*1 Oyler, and Susan Jess OYLER (Plaintiffs),

Appellants Anthony STATE

Malovich, Appellees (Defendants).

No. 5296.

Supreme Wyoming. Court 29, 1980.

Oct. *2 Rogers, Cheyenne, appellants. B.

John Gen., Atty. Bruce A. Troughton, John D. Gen., Salzburg, Atty. Asst. and Law- Senior Clerk, Wolfe, rence J. Law Office of the Gen., Atty. Cheyenne, appellees. McCLINTOCK, RAPER, J., Before C. JJ., BENTLEY, THOMAS, ROSE, D. J.

ROSE, Justice. in the district court appeal-resolved

This granting appellees’ motion to by judgment defendants, as to both dismiss Anthony Malovich-concerns Wyoming damages allegedly suffered as a a claim for employment an offer of result of ripened. poses question It never not-given posture whether Malo- Wyoming and Mr. case-the State offer, vich,1 job enjoy immu- who made the nity as a matter of law. professional following Wyoming director shall be a law 1. The sections from Stat- “The officer, qualifications experienced in modern utes 1977 are relevant to the enforcement Wyoming duties of the Director of the Division and the for the detection of crime methods apprehension position Investigation, possess of Criminal held He shall of criminals. Mr. at all relevant hereto: qualifications agent, Malovich times un- of an as defined statutes, Director; appointment. and shall der section 9-2- 536 “§9-2-531. working knowledge attorney thorough general, approval of crimi- “The with the have a procedure, governor, appoint and the law of criminal shall a director of the nal law including arrest, investigation. and sei- the law of search division of criminal Same; suspects. interrogation qualifications. criminal 9-2 -532. zure and “§ Disposition action filed a Plaintiffs official, Antho- and state against the State the amended dismissed The trial court Divi- Malovich, ny Director it did not ground that complaint on the Investigation,2 in the lat- sion Criminal which relief could be a claim court, enjoyed sover- *3 parties The district both capacity. granted since ter’s individual eign immunity. sovereign immunity, dis- ground on the of against both defend- complaint missed the DEFENDANT- AS TO DISMISSAL affirm the dismissal ants. We will OF WYOMING STATE State,3 the dis- but reverse against suit correctly urge that the State Appellants Malovich, employee, missal enactment, has, through legislative waived of the case for further aspect remand that sovereign immunity “to the extent of its proceedings. liability insurance carried the limits of plaintiffs-appellants’ According entity,” according to the governmental facts-which the defend- statement of the W.S.1977, l-39-118(b), of provisions adopt-Jess Oyler ants-appellees Susan substantially which is the same Cum.Supp., jobs both in Rawlins and moved to left replaced.4 Appellants fur- as the section joba offer ex- Cheyenne upon in reliance insur- argue liability ther State’s Oyler by tended to Mr. Mr. Malovich. ance, com- during in force the incident work, Upon reporting Oyler to Mr. was first here, claim and of covered their plained tape delaying thus, the start of coverage, told that red of that sover- to the extent is not available as a defense employment. Oyler eign immunity his After had been to this action.5 waiting Cheyenne days for several to begin job, Malovich denied that he had injury agree We cannot Oyler. to employment ever offered Both of by insurance. The complained of is covered managed Chey- to find work in Oylers provides coverage for policy enne, jobs but at lower salaries than their sums which the shall become “all Insured case, (and, Oyler’s in Rawlins in Mr. lower legally obligated pay damages to as be- job). for the salary promised than the State acts, errors, negligent of or omis- cause They sued to recover their financial loss paid employees of of the law sions resulting from the move made in reliance agency enforcement named in the decla- job the Malovich offer. ration as follows: “official,” addition, “officer,” possess “employee,” the director shall other 2. The terms

qualifications may specified by special signifi- be the at- and other similar terms take on torney general. “employ- area use cance to this of law. We Same; generally. generic duties “§ 9-2-533. in its indi- ee” sense unless otherwise “The director shall be chief administrative cated. agent officer and chief of the division. He supervise shall and direct the administration State, Wyo., Worthington 3. See of all activities of the division. The director shall, subject approval to the written attorney general, prescribe regula- rules and W.S.1977, 1-35-102, provides: 4. Section opera- tions not inconsistent with law for the governmental immunity “The defense tion of the division and the conduct of its personnel liability extent of the limits of waived to the perform- and the distribution and governmental entity. insurance carried ance of their duties. The director shall be applies any governmental This section responsible attorney general and shall body agency securing in the state keep him informed of the activities coverage.” insurance division. Agents; powers; authority. “§ 9-2-538. pertinent appeal 5. After the events to this tran- agent “Each of the division shall be vested Wyo- spired, Legislature the State enacted the powers peace with the in the state officers Act, ming Governmental Claims 1-39-101 et Wyoming powers and shall have all the W.S.1977, Cum.Supp., seq., officer, sheriff, police incomplete a further but waiver of construed as highway patrolman or other law enforcement immunity. sovereign officer in this state.” “Coverage WITH Injury A-Personal RESPECT TO THE IMMUNITY OF MALOVICH6 “Coverage B-Bodily Injury “Coverage Damage” C-Property Abrogation Immunity of Governmental However, Introduetorily, we policy Inju- acknowledge defines “Personal govern- the state of the law of ry” as follows: “ immunity in mental related at all areas arrest, Injury’ ‘Personal means false er- times hereto relevant was as follows: service of civil false papers, roneous im- prosecution, malicious prisonment, assault Immunity is removed as a defense libel, slander, battery, defamation of all government tort actions at levels of be character, rights violation of property low the itself. Oroz Board deprivation any rights, privileges, County County, Commissioners Carbon *4 Wyo., (1978). by immunities secured 575 P.2d so the Constitution holding, we determined that the genesis and laws of the United Ameri- States governmental the immunity doctrine ca, Canada, for which law enforcement ” Devon, in The Men of Russell v. 2 Term. may be held officers liable.... Rep. Eng.Rep. (1788), an old not, plaintiffs’ “injury” in our does English universally which is case almost definition, opinion, fall within this and we being credited with the mother of the con presented are not with cept. immunity We reasoned that if could Furthermore, would indicate that it does. court-created, court-abrogate be it could be plaintiffs’ alleged not “injury” the does lie d.7 policy’s “property within the definition of damage.” Immunity Retained State Appellants argue that there material are retained tort immunity We have legal questions relating factual and to the in not actions for State amount policy insurance which were not and could per by covered insurance unless the State’s not be appropriately resolved motion granted. mission has been to sue This dismiss, and, connection, in to the tran- theory that is a done on the state script hearing on the motion discloses be creature of constitution and cannot State, produce policy the State did not court-abrogated.8 Worthington v. day Wyo., (1979). until of the hearing on the motion. 598 P.2d 796 so, Even the policy was considered and the Employee Liability9 State

