Lucero v. Holbrook

288 P.3d 1228

2012 WY 152

Katrina LUCERO and EL and IL, by and through their next Friend, Guardian and Mother, Katrina Lucero, Appellants (Plaintiffs),

v.Nanette HOLBROOK, Appellee (Defendant).

No. S–12–0062.

Supreme Court of Wyoming.

Nov. 30, 2012.

Representing Appellants: John I. Henley of Henley Law Firm, P.C., Casper, Wyoming.

Representing Appellee: Julie Nye Tiedeken and Brian J. Hunter of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming. Argument by Ms. Tiedeken.

Before KITE, C.J., and GOLDEN,^*HILL, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] Nanette Holbrook, the appellee, left her car unattended with the motor running in her private driveway while she briefly returned to her home to retrieve her pocketbook. In the interim, Colbey Emms (Emms), a methamphetamine user, stole her vehicle. Emms later got into a high-speed chase with the police, which ended when the car he was driving collided with a vehicle driven by Katrina Lucero (Lucero), one of the appellants, and mother of EL and IL, also appellants. Lucero filed a complaint on behalf of herself and her children alleging that the appellee breached a duty to them of due care by leaving her car unattended with the keys in the ignition. The district court granted the appellee's motion for summary judgment on the basis that no duty was owed to the appellants under either the common law or by statute, and that the appellee's leaving of her keys in her car with the motor running was not the proximate cause of the accident. We affirm.

ISSUE

[¶ 2] Did the district court appropriately grant the appellee's motion for summary judgment?

FACTS

[¶ 3] On the morning of December 18, 2009, the appellee got into her car, started the engine, and pulled the car out of her garage and onto her driveway as she was preparing to leave her home to go to work. She soon realized that she had forgotten her purse and returned to her home to retrieve it, leaving the car doors unlocked and engine running. Within approximately three minutes, the appellee returned to the driveway only to find the car missing. She quickly returned to the house and called 911 to report that her car had been stolen.

[¶ 4] The appellee testified that she did not see anyone suspicious in the vicinity of her driveway at the time that she had returned to the house. Nevertheless, Emms stole her vehicle during the appellee's brief absence. The police located Emms driving the stolen vehicle and made contact with Emms who then attempted to flee. This evolved into a high-speed chase. The chase ended soon after Emms collided with Lucero, who was driving with her two children, ages six months and five years, to her mother's house. Lucero and her children suffered serious injuries. Emms was under the influence of methamphetamine at the time of the accident.

[¶ 5] The appellants filed a complaint in district court alleging that the appellee, by leaving the keys in the ignition of her unattended vehicle, was negligent and that such negligence was the proximate cause of the injuries incurred by the appellants. In response, the appellee filed a motion for summary judgment which the district court granted, finding that (1) the appellee owed the appellants no duty of care under the circumstances either by statute or under the common law, and (2) the appellee's act of leaving the keys in the ignition was not the proximate cause of the appellants' injuries. The appellants now appeal that decision.

STANDARD OF REVIEW

[¶ 6] Although summary judgment is disfavored in negligence actions, summary judgment will be affirmed where the record fails to show the existence of a genuine issue of material fact. Uinta Cnty. v. Pennington, 2012 WY 129, ¶ 11, 286 P.3d 138, 142 (Wyo.2012). “The existence of duty is a question of law, making an absence of duty the surest route to summary judgment in negligence actions.” Erpelding v. Lisek, 2003 WY 80, ¶ 13, 71 P.3d 754, 757 (Wyo.2003) (quoting Daily v. Bone, 906 P.2d 1039, 1043 (Wyo.1995)).

We treat the summary judgment movant's motion as though it has been presented originally to us. We use the same materials in the record that was before the district court. Using the materials in the record, we examine them from the vantage point most favorable to the nonmoving party opposing the motion, giving that party the benefit of all favorable inferences which may fairly be drawn from the materials.... If doubt exists about the presence of genuine issues of material fact after we have reviewed the record, we resolve that doubt against the movant.

Shafer v. TNT Well Serv., Inc., 2012 WY 126, ¶ 8, 285 P.3d 958, 961 (Wyo.2012) (quoting Lamar Outdoor Adver. v. Farmers Co-Op Oil Co., 2009 WY 112, ¶ 10, 215 P.3d 296, 300 (Wyo.2009) (internal citations omitted)).

