RB, Jr., an infant, by and through his next friends, Robby & Corrina Brown v. Big Horn County School District No. 3 ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 13
OCTOBER TERM, A.D. 2016
February 7, 2017
RB, JR., an infant, by and through his next
friends, ROBBY & CORRINA BROWN,
Appellants
(Plaintiffs),
v. S-16-0142
BIG HORN COUNTY SCHOOL
DISTRICT NO. 3,
Appellee
(Defendant).
Appeal from the District Court of Big Horn County
The Honorable Steven R. Cranfill, Judge
Representing Appellants:
Philip E. Abromats and Letitia C. Abromats of Philip E. Abromats, P.C., Greybull,
Wyoming. Argument by Ms. Abromats.
Representing Appellee:
Nicholas T. Haderlie and Christopher C. Voigt of Crowley Fleck PLLP, Sheridan,
Wyoming. Argument by Mr. Haderlie.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.
[¶1] RB and his friends were enjoying some of the exhilarating qualities of ice on the
sidewalk at Greybull Middle School when RB fell and suffered a broken tooth, fractured
nose, and some facial lacerations. He sued Big Horn County School District No. 3
(School District), alleging that it was negligent in failing to remove the ice that had
accumulated on the sidewalk. The district court granted the School District’s motion for
summary judgment, and RB appeals. We affirm.
ISSUES
[¶2] 1. Is the failure to file a W.R.C.P. 56.1 statement of undisputed material facts
fatal to RB’s appeal?
2. Is the question of whether there was a natural accumulation of snow and ice a
fact issue that should have been submitted to a jury?
3. Does the Greybull snow removal ordinance establish a heightened duty of
care?
4. Is RB’s comparative negligence a fact issue that must go to a jury?
FACTS1
[¶3] On February 20, 2014, RB and his classmates left the Greybull Middle School
gymnasium after their P.E. class and were returning to the classroom building next door.
While they were between buildings, RB and some friends spotted a patch of ice on the
sidewalk and began running and sliding on it. According to one student, the group was
having a contest to see who could slide the farthest, and another student testified that they
were sliding to see who could “do the coolest trick.” RB took his second turn to slide,
lost his balance, and fell on the ice, breaking a tooth, fracturing his nose, and lacerating
his face.
[¶4] The ice patch was described as large and of varying thickness. It was obvious and
not hidden from view in any way. RB and other witnesses testified that it did not appear
as if anyone had done anything to make the accumulation of ice worse than it would have
been naturally. One witness, however, testified that the students, including RB, had taken
snow from the grass and sprinkled it onto the ice in order to make it more slippery. Ice
melt had been applied to the patch by School District maintenance personnel.
1
For the reasons discussed infra at ¶¶ 7-8, we rely only on those facts presented to the district court by
the School District.
1
[¶5] The Town of Greybull had 0.01 inches of snow on February 20, 2014, the day of
the accident. There was no snow the previous day. The greatest amount of precipitation
received in Greybull in February was 0.08 inches on February 9. The maintenance
director for the School District and other witnesses testified that the district’s practice is
to remove snow and apply ice melt daily when snow or ice is present. There is no
evidence in the record that it failed to do so on the day of the accident.
STANDARD OF REVIEW
[¶6] We apply the following standard of review to a district court’s grant of summary
judgment in a negligence case:
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 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) (alteration in original) (citing MacKrell v. Bell H2S
Safety, 795 P.2d 776, 779 (Wyo. 1990)).
Amos v. Lincoln Cty. Sch. Dist. No. 2, 2015 WY 115, ¶ 15, 359 P.3d 954, 958-59 (Wyo.
2015) (some citations omitted).
DISCUSSION
I. Is the failure to file a W.R.C.P. 56.1 statement of undisputed material facts fatal to
RB’s appeal?
