyo., record or the brief as to Mentock Mentock, basis for conclusion that ex On penditure necessary was not proper. present distinguish limited record we Buttrey Coulson, Food great Stores Division v. as the negligence person supra. against whom recovery is sought. Any damages allowed shall be diminished in We have found it difficult to proportion to the amount of arrive at rulings respect definitive person attributed to the recovering. costs this case because our record “(b) The inadequate. point out, however, may, is requested We when by any it is obligation party shall: counsel for all to furnish upon information to a trial court “(i) jury trial, If a jury direct the to * * * ” which it can make an informed exercise of separate find special verdicts; its perform discretion. Failure to that obli When plaintiff’s negligence is at issue gation in the future may well lead to disal- case, in a jury, in arriving verdict, at its lowance of costs that are claimed or to the must ascertain percentages of fault of allowance of costs that are simply resisted all of the participants occurrence, to an ground on the per counsel have not including non-parties who settled with the formed their to the district court. plaintiff. Kirby Building Systems v. Min judgment of the district Explorations eral Company, Wyo., 704 instance by reducing is modified the bill of P.2d 1266 Board County Com of by $1,973.30, costs which will reduce the County missioners Campbell v. Ri judgments of appellees the several denour, Wyo., reh. denied modified, $657.77 each. As judgments These determinations are affirmed. by the jury permit comparison an accurate plaintiff’s contributory negligence, if ROSE, Justice, specially concurring. any, negligence with the of each of the majority opinion does not address defendants in the action: appeal effect on this of the defendants’ “ * * * Logic that, dictates negli if the fully failure to rights assert their under the gence of an actor party who is not a is comparative-negligence statute, not included in comparative-negli W.S.1977,and the contribution-among-joint- gence calculation, percentage neg statutes, tortfeasors through 1-1-110 §§ ligence of defendants who are 1-1-113, W.S.1977, though even Justice inflated, may be and this would have a Rooney, in dissenting his opinion, treats impact upon comparison detrimental these omissions plain requiring errors plaintiff of the fault of the and the sever reversal. adopt While I cannot the dissent- reaching al defendants in a determina ing position possible that a misapplication liability tion as to of some or all of the comparative-negligence law amount- plaintiff.” defendants Kirby error, plain ed to I agree that judgment Building Systems Explora v. Mineral in this case should be modified further to Company, supra, tions 704 P.2d at reflect the amount of paid consideration to 1272-3. appellees in the settlement of their claims Oakley Jack Wyo- and the State of bar, In defendants, the case at G.M. ming. Wyoming, and the State of did request place the trial court to Comparative Negligence settlor Oakley Jack on the verdict form for Wyoming’s comparative-negligence jury’s stat- consideration. Nor have de- ute, 1-1-109, W.S.1977, provides part: fendants raised the issue of a defective

“(a) appeal. verdict form on Contributory negligence It is to shall reasonable conclude, therefore, recovery bar a in an by any person action that the defendants did legal representative or Oakley his not consider a participant to recover to be damages negligence resulting jury properly assign pro- in whom the could a injury person death or in property, portionate or negli- share of the total causal contributory negligence if the gence. was not as discussion, however, I purposes verdict,

For omitted from the such matter of Oakley will assume that was an actor who fact shall be deemed determined appeared should verdict form conformity court in judgment with its permit an accurate determination of the request finding by the failure to degrees parties’ negligence. relative jury on such matter shall be deemed therefore, question, becomes whether jury pro waiver of trial tanto.’ [Cita- jury the failure of the court instruct the 277 N.W. at 640. tions.]” participant to ascertain the applied We have reasoning similar to con- plain, amounts to reversible error. clude that a timely defendant must exercise Supreme The Wisconsin Court resolved a right third-party his to file a complaint or question in Edgerton similar Patterson v. right is waived. Pickett v. Associates Co., Wis., Sand & Gravel N.W. Corporation Discount Wyoming, (1938).1 The court held that the de- I see no reason to right fendants had waived their to have the apply defendant, a different rule when the jury negligence the nonpar- determine reasons, for whatever fails to include all of ty, request since no was made of the trial participants to an occurrence on the court: verdict form. The defendant bears the re- “Defendants also contend that the issue sponsibility structuring his own de- comparative as to negligence was not fense, and his failure to avail himself of a properly jury submitted because possibly advantageous procedure or de- not directed either the form of the theory fense grounds does not constitute questions or the court’s instructions to for reversal. negligence include of [non- party] Finley with that of [defendant] Among Contribution Joint Tortfeasors— plaintiff finding

