Jacob Fugle v. Sublette County School District 9 and Stephen Nelson , 353 P.3d 732 ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 98
APRIL TERM, A.D. 2015
July 31, 2015
JACOB FUGLE,
Appellant
(Plaintiff),
v.
S-14-0305
SUBLETTE COUNTY SCHOOL DISTRICT #9
and STEPHEN NELSON,
Appellees
(Defendants).
Appeal from the District Court of Sublette County
The Honorable Marvin L. Tyler, Judge
Representing Appellant:
Travis J. Bing and Elizabeth Greenwood, Greenwood Law, LLC, Pinedale, Wyoming;
Frank R. Chapman, Chapman Valdez & Lansing Attorneys and Counselors at Law,
Casper, Wyoming; Inga L. Parsons, Attorney at Law, Marblehead, Massachusetts.
Argument by Ms. Parsons.
Representing Appellees:
Tracy J. Copenhaver, Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming.
Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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.
BURKE, Chief Justice.
[¶1] Appellant, Jacob Fugle, brought suit against Appellees, Sublette County School
District #9 and his teacher, Stephen Nelson, for injuries he sustained during a science
demonstration conducted in the school gymnasium. Appellees sought summary
judgment claiming immunity under the Wyoming Governmental Claims Act (Wyo. Stat.
Ann. § 1-39-101 et seq.). The district court granted the motion, and Mr. Fugle challenges
that decision in this appeal. We affirm.
ISSUES
[¶2] Mr. Fugle presents the following two issues:
1. Whether the alleged negligence of Appellees falls within
the waiver of immunity from liability for negligent
operation or maintenance of a building under Wyo. Stat.
Ann. § 1-39-106.
2. Whether the alleged negligence of Appellees falls within
the waiver of immunity from liability for negligent
operation or maintenance of a recreation area under Wyo.
Stat. Ann. § 1-39-106.
FACTS
[¶3] In November 2010, Mr. Fugle was a student at Big Piney High School in Big
Piney, Wyoming. As part of a science class, his teacher, Stephen Nelson, conducted a
demonstration of centripetal force in the high school gymnasium using a wheeled cart
and a 20-foot rope. In the demonstration, Mr. Nelson stood in the center of the gym and
held on to one end of the rope while a student, sitting in the cart, held on to the other end.
The students took turns sitting in the cart and pushing on the cart to initiate motion.
During Mr. Fugle’s turn, he was unable to hang onto the rope due to the forces acting
upon him, and when he let go of the rope, the cart travelled across the gym floor and into
a door frame. Mr. Fugle experienced extensive injuries, including a dislocated hip and a
fractured femur, as a result of the collision.
[¶4] Mr. Fugle filed suit against the School District and Mr. Nelson. Following
discovery, Appellees moved for summary judgment under the Wyoming Governmental
Claims Act. The district court granted Appellees’ motion after concluding that
Mr. Fugle’s injury did not fall within the exceptions to governmental immunity for
negligence in the “operation and maintenance” of any building, or in the “operation and
maintenance” of any recreation area. Mr. Fugle appealed.
1
STANDARD OF REVIEW
[¶5] We apply the following standard of review to a district court’s summary judgment
decision:
Summary judgment is appropriate when there
are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law.
W.R.C.P. 56(c); Metz Beverage Co. v. Wyoming
Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055
(Wyo. 2002). “A genuine issue of material fact exists
when a disputed fact, if it were proven, would establish
or refute an essential element of a cause of action or a
defense that the parties have asserted.” Id. Because
summary judgment involves a purely legal
determination, we undertake de novo review of a trial
court’s summary judgment decision. Glenn v. Union
Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642
(Wyo. 2008).
Singer v. Lajaunie, 2014 WY 159, ¶ 19, 339 P.3d 277, 283 (Wyo. 2014) (quoting Jacobs
Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d 125, 128-
29 (Wyo. 2008)). We consider the record from a viewpoint most favorable to the party
opposing summary judgment, giving to him all favorable inferences that can be drawn
reasonably from the facts set forth in the affidavits, depositions, and other material
properly appearing in the record. Singer, ¶ 19, 339 P.3d at 283.
DISCUSSION
[¶6] The Wyoming Governmental Claims Act “provides broad governmental immunity
from tort liability.” Sinclair v. City of Gillette, 2012 WY 19, ¶ 10, 270 P.3d 644, 646
(Wyo. 2012) (quoting Krenning v. Heart Mt. Irrigation Dist., 2009 WY 11, ¶ 21, 200
P.3d 774, 781 (Wyo. 2009)). Certain enumerated activities, however, are excepted from
the general immunity rule. Wyo. Stat. Ann. §§ 1-39-105 through -112 (LexisNexis
2015). Under Wyo. Stat. Ann. § 1-39-106, “A governmental entity is liable for damages
resulting from bodily injury, wrongful death or property damage caused by the
negligence of public employees while acting within the scope of their duties in the
operation or maintenance of any building, recreation area or public park.”