[¶7] The School District filed a motion for summary judgment, an accompanying brief,
and a Rule 56.1 statement. In response, RB filed a Brief in Opposition to Motion for
Summary Judgment, which included a statement of facts with citations to the record, but
2
RB did not file a separate Rule 56.1 statement of material facts at that time. One day
later, on the morning of the hearing on the School District’s motion for summary
judgment, RB filed his Rule 56.1 statement. At the hearing, the School District moved to
strike, and the district court granted the motion and struck RB’s Rule 56.1 statement.
[¶8] The School District argues that we should not review the district court’s decision
striking RB’s Rule 56.1 statement because RB did not raise the issue. 2 We agree.
Because RB did not appeal the issue in his opening brief, we will not decide whether the
district court abused its discretion in striking the statement. See Ultra Res., Inc. v.
McMurry Energy Co., 2004 WY 121, ¶ 11, 99 P.3d 959, 963 (Wyo. 2004). The School
District also contends that RB’s failure to file a Rule 56.1 statement is “fatal to this
appeal.”
[¶9] Rule 56.1 provides:
Upon any motion for summary judgment pursuant to Rule
56 of the Rules of Civil Procedure, in addition to the
materials supporting the motion, there shall be annexed to the
motion a separate, short and concise statement of the material
facts as to which the moving party contends there is no
genuine issue to be tried.
In addition to the materials opposing a motion for
summary judgment, there shall be annexed a separate, short
and concise statement of material facts as to which it is
contended that there exists a genuine issue to be tried.
Such statements shall include pinpoint citations to the
specific portions of the record and materials relied upon in
support of the parties’ position.
(Emphasis added.)
[¶10] “[S]tatements of undisputed facts under W.R.C.P. 56.1 do not establish those facts
standing alone. Rule 56.1 statements are only intended ‘to identify just what facts are
actually in dispute.’” Herling v. Wyo. Mach. Co., 2013 WY 82, ¶ 62, 304 P.3d 951, 966
(Wyo. 2013) (internal citation omitted). The purpose underlying rules such as W.R.C.P.
2
Even in his reply brief, RB does not argue that we should reverse the district court’s decision to strike
his Rule 56.1 statement. Rather, he takes the position that he essentially complied with the rule because
his brief contained facts with citations to the record and that the district court considered the facts
presented by him notwithstanding the stricken 56.1 statement (It is not apparent that is what the district
court did.). In addition, RB contends that even the facts presented by the School District, when viewed in
the light most favorable to RB, would be sufficient to find in his favor.
3
56.1 is to provide a tool “for district courts, permitting them to efficiently decide
summary judgment motions by relieving them of the onerous task of hunt[ing] through
voluminous records without guidance from the parties.” N.Y. State Teamsters
Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d Cir.
2005) (internal quotation marks and citations omitted). However, district courts may
decline to rely on such statements and may examine the evidence submitted by the parties
independently. Id. (“[T]he district court declined to rely solely on the parties’ . . .
statements, and instead ‘scour[ed] . . . the record’ independently.”).
[¶11] In Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 21, 261 P.3d 731, 737
(Wyo. 2011), we stated that “a party’s failure to comply with Rule 56.1 by pointing out to
the district court the facts creating a genuine issue of material fact may be fatal to an
appeal.” (Emphasis added.) There, L & R moved for summary judgment but failed to
file its Rule 56.1 statement. Id. Ms. Grynberg did not object until after the district court
heard and ruled on the motion, and we affirmed the district court’s ruling that the
objection was waived. Id.
[¶12] Here, however, the School District did raise RB’s noncompliance with Rule 56.1
in a timely fashion. Nonetheless, the belated filing of RB’s Rule 56.1 statement, and its
subsequent removal from the record, is not fatal to his appeal. While the Rule 56.1
statement was stricken by the district court and continues to be stricken because RB did
not appeal that issue, RB’s argument for reversal of the summary judgment order is not
based on a contention that disputed issues of fact existed; rather, he argues that the
School District was not entitled to judgment as a matter of law. We accept the School
District’s statement of undisputed facts, along with RB’s concession that those facts do
not differ materially from those he attempted to present, and conclude that, under these
circumstances, his failure to file a Rule 56.1 statement is not fatal to his appeal. The facts
are adequately presented to allow us to address the issues of law.