Wescott and the in proportion of the The Effect of a negligence total causal Release or them, attributable to each Covenant as is re- Not to Sue quired under Kroger Grocery Walker v. 1-1-113, W.S.1977, Section of the contri- Co., 519, Baking & 214 Wis. 252 N.W. bution-among-joint-tortfeasors statutes However, 92 A.L.R. 680 [1934]. concerns the effect of a release or covenant record herein discloses that the defend- given good to sue in faith to one of ants are not entitled to a reversal on that multiple tortfeasors: ground following for the They reasons: “(a) When a release or a covenant not to request did not any submittal of judgment sue or not to enforce given is question to the jury, giving or the any (1) (2) in good faith to one of two or more in respect instruction to the inclusion of persons liable in tort injury for the same negligence Finley’s part on in the total wrongful or the same death: negligence jury which the was to take “(i) discharge any It does not of the finding into consideration in propor- other liability tortfeasors from for the tions of causal attributable to injury wrongful or death unless its plaintiff, Wescott respectively. provide; terms so but reduces the any In the request absence of such against claim any finding by others the extent jury subject, that, stipulated by amount applicable there is the re- rule ‘When covenant, some lease or the or in controverted matter of fact not the amount brought it, paid attention of the trial court of the consideration for which- judgment essential to sustain the greater; is ever is the Wyoming’s comparative-negligence 1. statute de- of the act as of the date of enactment in rives from the Wisconsin statute. Woodward v. County this state. Board Commissioners Haney, Wyo., We have Ridenour, County Campbell supra; Wood- previously legislature concluded that the intend- Haney, supra. ward v. adopt judicial ed to the Wisconsin construction “(ii) discharges It the tortfeasor statute which tracks 1-1-113 all as- § given liability pects whom it is from all pertinent and, here like our enact- ment, contribution other tortfeasor.” derives from 4 of the Uniform Among Contribution Tortfeasors Act. The analyzed We the contribution-among-joint- court held that the failure of the defendant tortfeasors in Bjork statutes v. Chrysler United formally States to raise the issue of Corporation, Wyo., 702 P.2d 146 agreement settlement at trial did not and said that the statutes and the release deprive it right to a reduction document together must be considered damages award paid amount for the constituting agreement the entire release: parties. that, We said under Layne applicabili- admits the “[Plaintiff] longer release extinguishes plain- no ty Uniform Contribution [Alaska remaining tiffs claim tort- Among Act, but claims that Tortfeasors] feasors, as was the ease at common law. the United rely States cannot on Section Instead, the release reduces the claim 09.16.040[pertaining £o releases and cov- against the other tortfeasors to the extent enants not to because it failed to sue] provided by the terms the release or the during raise the issue placing trial received, amount of consideration which- the settlement in showing evidence and greater. ever is the 702 P.2d at 151. Wickersham, the released defendant Appellees in the case at bar executed a was in joint fact a tortfeasor. That release favor of and the State of Wickersham was not ‘one of two or more Wyoming. This release is contained in the persons liable tort for the inju- same provides part: record and ry,’ Layne contends, is demonstrated “ * * * It is understood the under- specific finding the court’s that the acci- signed that this Release reduces their Layne’s resulting injuries dent and ‘were against claim other tortfeasor the solely by, caused and were the direct and * * * ” $22,500.00 paid consideration of, proximate negligence result of the agreement Under the terms of the release ... United States of America.’ provisions appellees of § “Layne misapprehends the purpose and settled their cause of action to the extent 4 effect of of the Uniform Act. While $22,500 right, of and retained subject changed 4 the common in one re- law agreements, other settlement to enforce (i.e., spect by providing that release of against remainder of their claim joint one tortfeasor does not automatical- jury, other tortfeasors. The following tri- tortfeasors), ly joint release other al, appellees’ damages determined the total part retained that the common law of resulting from the tortious incident. The embodying public policy rule the sound court, verdict, in entering judgment permitting plaintiff only to receive of by appellees deducted amount received damages the amount his adjudged of agreement under their settlement more, regardless and no the source Parker, Peggy driver Jo did not deduct recovery. principle is that Since the amount of consideration received from there can be but one satisfaction for the Oakley Wyoming. and the State of injury, same the released whether or not court, question arises as to whether this party jointly is in fact with the liable any request appel- the absence of from judgment defendant is whom lants, should direct modification of the case, rendered is not relevant. In either judgment to reflect the amount received prevent recovery by plaintiff more Oakley settlement from and the State of legitimate damages, than his ‘the Wyoming. paid amount the release or cove- Appeals The Ninth Circuit Court of faced pro nant sue must tanto not to reduce States, in Layne a related issue injured person’s judgment against United (9th Cir.1972). Prosser, Torts, 460 F.2d 409 That court 2nd another. Law of 46, 246; 311, 313; interpret Ed., p. was asked to Alaska’s settlement Sec. 109 Pa.L.R. 16

