Case v. Goss

776 P.2d 188, 1989 Wyo. LEXIS 154, 1989 WL 67576
Wyoming Supreme Court·Decided June 21, 1989·No. 88-247·Published·Cited by 36 cases

Opinions

GOLDEN, Justice.

The district court granted summary judgment to defendants, co-employees of appellant, in this suit alleging culpable negligence. We will affirm in part, reverse in part and remand for a trial consistent with this opinion.

On August 29, 1979, appellant Daniel J. Case was permanently injured when he slipped after stepping into a hidden grease spot and fell onto the metal surface of the boom point sheave area of a dragline on which he was working at the Bridger Coal Mine. In 1983, Case brought suit against several co-employees. Following dismissal of several unserved defendants and the death of another, the remaining ten defendants, all co-employees of appellant, are Glenn Goss, Darrel R. “Dick” Downing, Larry Largent, Mike Hesse, Chris Schütz, Cliff Overy, Larry Mann, Bobby McCaskill, George Seaman and Glenn Griggs. In his complaint, Case alleged that his co-employees were culpably negligent in that: (1) they knew the boom point sheave area was dangerous due to excessive accumulations of lubricating grease and oil thrown from the dragline, but failed to inspect it; (2) they failed to report the unsafe condition of the area to their supervisors or to clean the area of such accumulations and failed to provide adequate safety devices to decrease the danger; and (3) they ordered Case to work in the area despite his numerous complaints that it was dangerous and failed to warn him of the existence of potentially hidden oil and grease spills. On July 19, 1988, the district court granted summary judgment to all defendants. On appeal, Case contends that a genuine issue of material fact as to culpable negligence of his co-employees/appellees (appellees) exists, which precludes the grant of summary judgment. Additional facts about Case’s injury, organization of the mining company, positions and responsibilities of co-employees, and culpable negligence will be set forth in the analysis section as they become pertinent to the discussion.

Our standard of review of the propriety of summary judgments is well established. England v. Simmons, 728 P.2d 1137, 1141 (Wyo.1986). The initial burden is on the moving party to show that no genuine issue of material fact exists. Stundon v. Sterling, 736 P.2d 317, 318 (Wyo.1987). If movant makes that showing, the burden shifts to the nonmoving party to come for[191] ward with specific facts to demonstrate the existence of a genuine issue of material fact. Id.; W.R.C.P. 56. In determining the propriety of any summary judgment, this court will examine the record in the light most favorable to the nonmoving party, granting him all favorable inferences which can properly be drawn from the evidence. Wessel v. Mapco, Inc., 752 P.2d 1363, 1367 (Wyo.1988). “Conclusory affidavits are insufficient and specific facts must be shown.” Davenport v. Epperly, 744 P.2d 1110, 1112 (Wyo.1987).

To recover against appellees and avoid the exclusive remedy provision of the Wyoming Worker’s Compensation Act, Case must demonstrate that appellees were “culpably negligent” co-employees. W.S. 27-12-103(a) (1977);1 Poulos v. HPC Inc., 765 P.2d 364 (Wyo.1988). This court has defined culpable negligence as “willful and serious misconduct.” Stundon, 736 P.2d at 318 (citing Barnette v. Doyle, 622 P.2d 1349, 1362 (Wyo.1981)). We defined the term “willful” in this context as “ ‘such as is done purposely, with knowledge — or misconduct of such a character as to evince a reckless disregard of consequences.’ ” Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo.1986) (quoting Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203, 206, 149 A.L.R. 998 (1943)).

The aggravating factor that distinguishes willful misconduct from ordinary negligence is the actor’s state of mind. “In order to prove that an actor has engaged in willful misconduct, one must demonstrate that he acted with a state of mind that approaches intent to do harm.” Bryant, 728 P.2d at 1136. Because the actor’s state of mind may be difficult to prove, courts allow a party to establish the existence of willful misconduct by “demonstrating that an actor has intentionally committed an act of unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow.” Id. at 1136. As we said in Danculovich v. Brown, 593 P.2d 187, 191, 193 (Wyo.1979):

Willful and wanton misconduct is that which tends to take on the aspect of highly unreasonable conduct, or an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. It is not with the intent to cause injury or damage, but it must be more than mere mistake resulting from inexperience, excitement or confusion, and more than mere thoughtlessness or inadventure, or simple inattention.
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The intent in willful and wanton misconduct is not an intent to cause the injury, but is an intent to do an act, or an intent not to do an act, in reckless disregard of the consequences, and under such circumstances and conditions that a reasonable man would know, or have reason to know, that such conduct would, in a high degree of probability, result in substantial harm to another. Mitchell v. Walters, [55 Wyo. 317, 100 P.2d 102 (1940)].

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Case v. Goss, 776 P.2d 188, 1989 Wyo. LEXIS 154, 1989 WL 67576 (Wyo. 1989).

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