Brebaugh v. Hales , 1990 Wyo. LEXIS 28 ( 1990 )

MACY, Justice,

concurring in part and dissenting in part.

. I agree with the majority’s decision that Dravo Coal Company is an employer which, under the facts of this case, enjoys the same immunity as is afforded to the partnership. I am concerned, however, that the majority has interpreted too broadly our decision in Hays v. State ex rel. Wyoming Workers’ Compensation Division, 768 P.2d 11 (Wyo.1989). While general partnership law dictates that “[a] partnership is not an entity separate from its partners,” id. at 14, a partner could agree to exist as a separate entity.

I disagree with the majority’s decision to affirm the district court’s grant of summary judgment on the issue of culpable negligence. The majority acknowledges that a party may establish culpable negligence by

demonstrating that an actor has intentionally committed an act of unreasonable character in disregard of a known or obvious risk that is so great as to make it highly probable that harm will follow.

Bryant v. Hornbuckle, 728 P.2d 1132, 1136 (Wyo.1986), quoted in Baros v. Wells, 780 P.2d 341, 343 (Wyo.1989) (emphasis added).

In this case; Brebaugh, unlike Baros, presented sufficient evidence which demonstrated the existence of a genuine issue of material fact. The record shows that Bre-baugh’s supervisory co-employees failed to follow instructions in a splicing manual which directed workers to maintain clamps and tension on the belt while they completed the splicing procedure. Although the majority states that the failure to follow the directions in the manual did not show the requisite state of mind needed to establish culpable negligence, I am of the opinion that such failure and every favorable inference which may be drawn therefrom demonstrate that there is a genuine issue of material fact which should be presented to a trier of fact. Albrecht v. Zwaanshoek Holding En Financiering, B.V., 762 P.2d 1174 (Wyo.1988); Garner v. Hickman, 709 P.2d 407 (Wyo.1985).