II. Is the question of whether there was a natural accumulation of snow and ice a
fact issue that should have been submitted to the jury?
[¶13] To establish negligence, a plaintiff must prove that (1) the defendant owed the
plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the
duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is
compensable by money damages. Valance v. VI-Doug, Inc., 2002 WY 113, ¶ 8, 50 P.3d
697, 701 (Wyo. 2002). “The application of the natural accumulation rule relates to the
threshold question of whether a duty exists . . . .” Selby v. Conquistador Apartments,
Ltd., 990 P.2d 491, 494 (Wyo. 1999). Typically, the question of the existence of a duty is
a question of law determined by the courts. Id.
[¶14] In Wyoming, we apply the natural accumulation rule to premises liability claims.
That rule provides:
4
[A] proprietor is not considered negligent for allowing the
natural accumulation of ice due to weather conditions where
he has not created the condition. The conditions created by
the elements, such as the forming of ice and falling of snow,
are universally known and there is no liability where the
danger is obvious or is as well known to the plaintiff as the
property owner.
Bluejacket v. Carney, 550 P.2d 494, 497 (Wyo. 1976); see also Paulson v. Andicoechea,
926 P.2d 955, 957 (Wyo. 1996). We adopted the natural accumulation rule in Watts v.
Holmes, 386 P.2d 718, 719 (Wyo. 1963), where we held that a store owner cannot be
considered negligent “for allowing the natural accumulation of ice due to weather
conditions, where he has not created the condition.”
[¶15] The rationale underlying the rule is that “[t]he plaintiff is in a much better position
to prevent injuries from ice or snow because the plaintiff can take precautions at the very
moment the conditions are encountered.” Eiselein v. K-Mart, Inc., 868 P.2d 893, 898
(Wyo. 1994). When the snow or ice occurs naturally, the defendant is not in any better
position than the plaintiff to foresee and prevent injuries, and therefore the defendant has
no duty to remove the hazard. Thus, “the open-and-obvious-danger exception is
contained within, and is part and parcel of, the natural accumulation rule.” Valance, 2002
WY 113, ¶ 10, 50 P.3d at 701; see also Paulson, 926 P.2d at 957.
[¶16] The natural accumulation rule, however, ceases to apply when
the accumulation of ice or snow is not a natural accumulation,
but rather an artificial condition created by the defendant. If
the defendant creates the hazard, then it is in within the
defendant’s control and he is in a better position to foresee
and prevent injuries resulting from the hazard.
Eiselein, 868 P.2d at 898. Where the accumulation of ice or snow is not “natural,” a
proprietor has a duty of care to invitees3 on the premises. In Eiselein, we held that “an
unnatural accumulation of ice . . . will be found if the owner or occupier creates an
accumulation of water in a manner substantially different in volume or course than would
naturally have occurred.” Id. (emphasis in original). In Pullman v. Outzen, 924 P.2d
416, 418 (Wyo. 1996), we modified that test, holding that
3
We recognize that Wyoming law no longer distinguishes between invitees and licensees, see Clarke v.
Beckwith, 858 P.2d 293, 294 (Wyo. 1993) (We “abandon a portion of the common-law rule which
distinguishes between tort claimants on the basis of whether their status is licensee or invitee.”), and use
the term “invitee” only because that is the term used in many of our cases examining the question of
whether any specific accumulation is “natural.”
5
[t]o prove that an accumulation of snow and ice is unnatural,
a plaintiff must show that the defendant created or aggravated
the hazard, that the defendant knew or should have known of
the hazard, and that the hazardous condition was substantially
more dangerous than it would have been in its natural state.
Id.; see also Pinnacle Bank v. Villa, 2004 WY 150, ¶ 6, 100 P.3d 1287, 1290 (Wyo.
