Appeal from the District Court of Campbell County The Honorable Dan R. Price II, Judge.
The opinion of the court was delivered by: Hill, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT*fn1, and BURKE, JJ.
[¶1] William P. Rice‟s commercial building caught fire in Campbell County, Wyoming. Because of a failure in the communications/paging system used by the county, almost a half hour passed before there was any formal response to the fire. Rice‟s building and its contents were almost totally destroyed. Rice filed suit against several county entities as well as two communications companies alleging negligence, whereupon the district court dismissed his complaint in its entirety. We will affirm.
[¶2] Mr. Rice states his issues as follows:
- Was it error for the district court to find as a matter of law that Defendants Collins and ComTech owed no duty of care to [Rice] in operating and maintaining an emergency communications system for Campbell County, when the failure of that system delayed the fire department‟s response to a fire, leading to the destruction of [Rice‟s] building and property?
- Was it error for the district court to grant summary judgment to the County Defendants on the basis of governmental immunity, despite W.S. § 1-39-108(a) which waives immunity for negligent operation of public utilities and services?
- Was it error for the district court to grant summary judgment to Defendant Sheriff Pownall on the basis of governmental immunity, despite W.S. § 1 -39-112 which waives immunity [for] tortious conduct of peace officers while acting within the scope of their duties?
- Was it error for the district court to grant summary judgment to the County Defendants on the basis of governmental immunity despite W.S. § 1-39-106 which waives sovereign immunity for negligent operation or maintenance of any building?
- Did the district court err in finding that [Rice] could not establish that his damages were proximately caused by Defendant‟s negligence?
[¶3] On April 8, 2006, a fire was reported at 402 East 2nd Street in Gillette, Wyoming. The county sheriff‟s office dispatch center received the call reporting the fire at 12:25 a.m. The first police officer responded to the scene at 12:28 a.m., and the ambulance arrived at 12:30 a.m. Fire engine 11 arrived at 12:52 a.m., twenty-seven minutes after the fire was first reported.
[¶4] The fire consumed much of the commercial building, out of which Rice ran several businesses.*fn2 Rice also leased business space to several other tenants. Unfortunately for all of the businesses and owners, the fire resulted in a total loss of the building.*fn3
[¶5] The night of the fire, a malfunction occurred in the emergency paging system used by the county. The system works as follows: When a page is initiated by the sheriff‟s department, it originates in the dispatch center and travels by wire to a microwave transceiver. The transceiver then transmits the page to an antenna located in the back of the sheriff‟s office. The antenna then sends a signal, via microwaves, to one of four remote towers -- the Hitt tower, the North tower, the South tower and the Wright tower. Those towers then re-transmit the signal to portable radios carried by volunteer firefighters. Although the fire department is staffed by full-time career firefighters from 6 a.m. to 6 p.m., volunteer firefighters are "on call" from 6 p.m. to 6 a.m. Those volunteer firefighters are "paged" to notify them of a fire. Normally, they contact dispatch when they are en route to the fire station. However, the night of the fire in this case, the dispatcher did not hear any responses, and so she sent the page again. Once more, she heard no responses, and then activated the City Watch AVS 100 Phone Notification System, which called the firefighters by telephone to notify them of the fire.
[¶6] Because of the delay in response, Rice filed suit, alleging negligence against several defendants. First, he named the Campbell County Board of County Commissioners, Campbell County Sheriff William Pownall, and Campbell County Emergency Management Coordinator David King (the "County Defendants"), alleging that they were negligent based upon the decisions they made related to the emergency communication system in place at the time of the fire. Rice also named Collins Communication, Inc., a Wyoming Corporation that sells electronic and communications products and provides service for those products. Collins installed a Motorola Quanter repeater system and related components at the Hitt Hill site on February 22, 2006, and Rice alleged that they were negligent based upon the work they performed at the Hitt Hill site. Finally, Rice named Communication Technologies, Inc. ("ComTech"), which has a contract for maintenance and service of specific communication equipment which is part of the Campbell County emergency communication system -- Rice alleged that they were negligent based on that contract.*fn4
[¶7] All named defendants filed motions for summary judgment in response to Rice‟s amended complaint. In its decision letter, the district court divided the motions into "two broad categories." The first issue presented by Collins and ComTech involved whether a duty to Rice existed. The second issue presented by the County Defendants and the Defendant Fire Board involved the question of immunity from liability under the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. § 1-39-101, et. seq. (LexisNexis 2009). The court concluded that no duty existed on behalf of Collins or ComTech, and because the County Defendants and the Fire Board did not meet any of the exceptions to the WGCA, their governmental immunity was not waived. Thus, all motions for summary judgment were granted, and this appeal followed.
[¶8] Our oft repeated standard of review for summary judgment motions is as follows:
We evaluate the propriety of a summary judgment by employing the same standards and using the same materials as the district court. Cook v. Shoshone First Bank, 2006 WY 13, ¶ 11, 126 P.3d 886, 889 (Wyo. 2006). Thus, our review is plenary. Birt v. Wells Fargo Home Mortg., Inc., 2003 WY 102, ¶ 7, 75 P.3d 640, 647 (Wyo. 2003).
Wyo. R. Civ. P. 56 governs summary judgments. A summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c). When reviewing a summary judgment, we consider the record in the perspective most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may be fairly drawn from the record. We review questions of law de novo without giving any deference to the district court's determinations.
Cathcart v. State Farm Mut. Auto. Ins. Co., 2005 WY 154, ¶ 11, 123 P.3d 579, 586 (Wyo. 2005), quoting Baker v. Ayres & Baker Pole & Post, Inc., 2005 WY 97, ¶ 14, 117 P.3d 1234, 1239 (Wyo. 2005).
"A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted." Christensen v. Carbon County, 2004 WY 135, ¶ 8, 100 P.3d 411, 413 (Wyo. 2004) (quoting Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055 (Wyo. 2002)). The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment. If he carries his burden, "the party who is opposing the motion for summary judgment must present specific facts to demonstrate that a genuine issue of material fact exists." Id. We have explained the duties of the party opposing a motion for summary judgment as follows:
"After a movant has adequately supported the motion for summary judgment, the opposing party must come forward with competent evidence admissible at trial showing there are genuine issues of material fact. The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment, and cannot rely only upon allegations and pleadings ., and conclusory statements or mere opinions are insufficient to satisfy the opposing party‟s burden."
The evidence opposing a prima facie case on a motion for summary judgment "must be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation." Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact. Cook, ¶ 12, 126 P.3d at 890, quoting Jones v. Schabron, 2005 WY 65, ¶¶ 9-11, 113 P.3d 34, 37 (Wyo. 2005). Hatton v. Energy Elec. Co., 2006 WY 151, ¶¶ 8-9, 148 P.3d 8, 12 13 (Wyo. 2006).
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