Holland v. complaint, Southern Public Utilities “was not included on that and cases supra, 149 Kan. and cases cited.’ 219 Md. Co., 208 N.C. 331, cited; 289, 149 A.2d 598, Steger Egyud, Jacobsen v. 180 S.E. 762, 592, 24, Woerner, 767-768. dence of Mr. Oakley’s negligence. ^{[1939] [1935]} 1959, portion of the verdict form said in the assumption that the record discloses evi- percentage dissent negligence.” appears which allocated to be on the What is the State of reduced the Therefore, in addition to the modifications tlement of their tortfeasors for their right to recover an amount in excess of approved by ming. Under right consideration their ment with Brooks, Del.Super., $22,500pursuant to their enrichment” to the ing similar berger, Courts in other Appellees in the case at bar received judge discussed the settlement with at mately 460 F.2d at 411. damages against United States to tlement into evidence and we do not re quire should therefore be Wickersham torneys court. have served no fore the trial ^[1959] “The settlement between double injuries. Appellees damages to damages $50,000 n or to bar the reasoning 386 Pa. that it bring (applying In such circumstances it would negligent for all recovery. Oakley judgment by Wyoming. n received suit * * be additional award to claims 367, jurisdictions in directing the reduction majority, done. determined New n useful and against formally plaintiff Daugherty v. Hersh 126 A.2d 730 377 A.2d the United States by appellees plaintiff, adjusted this case. The trial Highway Department, directly the State of Jersey (Emphasis the amount of the at Layne’s they retained the settlement n do not compensation prevent purpose length, I would have offer the set from obtain Oakley Layne nonsettling law). n downward record be possess Clark v. award of “unjust for the added.) applied in set- (1956). agree- Wyo- jury. n open and Jack that Jack form because there was no evidence of his negligence. cause the court and counsel knew not the aware of the p. 1025 not indicate whether or not the court and assume that pital Presbyterian, Oakley counsel considered correct. Inc. v. trary, See the road. dence of on the form age terestingly, the accident he tiffs.” dence that however, reveals that Oakley. as an while “The In the Before a In contrary Cal.Rptr. proceedings also, Oakley their negligence acting Phillips, Wyo., was employee caused the They day 5 C.J.S. absence of a Klemme v. appellate his An examination of the Oakley complaint appellees circumstances Mr. person on the verdict form. We must In the Mr. left off the within we cannot assume that Jack cases cited of verdict the court and counsel were negligence. also The record in this ease does Oakley was called to Appeal in the lower court were there must be some evi- was not on the verdict absence court will accident, can properly including allege injuries Hoag showing there was no evi- scope Defendant allocating percent- and was not even on verdict form be- Cal.App.3d implicating ABC several Memorial Hos- the dissent and negligent.1 although Error, presume the name of of his duties put alleged that showing to the con- Builders, sand on specific Oakley, record, placed proxi- plain- after that Mr. In- to BROWN, Justice, law or because of inadvertence. specially concurring. brings The dissent allegation to our attention An negligence in the com- fact that Oakley, Jack a named plaint standing defendant alone is insufficient. Fur- Oakley 1. Counsel do not contend that Mr. was have been on the verdict was not an issue at negligent, and whether appeal. or not his name should trial nor on

17 thermore, I do not that it is P.2d (1985).1 believe 1266 I need not elaborate on consequence Oakley that Jack made what exhaustive discussion contained there- appears to be a settlement in. It nuisance was error Oakley to not include appellees before trial. the State on the verdict form. agree case,

