IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 115
APRIL TERM, A.D. 2015
August 21, 2015
RICHARD J. AMOS, JR., Wrongful
Death Personal Representative of
TAYLOR J. AMOS LYSAGER,
deceased,
Appellant
(Plaintiff),
v.
S-14-0283
LINCOLN COUNTY SCHOOL
DISTRICT NO. 2; and LINCOLN
COUNTY BOARD OF COUNTY
COMMISSIONERS, for the County of
Lincoln, Wyoming,
Appellees
(Defendants).
Appeal from the District Court of Lincoln County
The Honorable Dennis L. Sanderson, Judge
Representing Appellant:
James K. Lubing and Leah Corrigan of Lubing & Corrigan, LLC, Jackson, WY.
Argument by Ms. Corrigan.
Representing Appellees:
Stuart R. Day of Williams, Porter, Day & Neville, P.C., Casper, WY for Appellee
Lincoln County School District No. 2; and Thomas A. Thompson* and Phillip R.
Wulf of McPherson, Kelly, & Thompson, LLC, Rawlins, WY; for Appellee
Lincoln County Board of County Commissioners. Argument by Messrs. Day and
Wulf.
Before BURKE, C.J., and HILL, **KITE, DAVIS, and FOX, JJ.
*Order allowing withdrawal of counsel and substitution of counsel entered on December 31, 2014.
** Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5, § 5 of the
Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015) she was reassigned to act on
this matter on August 4, 2015.
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.
HILL, Justice.
[¶1] Five-year-old Taylor Lysager was attending a community basketball game at a
former school building in Etna, Wyoming, when an unsecured lunchroom bench fell on
him, causing a fatal head injury. Taylor Lysager’s personal representative filed a
wrongful death action against Lincoln County School District No. 2 (School District), the
Town of Thayne, Wyoming, and the Lincoln County Board of County Commissioners
(Lincoln County). The district court dismissed Lincoln County from the action without
prejudice based on Lincoln County’s affidavit of non-involvement. The court thereafter
entered summary judgment for the School District after finding no genuine issues of
material fact on the questions of breach of duty and proximate cause. Plaintiff appeals
both orders.
[¶2] We conclude that the order dismissing the action against Lincoln County is not a
final appealable order and dismiss Plaintiff’s appeal from that order. As to the order
granting the School District summary judgment, we find that while the material facts are
largely undisputed, reasonable minds might differ on the conclusions to be drawn from
those facts. This precludes summary judgment, and we therefore reverse.
ISSUES
[¶3] The dispositive issues presented by this appeal are:
1. Did the district court err in granting the School
District’s motion for summary judgment?
2. Is the district court’s order granting Lincoln
County’s motion to dismiss without prejudice a final
appealable order?
FACTS
A. Ownership of the Metcalf School Building
[¶4] In 2008, the School District completed construction of a new school in Etna,
Wyoming. With the completion of this new school, the School District stopped using the
Metcalf School in Etna, leaving that building vacant. The School District listed the
Metcalf School building for sale and upon doing so was approached by area residents
who expressed a desire to convert the school into a community center. Those residents
formed a group, referred to herein as the “Community Group,” that went by various
names, including Etna Community Center Group, North Lincoln Community Center
Group, and the Star Valley Community Center. After the Community Group presented
its ideas for the Metcalf School building to the School District, the District decided to
give the Community Group an opportunity to find a way to acquire the building.
1
[¶5] In April 2009, the Community Group approached the Lincoln County Board of
County Commissioners with a proposal to have Lincoln County support the Community
Group in an application for a Wyoming community facilities grant for the Metcalf School
building. Lincoln County agreed to pay for a feasibility study and sponsor the
Community Group's facilities grant and loan application. To that end, the Lincoln
County Board of County Commissioners held a public meeting on August 11, 2009 and
voted to approve the grant application, agreeing to the condition that if the grant were
awarded, Lincoln County would assume ownership of the Metcalf School building.
Because the grant application required documentation verifying that ownership of the
Metcalf School building would transfer to Lincoln County, the School District executed a
Purchase Agreement, which bore an August 2009 date and was signed by the chairman of
the School District’s Board of Trustees. That Purchase Agreement was submitted with
the August 2009 grant application but was not yet approved by Lincoln County or signed
by a representative of Lincoln County.