[¶7] Mr. Fugle contends that the School District’s negligence resulted from the
“operation or maintenance” of a building under Wyo. Stat. Ann. § 1-39-106. He also
claims that the School District’s negligence resulted from the “operation or maintenance”
of a recreation area under Wyo. Stat. Ann. § 1-39-106. He contends that under the
2
statute, immunity has been waived for activities that are negligently conducted or
supervised in the building or recreation area. Appellees concede that the School District
is a governmental entity and that Mr. Nelson was a public employee acting within the
scope of his duties. For purposes of the summary judgment motion, Appellees also
concede that the science experiment was negligently conducted and Mr. Fugle was
injured as a result of that negligence. They assert, however, that under Wyo. Stat. Ann. §
1-39-106, immunity from liability is waived only for activities related to the “operation or
maintenance” of the facilities comprising the building or recreation area. They contend
that Mr. Fugle’s claims of negligence do not relate to any defect in the “operation or
maintenance” of the gymnasium and, accordingly, do not fall within the waiver of
governmental immunity under the statute.
[¶8] In order to resolve this case, we must interpret Section 106 of the Wyoming
Governmental Claims Act. In interpreting the WGCA, we apply the following rules of
statutory interpretation:
When we interpret statutes, our goal is to give effect to
the intent of the legislature, and we “attempt to
determine the legislature’s intent based primarily on
the plain and ordinary meaning of the words used in
the statute.” Krenning v. Heart Mountain Irrigation
Dist., 2009 WY 11, ¶ 9, 200 P.3d 774, 778 (Wyo.
2009). Statutory interpretation presents a question of
law, so our review of the district court’s conclusions is
de novo. Id.; Sinclair Oil Corp. v. Wyo. Dep’t of
Revenue, 2010 WY 122, ¶ 7, 238 P.3d 568, 570 (Wyo.
2010).
With specific regard to the Wyoming
Governmental Claims Act, we have said that we
should not “enlarge, stretch, expand[,] or extend” the
statutory language to include “matters not falling
within its express provisions.” State v. Watts, 2008
WY 19, ¶ 19, 177 P.3d 793, 798 (Wyo. 2008).
Instead, we use our “standard rules” of statutory
interpretation “to determine whether the legislature
intended that immunity be waived for a particular
claim and will not resort to reliance upon previous
unsupported and unnecessary suggestions that the act
is to be interpreted either liberally or strictly.” Id., ¶
20, 177 P.3d at 798-99.
Stroth v. North Lincoln County Hosp. Dist., 2014 WY 81, ¶ 7, 327 P.3d 121, 125 (Wyo.
3
2014) (quoting Sinclair, ¶¶ 8-9, 270 P.3d at 646).
Operation or Maintenance of a Building
[¶9] We will address, first, Mr. Fugle’s claim that Appellees’ negligence falls within
the exception to immunity from liability for the operation or maintenance of a “building”
under Wyo. Stat. Ann. § 1-39-106. We have previously determined that this exception is
limited to the State’s negligence in making a building functional and, accordingly, applies
only to unsafe conditions due to physical defects in the building itself. In State Dep’t of
Corr. v. Watts, 2008 WY 19, 177 P.3d 793 (Wyo. 2008), the plaintiff filed a wrongful
death suit against the State after his wife, a nurse employed at the Wyoming Honor Farm,
was killed by an inmate at the Honor Farm. He claimed, inter alia, that the Honor Farm
had been negligent in failing to install security cameras in the area in which his wife was
killed. Id., ¶ 40, 177 P.3d at 803. The State moved for summary judgment, claiming that
it was immune from suit under Wyo. Stat. Ann. § 1-39-106. The district court denied the
motion, and the State appealed.
