Daniels v. Carpenter

62 P.3d 555

2003 WY 11

Kenneth Wayland DANIELS, individually and by and through his parent and guardian, Cynthia Rice, Appellants (Plaintiffs), v. Marilyn and David CARPENTER, Appellees (Defendants).

No. 01-224.

Supreme Court of Wyoming.

January 28, 2003.

Richard K. Blundell of the Law Office of Richard K. Blundell, Greeley, Colorado; and Tom Sedar, Casper, Wyoming, Representing Appellants.

S.B. Freeman, III of Bormuth & Freeman, LC, Cody, Wyoming, Representing Appellees.

Before HILL, C.J., and GOLDEN, LEHMAN,¹ KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] This is an appeal from the district court's dismissal of the appellant's complaint for failure to state a claim upon which relief can be granted and its denial of appellant's motion for leave to amend the complaint. We affirm the dismissal because the complaint did not allege facts that would entitle the appellant to relief. We affirm the denial because the appellant did not support his oral motion with facts justifying amendment.

ISSUES

[¶ 2] The issues presented by the parties can conveniently be restated as follows:

1. Whether Wyoming law imposes a duty upon the appellees, under the circumstances of this case, to protect the appellant from harm caused by an intoxicated minor social guest?

2. Whether the district court abused its discretion in denying the appellant's motion for leave to amend the complaint?

FACTS

[¶ 3] Since this appeal results from the granting of a W.R.C.P. 12(b)(6) motion, we will accept the facts set forth in the complaint as true and will view those facts in the light most favorable to the appellant. Feltner v. Casey Family Program, 902 P.2d 206, 207 (Wyo.1995). On May 10, 1997, Kenneth Daniels² (the appellant), Michael T. Jefferson (Jefferson) and other teenaged boys spent the night in a trailer or camper "on land owned by, in the control of, and resided upon by" David and Marilyn Carpenter (the appellees). During the night, Jefferson became highly intoxicated. At about 5:00 a.m., some of the boys, including the appellant, Jefferson, and Ryan Carpenter (Carpenter), left the appellees' property.³ After leaving the property, the boys borrowed a car from Anthony Pacino. At about 6:58 a.m., with Jefferson driving, the car left the road at a high rate of speed and wrecked. Jefferson and Carpenter were killed and the appellant was injured. Jefferson's blood alcohol content at the time of the accident was 0.09%.

[¶ 4] Based on these facts, the appellant sued the appellees, alleging (1) the appellees had a duty to control and supervise the actions of the teenagers; (2) the appellees knew or should have known that Jefferson was intoxicated; (3) the appellees breached their duty to control and supervise Jefferson by allowing him to drink alcoholic beverages and then allowing him to leave their home and drive a vehicle while he was intoxicated; and (4) the appellees' negligent control and supervision of Jefferson was a direct and proximate cause of the appellant's injuries.

[¶ 5] The appellees separately filed motions to dismiss the complaint under W.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted.⁴ The motions, which are identical, contend that (1) the accident did not occur on the appellees' property; (2) the appellees did not own the vehicle that wrecked; (3) Jefferson was not the appellees' son; (4) Jefferson was driving the car for his own purposes and was not on a mission for the appellees; (5) Jefferson and the other teenagers were acting without the appellees' consent or knowledge; and (6) therefore, the appellees owed no statutory or common law duty to the appellant to protect him from the accident that caused his injuries.

[¶ 6] The district court granted the appellees' motions to dismiss, finding that the facts set forth in the complaint did not establish circumstances that would create a duty owed by the appellees to the appellant. The district court also denied the appellant's motion for leave to amend the complaint. This appeal followed.

DISCUSSION

W.R.C.P. 12(B)(6) DISMISSAL

In pursuing review of an order dismissing a complaint, we accept all facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Gillis v. F & A Enterprises, 934 P.2d 1253, 1254-55 (Wyo.1997). In Gillis, we reiterated that dismissal is a drastic remedy which should be granted sparingly. We sustain a dismissal pursuant to W.R.C.P. 12(b)(6) only when it is certain from the face of the complaint that the plaintiff cannot allege any facts that would entitle him to relief.