[¶6] On January 28, 2009, the State Loan and Investments Board approved the
community facilities grant for the Metcalf School building. On March 3, 2010, Lincoln
County and the School District, each acting through its respective board, agreed to terms
of a purchase agreement for the sale of the building to Lincoln County. On April 2, 2010,
a quitclaim deed dated March 31, 2010, was recorded with the Lincoln County Clerk
transferring ownership of the Metcalf School building from the School District to Lincoln
County.
B. Use of the Metcalf School Building and Taylor Lysager’s Accident
[¶7] At the end of July 2009, while Lincoln County was still considering the
community facilities grant application, the School District changed the locks on the
Metcalf School building and gave the Community Group keys to the building. Shortly
thereafter, before the grant was approved and ownership of the Metcalf School building
had been transferred to Lincoln County, numerous groups, working through the
Community Group, began using the building for their activities. One group that
frequently used the building was the Town of Thayne’s Recreation Program, which used
the facility for activities such as volleyball and basketball. These activities took place in
a part of the building that served the dual purpose of providing both a lunchroom and
gymnasium. To accommodate both uses, the area was equipped with heavy tables and
benches that folded into the wall and, for safety purposes, were then latched into place
and locked with a key. The gymnasium also incorporated an elevated stage with storage
rooms on each side of the stage.
[¶8] On February 9, 2010, the Town of Thayne held one of its basketball games in the
Metcalf School building. Taylor Lysager, who was five years old on that date, attended
the game with his grandparents, and during the game was playing with other children on
2
the stage. It is unknown who did it or when it was done, but a lunchroom bench had been
removed from the gymnasium wall and placed in one of the storage rooms adjacent to the
stage, propped against the wall. While playing, Taylor slid into that storage room and
into the lunchroom bench propped against the wall. The bench tipped over and fell on
top of Taylor, and he suffered a basal skull fracture, which the coroner reported likely
caused death instantly.
C. Wrongful Death Action
[¶9] On April 12, 2011, Taylor Lysager’s personal representative filed a wrongful
death action against the School District, the Town of Thayne, and Lincoln County. On
June 15, 2011, Lincoln County filed an affidavit of noninvolvement in lieu of an answer.
On October 25, 2011, the district court entered an order dismissing Lincoln County from
the action based on the affidavit of noninvolvement. The court specified that the
dismissal was without prejudice and commented:
The statute of limitation issue is of particular concern
and the Court specifically finds the plaintiff has done what
they can at this time but if there is a factual basis discovered
at a later time in the proceedings so Lincoln County can be
“reinstated” in this action and plaintiff shall not be denied
their day in Court because of a limitation claim. It is
specifically found the claim and action against Lincoln
County was timely filed. At this time, the Court finds there
are not enough facts to show that Lincoln County is
responsible but if facts come forward or are discovered that
show that Lincoln County is responsible, either directly or
indirectly, Lincoln County shall be reinstated as a
Defendant[.]
[¶10] The action against the Town of Thayne and the School District continued, and on
April 19, 2013, the School District filed a motion for summary judgment. It argued that
because the School District had turned over possession and maintenance of the Metcalf
School building to the Community Group, the District owed no duty to Taylor Lysager
and was thus entitled to judgment as a matter of law. On December 11, 2013, the district
court issued a decision letter denying the School District’s motion for summary
judgment. The court explained:
Viewing these basic facts in a light most favorable to
the Plaintiff, the School District, as the owner, is in the same
position as a landlord is to its tenants and their invitees. As
such, it owed all persons entering the building as invitees the
duty of reasonable and ordinary care under the circumstances.
3
Merrill v. Jansma, 2004 WY 26, ¶ 39, 86 P.3d 270, 287
(Wyo. 2004). Although the issue of what is the duty of a
person is a question of law, whether that duty of reasonable
care has been breached is a question of fact for the jury to
resolve. Because the Defendant had a duty of reasonable and
ordinary care, the motion of the Defendant on the basis that
no duty was owed to the Plaintiff is denied.
[¶11] Although the district court denied the School District’s motion on the question of
duty, the court also expressed concerns that the facts may not establish a breach of that
duty or that the District’s actions were a proximate cause of the accident. Because those
questions were not addressed in the School District’s first summary judgment motion, the
court allowed the School District twenty days to file a supplemental or second summary
judgment motion.