[¶10] On appeal, the plaintiff contended that “operation or maintenance” of a building
should be read broadly to encompass the operation of the physical building as well as the
operation of the penal institution within the building. Id., ¶ 22, 177 P.3d at 799. This
Court disagreed. We noted, initially, that “operation” had been defined as the “state of
being operative or functional” or “the process of operating or mode of action.” Id., ¶ 21,
177 P.3d at 799 (quoting City of Torrington v. Cottier, 2006 WY 145, ¶ 8, 145 P.3d 1274,
1278 (Wyo. 2006)). We then determined that Section 106, when read in harmony with
the other provisions of the WGCA waiving governmental immunity for operation of
specific types of institutions, indicated that the legislature intended the waiver of
immunity to extend only to the function of the building itself:
We construe a statutory provision to harmonize it with
other provisions relating to the same subject matter. Some of
the other statutes waiving governmental immunity pertain to
the operation of specific types of institutions. For example, §
1-39-109 waives immunity for the “negligence of public
employees while acting within the scope of their duties in the
operation of any public hospital[.]” If we were to accept
Mr. Watts’ broad interpretation of the waiver of immunity for
operation of public buildings, there would be no need to
specifically waive immunity for the operation of hospitals
because such negligence would already be subsumed in the
statute waiving immunity for operation of hospital buildings.
Thus, the context of § 1-39-106 within the WGCA indicates
that the legislature intended the waiver to extend only to the
function of the building itself rather than the entity operated
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within the building. If the legislature had meant to waive
immunity for operation of a penal institution, it could have
done so expressly. See, e.g., Colo. Rev. Stat. Ann. § 24-10-
106(1)(b) (LexisNexis 2007) (specifying governmental
liability for negligence in operation of correctional facilities
and jails). In accordance with our rules of statutory
interpretation, we will not expand the waiver of immunity to
include matters not expressly stated by the legislature.
Watts, ¶ 23, 177 P.3d at 799. After discussing judicial precedent from other jurisdictions
interpreting statutes similar to § 1-39-106, we determined that
the clear and unambiguous language of § 1-39-106, within the
context of the rest of the WGCA, indicates that the legislature
intended to limit the waiver of immunity to negligence
associated with the function of the building structure and did
not intend to extend the waiver to negligence associated with
operation of the penal institution within the building. The
operation and maintenance responsibility includes fixtures
attached to the building.
Id., ¶ 38, 177 P.3d at 802. Ultimately, we concluded that the plaintiff’s negligence claims
did not pertain to maintenance or operation of the physical structure of the building and
therefore did not fall within the waiver of immunity set forth in Section 106.
[¶11] In the present case, Mr. Fugle’s complaint alleged that the School District and
Mr. Nelson “owed duties to Plaintiff, failed to perform those duties, and the failure to
perform the duties proximately caused damages to Plaintiff.” His complaint extended to
any unknown employees of the School District who were “involved with conducting,
supervising, overseeing, or otherwise participating or facilitating the science
demonstration that occurred on or about November 23, 2010.” In his opposition to
Appellees’ motion for summary judgment, however, Mr. Fugle claimed that his injury
“was a result of his impact with the unpadded gym door jamb which is part of the school
building and which was operated without safety procedures.” According to Mr. Fugle,
“the gym building itself was being operated as part of that experiment and the result from
that negligent operation and maintenance resulted in Mr. Fugle’s injuries.”
[¶12] In order to fit his claim within the waiver of governmental immunity set forth in
Wyo. Stat. Ann. § 1-39-106, Mr. Fugle alleges a potential defect in the gymnasium due to
the failure to provide adequate padding for the science demonstration. His assertions,
however, ultimately relate to the design and supervision of the experiment, and not to a
defect in the gymnasium. In other words, according to Mr. Fugle’s theory, the
gymnasium became “defective” only as a result of the design and supervision of the
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science demonstration. In support of his theory, Mr. Fugle submitted two reports to the
district court authored by persons designated by Mr. Fugle as expert witnesses. In the
first report, submitted by an engineer, the author opined that Mr. Fugle’s injuries
occurred as a result of Mr. Nelson’s failure to require students to wear safety gear,
defects in the design of the experiment, and the lack of adequate safety procedures.
Similarly, in the second report, submitted by a physics teacher, the author concluded that
Mr. Fugle’s injuries occurred as a result of design flaws in the experiment:
The experiment conceived by Mr. Nelson does provide
students the opportunity to experience centripetal forces,
which research shows helps students learn. The problems are
the central concept seems to be misrepresented and the design
of the experiment itself has serious flaws including: 1. length
of the rope, 2. lack of control of student speed, 3. presence of
a whiplash effect, 4. small diameter rope, and 5. poor student
instructions.
Neither report mentions any defect inherent in the school building or the gymnasium.