2004); Selby, 990 P.2d at 494; Paulson, 926 P.3d at 957. We have also held that “no duty
exists which requires either the removal of an obvious danger or a warning of its
existence.” Pinnacle Bank, 2004 WY 150, ¶ 6, 100 P.3d at 1290.
[¶17] The district court concluded that the accumulation of ice in this case was both
obvious and natural, and granted summary judgment to the School District on the
question of whether there was a duty. On appeal, RB contends that there is a fact issue
whether the ice on the sidewalk was a natural accumulation or whether its condition was
aggravated by the School District when it applied ice melt, creating an unnatural
accumulation. In addition, RB argues that a jury could conclude that the School District
was negligent in applying an insufficient amount of ice melt. The School District argues
that the hazard was natural and presented an obvious danger.
[¶18] Our previous applications of the natural accumulation rule have arisen in a variety
of scenarios from which it is not always easy to discern a clear rule.4 In Pullman, the
appellant fell on snow and ice that had accumulated on steps and been packed by
pedestrian traffic. 924 P.2d at 417-18. We concluded that “pedestrian packed snow and
ice is not substantially more dangerous than snow and ice in its natural state,” and we
held that it “is a natural accumulation” such that the owner of the premises was not liable
for injuries sustained as a result of a slip and fall on that accumulation. Id. at 418.
[¶19] Similarly, in Paulson, we held that packed and frozen snow in a parking lot is a
natural accumulation. 926 P.2d at 958. Although the record established that “it had
snowed on the parking lot, that ice had built up, and that Cody Motel did not undertake to
remove the snow and ice,” we explained that Paulson could not establish the motel’s
liability because she had failed to establish that the snow and ice was “in a substantially
more dangerous state than its natural state.” Id. We also noted that “Paulson was aware,
or should have been aware, of the open and obvious danger the snow and ice posed in the
parking lot.” Id.
4
The natural accumulation rule has been criticized as a rule with numerous shortcomings that has
produced “irreconcilable decisions in Wyoming.” Valence, 2002 WY 113, ¶¶ 19-28, 50 P.3d at 704-05
(Spangler, D.J., retired, dissenting) (calling for the abrogation of the natural accumulation rule); see also
Eiselein, 868 P.2d at 899-900 (Macy, C.J., specially concurring) (criticizing the natural accumulation rule
as “incompatible” with Wyoming’s comparative-negligence statute).
6
[¶20] By contrast, in Eiselein, the appellant had fallen on a patch of black ice in the
K-Mart parking lot. She claimed that K-Mart was negligent in failing to inspect the lot,
warn its customers of the icy condition, and place salt or sand on the icy spots. Eiselein,
868 P.2d at 894. We reversed summary judgment and remanded, directing the district
court to determine whether there was a question of fact concerning whether the
accumulation was natural or unnatural. Id. at 898. In Selby, Mrs. Selby, a resident of the
Conquistador apartment complex, fell on a patch of ice next to a dumpster and broke her
leg. 990 P.2d at 493. The dumpster was located in the parking lot of the complex and the
evidence revealed that the manager usually plowed and applied ice melt to the area
around the dumpster, except when a car was parked close to the dumpster, preventing
plow access. Id. On the day of Mrs. Selby’s injury, the weather was dry and much of the
snow in the parking lot had melted; however, the area between the dumpster and a parked
vehicle was shaded by the vehicle and a patch of black ice had formed. Id. Mrs. Shelby
alleged that Conquistador was negligent in its maintenance of the parking lot and the
district court granted Conquistador summary judgment. Id. On appeal, we concluded
that there were material facts at issue regarding whether Conquistador aggravated the
accumulation of ice around the dumpster by locating the dumpster in such a position that
resulted in the accumulation of ice between the parked car and the dumpster. Id. at 495-
96.
