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Dimick v. Hopkinson

Supreme Court of Wyoming

July 23, 2018

SKYLAR DIMICK and JENNY DIMICK, Appellants (Plaintiffs),
v.
SCOTT HOPKINSON; CHRIS HOPKINSON; HOPKINSON FAMILY TRUST; MARK III, LLC; MARK III ENTERPRISES, LLC; and FORT BRIDGER RENDEZVOUS TIN TIPI VILLAGE, Appellees (Defendants).

          Appeal from the District Court of Uinta County The Honorable Joseph B. Bluemel, Judge

          Representing Appellants: William R. Fix and Jessica E. Simons, Fix Law Office, Jackson, Wyoming. Argument by Mr. Fix.

          Representing Appellees: John D. Bowers, Bowers Law Firm, PC, Afton, Wyoming.

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

          FOX, Justice.

         [¶1] Skylar Dimick was injured when he fell into a septic tank on property owned by Scott Hopkinson. Mr. Dimick and his wife, Jenny Dimick, filed a negligence action against Mr. Hopkinson; his businesses; his family trust; and his wife, Chris Hopkinson; and sought punitive damages for their alleged willful and wanton misconduct. The district court found no issues of material fact and granted summary judgment to all defendants, concluding that Mr. Hopkinson and his businesses were protected by a valid release of liability signed by Mr. Dimick; Mr. Hopkinson committed no willful and wanton acts; Mrs. Hopkinson was neither a proximate cause of Mr. Dimick's injuries nor engaged in a joint venture with Mr. Hopkinson; and the family trust did not exist. We affirm.

         ISSUES

         [¶2] The Dimicks raise five issues on appeal, [1] which we rephrase and reorganize as follows:

1. Did the district court erroneously grant summary judgment to Scott Hopkinson, Mark III, LLC, Mark III Enterprises, LLC, and Fort Bridger Rendezvous Tin Tipi Village by finding that the release exculpated these defendants from liability for negligent conduct, and that Scott Hopkinson's conduct was not willful and wanton?
2. Did the district court erroneously grant summary judgment to Mrs. Hopkinson by concluding that she was not a proximate cause of Skylar Dimick's injuries, and that she was not engaged in a joint venture with Scott Hopkinson?
3. Did the district court erroneously find that there was no admissible evidence to create a genuine issue of material fact that the Hopkinson Family Trust exists?

         FACTS

         [¶3] Fort Bridger Rendezvous (the Rendezvous) is a four-day "mountain man" gathering held each year at the Fort Bridger State Historic Site in Uinta County, where enthusiasts reenact and celebrate the fur-trading era. Mark III Enterprises, LLC, [2] which is solely owned by Mr. Hopkinson, owns a 120-acre working ranch (the Ranch) adjacent to the historic site. During the Rendezvous, Mr. Hopkinson operates a portion of the Ranch as a temporary, for-profit campground for approximately 250-400 attendees known as "Fort Bridger Tin Tipi Village" (Tin Tipi Village). Each year, Mr. Hopkinson clears a hayfield on the Ranch and designates camping areas. Tin Tipi Village provides well water, portable toilets, commercial garbage containers, fire barrels, and firewood, and allows vendors to sell other amenities. Upon entering, campers sign a release of liability, pay a fee, and park their vehicles or campers in designated camping spaces. Mrs. Hopkinson performs various tasks in the office and around the campground.

         [¶4] The Dimicks, who had been attending the Rendezvous and camping at Tin Tipi Village for over twenty years, arrived at Tin Tipi Village on August 30, 2013. Mr. Dimick signed the "Fort Bridger Rendezvous 2013 Tin Tipi Parking Release & Waiver of Liability" (the Release), paid the entrance fee, parked their pickup and fifth-wheel camper in a campsite, and set up camp with his family. Soon after, Mr. Dimick's father reported that an irrigation ditch between the campsite and the portable toilets was slick to walk across. The previous year, when faced with the same problem, Mr. Dimick had found a wooden pallet on the Ranch property and placed it in the ditch as a dry walking surface. At the end of the Rendezvous, Mr. Dimick had returned the pallet to where he had found it. When his father reported the slick conditions, Mr. Dimick decided to retrieve the same pallet. Mr. Dimick drove his pickup less than a quarter mile on a dirt road into the Ranch property, parked his pickup, and walked about 20 or 30 feet off the road into a rough patch of land located outside the designated camping areas and used by the Ranch as a "work area." Among cut firewood, unused fire barrels, and other debris, he located what he believed to be the same pallet laying flat on a 15-foot, square concrete slab. Mr. Dimick testified:

I picked [the pallet] up with my left hand, kind of stepping in towards it to grab the bottom with my right hand. [I saw] a piece of metal that was underneath it, and didn't think anything was unusual with that. And when I stepped onto the metal, instantly [fell through an opening] into the septic tank and --
. . . .
Suddenly, I don't know where I am, and the pallet come down on top of me and smacked me against the side of the manhole.

         [¶5] Only a few days earlier, Mr. Hopkinson had hired United Services to empty the septic tank. The United Services agent accessed the tank from an opening at the top of the underground tank (level with the surface of the ground), measuring somewhere between 16- to 24-inches in diameter. The cement cover to the opening was either stuck or too heavy for one person to lift, and Mr. Hopkinson and the agent removed it together. Once removed, the agent informed Mr. Hopkinson that the cover was not safe; if stepped on, it could "swivel" and fall into the tank. After the agent finished cleaning out the tank, Mr. Hopkinson decided he would not reinstall the cover, either because it was faulty or because it was too heavy to put back himself. Instead, Mr. Hopkinson put a piece of sheet metal over the opening to keep out debris and placed a wooden pallet on top of the sheet metal to prevent someone from stepping on the sheet metal and falling into the tank. Once in place, he jumped up and down on the pallet to test its strength.