court have does must found that not alleged injury, cover the in view of the fact misty hazy us with a and area This leaves Granting the Order Dismiss Motion to yet defined-namely, clarified to be and complaint state a recites that did not with question what to do which asks granted claim which relief could not, be whether or and under what circum- sovereign since defendants im- enjoyed stances, both employees are or are the State’s munity. liability. paid not from tort We immune ail; rely University Wy- open Appellees against 6. on Biscar v. suits state-All “Courts Trustees, oming Wyo., open every person Board of be for an courts shall injury (1980), helpful opinion person, reputation property but is not done sale, question justice personally of whether Malovich is lia- shall have administered without plaintiffs delay. brought may ble to the because the Board members denial Suits capacity- against were Biscar sued their official state in such manner such legislature may by individuals. law direct.” courts as Act, Wyoming 9.The Governmental Claims 7. See the historical discussion in Jivelekas v. W.S.1977, seq., Cum.Supp., et § 1-39-101 Worland, City Wyo., 546 P.2d 419 (S.L. Wyo. enacted in ch. was, therefore, 1), Wyoming at not the law of § any 8. Article Section Consti- case. time relevant to the facts of this tution, provides: but, exception is not the area of rior fuzzy to this recognition glancing by it.10 Even rather, inherently rejected when, Local 187 v. in Retail Clerks law instances, some of so, such as Wyo., 531 P.2d 884 University Wyoming, in certain against immu- that suit or where (1975) (having held hereinafter discussed those (as Wyoming officials university abrogated administrative nity has been capacity in their official board members other than governmental entities State), we said against was a suit itself, Oroz, public employ- supra), the against in a suit immunity question wrongdoing. ee be liable for in- officials these board and administrative quoted We dividually was not so clear. Torts, Faith, Impris- False Intentional Bad Court, where the Supreme United States Act Rights onment and the Civil Court said: outset, any classification At the “ a suit ‘As to what is deemed immune from which are not those deeds inhi- state, suggestion that early must first employees’ tort be confined to those might bition faith, intentional recognize acts done in bad party was a to the record which the state torts, violation of imprisonment and false abandoned, long since been has [citations] Act, Rights 42 U.S. rights under the Civil ques- it is now established that supra, pages fn. at Minge, C.A. § the mere tion is to be determined 247-248, way: puts it this but parties names of the titular immuni- probably . There is also *5 “. . pro- nature and effect essential faith, done in bad ty for acts intentional the entire ceeding, appears as it from [Davis, Ad- imprisonment. torts or false re of New record [citations].’ 26.03, (Supp. 26.04 ministrative Law §§ 490, 500, 588, 590, York, 41 256 S.Ct. U.S. Klein, 1970). The also Handler & See 65 L.Ed. 1057.” Privilege in Defamation Suits Defense 146 Argraves, Anderson v. We also cited Officials, Against Executive Government 316, 295, 150 A.2d and Stucker Conn. A (1960); Alstyne, Van 74 Harv.L.Rev. 44 485, 452, Muscatine, 249 Iowa 87 N.W.2d Immunity Sovereign Study Relating to 456. (Calif. 406-11 Revision Comm’n Law from quoted following We then 1963) (false imprisonment); Restatement 436, Miles, 11 Schwing v. 367 Ill. N.E.2d 35, (1965) (false (Second) Torts 41 §§ 944, (1937), 113 A.L.R. 1504: 947 Although Wyoming imprisonment).] “ ‘ ** * against While a suit state liability in these last cases have discussed officials, and, particular, the Director areas, surety case a sheriff’s three one Department of Public Works and hour, illegal a 22 was held liable for necessarily against a suit Buildings, is not plaintiff’s premises. [Lynch search of the state, the constitutional inhibition 30, (1929).] 273 P. 691 Burgess, Wyo. 40 by making be evaded an action cannot surety only was liable Presumably the or nominally one the servants appear liable and it would the sheriff was of the state when the real claim is agents guilty of false im- the sheriff was itself, party it is the against the state the court prisonment. In another case * * interested. vitally effects an deputy-sheriff that a who said at 887. illegal abduction does so irregular and [Kingen private as a individual. his role law, agent principal At common 566, (1891).] 28 P. 36 Kelley, Wyo. 3 tortious acts-the are both liable for their private individu- Presumably, acting as a wrongdoer- agent he or she is the because Wyo- Ellis v. would be liable. al he wrongdoing principal [Cf. because 226, Comm’n, Wyo. ming Fish respondeat superior. Game & of the doctrine of dint it should be torts, (1955).] Finally, respondeat supe- 286 P.2d 597 In the realm of state 229, VII, 1, 1972, Review, Immunity Damage Vol. No. Water Law from Ac- 10. Governmental p. Wyoming, Minge, Land and at tions in munity is not rights noted that under Federal civil available as a defense to an em any statutes local officer or public employees action where are charged ployee, judge legislator, other than a or a with tortious conduct.11 responsible depriving person who is for right, privilege of a or immunity secured Employees Acting in the Absence of or in by the and laws Constitution Unit Excess of Their Authority may person ed States be liable to that an action damages. U.S.C. § of the areas in [42 One which courts See also 42 U.S.C §§ identity find the of the state and public (1970) ... Pape, Monroe v. 365 U.S. officials divisible is where state officers (1961) S.Ct. L.Ed.2d 492 ... have acted without or in excess of their Brandhove, Tenney v. 341 U.S. and, therefore, their acts are not (1951) S.Ct. 95 L.Ed. 1019 and Pier regarded being those of the state for Ray, 1213, 18 son v. 386 U.S. 87 S.Ct. immunity purposes. Where a officer (1967) L.Ed.2d 288 Litigation aris ...] acts in the absence of or in excess of his ing out of the notorious incident at the authority, he personally held liable University of Wyoming involving the dis circumstances, wrongdoing. In such missal of fourteen Blacks from the foot he is acting viewed courts to be individu based, squad part, ball upon this ally and not in capacity. his official Federal cause of action. Williams v. Ea [ general Am.Jur.2d, rule is stated in 63 Pub ton, (10th 1971)]. 443 F.2d 422 Cir. lic Employees, Officers and Acts in (Bracketed matter from foot author’s 801-802, authority, pp. excess of as follows: notes.) “The immunity sovereign Act, Rights The Civil 42 U.S.C.A. § protect public suit does not officers from provides: personal liability wrongful for their acts who, “Every person under color of in excess of authority, their official statute, ordinance, custom, regulation, *6 officer-executive, administrative, an qua- usage, of or Territory, subjects, ministerial, si-judicial, or otherwise-who or causes subjected, any to be citizen of scope jurisdiction acts outside the of his the United or other person States within and without may authorization of law jurisdiction thereof to deprivation thereby per- render himself amenable to any rights, of privileges, or immunities liability sonal in a civil suit. If he ex- laws, secured by the Constitution and law, power by ceeds the conferred on him party injured shall be liable to the in an law, plea he cannot shelter action at suit in himself equity, or other proper proceeding public agent acting for redress.” he is a under color of office, damage or was caused provisions Other of the Act created civil by an act done or omitted under color of (42 equal protection denial of office, personally. eye and not In the of 1985) U.S.C.A. and created criminal liabil- law, ity designated (42 wholly willful his acts then are without action U.S. 1987-1995). C.A. authority. §§ In this connection a careful distinction must be drawn between erro- is, course, There allegation of the jurisdiction acts in neous the exercise of violation of plaintiffs’ rights civil jurisdic- or and acts in excess of present case, in complaint their in this but ” (Footnote we take tion .... references civil-rights provision note of the omitted one of many examples emphasis supplied.) areas where im- 2604, Trustees, Holso, (1973), Wyo., 11. In 41 Board of etc. v. L.Ed.2d 212 as well as the (1978), ques- 584 P.2d 1009 we considered the article entitled “CIVIL RIGHTS-Limitations alleged injuries by public Immunity tion of an individual’s Defense for Public Officials employees Rights Damage Brought officials and under the Actions under 42 Civil U.S.C. Also, Losee, Cir., IX, 1, (1971),” Act. see Smith v. 10 485 F.2d 1983 in Vol. No. (1973), 908, Review, p. 334 cert. den. 417 U.S. 94 S.Ct. Land and Water law 263 1048 Discretionary and quot Nature Office: Schwing, supra, we