[¶13] Mr. Fugle’s assertion is analogous to the claim in Watts, in which the plaintiff
alleged negligence due, in part, to the lack of security cameras in the area in which his
wife was killed. In Watts, ¶ 40, 177 P.3d at 803, the plaintiff produced testimony
suggesting that, “if there had been security cameras to monitor the entrance to the
medical offices, it is unlikely Floyd Grady could have prevented detection of his presence
and Tammy Watts would not have been killed.” Notwithstanding this evidence, we
concluded that the plaintiff’s “claims of insufficient surveillance or the lack of security
cameras do not fall within the waiver.” Id. Implicit in our conclusion was the
determination that security cameras, which were not mandated by building codes or other
laws, were not necessary to the function of the building structure. Similarly, in the
present case, Mr. Fugle failed to present any evidence indicating that the gymnasium was
inherently defective due to a lack of padding around the doors, or that such padding was
required in order to make the gymnasium functional. Accordingly, because Mr. Fugle
presented no evidence of a physical defect in the gymnasium, we are unable to conclude
that his claims fall within the waiver of governmental immunity for operation or
maintenance of a building under Wyo. Stat. Ann. § 1-39-106.
Operation or Maintenance of a Recreation Area
[¶14] Mr. Fugle also claims that Appellees’ negligence falls within the exception to
immunity from liability for the operation or maintenance of a “recreation area” under
Wyo. Stat. Ann. § 1-39-106. He claims that this waiver is broader than the waiver of
immunity for the operation or maintenance of a building because it extends to all
activities conducted within the recreation area. Mr. Fugle relies on our decision in Weber
6
v. State, 2011 WY 127, 261 P.3d 225 (Wyo. 2011).
[¶15] In Weber, the plaintiff filed a personal injury action against the State after he was
burned by hot mineral water in the steam room at the Star Plunge in Hot Springs State
Park. According to the plaintiff, the State had been negligent in (1) delivering water to
the Star Plunge; (2) approving the design and construction of the steam room; and (3)
failing to oversee the property and/or inspect for safety concerns. Id., ¶ 18, 261 P.3d at
230. The State moved for summary judgment, asserting that the plaintiff’s claims did not
fall within the waiver of governmental immunity for the operation or maintenance of a
public park under Wyo. Stat. Ann. § 1-39-106. Relying on our decision in Watts, the
district court granted the State’s motion. On appeal, we distinguished the waiver of
immunity for the operation or maintenance of a building, at issue in Watts, from the
waiver for operation or maintenance of a public park:
The district court relied on our decision in Watts to
rule that the legislature did not waive immunity in § 1-39-106
for “business operations of concessionaires in [s]tate [p]arks.”
Watts involved a suit against the State after a nurse employed
at the Wyoming Honor Farm was killed by an inmate. Watts,
¶¶ 3-4, 177 P.3d at 794. We interpreted the portion of § 1-39-
106 that waives immunity for operation or maintenance of a
“building” and stated that the waiver is limited to the State’s
negligence in making the building functional and,
accordingly, applies only to unsafe conditions due to physical
defects in the building. Id. at ¶¶ 21, 36, 177 P.3d at 799, 802.
We distinguished the waiver of immunity for operation of a
discrete “building” in § 1-39-106 from waivers of immunity
for certain types of facilities, such as “hospitals” in § 1-39-
109. We indicated that when the legislature grants immunity
for facilities with a specific purpose, the waiver includes the
activities undertaken within such facilities. Specific to the
facts of Watts, the legislature did not waive immunity for
operation of a penal institution, so the waiver only pertained
to the physical attributes of the building, not the activities
conducted therein. Id. at ¶ 23, 177 P.3d at 799.
The present case involves the statutory language
waiving immunity for operation of a “park,” not a “building.”
The plain meaning of “park” is “a public area of land . . .
having facilities for recreation,” Webster’s College
Dictionary 984 (1991), and “a piece of open land . . . with
public amenities.” www.dictionary.com (emphasis added).
As is clear from the standard definition of park, the word
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means more than the land itself; it includes whatever
“amenities” and “facilities for recreation” the owner of the
park chooses to incorporate. The rationale we used to limit
the waiver of immunity for operation of a building in Watts
does not apply to the waiver for operation of a park because,
unlike operation of a building, operation of a park involves
many different activities and amenities. As with the waiver
of immunity for operation of a hospital referenced in Watts,
the waiver of immunity for parks includes the activities
undertaken by the State within the park facilities.
This Court has employed similar reasoning in
interpreting the waiver of immunity for operation of a
“recreation area” in § 1-39-106. In Newberry [v. Board of
County Comm’rs of Fremont County], 919 P.2d [141,] 146
[(Wyo. 1996)], we recognized that maintenance of a trestle on
a trail fell within the waiver for a “recreation area,” although
we ultimately held the State was immune because Wyo. Stat.
