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DiFelici v. City of Lander

Supreme Court of Wyoming

November 12, 2013

Evelyn DiFELICI, f/k/a Evelyn Barnes, Appellant (Plaintiff),
v.
CITY OF LANDER, Appellee (Defendant).

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[Copyrighted Material Omitted]

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Representing Appellant: Sky D. Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Thomas A. Thompson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.

DAVIS, Justice.

[¶ 1] Appellant Evelyn DiFelici was injured when she fell after stepping into a hole drilled in the gutter of a street in the City of Lander. She sued the City, claiming that it was negligent in the operation of a public utility or service, and also that she was entitled to recover under a specific statute rendering cities and towns liable for injuries resulting from excavations or obstructions which make streets or sidewalks unsafe.

[¶ 2] The district court granted the City's motion for summary judgment. We affirm.

ISSUES

[¶ 3] Appellant raises these issues, which we restate as follows:

1. Did the City's failure to replace a grate over the drain inlet fall within the waiver of immunity for negligence of public employees in the operation of public utilities and services under Wyoming Statute § 1-39-108(a)?
2. Does Wyoming Statute § 15-4-307 provide a statutory basis on which Appellant was potentially entitled to recover from the City? [1]

FACTS

[¶ 4] The facts of this case are largely undisputed, and in this review of an order granting summary judgment, we will view them in the light most favorable to Appellant. Evelyn DiFelici's dog had a difficult recovery after delivering a litter of puppies, and the veterinarian caring for the dog recommended that she walk her pet every three

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hours. On April 27, 2009, Ms. DiFelici was walking her dog as recommended after dark. The sidewalk did not continue onto her neighbor's property, and Ms. DiFelici stepped off into Washakie Street for that reason, as well as to keep her ailing dog away from the neighbor's schnauzer. She walked on the relatively flat concrete gutter until she stepped into something and fell. She injured her hip and back in the fall.

[¶ 5] The parties agree that Ms. DiFelici fell when she stepped into a three-inch diameter hole in the gutter adjacent to the curb. There is no dispute that until 1989, runoff water from the street backed up into the yard of the house on the corner near where Ms. DiFelici fell, much to the annoyance of the property owner. After the owner complained, two City of Lander employees drilled a three-inch hole which drained water into an irrigation ditch or concrete pipe under the street.

[¶ 6] The hole was originally covered by a grate fabricated by the employees who drilled it. The City of Lander's current street maintenance superintendent became aware of the hole some time before 1995, and recalled that it was not covered by a grate from then until after Ms. DiFelici fell. The City covered the hole with a grate after she was injured.

STANDARD OF REVIEW

[¶ 7] Our standard of review of orders granting summary judgment has been stated often and consistently:

We review a summary judgment in the same light as the district court, using the same materials and following the same standards. [ Snyder v. Lovercheck, 992 P.2d 1079, 1083 (Wyo.1999) ]; 40 North Corp. v. Morrell, 964 P.2d 423, 426 (Wyo.1998). We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences that may fairly be drawn from the record. Id. A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Id. If the moving party presents supporting summary judgment materials demonstrating no genuine issue of material fact exists, the burden is shifted to the non-moving party to present appropriate supporting materials posing a genuine issue of a material fact for trial. Roberts v. Klinkosh, 986 P.2d 153, 155 (Wyo.1999); Downen v. Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo.1994). We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling. Roberts v. Klinkosh, 986 P.2d at 156; Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo.1997).

Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo.2011). We can affirm an order granting summary judgment on any basis appearing in the record. Magin v. Solitude Homeowner's Inc., 2011 WY 102, ¶ 20, 255 P.3d 920, 927 (Wyo.2011) (citing Walker v. Karpan, 726 P.2d 82, 89 (Wyo.1986)).

DISCUSSION

The Governmental Claims Act Issues

A. The Parties' Positions on the Claims Act and Its Exceptions

[¶ 8] Wyoming's Governmental Claims Act has been described as a " closed ended" tort claims act because it generally grants immunity to governmental entities and public employees, waiving that immunity only through specific statutory exceptions. Wyo. Stat. Ann. § 1-39-104(a) (LexisNexis 2013); Rice v. Collins Commc'n, Inc., 2010 WY 109, ¶ 15, 236 P.3d 1009, 1016 (Wyo.2010); Sponsel v. Park Cnty., 2006 WY 6, ¶ 18, 126 P.3d 105, 110 (Wyo.2006); Lawrence J. Wolfe, Comment, Wyoming's Governmental Claims Act: Sovereign Immunity with Exceptions— A Statutory Analysis, XV Land & Water L. Rev. 619, 621, 623 (1980). Appellant must therefore identify an exception to the Act's grant of immunity in order to recover from the City. She relies upon § 1-39-108, which provides in pertinent part as follows:

A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the

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negligence of public employees while acting within the scope of their duties in the operation of public utilities and services including gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation.

Wyo. Stat. Ann. § 1-39-108(a) (LexisNexis 2013).

[¶ 9] She argues that the hole which let runoff water flow into the irrigation pipe under Washakie Street was part of a liquid waste collection or disposal system, that it was therefore part of a public service or utility, and that the City was negligent in the operation of the system because it knowingly allowed the hole to remain uncovered for many years. For purposes of reviewing the district court's grant of summary judgment, we accept as true Ms. DiFelici's contention that a reasonable jury ...


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