In Ministerial Powers Duties 187, supra, Clerks Local ed Retail general exception court stated charged, is Where where non-liability officers’ rule of state immunity of a officer or opinion says: of the duties depend upon the nature may is, is dis whether the act performed, that hand, where the the other “... On Sportique Fash or ministerial. cretionary equity or is main at law suit action Sullivan, D.C.Cal., F.Supp. ions, 421 Inc. v. a officer or di against tained Heald, 359 Del.Super., (1976); 302 Simon v. department ground on the rector of (1976); v. Macomb 666 Walkowski A.2d state, that, act for the claiming to while Sheriff, 460, 236 Mich.App. 64 County personal he or invades violates State, 69 (1975); Johnson v. N.W.2d 516 plaintiff under an rights property 240, 352 782, Cal.Rptr. 73 Cal.2d act, assump or under unconstitutional Carlson, U.S.App.D.C. 144 (1968); v. Carter have, he does authority which tion of 56 388, (1971), F.2d on remand 447 358 Noor such is not the state. suit (1972), part other rev’d on F.R.D. 9 Public Works and Department man v. v. nom., grounds, sub District Columbia 637, 216, N.E.2d su Buildings, 366 Ill. 8 602, 34 Carter, 418, 409 93 S.Ct. U.S. McGhee, 516, 172 U.S. 19 pra; Fitts v. 959, (1973), reh. den. 613 410 U.S. L.Ed.2d 535; 269, v. 43 L.Ed. United States S.Ct. (1973), 694 vacated 93 35 L.Ed.2d S.Ct. Lee, 196, 1 27 L.Ed. 106 U.S. S.Ct. grounds on other D.C.D.C. part 171; Eagle Refining v. White Oil & Co. (1974); Keeney, v. D.C. Wu 489 F.2d Gunderson, 205 N.W. 48 S.D. (1974); D.C., F.Supp. 1161 Watson St. obtains presumption A.L.R. 1048, 25 Ill. Hospital, Ill.App.3d Annes thereof, state, department (1979); 386 N.E.2d 885 and Cerino Dec. not, not, violate the will and does Consti Palmer, 401 A.2d Township Pa.Super., state, laws but (1979). Immunity generally tution and extends occurs, violation, discretionary if it a state acts of officials but such that are ministerial. those department of the or the head of a officer state, or head and such officer an act ascertaining whether by proper action instituted restrained (decision- poli discretionary, judicial Wesley, 167 Tindal v. U.S. citizen. act cy-making) character officer’s 42 L.Ed. Noorman S.Ct. (decision- poli judicial rather than the Works Build Department of Public furnishes cy-making) character of his office *7 Joos Illinois ings, supra; v. National if, fact, he is exemption of his in the basis 505, Guard, 138, Ill. 100 N.E. 43 257 exempt.12 Ann.Cas.1914A, L.R.A., N.S., 1214, ” 436, Ill. 11 N.E.2d at 947. 862.... 367 is minis public duty A official’s when (Emphasis supplied.) terial 208, 685, p. question of it is said: the resolution of the substantive 12. In 67 Officer § C.J.S. State, Cal.Rptr. negligence. 73 [Johnson public act of “The classification of the a 240, 352, (Bracket- 447 P.2d 69 Cal.2d 782].” ‘discretionary’ produce employee will not footnotes.) matter from text results, ed immunity injury not if the to another article, p. Minge supra, at is said in As the employee’s exercise discretion from the act, 246: in him to the but from vested undertake discretionary gives having it rise performing “... If an act is in it after liability.” immunity; discretionary there is otherwise decision to do so. made the Davis, City Angeles, 25.08 Law Treatise discretionary Los 74 Cal. Administrative of 453, [McCorkle Rptr. Supp.), (1970 The function 449 P.2d 70 Cal.2d identifies a 252] balancing facing employee requires existence of alternatives the conscious as one perforce making poli- im advantages the does not render and or the of risks though those mune from tort even cy-type decisions. major might part play a in alternatives well absolute, certain, impera- McMillan, “... it is Doe v. U.S. S.Ct. tive, merely (1973), the of a involving execution 36 L.Ed.2d 912 Judge Lewis task, imposes set the Doe, and when law which that the observed Court said where time, prescribes mode, immunity printer and defines the the public and the performance and occasion of its such superintendent Congress for documents nothing judg- certainty that remains for was at issue: ment or discretion. More specifically, Plaintiffs alleged “... these officials imposes where the law on the officer privacy publishing invaded their cer- performance of ministerial duties derogatory tain for documents use in private special, which a individual has a Congress and distribution elsewhere. direct, interest, and distinctive officer found the acting Court officials were is liable injury to such individual for any scope within the of their duties but their which he may proximately sustain in were not discretionary duties consequence perform failure to immunity The court held official does not all, duty perform at or to it properly.” automatically attach to conduct ex- (Footnote omitted.) references 67 C.J.S. law, pressly impliedly authorized c, Officers subsection “Ministerial exercising the official unless discre- Duties, p. Powers and tionary appropriate function. This rule is because effective administration of See, also, Buick, quotations Denver policies government severely im- Pearson, Wyo., (1970); Inc. v. 465 P.2d 512 paired officials with ministerial Ford, duties Spaniol Wyo., Inc. v. Froggatt, are answerable in for damages failure to (1970), infra. perform obligatory functions with reason- The United Court of con- Appeals States able care. ministerial-discretionary fronted the issue further that when an “Doe indicates Cir., Kelly, Jackson 557 F.2d 735 acting nondiscretionary official ca- (1977), physi- that an Air held Force pacity immunity, Supreme