[¶12] On December 31, 2013, the School District filed a renewed summary judgment
motion, this time arguing that the School District did not breach its duty of care and that
its actions were not the proximate cause of Plaintiff’s injuries. On June 23, 2014, the
district court held a hearing on the School District’s renewed motion of summary
judgment and ruled during that hearing:
But it boils down to this, is that we’ve got someone
who left that leaning against the wall. I have no evidence.
You know, you can put it under a breach of duty or causation.
That’s essentially a foreseeable thing. I don’t find sufficient
evidence to show that the School District – that either one, the
element of breach of duty or the element of causation, that
that is sufficiently met to have it go to a jury.
****
I guess [the] best way I can put it is somebody left that
bench leaning up against the wall. It may have been in an
out-of-the-way place but we don’t know who did that and,
essentially, that is the negligence.
[¶13] On September 22, 2014, the district court issued its order granting the School
District’s renewed motion for summary judgment. The order incorporated the transcript
from the court’s hearing on the motion and further provided:
[T]here are no genuine issues of material fact and [the School
District] is entitled to judgment as a matter of law because the
actions and conduct [the School District] were not a direct,
proximate cause of the accident that is the subject of the
above captioned action or of the injuries alleged in this action.
4
In accordance with W.R.C.P. 54(b), the Court
determines that there is no just reason for delay and thus
directs entry of a final judgment as to the granting of
summary judgment for Lincoln County School District No. 2
only.
[¶14] Plaintiff thereafter filed a notice of appeal, designating as the orders appealed both
the order granting the School District’s renewed motion for summary judgment and the
order dismissing Lincoln County based on its affidavit of noninvolvement.
STANDARD OF REVIEW
[¶15] 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 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 non-movant has no obligation to respond
to the motion with materials beyond the pleadings. Id.
Once a prima facie showing is made, the burden shifts
5
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. Caballo
Coal Co., ¶ 12, 246 P.3d at 871.
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)).
Johnson v. Dale C., 2015 WY 42, ¶¶ 12-15, 345 P.3d 883, 886-87 (Wyo. 2015).
DISCUSSION
A. Order Granting Summary Judgment
[¶16] To establish a claim for negligence, a plaintiff must show: (1) the defendant owed
the plaintiff a duty of reasonable care; (2) the defendant breached that duty; and (3) the
defendant’s breach was the proximate cause of injury or loss to the plaintiff. Halvorson
v. Sweetwater County Sch. Dist. No. 1, 2015 WY 18, ¶ 9, 342 P.3d 395, 398 (Wyo. 2015)
(citing Collings v. Lords, 2009 WY 135, ¶ 6, 218 P.3d 654, 656 (Wyo. 2009)); see also
Johnson, ¶ 16, 345 P.3d at 887. Here, the district court found that the School District
owed Plaintiff a duty of reasonable care, but it concluded based on the undisputed facts
and as a matter of law that the School District had not breached that duty and that the
School District’s conduct was not a proximate cause of Plaintiff’s injuries. The district
court’s decision was based on its conclusion that if there were negligence in this case it
was in the leaning of the lunchroom bench unsecured against a wall and its finding that
the undisputed facts established that no one from the School District placed the bench and
the School District had no knowledge that the bench had been so placed.
6
[¶17] Plaintiff did not oppose the School District’s summary judgment motion with
evidence showing that a School District employee placed the lunchroom bench in the
storage room or that it knew or should have known of the bench’s placement. What
Plaintiff argued below and what he argues on appeal is that regardless of who mishandled
the bench, it remains a jury question whether the School District breached its duty of
reasonable care by failing to warn the Community Group of the dangers of mishandling
the lunchroom benches and tables and by failing to restrict access to the keys used to
unlock the benches and tables. Plaintiff further argues that whether that failure to warn
and restrict access was a proximate cause of the accident and Plaintiff’s damages is also a
jury question. We agree.