[¶21] In Valance, we again concluded that there was a question of fact regarding
whether the defendant had created a hazardous condition. 2002 WY 113, ¶ 16, 50 P.3d at
704. That case concerned the wind, which we recognized was a naturally occurring
force, like snow and ice, and we applied the same test to determine whether a duty
existed. Id., ¶ 12, 50 P.3d at 702-03. On an especially windy day, Mrs. Miles and her
grandson decided to dine at the Village Inn Restaurant. Id., ¶ 5, 50 P.3d at 700. A sign
on the door instructed patrons to “Please Hold Door Tight Due to Wind,” id., ¶ 13, 50
P.3d at 703, and Mrs. Miles testified that she followed the sign’s directions, and as she
opened the door, a strong gust of wind caught it, causing her to fall to the ground and
break her hip. Id., ¶ 5, 50 P.3d at 700. The district court concluded that the wind was
naturally occurring and granted summary judgment to the owner of the restaurant. Id.
¶ 6, 50 P.3d at 700. On appeal, we affirmed in part, reversed in part, and remanded,
holding that there remained questions of fact as to whether the restaurant:
(1) created a hazardous situation by directing patrons to take
specific action; (2) knew or should have known the directions
given could create a hazard to patrons; and, finally, (3) by
giving directions, created a hazardous condition substantially
more dangerous than it would have been in the absence of the
directions.
Id., ¶ 16, 50 P.3d at 704.
7
[¶22] The undisputed facts distinguish this case from all of our precedent. The School
District placed ice melt on the patch of ice where RB fell, and thus, the ice was altered.
However, to prove that the ice was in an unnatural state for the purposes of establishing
premises liability, RB was required to show (1) that the School District created or
aggravated the hazard, (2) that the School District knew or should have known of the
hazard, and (3) that the hazardous condition was substantially more dangerous than it
would have been in its natural state. Pullman, 924 P.2d at 418. There is no evidence
indicating a fact dispute as to whether the School District created or aggravated the ice, or
whether the condition was more dangerous than it would have been in its natural state.
Deposition testimony confirmed that the School District undertook to remove snow and
ice from the premises on a daily basis, and did not do anything to make the hazard more
dangerous than it was naturally.
[¶23] RB argues that the ice melt created “rotten ice” which caused RB’s sliding motion
to be impeded, aggravating the slippery condition of the ice. Other jurisdictions have
examined whether the application of salt or ice melt changes the condition of snow or ice
for purposes of the natural accumulation rule. For example, in Harkins v. System
Parking, Inc., 542 N.E.2d 921, 924 (Ill. App. Ct. 1989), the plaintiff had argued that ice
in a parking lot was not in a natural condition because the defendant had salted the area.
The appellate court rejected that argument, holding that “[t]he mere sprinkling of salt,
causing the ice to melt, although it may later refreeze, does not aggravate a natural
condition so as to form a basis for liability on the part of the property owner.” Id.
(citations omitted). See also Barber v. G.J. Partners, Inc., 974 N.E.2d 452, 457 (Ill. App.
Ct. 2012) (finding no liability where the defendant plowed the parking lot and placed salt
on metal plates); Lehman v. Cracker Barrel Old Country, No. 2004-CV-0048, 2005 WL
267658, ¶ 30, at *4 (Ohio Ct. App. 2005) (“[T]he mere fact that Cracker [B]arrel salted
the sidewalk and then allowed the sidewalk to freeze again does not turn a natural
accumulation of snow and ice into an accumulation that is unnatural.”); Zielinski v.
Szokola, 423 N.W.2d 289, 293-94 (Mich. Ct. App. 1988) (overruled on other grounds by
Robinson v. City of Detroit, 586 N.W.2d 116 (Mich. Ct. App. 1998) (holding that ice that
had been salted was a natural accumulation because “Salting does not create a hazard,
instead it only alleviates, albeit temporarily, a hazard that already existed.”); Riccitelli v.