claims operation technique cian’s could be ministe- Court and, thus, rial in nature immune. discerning inquiry ‘has advised a into case, Lewis, Judge writing Chief for (cid:127) immunity whether the contributions of court, physician’s said that treat- government particular effective ment of the did patient govern- not involve outweigh perhaps contexts recur- mental physician discretion ’ ring harm to citizens .... individual was not entitled assert doctrine Thus, official The court at at 2028. immunity. said that the U.S. 93 S.Ct. test immunity is not mechanical and the court mandates the use discre- test, tionary is not the same for function and direct balanc- all officials purposes. policies all While recognizing ing underlying immuni- needs of of each plaintiff public’s ty both and the doctrine in the context fact Strickland, right See, g., to have officials harass- e. Wood v. free of situation. litigation, ment from on to 43 L.Ed.2d 214 court went 420 U.S. S.Ct. explain that to school (qualified immunity granted determination of whether given discretion); fact situations officials who exercise constitute board *8 Rhodes, for particular required the official involved U.S. S.Ct. Scheuer alleged wrongful immunity careful into the inquiry (qualified 40 L.Ed.2d 90 acts of scope and the officers of accused official’s for Governor and executive discretionary responsibil- duties. exercising ities).” 557 F.2d at 737. decision, any its the court overruled prior granting immunity can, decisions absolute be that-absent civ- It therefore said faith, to pass complaints, defendants who could not the discre- in bad il-rights acts done tionary-functions imprisonment- Referring test. torts or false intentional Supreme employee performing recent United case of is discre- States Court where the Wyo., 482 Bentley, P.2d in excess of Linde which are not tionary acts case, purported thereof, non-lawyer when a scope In that authority are within the and the and others before represent himself for the manner to she not be liable he or will - state, judge was a district Immunity of this courts which discretion exercised. instructing the order that, issuing for an in order that sued from the notion flows layman’s strike all the effectively to function clerk court government accept record and to decision-making pleadings re- from the efficiently, officers’ motions filing pleadings and further free from should remain sponsibilities judge. the they reviewed until had been activi- of redress tortious threat suit for of civil- assuming an of Again, absence ty. not act Finding judge the trial did faith, acts done in bad rights complaints, statute jurisdiction because of a outside imprisonment, intentional tort false authority supervisory extending judge’s the functioning the within where court, the though and even over clerks of scope authority not in excess of his judge did urged that had not plaintiff thereof, performs negligently where he mat-' subject jurisdiction over the not have perform ministerial negligently fails to blan- (and protective warm despite the ter authority, imposed by legal law or he acts safely in which the law has immunity ket of or she will not be immune. were, we neverthe- wrapped judiciary), less, moved to observe: the law protection A sense which of third it has point, “As to plaintiff’s public discretionary functions of affords the long general been rule that courts of officials, judiciary, can particularly of exempt jurisdiction are from Davis, gleaned Administrative be official acts even civil actions for their 26.01, Treatise, Law ch. where jurisdiction-although excess of their says: author of observed between excess distinction is confer- “The for the law background of all the clear absence jurisdiction and ring upon offi- administrative subject matter. jurisdiction over discretionary powers is exercising cers Wall.) Fisher, (13 Bradley v. 80 U.S. judges. concerning immunity law of 646; 351-352, Brig- Randall v. 20 L.Ed. ‘It is early held: Supreme Court 523, 536, ham, (7 Wall.) 19 L.Ed. 74 U.S. impor- of general principle highest Judges 72....” Am.Jur.2d jus- of proper to administration tance 482 P.2d at 123. officer, judicial exercising tice that a him, authority authority vested shall free know no case We of convictions, question governmen- to act his own without which discusses under consequences the officer acts apprehension personal tal where “assumption which he does principle . The ... obtains in himself... have,” e., he Sehwing, supra, where all where well-or- i. countries there is jurisdic- system jurisprudence.’ purports The doc- in the absence dered act times, subject matter. applied trine is in recent tion over the rigorously purpose of explanation with the that ‘The look, then, sense other areas for a We exempts public officers rule courts process in which balancing suits for private from the harassment charged with indulge they are must where damages performance on account of- finding the administrative immunity for duties, is, secondarily, of their “fearless may engage in ficial so that he protection, primary their that its order law,” Davis, Adminis- administration of secured, e., objectives i. a fearless may be time, Law, while, at same supra, trative (Foot- of the law.’ ...” administration officers protection from those providing omitted.) note reference who, work guise immunity, under the de- wrongful who ways issue of their those We were confronted with the *9 negli- wrath nor their judicial alleged serve neither their official who was authority in gence. have in excess of his acted