[¶18] As we noted in our standard of review above, summary judgments are not favored
in negligence actions. We have explained:
We are reminded of what was stated in Loney v. Laramie
Auto Co., 36 Wyo. 339, 354, 255 P. 350, 354, 53 A.L.R. 73,
that: “The issue of negligence or contributory negligence is
ordinarily one to be determined by the jury. 20 R.C.L. 109,
166. That is true, even in a case where the testimony, as in the
case at bar, is undisputed, if different minds may fairly arrive
at different conclusions, and where the inferences from the
facts are not so certain that all reasonable men, in the exercise
of fair and impartial judgment, must agree upon them.” And
in 65 C.J.S., Negligence, § 252, p. 1129, it is stated that: “The
question whether the conduct of defendant measured up to the
standard of ‘ordinary care,’ ‘reasonable prudence,’ ‘due
diligence,’ ‘reasonable care,’ or the like is usually to be
determined by the jury under proper instructions.” In Phillips
v. Denver City Tramway Co., 53 Colo. 458, 128 P. 460, 462,
Ann.Cas.1914B, 29, the court in stating the rule as to the
determination of negligence said: “It is only in the clearest of
cases, when the facts are undisputed and it is plain that all
intelligent men can draw but one inference from them, that
the question is ever one of law for the court.” [Emphasis
added.]
Jackson Hole Mt. Resort Corp. v. Rohrman, 2006 WY 156, ¶ 8, 150 P.3d 167, 170 (Wyo.
2006) (quoting Templar v. Tongate, 71 Wyo. 148, 255 P.2d 223, 230 (Wyo. 1953))
(footnote omitted).
[¶19] For the reasons we discuss hereinafter, we conclude that reasonable minds could
differ both on the question whether the School District breached its duty of reasonable
7
care and on the question whether its conduct was a proximate cause of the accident. We
thus agree with Plaintiff that these are questions that are properly submitted to the jury
rather than resolved on summary judgment.
1. Breach of Duty
[¶20] With regard to a property owner’s duty of care, this Court has held that “a
premises owner must use ordinary care to keep the premises in a safe condition and is
charged with an affirmative duty to protect visitors against dangers known to him and
dangers discoverable with the exercise of reasonable care.” Hendricks v. Hurley, 2008
WY 57, ¶ 12, 184 P.3d 680, 683 (Wyo. 2008) (citing Rhoades v. K–Mart Corp., 863 P.2d
626, (Wyo. 1993)). Ordinary care means “that care which an ordinarily careful person
would exercise under all the circumstances of the case.” Wyrulec Co. v. Schutt, 866 P.2d
756, 762 (Wyo. 1993) (quoting Pan Am. Petroleum Corp. v. Like, 381 P.2d 70, 72–74
(Wyo. 1963)). We have further explained:
A landowner in Wyoming owes a general duty to “act as a
reasonable man in maintaining his property in a reasonably
safe condition in view of all the circumstances, including the
likelihood of injury to another, the seriousness of the injury,
and the burden of avoiding the risk.”
Berry v. Tessman, 2007 WY 175, ¶ 9, 170 P.3d 1243, 1245 (Wyo. 2007) (quoting Clarke
v. Beckwith, 858 P.2d 293, 296 (Wyo. 1993)).
[¶21] With the exception of the identity of the individual who placed the bench in the
storage room, the material facts in this matter are not in dispute. We emphasize again,
however, that even where the material facts are largely undisputed, the question of
whether a defendant breached its duty is generally one left to the finder of fact. We have
explained:
The question of breach is often considered to be one of fact.
See generally Johnson v. Reiger, 2004 WY 83, ¶ 23, 93 P.3d
992, 999 (Wyo.2004); Lee v. LPP Mortg. Ltd., 2003 WY 92,
¶ 20, 74 P.3d 152, 160 (Wyo.2003); and Jones v. Chevron
U.S.A., 718 P.2d 890, 897 (Wyo.1986). This is particularly
true when “there appears to be no great disagreement about
the evidentiary facts, but the evidence is subject to conflicting
interpretations or reasonable minds might differ as to its
significance....” Roussalis v. Wyoming Med. Ctr., Inc., 4 P.3d
209, 229 (Wyo.2000). See also Bettencourt v. Pride Well
Serv., 735 P.2d 722, 726 (Wyo.1987) (issue should be
submitted to the fact finder if reasonable minds could reach
8
different conclusions and inferences from facts, even when
facts bearing upon negligence are undisputed).
