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Sperry v. Fremont County School District No. 6

United States District Court, D. Wyoming

February 3, 2015

DANIEL SPERRY, individually and as Wrongful Death Representative of MAKAYLA MARIE STRAHLE, deceased, and MELISSA SPERRY, individually and as a Wrongful Death Beneficiary and as the natural parent and next friend of TRS, a minor, and KCS, a minor, Plaintiffs,
v.
FREMONT COUNTY SCHOOL DISTRICT NO. 6, a Wyoming governmental entity and local government; SUPERINTENDENT DIANA CLAPP, individually and in her official capacity; FRED PETERSON, individually and in his official capacity; KEVIN SCHIEFFER, individually and in his official capacity; and BOARD OF TRUSTEES OF FREMONT COUNTY SCHOOL DISTRICT NO. 6 (Kristen Benson, James Downing, Charles Gomeni, Patti Griffith, Jeff Locker, Dan Price and Shane Sanderson, individually and in their official capacities), Defendants

Decided: February 2, 2015.

For Daniel Sperry, individually, Daniel Sperry, representative or parent of minor child, Makayla Marie Strahle, Melissa Sperry, individually, Melissa Sperry, representative or parent of minor child, Makayla Marie Strahle, Melissa Sperry, wrongful death beneficiary, representative or parent of minor child, TRS, Melissa Sperry, wrongful death beneficiary, representative or parent of minor child, KCS, Plaintiffs: Emily Roberts Rankin, Mel C Orchard, III, LEAD ATTORNEYS, THE SPENCE LAW FIRM, Jackson, WY.

For Fremont County School District No 6, Wyoming governmental entity and local government, Fremont County School District No 6 Superintendent, official capacity also known as Diana Clapp, Diana Clapp, individually, Fremont County School District No 6, official capacity also known as Fred Peterson, Fred Peterson, individually, Fremont County School District No 6, official capacity also known as Kevin Schieffer, Kevin Schieffer, individually, Fremont County School District No 6 Board of Trustees, official capacity also known as Kristen Benson, Kristen Benson, individually, Fremont County School District No 6 Board of Trustees, official capacity also known as James Downing, James Downing, individually, Fremont County School District No 6 Board of Trustees, official capacity also known as Charles Gomeni, Charles Gomeni, individually, Fremont County School District No 6 Board of Trustees, official capacity also known as Patti Griffith, Patti Griffith, individually, Fremont County School District No 6 Board of Trustees, official capacity also known as Jeff Locker, Jeff Locker, individually, Fremont County School District No 6 Board of Trustees, official capacity also known as Dan Price, Dan Price, individually, Fremont County School District No 6 Board of Trustees, official capacity also known as Shane Sanderson, Shane Sanderson, individually, Defendants: Stephenson D Emery, LEAD ATTORNEY, WILLIAMS PORTER DAY & NEVILLE, Casper, WY.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING IN PART

Alan B. Johnson, United States District Judge.

Defendants' Motion for Summary Judgment (Doc. 26), Plaintiffs' opposition (Doc. 28) and Defendants' further reply (Doc. 29) have come before the Court for consideration. Having considered the pleadings, the applicable law, the parties' written submissions, and materials offered in support of their respective positions, the Court GRANTS Defendants' motion in part and DENIES it in part.

BACKGROUND

The undisputed facts are as follows. The Fremont County School District (FCSD) Board of Trustees establishes bus routes with input from the Superintendent and Transportation Supervisor. FCSD has an insurance policy that covers bodily injuries and accidents that result from use of school buses.

Makayla Strahle (Strahle) was an FCSD student who lived on Highway 86 near Crowheart, Wyoming. On December 20, 2011, after Strahle attended a school activity, she caught the FCSD " activity bus" driven by Fred Peterson. Around 6:50 p.m., the bus arrived at Strahle's designated drop off location on Highway 86. Per the school district's established bus route and stops, Peterson stopped the bus on the opposite side of Highway 86 from Strahle's home. To reach her home, Strahle had to cross both lanes of traffic.

Strahle exited the bus and waited on the right side of the fog line for Peterson's instruction to cross. From inside the bus, Mr. Peterson motioned for Strahle to cross the highway toward her home. At the same time, a vehicle driven by William Barnes was driving toward the bus in the opposite lane. As Strahle crossed the highway, Barnes' vehicle struck her. Strahle died at the scene of the accident.

On August 19, 2013, Plaintiffs filed their complaint. Plaintiffs bring claims of negligence and wrongful death against all Defendants. Specifically, Plaintiffs allege Defendants' negligent acts or omissions include: (1) negligent care and protection for the safety and well-being of Strahle; (2) negligent operation of a motor vehicle; (3) negligent failure to keep a proper lookout; (4) negligent failure to ensure the safety and welfare of students riding the bus; (5) negligent routing of school buses; (6) negligent failure to select, supervise and train employees and agents; (7) negligent entrustment of a motor vehicle; (8) negligent failure to use the proper equipment; (9) negligent failure to follow all applicable laws and regulations; (10) negligent operation of school bus routes; (11) negligent procedures for exiting a school bus; (12) negligent failure to properly equip school bus #13; (13) negligent failure to drop students off in safe locations; (14) negligent activation of school bus lights; (15) negligent failure to warn; (16) negligent instruction to students while exiting school buses and crossing the highway; (17) negligent failure to implement the requisite standards to protect the well-being of Strahle; (18) negligent failure to act reasonably under the circumstances. Next, Plaintiffs claim that all Defendants are liable for negligent infliction of emotional distress to Strahle's two sisters and her mother, Ms. Sperry. And finally, Plaintiffs claim loss of marital and parental consortium against all Defendants. In the final pretrial conference in this matter, Plaintiffs described their claims as focusing on and falling into two categories: negligent operation of the bus and negligent routing of the bus. Also during the final pretrial conference, Plaintiffs and Defendants agreed and informed the Court that negligent operation of bus lights is no longer a claim before the Court.