1051 Commission, In half of the and so Highway public, Price v. State we think that 385, 309, (1946), operation P.2d we must that the Wyo. 62 167 312 where hold of a snowplow case at bar was plaintiff snowplow gov- struck a and sued in the a Commission, duty rather ernmental than Highway Super- ministerial. Williams, 402 84 Mower v. Ill. N.E.2d plow intendent and the driver of the 435; vehicle, Shirkey v. Keokuk County, 225 Iowa negligent operation of the we decid- 706; Genkinger 275 N.W. v. Jeffer- that, operat- ed were since individuals County, son Iowa 93 N.W.2d ing scope employment within the of their Blashfield, Cyclopedia of Automobile they partook of the authority, State’s Practice, (Perm. Law and p. § immunity. support holding, In we of our Ed.).” the 1942 cited 43 Am.Jur. 273 from Am.Jur.2d, Public encyclopedia Of- [now This is an comparison. unfortunate 288], ficers it is Employees, & where said: proper public backdrop which a of- “ officer, public ‘As a rule a whether ficial’s liability must be set is ministerial v. executive, judicial, is quasi-judicial, or discretionary govern- ministerial —not personally injured not liable to one Surely, mental!! it is obvious that offi- consequence performed an act within cial’s may govern- act be ministerial and authority, mental, his scope of official and in but it cannot be ministerial and duty. discretionary.13 line of his official order that acts be done scope within Although admittedly is difficult authority, necessary official it is not know, Price, supra, may find its rationale in statute, they prescribed by be or even concept says the pub- that where they specifically be directed or re- lic performing is a function with- officer, quested superior but by it is in the ambit of his the risk authority and they by sufficient are done an officer injury to is public inherent in activi- in relation to matters committed law ty, required the employee ought not be supervision, to his control or they and, therefore, his bear the risk or her have or less with more connection such negligence-if any-will as regarded be deci- matters, they or that are governed by a sional in nature and hence immune. Fur- department lawful requirement of the thermore, snowplow operator may Price authority under whose the officer is act- regarded acting under orders from his ” ing.’ superior within functioning who was scope pursuit of immune This not rule does take into account decision-making powers. In this latter con- decision-making difference between text, Osborn, supra, Price are similar. functions, ministerial which difference is public basic to a employee’s liability inquiry. the car John D. was killed when Charles While we did discuss the ministerial v. he was collided head on with a driving Price, discretionary supra, feature in we did snowplow working high- on the interstate compare ministerial with “governmental” was, way against and which when traffic Lawson, Wyo., function in Osborn struck, by a cloud of created obscured snow (1962), P.2d where we said: by a passing truck. Charles’ estate and the operation snowplows along “The driving owner of the Charles had car been highways practically Lawson, of this state snowplow operator. sued Lawson, necessity. It is a on duty performed employed by highway depart- be- Ford, apparently contradictory Spaniol supra, 13. We made two and in at at 478 P.2d 599: where, Buick, supra, duty statements in Denver at “... is ministerial when the law [A] prescribes per- 465 P.2d at we said: mode of its and occasion certainty nothing formance such imposed “When duties are judgment duty left to or discretion—a officer, clerk, county as a such law rather involving official discretion appointing power, than some such duties usually governmental are al.”, and not ministeri- Minge, supra, p. fn. at 243. *10 negligence, . . any . event . “. . judgment on ment, summary for moved snowplow enjoyed he State’s of the grounds operation that in the any, dual negli- had not been that he immunity and highway was the herein motion with an his gent. supported He the fact that it by reason of commission engineer of the the chief from affidavit operating the method prescribed The affidavit department. highway state that snow- operator of snowplow. The Lawson, driving the snow- asserts him an officer whether we call plow, traffic, following estab- plow difference, fol- makes little employee No procedures. commission highway lished pre- the directions operation in his lowed and the district was filed counteraffidavit was com- He superior. scribed to Law- summary judgment court awarded ” Osborn, quit.... to do so or pelled immuni- enjoyed that he ground son on the P.2d at 205. supra, 374 Price, appeal, we said ty from suit. On judg- the district court’s supra, supported therefore, not, a state hold that does Osborn but, appro- ment, holding, in so we found work, is engaged while employee, area. The survey the law in this priate immunity from automatically entitled to Marceille, acknowledged Palmer v. opinion negligent acts. Os- liability for personal (1934), A. in which the 106 Vt. that a isolated notion stands for the born negligent- car collided with a plaintiff’s car negli- working even under employee, public portion the travelled ly parked on public risk of supervision, where the gent employee. The highway a state road inherent, enjoy will injury is highway employ- court held that a Vermont not follow that liability. It does from tort liability exempt personal ee was mistake- negligent employee made if the he was an negligence merely because employee negligent instruction-the absent governmental work. employee performing an performing as not be held liable could However, line of authori- we dismissed that duty. unprotected ministerial ty this rationale: and other “The rule of the Vermont can be viewed Neither Price nor Osborn think, not, we just cases mentioned has public employee holding negligent that a It application in the case at bar. any ministerial imperative or performing purely be limited in a case must in event negligent from their will be immune duties us to a situation in which such as before acts. highway officer of the Ford, supra, Spaniol Buick and In Denver independently of and department acts negli- were sued for the county clerks and control of the under the direction duties. of their official gent performance in 4 ... It is said highway department cases, usage loose while some In those Restatement, Torts, (1939), A.L.I. “ministerial,” “governmental,” the terms as follows: “ ‘ * ** employed, have been “proprietary” immu- While there is no nature what we said is that the the sense of one is a mere fact nity by the en- officer, which the clerks were many there are situa- of the duties in protected person may tions where a tortious alleged of which the gaged and out ’. . superior.. the command of a than discretionary rather acts evolved were n n * * * * cases, we indicated In both ministerial.15 context, analysis son, case law see Peter- following of the Minnesota 15. In this from footnote Responsibility Minge Torts in page article bears at Governmental Minnesota, repeating: 296-99 26 Minn.L.Rev. apparently con- have been customarily Courts attaches to “Since governmental concepts. attempts discretionary to combine fused functions [Kramer, Im- Tort proprietary Kramer munity Governmental and ministerial and functions, United States 1790- tempted Doctrine ask what the one is 801-05], supra gov- note might 1966U.I11.L.F. which is result be for a function traditionally appears discretionary-pro- at 820.21. It ernmental-ministerial prietary hybrid. governmental-proprietary distinction has example For an of such *11 which the might they Oylers complain, purely the clerks be liable had was min- performing purely been ministerial acts. in isterial its nature and that the defendant not, however, any offer rationale We did negligent performance in the thereof. determining identify how to discretion- could, context, in Malovich this fact be lia- ary or ministerial functions. ble. in emphasize We here observe and We do not even intimate that Mr.