Foote v. Simek, 2006 WY 96, ¶ 16, 139 P.3d 455, 461-62 (Wyo. 2006).
[¶22] It is undisputed that on the date of Taylor Lysager’s accident, the School District
owned the Metcalf School building and had turned the building over to the Community
Group for its use. In opposition to the School District’s summary judgment motion,
Plaintiff submitted evidence that: there was no written agreement governing the
Community Group’s use of the building; no instructions or directives were given to the
Community Group; the School District did not conduct a walk-through with the
Community Group to identify potential safety issues or hazards; and no steps were taken
to restrict access to the keys to the lunchroom benches and tables. The question then is
whether the School District used ordinary care under the circumstances when it turned
over possession of the building to the Community Group without taking steps to restrict
access to the keys that unlocked the lunchroom benches and tables and without warning
the Community Group of the dangers of mishandling those benches and tables.
[¶23] On this question, Plaintiff submitted the deposition testimony of: Steve Rich, the
School District’s facilities manager; Alan Linford, a former principal at Star Valley
Middle School and former school board chairman; and Justin Pierantoni, the principal of
the former Metcalf School. Steve Rich testified that the tables and benches were too
heavy for him to lift on his own and that if precautions were not taken to secure them,
they could cause injury. He further testified:
Q. If you had known that that table was on the
stage and a basketball game was going on, what would have
been your impression or opinion about that situation?
[Defense Counsel]: Object to the form of the question.
If you have an opinion.
Q. (By [Plaintiff's counsel]) Leaned up the way
you understand it to have been?
A. Leaned up the way it was, it – it was dangerous.
Alan Linford testified:
Q. Are you familiar with the benches in that
Metcalf School like the one that killed Taylor Lysager?
A. Yes.
Q. Do you believe that those benches are
dangerous if they're just leaned up against the wall and not
secured in some fashion?
A. Yes.
9
Q. And why is that?
A. They're supposed to be in a frame with a lock
that you slide into the wall and lock them, and if it’s just
leaning against the side of the wall, it would be – it would be
dangerous.
[¶24] Justin Pierantoni testified that the bench was dangerous leaned up against the wall
and if children were going to be in the area, the bench should have been either locked
back into place on the wall or placed on its side. He further testified:
Q. * * * And just for clarity and for the record,
why would you think that’s dangerous for it to be upright
against the wall?
A. I – I would – my fear would be is that it would
scissor out if it got – because it’s on wheels.
[¶25] Based on this evidence, we conclude that reasonable minds might differ on the
question of whether the School District knew or should have known that the lunchroom
tables and benches were dangerous if not handled and stored properly. Reasonable minds
might also differ on the question of whether ordinary care under these circumstances
required that the School District take precautions when turning over possession of the
building to the Community Group, such as restricting access to the keys to the lunchroom
benches and tables or warning of the dangers of mishandling or improper storage of the
benches and tables. In other words, reasonable minds could differ on the question of
whether the School District breached its duty of care, and the question is one properly
submitted to the jury.
2. Proximate Cause
[¶26] We turn next to the district court’s conclusion that based on the undisputed
evidence, the School District’s conduct was not, as a matter of law, the proximate cause
of the accident and Plaintiff’s damages. In particular, the court found, as a matter of law,
that the placement of the bench in the storage room by an unknown individual or
individuals was an intervening cause:
It appears to me that whatever we have here, that the [sic]
whoever did it is an intervening force, who left that up, and
we don’t know who it is. So I find that even if the School
District was a cause, it was not – it was overwhelmed by
whoever left it up there.
[¶27] We have distinguished proximate cause, remote cause, and intervening cause as
follows:
10
In order for proximate cause to exist, “the accident or
injury must be the natural and probable consequence of
the act of negligence.” Foote v. Simek, 2006 WY 96,
¶ 22, 139 P.3d 455, 463 (Wyo.2006). In fact, “[t]he
ultimate test of proximate cause is foreseeability of
injury. In order to qualify as a legal cause, the conduct
must be a substantial factor in bringing about the
plaintiff’s injuries.” Foote, ¶ 22, 139 P.3d at 464. In our
consideration of cases involving proximate cause, we
have discussed not only what constitutes proximate
cause, but also what does not:
In Lemos v. Madden, 28 Wyo. 1, 200 P. 791, 793 (1921),
this court first defined proximate cause as “[t]hat which,
in a natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
without which the result would not have occurred.” This
same definition has been relied upon in recent years.