DISCUSSION

[¶ 7] Negligence occurs when one fails to act as would a reasonable person of ordinary prudence under like circumstances. Keehn v. Town of Torrington, 834 P.2d 112, 114 (Wyo.1992). More specifically, to establish negligence, the following must be shown:

(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 defendant's breach of the duty of care proximately caused injury to the plaintiff, and (4) the injury sustained by the plaintiff is compensable by money damages.

Hatton v. Energy Elec. Co., 2006 WY 151, ¶ 10, 148 P.3d 8, 13 (Wyo.2006) (quoting Valance v. VI–Doug, Inc., 2002 WY 113, ¶ 8, 50 P.3d 697, 701 (Wyo.2002)). Duty and breach of duty must be established before addressing causation and the tortfeasor's responsibility for any harm suffered. See Halpern v. Wheeldon, 890 P.2d 562, 565 (Wyo.1995); Sapone v. Grand Targhee, Inc., 308 F.3d 1096, 1103 (10th Cir.2002). “Elements (1) and (2), duty and breach of duty, address whether the conduct of the alleged tortfeasor was in fact negligent. Element (3), proximate cause, is considered only after negligence is first established to determine whether the tortfeasor should be legally responsible for his negligence.” Keehn, 834 P.2d at 115. Proximate cause addresses the scope of a defendant's liability and is a question of fact for the factfinder, and less appropriate for a summary judgment action. Restatement (Third) of Torts § 7 (2010).

[¶ 8] A duty may arise based upon the existence of a contract, a statute, or the common law, “or when the relationship of the parties is such that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff.” Killian v. Caza Drilling, Inc., 2006 WY 42, ¶ 8, 131 P.3d 975, 980 (Wyo.2006) (quoting Hamilton v. Natrona County Educ. Ass'n, 901 P.2d 381, 384 (Wyo.1995)). The appellee clearly had no contractual relationship with the appellants, nor did the appellants have a special or particular relationship with the appellee beyond all being members of the public. Regarding the existence of a statutory duty, the appellants argue in their reply brief that the following statute creates a duty which the appellee breached:

§ 31–5–509. Requirements before leaving motor vehicle unattended.

No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition, removing the key from the ignition, effectively setting the brake thereon and, when standing upon any grade, turning the front wheels to the curb or side of the highway.

Wyo. Stat. Ann. § 31–5–509 (LexisNexis 2011). This statute does not, however, apply to motor vehicles parked in private driveways. Chapter 5 is entitled “Regulation of Traffic on Highways.” The statute is clear regarding its applicability: “The provisions of this act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways except: (i) Where a different place is specifically referred to in a given section [.]” Wyo. Stat. Ann. § 31–5–103 (LexisNexis 2011). Because “a different place” is not referenced in Wyo. Stat. Ann. § 31–5–509, the statute applies only to vehicles “stand[ing] unattended” upon a highway.

[¶ 9] The Act defines “highway” and “street” synonymously as being “the entire width between the boundary lines of every way publicly maintained or if not publicly maintained, dedicated to public use when any part thereof is open to the use of the public for purposes of vehicular travel[.]” Wyo. Stat. Ann. § 31–5–102(a)(xlix) (LexisNexis 2011). The appellants suggest, with little analysis, that the appellee's driveway is “open to the use of the public for purposes of vehicular travel.” We find this contention unsupported by law or logic. The appellants point out that the harm that may occur where a car is left in a condition violating Wyo. Stat. Ann. § 31–5–509 on private property is similar, if not identical, to the harm that may occur by leaving a car in the same condition on a public highway. That may very well be the case. The legislature was specific, however, in limiting the application of this statute to public highways. “Where statutory language conveys a clear and definite meaning, this court neither faces the need nor acquires the license to construe the statute.” State v. Curtis, 2002 WY 120, ¶ 8, 51 P.3d 867, 869 (Wyo.2002). As we have said many times, if the legislature wanted to make the statute more general in its applicability, it could have done so.

[¶ 10] The existence of a duty as derived from the common law is a more complicated matter. As the appellants discuss, this Court has relied upon a number of factors in determining whether the common law creates a duty of care.

Some of the key policy factors to be considered are: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant's conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7)...