determining presence pub- or absence of any Malovich act from which has committed lic-employee immunity, employ- where the know, will flow. We don’t and the liability charged negligence, language ee is this, trial court could not know because properly employed which should is minis- only say there is no record. We that there terial v. ministerial v. discretionary —not are in which a officer circumstances governmental (as Osborn). in liable, can be and there is nothing on pleadings supporting face of the or in affi Holding (as davits was the case with the other de Pitting develop- the absence of factual fendant, Wyoming) The State of which-at ment in the ministerial- this case stage-permits this any court fact finder test, discretionary it must be clear that the liability way to draw a conclusion one or the judge, granted district when he a motion to other. Since the court foreclosed the devel dismiss, foreclosing development thus opment by sustaining appel- of the record record, evidentiary an held that Mr. Malo- lees’ matter motion to dismiss-the must be liability vich was immune from tort as a proceed reversed and remanded for further law-simply matter of because he was a ings opinion. with this inconsistent State-employed public officer. Wyoming; Affirmed as to The herein, According authorities cited reversed and remanded Malovich. as to just it must be as clear that there are various fathomable fact circumstances Justice, RAPER, dissenting part in Chief which could result in Mr. Malovich’s liabili- concurring part, and with whom BENT- in ty, even he is a though State officer with LEY, Judge, joins. District subject-matter jurisdiction over the act in holding I dissent as to the court’s question. opportunity, plain- Given the Malovich, agent has no appellee state might tiffs have been able to show that reached that immunity; should have maliciously wantonly Malovich acted and appellants’ complaint issue because fails to faith, resulting plaintiffs’ and in bad claim, any state a aside from issue immu- damages, immunity in which case would not nity, assuming the facts there stated are Oylers might serve as a defense. The con- true, agent personal liabil- that an has ceivably have been able to introduce evi- principal. ity acting when for a disclosed that, dence to the effect notwithstanding point majority I has decided out that applicable giving jur- Malovich statutes this case the basis that the action subject isdiction hiring over the matter of Malovich, as a nevertheless, one and that firing, budget- because of reasons, employee, immunity has no from tort ary, personnel or other Mr. Malo- liability. The court found that the acting authority. vich was district excess of his case, motion to dismiss should be allowed because In such would not reach out “are immune from suit be- liability. to save the defendant It the defendants immunity.” particu- No might particular sovereign be shown that the function cause of was mentioned. The trial engaged, type which Malovich was and of lar of action governmental-proprietary applied questions municipal distinction has been ty liabili- discretionary-ministerial led to its criticism the commentators distinc- jurisdictions. questions tion to ity. its abandonment However, several officer or liabil- Davis, Law, agree properly applied See 3 Administrative most 25.07, 26.01, (1958). Generally discretionary-ministerial 26.02 distinction is §§ speaking, necessary. difficulty arbitrariness useful and ...” While court has said that tort the matter of never considered judge point. general question, my it is other from suit is a threshold will not reverse on a this court equally rule is that threshold view that at least by the trial court. considered question not whether a claim is otherwise question is Roush, Wyo.1979, Roush the oth- cannot stand without stated. One *12 680; Hilzer, 551 P.2d Wyo.1976, Knudson v. light, is in that er. If no claim stated Inc., Liners, Wyo. Weber v. Johnston Fuel district court nor this court has neither the 972; also, 169, No. 1974, Key see 519 P.2d jurisdiction. The first and fundamental Error, Digest, West’s Appeal & every appeal jurisdiction. question in However, thing it is one for other cases. Walker, 598. Wyo.1962, 373 P.2d Gardner questions court on not reverse a district immunity of any question Aside from to affirm for considered it and another complaint fails to negligence, plaintiffs’ considered, will be fur- not there as reasons Immunity state a claim. developed ther herein. must, therefore, background as retire to the position that the appellants The take ap- unnecessary to a determination appellees’ motion to dismiss was converted a claim is peal. Because the failure to state summary judgment to a motion for decisive, to either discuss unnecessary it is it makes no differ appellees indicate although or decide the other contentions law is only question ence because a poten- be of academic interest they may law is presented. only question If a such cases of other tially determinative said, presented, this has at least as to court adjudication they requisite are not since summary judgments, the matter is treated Adjustment Casper of this case. Wallace v. being originally as if before this court be Service, Druley v. Wyo.1972, 500 P.2d exactly cause it has the same material be Houdesheldt, 1956, 294 P.2d Wyo. fore it as does the trial court and no fact- 251. For an infinite reh. den. 296 P.2d finding is involved. function Centrella effect, Key cases to this see supply of other Morris, a Wyo.1979, 597 P.2d 958. Since Error, 843(1), Digest West’s Appeal No. & here, dismiss, present only motion to as System. deter complaint attacks the an effort to structured a fantasized majority The has stated, only ques mine whether a claim is claim-against a state cause of action-a presented. only ques tion of law is Since negligence. agent as an individual may dispose tion of we presented, law is now be sued in Ergo, employees may state it. capacities negligent con- their individual acquire juris The district court does states majority, opinion, The in its duct. diction unless a claim-a cause of