from the District Court of Uinta County The Honorable Joseph
B. Bluemel, Judge
Representing Appellant:Collin C. Hopkins of The Law Offices
of Collin Hopkins, P.C., Riverton, WY*; Milo W. Lundblad and
Jerome A. Urbik of Brustin & Lundblad, Ltd., Chicago, IL;
and Cameron S. Walker of Schwartz, Bon, Walker & Studer,
LLC, Casper, WY. Argument by Mr. Urbik.
Representing Appellee:Paul Kapp and Patrick M. Brady of
Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, WY.
Argument by Mr. Kapp.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Mariusz Bogdanski and Damian Budzik were codrivers of a
commercial semi-truck that was involved in an accident on
Interstate 80 east of Evanston, Wyoming. Bogdanski was
injured in the accident and filed an action against Budzik,
alleging that his negligence caused the accident. He also
sued FedEx Ground Package System, Inc. (FedEx), the company
whose trailers they were hauling, alleging both direct
negligence and vicarious liability for Budzik's
negligence. The district court granted summary judgment to
both Budzik and FedEx, and Bogdanski appeals the order in
favor of FedEx. We affirm summary judgment in favor of
Appellee Budzik, and the summary judgment on Bogdanski's
direct negligent training claim. However, we reverse the
ruling granting summary judgment against FedEx on
Bogdanski's claim of vicarious liability for Budzik's
claimed negligence, and we remand to the district court for
We restate the issues raised by this appeal as
1. Can Bogdanski maintain a direct negligence claim in
addition to a vicarious liability claim when FedEx has
stipulated that it will be vicariously liable for
Budzik's negligence, if any?
2. Did the district court err in granting FedEx's motion
for summary judgment on Bogdanski's vicarious liability
In February of 2011, Mariusz Bogdanski and Damian Budzik were
employed as commercial truck drivers by BZ Trucking, Inc., a
company operating out of Burbank, Illinois. Bogdanski was the
more experienced driver and began working for BZ Trucking in
2005. Damian Budzik obtained his commercial driver's
license in 2008 and began working for BZ Trucking that same
For the first year of Budzik's employment with BZ
Trucking, he was provided on-the-job training by being paired
with more experienced drivers. Budzik was paired with one
driver for the first three months of his training, and then
with Bogdanski for the remainder of the year. After Budzik
completed his year of training, he and Bogdanski remained
In 2011 BZ Trucking had a contract with FedEx to use BZ's
trucks and drivers to haul FedEx trailers. Pursuant to that
contract, Budzik and Bogdanski picked up two FedEx trailers
in Bedford, Illinois to be delivered to Sacramento,
California, on February 16, 2011. The trip was to be non-stop
with Bogdanski and Budzik each driving alternating
eleven-hour shifts. A shift change occurred at about 2:00
a.m. on February 17th in Rawlins, Wyoming. Budzik completed
an inspection of the tractor and trailers, and then took over
driving while Bogdanski rested in the truck's sleeper
When Budzik began his driving shift in Rawlins, it was
snowing, but not heavily. As Budzik continued to drive west
on Interstate 80, it began to snow more heavily, reaching
what Budzik described as a six out of ten in severity, with
snow accumulating on the road's surface. About thirty
miles east of Evanston, Wyoming, Budzik came upon traffic
stopped in both westbound lanes. He was driving approximately
forty-five to fifty miles per hour when he encountered the
stopped traffic, and he activated his flashers and pulled
from the right lane into the left to allow a greater distance
over which to stop the truck.
The traffic ahead of Budzik remained stopped for around five
to ten minutes. When the traffic began to move again, Budzik
found that he could not get his truck to move. He tried for
about one to two minutes to get it moving and then woke
Bogdanski to ask for help. Bogdanski described what happened
Q. So he woke you up. Did he want you to do something? What
did he want you to do?
A. He needed my help.
Q. Did you - to do what?
A. Just to - we were - we work in a team, so I needed to sit
down and decide what is going to be our next step.
Q. And did you do that?
A. Yes. We were going to inspect the truck to see why the
truck is not able to move forward.
Q. So after he woke you up and you got out of the sleeper
compartment, from there, where did you go?