Garnett v. Brock, 2 P.3d 558, 562 (Wyo.2000). See also Duncan v. Afton, Inc., 991 P.2d 739, 741-42 (Wyo.1999) and Johnson v. Aetna Cas. & Sur. Co. of Hartford, Conn., 608 P.2d 1299, 1302 (Wyo.1980).

[¶ 7] The appellant begins his argument that the appellees owed him a duty in this case by turning to this Court's statement that "[t]he Wyoming common law of negligence imposes a duty on the defendant to exercise the degree of care required of a reasonable person in light of all the circumstances." McClellan v. Tottenhoff, 666 P.2d 408, 411 (Wyo.1983). He then cites the same case for a further explication of the same principle:

"`* * * One owes the duty to every person in our society to use reasonable care to avoid injury to the other person in any situation in which it could be reasonably anticipated or foreseen that a failure to use such care might result in such injury.' Kirby v. Sonville, 286 Or. 339, 594 P.2d 818, 821 (1979). * * *"

McClellan, 666 P.2d at 412 (quoting Alegria v. Payonk, 101 Idaho 617, 619 P.2d 135, 137 (1980)).

[¶ 8] The appellant bolsters his position by referring to various sections of the Restatement (Second) of Torts. Restatement (Second) of Torts § 314A (1965), for example, describes several non-exclusive special relationships that may give rise to a duty to aid or protect a third person, including common carrier and passenger, innkeeper and guest, and possessor of land held open to the public and invited guest. More pertinent to the instant case is Restatement (Second) of Torts, supra, § 315, which describes a duty to control the actions of a third person to prevent harm to another:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

[¶ 9] The sections that follow Restatement (Second) of Torts, supra, § 315 describe situations where an actor has a duty to control the conduct of a third person. Two of those sections describe situations that bear some resemblance to the case at hand. Restatement (Second) of Torts, supra, § 316 provides:

A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of bodily harm to them, if the parent

(a) knows or has reason to know that he has the ability to control his child, and (b) knows or should know of the necessity and opportunity for exercising such control.

Restatement (Second) of Torts, supra, § 318 provides:

If the actor permits a third person to use lands or chattels in his possession otherwise than as a servant, he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor

(a) knows or has reason to know that he has the ability to control the third person, and

(b) knows or should know of the necessity and opportunity for exercising such control.

And finally, Restatement (Second) of Torts, supra, § 324A provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

[¶ 10] One example of a case wherein a duty was based upon these Restatement principles is Gritzner v. Michael R., 228 Wis.2d 541, 598 N.W.2d 282 (1999). In Gritzner, a minor was sexually molested by another minor while playing at the latter's home. The Wisconsin Court of Appeals found "it self-evident that an adult who voluntarily takes on the supervision, custody or control, even on a temporary basis, of a visiting child ..., stands in a special relationship to such child for purposes of the child's `protection' under § 314A of the Restatement." Gritzner, 598 N.W.2d at 287-88. In reversing the dismissal of the victim's negligence action against the parent of the perpetrator, the court also found that a duty of protection existed under Restatement (Second) of Torts, supra, § 324A. Gritzner, 598 N.W.2d at 289. It is noteworthy that the potential liability of the homeowner in Gritzner did not arise from the concept of premises liability, but from the special relationship. Id. at 288.⁵

[¶ 11] Under different facts, a similar result was reached in Morgan v. Perlowski, 508 N.W.2d 724 (Iowa 1993). While attending a "beer party" at Perlowski's mother's house, Morgan was assaulted by another guest. Id. at 725-26. In Morgan's negligence action against Perlowski, a question arose as to the proper source of any duty Perlowski owed Morgan. Rejecting a premises liability theory, the Iowa Supreme Court held that...