         [¶6] Mr. Dimick lifted the same pallet that Mr. Hopkinson had used to cover the opening, stepped on the sheet metal, and fell into the septic tank. As a result of the fall, Mr. Dimick suffered injuries requiring emergency medical treatment and subsequent surgeries. The Dimicks brought negligence claims against the defendants, seeking remuneration for their losses and, due to the defendants' alleged willful and wanton misconduct, punitive damages. Upon the defendants' motions, the district court granted summary judgment to all the defendants on various grounds, discussed in detail below. The Dimicks timely appealed.

         STANDARD OF REVIEW

         [¶7] A district court may grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." W.R.C.P. 56(c) (2016).[3]

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 . . . .
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.

Bogdanski v. Budzik, 2018 WY 7, ¶ 18, 408 P.3d 1156, 1160-61 (Wyo. 2018) (citations omitted). We review a district court's decision to grant summary judgment de novo, without giving deference to the district court's determinations. Stevens v. Anesthesiology Consultants of Cheyenne, LLC, 2018 WY 45, ¶ 24, 415 P.3d 1270, 1279 (Wyo. 2018) (citations omitted). We use the same materials and follow the same standards as the district court. Id. We view the record "from the vantage point most favorable to the party who opposed the motion, and . . . give that party the benefit of all favorable inferences that may fairly be drawn from the record." Id. (citation omitted). "Summary judgments are not favored in negligence actions and are subject to exacting scrutiny," but where there is no genuine issue as to any material fact and the prevailing party is entitled to judgment as a matter of law, the entry of summary judgment is proper. Bogdanski, 2018 WY 7, ¶ 18, 408 P.3d at 1161.

         DISCUSSION

         I. Did the district court erroneously grant summary judgment to Scott Hopkinson, Mark III, LLC, Mark III Enterprises, LLC, and Fort Bridger Rendezvous Tin Tipi Village by finding that the release exculpated these defendants from liability for negligent conduct, and that Scott Hopkinson's conduct was not willful and wanton?

         [¶8] A valid release of liability will protect a defendant from a suit in negligence; however, even if valid, a release is unenforceable when the plaintiff's injury resulted from the defendant's willful and wanton misconduct. Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 710 (Wyo. 1987). The district court found that the Release was valid and that Mr. Hopkinson's conduct was not willful and wanton, and thus granted summary judgment to the defendants protected by the Release: Mr. Hopkinson, Mark III, LLC, Mark III Enterprises, LLC, and Fort Bridger Rendezvous Tin Tipi Village. The Dimicks challenge the two findings underlying the district court's judgment.[4]

         A. Release from Negligence Actions

         [¶9] To determine whether a release of liability is valid, we consider the following four factors: "(1) whether a duty to the public exists; (2) the nature of the service performed; (3) whether the contract was fairly entered into; and (4) whether the intention of the parties is expressed in clear, unambiguous language." Boehm, 748 P.2d at 710; Massengill v. S.M.A.R.T. Sports Med. Clinic, P.C., 996 P.2d 1132, 1136 (Wyo. 2000). "An agreement passing scrutiny under these factors is valid, denying the signing party an action in negligence." Boehm, 748 P.2d at 710. The Dimicks allege that the Release is against public policy, and does not unambiguously release the defendants from claims of negligence.

         1. Public Policy

         [¶10] "Wyoming courts enforce exculpatory clauses releasing parties from liability for injury or damages resulting from negligence if the clause is not contrary to public policy." Schutkowski v. Carey, 725 P.2d 1057, 1059 (Wyo. 1986) (citations omitted). Generally, an exculpatory clause violates public policy if, pursuant to the first three factors of our test, the nature of the service performed involves a duty to the public-that is, an "essential" service-that creates an unfair bargaining advantage to the released party. See Massengill, 996 P.2d at 1136. An essential service is a "service of great importance to the public, which is often a matter of practical necessity for some members of the public." Id. (emphasis in original). Examples of businesses providing essential services include common carriers, hospitals and doctors, public utilities, innkeepers, public warehousemen, employers, and services involving extra-hazardous activities. Id.

         [¶11] In contrast, we have consistently held that recreation is not an essential service. See, e.g., Hall v. Perry, 2009 WY 83, ¶ 4, 211 P.3d 489, 490 (Wyo. 2009) (hunting/camping is a nonessential, recreational activity); Milligan v. Big Valley Corp., 754 P.2d 1063, 1065 (Wyo. 1988) (downhill skiing); Boehm, 748 P.2d at 707 (gun club membership); Schutkowski, 725 P.2d at 1058 (skydiving). Overnight camping at Tin Tipi Village is a recreational activity rather than an essential service of great importance or practical necessity. Mr. Dimick's testimony confirms that the Dimicks camped at Tin Tipi Village for recreational purposes:

Q. [Opposing counsel:] . . . what's your purpose for going to the rendezvous and staying on the property that you were injured on?
A. [Mr. Dimick:] Family gathering and to go to the rendezvous and see the different period costumes, shop in some of the ...

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