A. It was wintertime, so I needed also some time to dress
myself properly. I went out, exited.
* * *
Q. So I take it, somehow it was decided that you had to go
A. That period of time, Damian was assigned to be a driver. I
went - when one is assigned, the other one did not take over
and sit back behind the wheel.
Q. Because of the hour restrictions, right?
A. Yes. So I was off duty.
Q. So the plan was that you were going to go out of the truck
and try and figure out why you were not getting traction?
A. Basically, I also was at that point more experienced than
Damian. I wanted to go outside and look around the truck and
- trying to figure out why the truck can't move forward.
When Bogdanski exited the truck, he found all of the truck
and trailer exterior lights were on, including the emergency
lights, the pulsating lights, and the headlights. He
inspected the entire exterior of the truck and trailers and
confirmed that the only problem was that the driver wheels
were spinning. He then concluded they would need to place
chains on some of the tires to get the truck moving and that
they would also need to place warning triangles to secure the
The chains and warning triangles were kept on a catwalk
between the tractor and the trailers, and Bogdanski climbed
onto the catwalk to get them. While Bogdanski was on the
catwalk, another commercial truck driven by Viktor Marinov
rear-ended the stopped tractor-trailer. The impact threw
Bogdanski from the catwalk, and he landed on the shoulder of
the road. He was taken by ambulance to a hospital in
Evanston, Wyoming, where he was treated and released. The
next day he and Budzik drove the truck, without trailers,
first to Salt Lake City and then back to Illinois. Upon his
return to Illinois, Bogdanski applied for and received
Illinois workers' compensation medical and disability
benefits for injuries to his right shoulder, right hip,
cervical spine, lumbar spine, and left arm.
In February of 2013, Bogdanski filed an action in the
Superior Court of California, Sacramento County, against
Viktor Marinov, the driver of the other truck involved in the
accident, as well as a number of parties associated with
Marinov. On February 10, 2015, Bogdanski filed a complaint in
the Third Judicial District, Uinta County, Wyoming, against
many of the same parties named in the California action, and
added Budzik and FedEx. Bogdanski's claims against FedEx
included direct negligence and vicarious liability for
Budzik's alleged negligence. In the count concerning
FedEx's vicarious liability, the complaint alleged that
Budzik "carelessly and negligently":
a. Negligently drove on roads in weather conditions that made
it highly probable that his truck would become stranded on
b. Failed to pull onto the shoulder when it became apparent
that heavy traffic and road conditions were going to force
him to stop his truck and become stranded on the highway;
c. Failed to heed mandatory tire chain requirements; and
d. Failed to activate his lights and/or emergency flashers so
as to be visible to other vehicles on the highway.
Bogdanski's claim against Budzik was for negligence. In
that count, the complaint alleged Budzik "carelessly and
a. Failed to pull on to the shoulder when traffic stopped;
b. Failed to drive in the right lane;
c. As Mr. Marinov testified, failed to turn on his lights
and/or emergency flashers to warn other vehicles on the
highway that he was stranded;
d. Negligently attempted to continue driving on terrain and
in weather conditions that made for reduced traction; and
e. Failed to utilize traction aids to prevent his truck from
On May 11, 2015, FedEx filed a written stipulation in which
it agreed to be responsible for Budzik's negligence, if
any such negligence were found. The stipulation stated:
1. On February 17, 2011, Damian Budzik was employed by BZ
Trucking, Inc., an independent contractor who provides
services to FedEx Ground. Mr. Budzik was driving a tractor
with plate number 1000349 (State of Indiana), and that
tractor was at the location of the accident that is the
subject of the Complaint . . . .
2. If the vehicle is found to have been negligently operated
while performing actions within the scope of the agency
relationship between FedEx Ground and Damian Budzik, FedEx
Ground agrees to be responsible for any such negligence.
3. This stipulation will not be shown or read to the jury.
On August 1, 2016, Budzik filed a motion for summary
judgment, asserting that he was entitled to coemployee
immunity because Bogdanski had received workers'
compensation benefits for his injuries. Bogdanski opposed the
motion. He asserted the evidence showed Budzik was not
entitled to immunity because he engaged in willful and wanton
misconduct by driving in a snowstorm at night and by getting
the truck stuck.