Sternfeld, 115 N.E.2d 288, 290 (1953) (finding no liability where the defendant shoveled,
an alternate thaw and freeze caused snow to melt, run onto sidewalk and freeze, and the
defendant applied rock salt to the ice). We agree with the reasoning of these cases and
find that, while application of ice melt may have altered the condition of the ice, there is
no evidence to suggest that it made the condition of the ice more dangerous. There are no
facts in dispute that could lead to a conclusion that the School District had any duty
arising from the presence of ice on the school’s sidewalk.
[¶24] This conclusion is supported by important policy considerations. We reside in a
climate where there are frequent snowstorms and sudden changes of temperature.
Shoveling and plowing snow-covered walks, driveways and parking lots, and applying
8
ice melt to ice-covered areas, are behaviors which should be encouraged. See Barber,
974 N.E.2d at 457. “[S]alting, shoveling, or applying deicer to a natural ice accumulation
does not transform it into an unnatural one. To find otherwise would punish business
owners who, as a courtesy to invitees, attempt to make their premises safe.” Scott &
White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 419 (Tex. 2010).
[¶25] There is no dispute that the danger was obvious -- that is the reason RB and his
friends chose that spot to run and slide. The district court properly concluded that there
was no issue of fact regarding whether the accumulation of ice was natural, and we affirm
its grant of summary judgment on that issue.
III. Does the Greybull snow removal ordinance establish a heightened duty of care?
[¶26] The district court concluded that “the violation of an ordinance cannot be used to
establish a landowner’s negligence per se” and granted summary judgment on RB’s claim
that the School District’s alleged violation of the Greybull snow removal ordinance
constituted negligence per se. RB argues that the School District’s duty of care was
established by the Greybull snow removal ordinance. In other words, notwithstanding
the absence of a common-law duty to remove natural accumulations of snow and ice, a
municipal ordinance requiring snow removal imposes an additional duty on a defendant.
In the alternative, RB contends that a violation of the ordinance is, at a minimum,
evidence of negligence. In response, the School District argues that the ordinance has no
bearing on the facts of this case, as it does not apply and was not violated.
[¶27] In Pinnacle Bank, we considered the impact of a snow removal ordinance on the
common-law duty to remove unnatural accumulations of snow and ice. There, we
explained that the violation of a snow removal ordinance “might be used as evidence of
the landowner’s negligence, but it would not establish the landowner’s negligence per
se[,]”and we commented that “when a conglomeration of circumstances are relied on in
order to find the statutory or regulatory violation, use of the negligence per se doctrine is
not desirable.” Pinnacle Bank, 2004 WY 150, ¶ 8, 100 P.3d at 1290-91. We then
articulated the proper role an ordinance might play in a negligence action. We
recognized that Worland’s snow removal ordinance5 evidenced the city’s “clear intent” to
5
The City of Worland’s ordinance specified
that it is the affirmative duty of an occupant, owner, or agent of property
within the city limits of Worland, Wyoming to keep the sidewalks in
front of and adjoining the premises safe and clear for pedestrians and to
repair the same from time to time. This duty explicitly includes the
responsibility to remove snow, ice, slush, mud, or other impediment
with all reasonable dispatch to assure safe and convenient foot travel.
Id., 2004 WY 150, ¶ 10, 100 P.3d at 1291 (emphasis added).
9
establish a “heightened standard of care,” id., ¶ 10, 100 P.3d at 1291, and held that the
city’s “ordinance creates an affirmative duty for an owner, occupant, or agent of property
within the city limits to remove snow, ice, slush, or other impediment with all reasonable
dispatch.” Id., ¶ 13, 100 P.3d at 1292. With the application of a heightened standard of
care, there was no need to determine whether the accumulation in that case was natural or
unnatural. Id.
[¶28] In Paulson, we also considered the impact of local ordinances on the common law
duty to remove natural accumulations of snow and ice. Paulson relied upon two Rock
Springs ordinances to argue that the Cody Motel had a heightened duty to remove snow
and ice from its parking lot. Paulson, 926 P.2d at 958. The first ordinance required
owners or occupiers of premises within the city to keep sidewalks free of snow and ice.