In their motion for summary judgment, Defendants argue that the Wyoming Governmental Claims Act bars Plaintiffs' claims of negligent design of bus routes and bus stop locations, negligent hiring, negligent training, negligent supervision, negligent entrustment of a vehicle, and failure to properly instruct students. Docs. 26 and 27. Defendants further argue that the Court should grant summary judgment on the Plaintiffs' claims of negligent operation of a motor vehicle, negligent entrustment, negligent hiring, negligent supervision, and negligent training because Defendants were not negligent and a genuine issue of material fact does not exist regarding these claims.

DISCUSSION

First, the Court will discuss the immunity provided by the Wyoming Governmental Claims Act, the relevant exceptions to the act, and their application to the case. Next, the Court will discuss the summary judgment standard before turning to its application to the remaining claims.

I. Wyoming Governmental Claims Act

Under the Wyoming Governmental Claims Act (WGCA), " [a] governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort." Wyo. Stat. § 1-39-104(a). Plaintiffs and Defendants do not dispute that Defendants are entities governed by WGCA -- Defendants include a school district, a local governmental entity, and public employees who acted within the scope of their duties as defined in Wyoming Statute section 1-39-103(a). Defendants' general immunity under the WGCA, however, is subject to certain statutory exceptions contained within the WGCA.

The first dispositive issue contained in the parties' summary judgment briefing is whether any of the WGCA statutory exceptions apply to Defendants in this case and thus waive their WGCA immunity. In their motion for summary judgment, Defendants attempt to prove a negative by arguing that they are immune from select Plaintiffs' claims because none of the statutory exceptions to the WGCA applies to Defendants or their actions. Defendants focus specifically on the inapplicability of the " motor vehicle exception" and the " insurance coverage exception." Wyo. Stat. § § 1-39-105; 1-39-118 (b). In response, Plaintiffs argue the motor vehicle, insurance coverage, and public utility exceptions all apply and waive Defendants' immunity under the WGCA. WYO. STAT. § § 1-39-105; 1-39-118 (b); 1-39-108.

a. The " motor vehicle exception"

The motor vehicle exception to the WGCA states, " [a] governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any motor vehicle, aircraft or watercraft." Wyo. Stat. § 1-39-105 (emphasis added). Defendants concede that the motor vehicle exception applies and Defendants are not immune from some of Plaintiffs' claims, including negligent operation of a motor vehicle, negligent activation of bus lights, failure to keep a proper lookout, and failure to follow all applicable laws and regulations.[1] (Doc. No. 27, pg. 14).

Nonetheless, Defendants contend that they are immune from Plaintiffs' claims of negligent hiring, negligent training, negligent supervision, negligent entrustment of a vehicle, negligent routing, and negligent instructions to a student-pedestrian because the motor vehicle exception does not apply to those claims. The issue becomes whether Defendants' actions of bus routing, training and supervising bus drivers, entrusting a vehicle to bus drivers, and providing instructions to student-pedestrians constitute " operation of a motor vehicle" under the motor vehicle exception to the WGCA.

The legislature did not define " operation" in the motor vehicle exception to the WGCA. In Harbel v. Wintermute, however, the Wyoming Supreme Court analyzed the definition of operation in context of the motor vehicle exception to WGCA. 883 P.2d 359, 365 (Wyo. 1994). In Harbel, a Sheridan County Road and Bridge Department employee brought a co-employee tort claim against his supervisor and a mechanic for injuries he sustained while operating a poorly maintained front-end loader that his supervisor assigned to him. Id. at 361-62. The employee contended that the supervisor and mechanic were not immune under the WGCA because the motor vehicle exception applied to their actions. See id. The Wyoming Supreme Court upheld the district court's grant of summary judgment. Id. at 367. In doing so, the Wyoming Supreme Court analyzed the same issue presented in this case -- what constitutes " operation of a motor vehicle." Id. at 365.

To answer the question, the Wyoming Supreme Court relied on the definition of operator under the Motor Vehicle Safety-Responsibility Act -- every person who is in actual physical control of a motor vehicle -- and case law from Wyoming and other jurisdictions. Id. at 365. The Wyoming Supreme Court determined that " operation of a motor vehicle" consists of personal acts necessary to actually put the motor vehicle in motion. Id. In response to the injured employee's arguments, the Wyoming Supreme Court held that " [t]here is persuasive authority against imputing 'operation' to a supervisor or others not in actual physical control of the motor vehicle" and thus as ...


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