On October 14, 2016, FedEx filed its own motion for summary
judgment asserting multiple grounds on which it was entitled
to judgment as a matter of law. FedEx urged the district
court to hold that a plaintiff may not proceed against a
principal on independent negligence theories of negligent
hiring or training after the principal has admitted vicarious
liability. FedEx also asserted that there were no
facts in the record showing that either FedEx or Budzik
breached a duty of care or that their actions proximately
caused Bogdanski's injuries. Finally, FedEx argued
Bogdanski could not recover from it on a vicarious liability
claim because his claims against Budzik were barred by
coemployee immunity under the applicable workers'
On December 1, 2016, the district court entered an order
granting Budzik's summary judgment motion. It found that
Bogdanski's coemployee claims against Budzik were barred
because of his receipt of workers' compensation benefits,
and that this was true regardless of whether the court
applied Wyoming or Illinois workers' compensation law.
On the same date, the district court entered an order
granting FedEx's summary judgment motion. The court
concluded that Wyoming would adopt the McHaffie
rule, and on that basis ruled that FedEx was entitled to
judgment as a matter of law on Bogdanski's negligent
training claim. With respect to the remaining vicarious
liability claims, the court found the opinions of
Bogdanski's expert to be based on speculation, and it
concluded that Bogdanski had failed to oppose FedEx's
motion with evidence showing any issue of material fact.
[¶17] Bogdanski filed a timely notice of appeal from the
district court's order granting the FedEx summary
Our standard of review on 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. Gayhart v. Goody, 2004 WY 112,
¶ 11, 98 P.3d 164, 168 (Wyo. 2004). Summary judgment is
proper only when there are no genuine issues of material
fact, and the prevailing party is entitled to judgment as a
matter of law. Id. Summary judgments are not favored
in negligent actions. Cook v. Shoshone First Bank,
2006 WY 13, ¶ 12, 126 P.3d 886, 889 (Wyo. 2006).
However, summary judgments have been upheld in negligence
cases where the record did not establish a genuine issue of
material fact. Id.
Uinta County v. Pennington, 2012 WY 129, ¶ 11,
286 P.3d 138, 141-42 (Wyo. 2012).
The party requesting summary judgment bears the initial
burden of establishing a prima facie case that no genuine
issue of material fact exists and that summary judgment
should be granted as a matter of law. W.R.C.P. 56(c);
Throckmartin v. Century 21 Top Realty, 2010 WY 23,
¶ 12, 226 P.3d 793, 798 (Wyo. 2010). Until the movant
has made a prima facie showing that there are no genuine
issues of material fact, the nonmovant has no obligation to
respond to the motion with materials beyond the pleadings.
Once a prima facie showing is made, the burden shifts to the
party opposing the motion to present evidence showing that
there are genuine issues of material fact. Boehm v. Cody
Cntry. Chamber of Commerce, 748 P.2d 704, 710 (Wyo.
1987) (citing England v. Simmons, 728 P.2d 1137,
1140-41 (Wyo. 1986)). The party opposing the motion must
present specific facts; relying on conclusory statements or
mere opinion will not satisfy that burden, nor will relying
solely upon allegations and pleadings. Boehm, 748
P.2d at 710. However, the facts presented are considered from
the vantage point most favorable to the party opposing the
motion, and that party is given the benefit of all favorable
inferences that may fairly be drawn from the record.
[Union Pacific R. Co. v. ] Caballo Coal
Co., ¶ 12, 246 P.3d  at 871 [(Wyo. 2011)].
Summary judgments are not favored in negligence actions and
are subject to exacting scrutiny. Erpelding v.
Lisek, 2003 WY 80, ¶ 10, 71 P.3d 754, 757 (Wyo.
2003). However, even in negligence actions, "where the
record fails to establish an issue of material fact, [and
when the movant is entitled to judgment as a matter of law],
the entry of summary judgment is proper." Allmaras
v. Mudge, 820 P.2d 533, 536 (Wyo. 1991) ...