Id. We held that because Paulson had fallen in a parking lot, not on a sidewalk, that
ordinance was irrelevant. Id. The second ordinance prohibited “causing or permitting a
pool of water to form, stand or flow upon any street, sidewalk, alley or other public
ground.” Id. We concluded that because there was no evidence in the record that the
motel had caused or permitted a pool of water to form, that ordinance could not support
Paulson’s claim that it created a duty applicable to her. Id. at 958-59.
Here, Greybull’s Municipal Ordinance 12.12.020 provides:
Within 24 hours after any accumulation of snow
greater than one-half inch, all persons and places of business
shall cause the snow to be removed from the sidewalks
in front of and adjacent to the premises occupied or owned by
them.
Greybull, Wyo., Code § 12.12.020 (2009, Supp. Oct. 25, 2016).
[¶29] The School District argues that this ordinance does not apply because it only
applies to snow and because there was not a half-inch accumulation of snow in Greybull
during the month of February 2014. It is undisputed that RB fell while sliding on a patch
of ice, not snow, and the ordinance requires “snow to be removed,” not ice. Thus, it
would appear that the School District’s position is correct.
[¶30] RB counters, however, that the ice may have been formed by foot traffic on snow
that had not been removed. He asserts, “It could very easily be that, being on a heavily
traveled route between the gym and the middle-school classrooms, the snow had been
packed down and turned to ice.” The problem with this assertion is that it is speculative.
“Speculation, conjecture, the suggestion of a possibility, guesses, or even probability are
insufficient to establish an issue of material fact.” Jones v. Schabron, 2005 WY 65, ¶ 11,
113 P.3d 34, 38 (Wyo. 2005); see also Knight ex rel. Knight v. Estate of McCoy, 2015
WY 9, ¶ 24, 341 P.3d 412, 418 (Wyo. 2015). There is nothing in the record to indicate
10
that foot traffic packed the snow to create the ice. There is no evidence or testimony
regarding how the ice patch formed, nor is there any evidence suggesting that snow had
remained on the sidewalk and had been trampled down. In fact, the undisputed evidence
is that, as a matter of course, the School District removed snow every morning when
there was an accumulation, and there is no evidence that it failed to do so. The snow
removal ordinance is irrelevant to these facts. It does not create a separate or heightened
duty of care, nor is it evidence of negligence.
IV. Is RB’s comparative negligence a fact issue that must go to a jury?
[¶31] In its decision letter, the district court remarked that “[t]he Plaintiff testified in his
own deposition that he would not have fallen if he had not run and slid on the ice.” RB
contends that any consideration of his decision to slide on the ice pertains to the issue of
comparative negligence, and thus the district court erred when it alluded to this choice to
rule on the School District’s summary judgment motion. In making this argument, RB
relies upon Pinnacle Bank, in which we stated that once a heightened duty is found based
upon the existence of an ordinance, the open-and-obvious-danger rule would apply for
comparative negligence purposes. 2004 WY 150, ¶ 12, 100 P.3d at 1291-92.
[¶32] Here, however, we have determined that there was no duty -- the accumulation
was natural and obvious and there was no other duty based upon Greybull’s ordinance
because it did not apply to the facts of this case. Therefore, RB has failed to establish a
prima facie case of negligence. As a result, we need not address the question of his
comparative negligence. See Wyo. Stat. Ann. 1-1-109 (LexisNexis 2015).
CONCLUSION
[¶33] RB’s late filed Rule 56.1 statement, and its subsequent removal from the record, is
not fatal to his appeal. There are no genuine issues of material fact; the School District
had no duty either under the natural accumulation rule or based on Greybull’s snow
removal ordinance. As a result, RB cannot establish a prima facie case of negligence.
Consequently, we do not reach the question of comparative negligence. Affirmed.
11