Robertson v. TWP, Inc., 656 P.2d 547 (Wyo.1983);
Kopriva v. Union Pacific R. Co., 592 P.2d 711
(Wyo.1979). In Lemos v. Madden, supra, 200 P. at 794,
the court also rejected a “but for” rule of causation,
stating:
“ * * * But if the original wrong furnished only the
condition or occasion, then it is the remote and not
the proximate cause, notwithstanding the fact that
there would have been no loss or injury but for
such condition or occasion. * * * ”
In later cases our court has identified legal causation as that
conduct which is a substantial factor in bringing about the
injuries identified in the complaint. McClellan v. Tottenhoff,
Wyo. 666 P.2d 408 (Wyo.1983); Chrysler Corporation v.
Todorovich, 580 P.2d 1123 (Wyo.1978); Phelps v. Woodward
Construction Co., 66 Wyo. 33, 33, 204 P.2d 179 (Wyo.1949).
The obvious rationalization of that approach with the two
propositions found in Lemos v. Madden, supra, is that if the
conduct is “that cause which in natural and continuous
sequence, unbroken by a sufficient intervening cause
produces the injury, without which the result would not have
occurred,” it must be identified as a substantial factor in
bringing about the harm. If, however, it created only a
condition or occasion for the harm to occur then it would be
11
regarded as a remote, not a proximate, cause, and would not
be a substantial factor in bringing about the harm. An
alternative method for explaining these concepts is found in
the discussions of intervening cause in our cases. McClellan
v. Tottenhoff, supra; Kopriva v. Union Pacific R. Co., supra;
Gilliland v. Rhoads, 539 P.2d 1221 (Wyo.1975); Fagan v.
Summers, 498 P.2d 1227 (Wyo.1972); and Tyler v. Jensen, 75
Wyo. 249, 295 P.2d 742 (Wyo.1956). An intervening cause
is one that comes into being after a defendant’s negligent
act has occurred, and if it is not a foreseeable event it will
insulate the defendant from liability. It is reasonably
foreseeable if it is a probable consequence of the
defendant’s wrongful act or is a normal response to the
stimulus of the situation created thereby. Killian v. Caza
Drilling, Inc., 2006 WY 42, ¶ 20, 131 P.3d 975, 985
(Wyo.2006).
Lucero v. Holbrook, 2012 WY 152, ¶ 17, 288 P.3d 1228, 1234-35 (Wyo. 2012) (quoting
Collings v. Lords, 2009 WY 135, ¶ 6, 218 P.3d 654, 656–57 (Wyo. 2009)) (emphasis in
original).
[¶28] In Buckley v. Bell, 703 P.2d 1089, 1093 (Wyo. 1985), this Court elaborated on the
factors to be considered in determining whether an intervening cause will insulate a
defendant from liability by citing to the Restatement (Second) of Torts.
Section 442 then lists those considerations important in
determining whether an intervening force is a superseding
cause. The text language is:
Ҥ 442. Considerations Important in Determining
Whether an Intervening Force is a Superseding Cause
“The following considerations are of importance in
determining whether an intervening force is a
superseding cause of harm to another:
“(a) The fact that its intervention brings about harm
different in kind from that which would otherwise have
resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof
appear after the event to be extraordinary rather than
normal in view of the circumstances existing at the time
of its operation;
12
“(c) the fact that the intervening force is operating
independently of any situation created by the actor’s
negligence, or, on the other hand, is or is not a normal
result of such a situation;
“(d) the fact that the operation of the intervening force is
due to a third person’s act or to his failure to act;
“(e) the fact that the intervening force is due to an act of
a third person which is wrongful toward the other and as
such subjects the third person to liability to him;
“(f) the degree of culpability of a wrongful act of a third
person which sets the intervening force in motion.”
Buckley, 703 P.2d at 1093.