action-is not, and is “whether or question complaint. stated in Buck plaintiffs’ circumstances, em- what the State’s under America, man v. United Mine Workers tort are not immune from ployees are or 80 Wyo. 339 P.2d reh. den. 80 holds, “Where liability.” majority The also Wyo. 216, 342 P.2d 236. Failure of a com of or in officer acts in the absence plaint to a claim-a action- cause of authority, he be held excess of his may be for the first time in the raised wrongdoing.” liable for his personally supreme point court and the is never allegation in the amended com- There is no Johnson, 1934, Claughton waived. outside of his plaint that Malovich acted Wyo. Wyo. reh. den. 47 and con- authority. majority The assumes 536, 41 P.2d 527. That case was under code com- appellants’ amended cludes that under the pleading, but a motion to dismiss a cause of action-a claim-in plaint states per Procedure Wyoming Rules of Civil stopped with majority tort. The has not It is forms the same office as a demurrer. its immunity single question duty of this court to notice and act on question. threshold It has bound jurisdictional though matters even action, and then inseparably with a tort parties raised or the district court. Pursel, officers Tobin v. P.2d 361. there is no for those Wyo.1975, 539 held statute, wrongful law, work ways “who their common or contractual rela- who neither those deserve their wrath Lodge Brubaker v. tionship. Glenrock In- major- negligence.” their The whole of the Fellows, Wyo. ternational Order of Odd opinion is tort. ity couched terms of P.2d up “there majority saying winds Here, appellants allege did nothing or in pleadings on the face appellees duty by breached a negligently (as supporting affidavits the case appellants rely on inducing prom- defendant, Wyo- the other The State of employment ise of negligently and/or fail- ming) stage-permits which-at ing to warn the appellants the risks court fact finder to draw a con- But, in the inherent reliance. nowhere in way clusion one or the other.” Not so! the complaint appellants did the say what complaint ap- The amended origin appellees’ duty. filed was the On close *13 pellants in court presented the district two inspection it to appear sprung would have claims for relief. The first that alleged one alleged however, promise; from the under employment by offer of extended law promise “[t]he contract unless the becomes a on Defendant Malovieh behalf De- duty perform. contract there is no to And the Wyoming accept- fendant of was State is duty perform, if there no to then no thus, by Oyler” that, Plaintiff ed Jess and a performance can be liability incurred if is binding, implied express employment and by not tendered. As stated Corbin: existence; further, came contract into promise “An informal without consider- appellees’ to perform the refusal was a ation, term, any of of the senses breach of the which injured contract the no legal duty creates and is not enforce- result, appellants. appellants As a a ” stated * * * able. 1 Corbin on Contracts for claim breach of contract accrued to 114, p. 498. § their benefit. Thus, in the for relief second claim there The second charged claim relief that: duty was no since was no there contract. Malovieh, Anthony “Defendant individ- However, in order to ameliorate the ually and acting on behalf of Defendant rule, of general exception, harshness this an gross the State of with disre- promissory estop- known the doctrine of gard Plaintiffs, negli- of his duty toward pel, recognized in Hanna State & Sav- gently induced Plaintiffs into financial Matson, ings Wyo. v. Bank obligations by made Plaintiffs in reliance quoted 625. There the court P.2d upon promise employ- Defendants’ of approv- of Contracts with Restatement ment, and/or negligently by stood al: full knowledge that Plaintiffs incur- were promisor promise “A which the should ring obligations said financial without reasonably expect to induce action or for- making any attempt to advise Plaintiffs of a definite and substantial bearance potential their of risk.” promisee on part character of appellants major- argued, have and the which does induce such action forbear- ity agreed, has negli- this claim is a can binding injustice ance is be avoided gence governmental action tort promise.” enforcement only longer can to used as a bar then, exception, promise Under this against tort actions brought either binding treated as if it were a contract. 1A however, or its employees; State I do 193-209, pp. Corbin on Contracts 187- §§ accept that for relief claim sounds Clearly by appel- made allegations 271. negligence. necessary lants do include the elements that order In to be liable for a negligence, prom- shown must be under the doctrine defendant failed perform must have to issory estoppel. duty plaintiffs. owed to Maxted Co., Nonetheless, Foundry Pacific Car stated numer- Wyo.1974, complaint & duty P.2d can virtue ous that the Malovieh was This arise times defendant presumption carries with it a In Kure mate decision acting on behalf State. Division, Wyo.1978, Motor Chevrolet of correctness. this court held: P.2d alleged of the cause dismissal I concur “ * * * on agent An who contracts ground on of immuni- against State in the ab- principal, of a behalf .disclosed against suit In reference to the ty. agreement some sence of other contract, noted it should be State showing other contrary or circumstances University Wyo- Biscar though in- impliedly expressly has that he Trustees, Wyo.1980, ming Board personal re- or intended to incur curred the dismissal of the action mandates con- to the other not liable sponsibility, ” on the basis contract * * * tracting party. immunity, on March sovereign words, for a disclosed agent other l-39-104(a), W.S.1977 was amended party does not principal become sovereign immunity in the defense of waive Since, alleged, Malo- the facts contract. reads: now contract actions. The statute behalf promise was known to be on vich’s its entity and “(a) governmental A State, nothing to indicate there is acting within the employees while promise intended to that he assume scope granted of duties are

