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Archer v. State ex rel. Wyoming Department of Transportation

Supreme Court of Wyoming

March 14, 2018

TIMOTHY ARCHER and RYANN ARCHER, individually and as wrongful death representatives of Sophia Archer, a minor, deceased, and as wrongful death beneficiaries and as natural parents and next friend of MA, a minor, LA, a minor, and OA, a minor, Appellants (Plaintiffs),
v.
STATE OF WYOMING, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION; CITY OF RIVERTON, A Wyoming governmental entity and local government; and RIVERTON PUBLIC WORKS DIRECTOR KYLE BUTTERFIELD, individually and in his official capacity, Appellees (Defendants).

         Appeal from the District Court of Fremont County The Honorable Norman E. Young, Judge

          Representing Appellants: Cynthia K. Van Vleet, Wind River Law Center, P.C., Riverton, Wyoming; Collin C. Hopkins, The Law Office of Collin Hopkins, P.C., Riverton, Wyoming. Argument by Mr. Hopkins.

          Representing Appellee State of Wyoming, ex rel. Wyoming Department of Transportation: Peter K. Michael, Wyoming Attorney General; Daniel E. White, Deputy Attorney General; Jesse B. Naiman, Assistant Attorney General. Argument by Mr. Naiman.

          Representing Appellees City of Riverton and Riverton Public Works Director Kyle Butterfield: John D. Bowers, Bowers Law Firm, PC, Afton, Wyoming.

          Before BURKE, C.J., and HILL [*] , DAVIS, FOX, and KAUTZ, JJ.

          FOX, JUSTICE.

         [¶1] This is a wrongful death case arising from the tragic death of a seven-year-old girl, who was struck and killed in a crosswalk on her way home from school. The driver held a valid Wyoming driver's license even though she had monocular vision, a glass eye, and could not have passed the eye exam, which was administered by an employee of the Wyoming Department of Transportation (WYDOT). The child's parents sued the WYDOT, the City of Riverton, Fremont County School District No. 25, and various employees of those governmental entities, asserting claims for wrongful death, negligent infliction of emotional distress, and loss of parental consortium (on behalf of the child's siblings). The claims against the school district and its employees were dismissed and Appellants do not appeal that decision. The district court held that governmental immunity barred the claims against the WYDOT, the City of Riverton, and their employees, and dismissed the complaint. Appellants appeal that order, and we affirm.

         ISSUES

         [¶2] 1. Does the WYDOT's performance of eye exams constitute a public service for which governmental immunity has been waived by Wyo. Stat. Ann. § 1-39-108?

         2. Did the City of Riverton provide a public service for which governmental immunity has been waived by Wyo. Stat. Ann. § 1-39-108 when it provided a marked street crossing?

         3. Did the Appellants preserve a claim that the governmental entities waived immunity under the insurance coverage exception at Wyo. Stat. Ann. § 1-39-118(b)(i)?

         FACTS

         [¶3] Because this is an appeal from an order granting motions to dismiss, "we accept the facts stated in the [amended] complaint as true and view them in the light most favorable to the plaintiff[s]." Town of Pine Bluffs v. Eisele, 2017 WY 117, ¶ 8, 403 P.3d 126, 128 (Wyo. 2017).

         [¶4] Sophia Archer and her sister, LA, were crossing the street at a marked crosswalk on their way home from school when Sophia was struck by a motor vehicle driven by Sandra Pennock. Sophia's mother, Ryann Archer, and her sister, OA, arrived at the scene while witnesses were performing CPR and before police officers had arrived. Sophia Archer suffered numerous injuries and likely died at the scene. Sandra Pennock received a driver's license from the WYDOT after successfully completing an eye exam, which it would have been impossible for her to pass in light of her monocular vision and glass eye. The WYDOT issued a handicapped vehicle identification to Ms. Pennock in 2015, two months before the accident, which noted her severe visual or audio handicap. The amended complaint alleges that the WYDOT eye examiner, defendant Jane Doe, "was a public employee acting within the scope of her employment and duties with the Wyoming Department of ...


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