[¶29] As with the question of breach of duty, the question of proximate cause is one
“reserved for the trier of fact’s determination unless the evidence is such that reasonable
minds could not disagree.” Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 15, 176
P.3d 640, 644 (Wyo. 2008) (quoting Duncan v. Town of Jackson, 903 P.2d 548, 553
(Wyo. 1995)). The question in this case is whether the mishandling or improper storage
of the lunchroom bench was a natural or probable consequence, or a foreseeable
consequence, of the School District’s failure to instruct or warn the Community Group on
the proper handling and storage of the tables and benches or its failure to restrict access to
the keys to the tables and benches. In other words, if the gravity of the danger had been
addressed with the Community Group, might that have changed the manner in which the
tables and benches were handled and who was permitted access to the tables and
benches?
[¶30] Considering these factors, we believe reasonable minds could differ in answering
the questions of proximate and intervening cause. Certainly, reasonable minds might
differ on the question of whether the placement of the bench in the storage room was an
extraordinary act. Reasonable minds might also differ on the question of whether the
placement of that bench was an intervening force that acted independently from any
conduct on the part of the School District. For example, the record contains evidence that
before the accident involving Taylor Lysager, another child was injured when a table or
bench fell from the wall and struck the child. Reasonable minds might differ on whether
that suggests that the Community Group already had notice of the need to properly secure
the tables and benches and that any additional warning by the School District would have
been of little or no consequence.
[¶31] Our intent here is not to outline each conceivable question related to proximate
cause on which reasonable minds might differ but instead to illustrate that the question is
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truly one that belongs to the trier of fact. Because there is much on which reasonable
minds might disagree with respect to proximate cause, summary judgment was not
properly granted on that basis.
B. Order Dismissing Lincoln County
[¶32] Plaintiff next contends the district court erred in dismissing its action against
Lincoln County based on Lincoln County’s affidavit of noninvolvement. Because we
find that the order dismissing Lincoln County without prejudice is not a final appealable
order, we dismiss this portion of Plaintiff’s appeal.
[¶33] In addressing the finality of an order under Rule 1.05 of the Rules of Appellate
Procedure, this Court has said:
A judgment or final order must determine all liabilities of all
parties, Rule 54(a), W.R.C.P.; Hoback Ranches, Inc. v. Urroz,
622 P.2d 948 (Wyo.1981), and should leave nothing for
future consideration. Public Service Commission v. Lower
Valley Power and Light, Inc., 608 P.2d 660 (Wyo.1980). See
Rule 1.05, W.R.A.P.
Stone v. Stone, 842 P.2d 545, 548 (Wyo. 1992) (quoting In re Big Horn River System,
803 P.2d 61, 66 (Wyo. 1990)).
[¶34] Rule 54(b) of the Wyoming Rules of Civil Procedure provides as follows
concerning the finality of an order:
When more than one claim for relief is presented in an action,
whether as a claim, counterclaim, cross-claim, or third-party
claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon an express
determination that there is no just reason for delay and upon
an express direction for the entry of judgment. In the absence
of such determination and direction, any order or other form
of decision, however designated, which adjudicates fewer
than all the claims or the rights and liabilities of fewer than all
the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of decision is
subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all
the parties.
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W.R.C.P. 54(b) (LexisNexis 2015).
[¶35] The district court’s order granting the School District summary judgment included
a Rule 54(b) certification, but expressly limited the certification to the judgment entered
in favor of the School District:
In accordance with W.R.C.P. 54(b), the Court
determines that there is no just reason for delay and thus
directs entry of a final judgment as to the granting of
summary judgment for Lincoln County School District No. 2
only.
[¶36] The action below is not concluded and will continue against the Town of Thayne
and, now, against the School District. In the absence of a Rule 54(b) certification, the
order dismissing Plaintiff’s complaint against Lincoln County without prejudice is not a
final appealable order. See W.R.A.P. 1.05; see also Mobley v. McCormick, 40 F.3d 337,
339 (10th Cir. 1994) (“dismissal of the complaint is ordinarily a non-final, nonappealable
order (since amendment would generally be available)”).
CONCLUSION
[¶37] We find the district court erred in granting the School District’s motion for
summary judgment and reverse the entry of that order. With respect to the district court’s
order dismissing the complaint against Lincoln County, we conclude that the order is not
a final appealable order and dismiss the appeal of that order.
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