I that this In case should be affirmed. this the verdict form itself was specifically not objected to and the issue ROONEY,* Justice, dissenting. presented not us. Normally, to we would, thus, not consider the matter. Rule verdict form and the verdict in this 51, W.R.C.P.; Anderson Foothill Indus- fatally Although case were defective. set- Bank, Wyo., trial (1984); 674 P.2d 232 tlement was reached with defendant Jack Caterpillar Company Tractor v. Dona- Oakley and the State with reference to hue, Wyo., (1983); Alleman liability Oakley’s negligence, based on Alleman, Wyo. 78 although a release and covenant not to sue Duncombe, Wyo. 341, Rollins v. 24 given thereto, with reference he was (1916). However, 157 P. 896 under the portion not included on that of the verdict case, circumstances of I believe it is percentage form allocated the only proper to error, for us consider the negligence. it is our duty to so in the do interest of The verdict read: justice. produced Considering all of the fault “1. requiring basis for objection at 100%, percentage plaintiffs injury at what following: you do attribute to each total fault the trial level is to allow the trial court to (0% to and The State “Glen consider and rule on the issue. Dennis v. Dennis, Wyo., 100%) 675 265 P.2d In this “55 % case, there are three reasons for not invok- 100%) (0% “Peggy Parker to 5 Jo % ing propositions an objection must County Sheriff’s Office Thorson and Teton “Dave made presented and the issue must be to 100%) “(0% 40 to % One, problem us: was before the trial Ready Mix & Construction “Clark’s and, therefore, reasons for the 100%) “(0% 0 to % exist; two, proposition do error was 100%) (0% Dieringer % “Susan right, with reference fundamental to a 100%) (0% Roberts % “Bonnie proposition have we said that the is not 100%) (0% % Mark “Connie applicable jurisdiction or other funda- “TOTAL %” three, rights; mental the error was If and the State had been includ- error, wherefore, plain a review of the er- form, percentage ed on verdict objection ror can be having had without them may attributed to made to it. been considerably ap- reduced that attributed to potential of fault on the pellants, with a resulting decrease in the Oakley and as an actor in his status this judgment. amount of the definitely brought incident were to the at- recently emphasized We have the re- example, of the For tention court. quirement participants’ that all fault complaint Oakley must named as a defendant ascertained, including nonparty that of alleged be “directly and that his actors, and even proximately injuries those with whom settle- and caused of the Kirby has Building Sys- separate ment been made. Plaintiff.” A answer containing Wyo., v. Corporation, tems Centric 704 denials and defenses with affirmative ref- * 6, assigned curring opinion September case was Justice This to Thomas on on 1985. The 22, proffered He dissenting opinion March 1984. circulated the addendum to this was circu- 1, August opinion dissenting opin- on 9, 1985. September lated on 1985. ion without the addendum was circulated on 7, August 1985. Justice Brown circulated his My Kirby 1. dissent reference to 5, specially concurring opinion September on another issue. specially Justice Rose circulated his con- 1985.

18 Oakley’s liability by responsible, erence to was filed be to under the Oakley statute, and the State. Attached to the comparative-negligence only for by appellees motion to their dismiss claims degree their own of fault. We have said ** * against Oakley and the a release State was “right duty that we have the to Oakley and covenant not to sue point decide the cause on a not raised be- Oakley, fault of which re- low where such matter is fundamental.” part: lease read in Smith, 119, Wyo., v. 477 P.2d Steffens (1970). «* n * jg only percent fault, If understood the under- five signed that appellants, Release reduces their attributable to charged were against any claim other tortfeasor the Oakley, there would no recovery * * $22,500.00 paid appellants. consideration granted. Appellants And the motion was event, In any we should consider the summary judgment filed a motion for plain 7.05, W.R.A.P., error as error. Rule grounds Oakley that the release of provides: appellants. Appel- State also released “Plain affecting errors or defects sub- Parker, Peggy lees also released Jo driver rights may although stantial be noticed they riding, of the vehicle in which were brought were not to the attention of arising incident, from claims out of the the court.” jury she was on the verdict form with the “ * * * supreme are [W]e [the court] allocating percent five fault to her. Also duty unassigned bound to consider an Ready verdict form were Clark’s plain error under the error doctrine as Mix & Construction and Dave Thorson and general well as our supervisory powers, Office, County Teton Sheriff’s all of whom where the error is blatant and results in (Parker, Mix, Ready Clark’s Thorson and an unmistakable and unconscionable mis Office) n n * ” County Teton Sheriff’s carriage justice. Sanchez v. referred to in nonpar- the instructions as State, 1130, Wyo., 592 P.2d ties. There is a plain to invoke the error Additionally, indirectly this error is in- seriously doctrine when the error affects cluded in presented the first issue to us integrity judicial pro the fairness or appellants. A contention that the release State, ceedings. Hopkinson Wyo., operated and the State to release P.2d 79 cert. denied 455 U.S. appellant Dieringer and the State will natu- 102 S.Ct. 71 L.Ed.2d 463 rally cause attention to be drawn to the State, Jones verdict degree to determine the of fault attributed two of them and the This error is similar to an error caused by appellants amount received settle- by failing join indispensable party— Oakley, ment for fault of which amount join the failure the verdict form. should be jury deducted from the award. Reasoning should be the same in ascertain- case, In this the verdict form did not con- ing party’s result absence. Oakley, sider the fault and the amount We have held that the lack of an indis- received in settlement him from was not pensable party importance is of such judgment. deducted from the in the award supreme may properly raise the The judgment did deduct the amounts re- question on its own motion. State ceived in settlement with Parker. Through Christopulos v. Husky Oil Com- improper conditions of the verdict Delaware, Wyo., pany 575 P.2d 262 of form and the verdict were before the trial (1978). quoted We there from 3A Moore’s court, sufficiently presented ¶ Practice, Ed., Federal 2d 19.05: “ to us under the circumstances of this case. concept indispensability ‘But the of Reversal should result. goes beyond jurisdiction federal foregoing