employment personally, Malovich cannot be pro- arising by except as party be a tort held to contract law, for that matter under operation through nor 1-39- vided W.S. 1-39-105 *14 in the express alleged contract first on a Any immunity in actions based to im- of action. is no reason cause There governmental entered into contract agent pose liability employee, on state is waived the extent entity except State, enterprise private where by the if the contract provided contract Since, my liability. there is no such powers granted was within view, the dismissal of this suit would be was executed. The entity properly on for failure to state a appropriate remand 1-39-105 procedures claims of W.S. claim, I would affirm the dismissal. The through apply 1-39-112 to contractual court seems to be a action the takes here against governmental entities.” claims judicial is no need waste of time. There prior to action commenced Since necessary disposition not to a decide issues amendment, the statute passage appeal and that are dicta. controlling law for this provide not does the rule I am not concerned about in the case. But it should be noted we will not consider matters raised longe'r Biscar will control and future appeal position time on as to the I first will be actions on contract the State The reason lack of concern my take. statutory limits. permissible within the only jurisdiction that a court has no equal claim is stated but because of the have the dismissal I would affirmed well-recognized jurisdic in our ly rule that both suits. appeal judgment

tion a be affirmed on will appear on any legal ground

if sustainable

ing Wightman in the record. v. American Riverton, Wyo.1980,

National Bank of 1001; Holler, P

P.2d & M Co. Cattle 1019;

Wyo.1977, P.2d Crockett v. 303;

Lowther, Wyo.1976, P.2d Zitter Roussalis, 436;

kopf Wyo.1976, Grazing Legerski,

Peters Association den. 546

Wyo.1975, 544 P.2d reh. P.2d eases, also, for citations other see Error, 854(1),

Key Appeal No. & West’s ulti

Wyoming Digest. The trial court’s