Added to the very power right is the fact that touches the or the of the error right equitable adjudica- concerned the fundamental the court to make an tion, indispensable party where an is not sent the granting other motion re- situation, barring before it. In this ex- moving him from the case. ceptional equities, proceed it should not precedent Such a really will confuse the joinder, without his ***.’” 575 P.2d at orderly procedure relative to the proper 269. presence of a party in a lawsuit and rela- have object We also held that failure to tive to the factual negli- determination of a judgment defective does not constitute a gence by jury. Barb, of such waiver defect. Cates I only disagree premise as to the for Wyo., Justice argument, Brown’s I disagree three-part qualify test to an error as with the conclusion if premise even plain definitely error was met in this case: were correct. There is a clear record of that which oc- Justice opinion Rose’s is also flawed. He (the us), curred verdict form is before finds some kind of waiver part unequivocal clear and rule of law exists the defendant in insisting par- that all (see Kirby Building Systems v. Centric ticipants be included on the verdict form. Corporation, supra, and the Justice Rose thus finds a plain waiver of therein), cases cited right a substantial error. Plain error is inconsistent with (appellants’ was affected degree negli- waiver. argument, Justice valid, Rose’s if gence different). could been See apply would to all of those cases decided State, Hopkinson past this court in the on the basis of the State, Wyo., Mason v. presence plain error. I have set out above the factors which we have said must My position, supra, would make more present error, plain be I and have desig- equitable the majority’s decision to limit nated wherein they present are all in this Oakley, the release of applied as it ease. State, only employee Oakley’s fault and Additionally, the argument presented by employee not to Kinniburgh’s fault. How- justify Justice Rose to the failure to in- ever, I need not problem address the participants Oakley clude and the State on being single there injury with the result- the verdict form is inconsistent with his ing liability to be measured from that argument that the settlement amount re- standpoint. A correct verdict form recog- Oakley ceived from and the State should be nizes this fact. acknowledged judgment and the re- accordingly. duced Either there was a ADDENDUM waiver for all involvement of Justice Brown and Justice Rose each Oakley through accept- specially have circulated a concurring opin- ance of the verdict form or there was not. response ion in to this dissent. The facts and errors in this case are opinion, In his Justice Brown would plain; there should not be effort of unnecessary place make it a defendant rationalizing justifying or them. on a verdict form a if case I would reverse and remand for a new there was no evidence introduced as to his trial. negligence2 to be done absent his —this removal from the case virtue of a sum- mary judgment (as in his favor occurred in Builders, Phillips, Wyo.,

ABC Inc. v. (1981) P.2d 925 case cited Justice —the contention) support

Brown to his and ab- Oakley’s duty $22,500, 2. evidence relative to to at- settlement was made with spreading gravel highways given tend to the and he was a release. It is difficult to perform to his failure to such nonpar- understand how he can be considered a plaintiffs against Oakley ticipant. case and the State. A

Case Details

Case Name: State v. Dieringer

Court Name: Wyoming Supreme Court

Date Published: Oct 8, 1985

Citation: 708 P.2d 1

Docket Number: 83-220

Court Abbreviation: Wyo.