Ann. § 1-39-120 provided specific immunity for maintenance
of a bridge within a recreation area. In DiVenere v.
University of Wyoming, 811 P.2d 273, 274 (Wyo. 1991),
Ms. DiVenere was injured when she fell on ice on a
concourse leading to the upper deck at the University of
Wyoming’s football stadium. Giving the statutory language
its standard meaning, we held that the stadium was a
recreation area and the ramps or concourses were part of that
recreation area. Id. at 275-76. Thus, this Court’s
interpretation of “recreation area” included the facilities and
amenities within the “recreation area.”
Weber, ¶¶ 15-17, 261 P.3d at 229-30. Ultimately, we held that the waiver of
governmental immunity for operation or maintenance of a public park under Wyo. Stat.
Ann. § 1-39-106 applied to the plaintiff’s claims that the State had been negligent in
approving the design and construction of the steam room and in failing to properly
oversee the property and/or inspect for safety concerns. Id., ¶¶ 22-24, 261 P.3d at 231-
32.
[¶16] According to Mr. Fugle, our decision in Weber indicates that the waiver of
immunity from liability for negligence in the operation or maintenance of a recreation
area applies to negligence relating to any activities undertaken within the recreation area.
We do not agree. Mr. Fugle relies heavily on the statement, from Weber, that “the waiver
of immunity for parks includes the activities undertaken by the State within the park
facilities.” The specific “activities” at issue in Weber, however, related to operation or
8
maintenance of the physical facilities in the park. We began our analysis in that case by
noting that the “standard definition of [a] park . . . includes whatever ‘amenities’ and
‘facilities for recreation’ the owner of the park chooses to incorporate.” Id., ¶ 16, 261
P.3d at 230. We noted that, under Wyo. Stat. Ann. § 36-8-304, the State acted under
specific statutory authorization to lease park lands and provide water to its lessees. Based
on that statutory authorization, we concluded the legislature intended to waive immunity
for negligence in approving the design and construction of the steam room and in
delivering water to the steam room:
On its face, the legislation envisioned that the
operation of Hot Springs State Park would include leasing
property to private persons who would provide facilities for
the public to use the hot mineral water. The statute also
contemplates the State would regulate those buildings and
improvements, approve building plans, specify materials, and
provide hot mineral water to the facilities. When § 36-8-304
is read in conjunction with § 1-39-106, it is obvious that the
legislature intended to waive immunity for the State’s alleged
negligence in approving its lessee’s (the Star Plunge’s) design
and construction of the [steam room] and in supplying the
water.
Weber, ¶ 20, 261 P.3d at 231. We also found that our reasoning was consistent with the
application of Wyo. Stat. Ann. § 1-39-106 in cases involving recreation areas. Indeed, in
both of the cases cited in Weber involving operation of a recreation area, the alleged
negligence related to operation of the physical attributes of the recreation area, and not
the activities conducted within the recreation area. In DiVenere, 811 P.2d at 274, the
plaintiffs alleged that the State was negligent in failing to keep a walkway in the
University of Wyoming’s football stadium free of ice. In Newberry, 919 P.2d at 143-44,
the plaintiff alleged the State was negligent in failing to maintain a trestle on a public
trail.
[¶17] Assuming, without deciding, that a high school gymnasium is a recreation area,
we cannot conclude that conducting and supervising a science demonstration constitutes
operation or maintenance of a recreation area simply because the activity takes place
there. Mr. Fugle suggests that the State’s immunity from liability depends on the location
of the demonstration. According to his interpretation of the Governmental Claims Act,
Appellees would have preserved their immunity from liability if the demonstration had
been conducted in a classroom. We do not think the legislature intended such a result. In
this case, unlike in Weber, the alleged negligence does not relate to any defect in the
design or construction of a physical structure or facility. Ultimately, we find no reason to
conclude that the legislature intended for the waiver of immunity from liability in the
operation or maintenance of a recreation area to apply to all activities undertaken within a
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particular recreation area. Rather, we conclude that the legislature intended to limit the
waiver of immunity to negligence associated with the function of the physical attributes
or structure of the recreation area.
[¶18] Consequently, for purposes of our analysis in the present case, the “recreation
area” at issue is not distinguishable from the “building” under Wyo. Stat. Ann. § 1-39-
106. As a result, the waiver of immunity from liability for operation or maintenance of
the recreation area in this case is co-extensive with the waiver for operation or
maintenance of the building. Accordingly, for the reasons set forth above, we conclude
that Mr. Fugle’s claim does not fall within the waiver of governmental immunity set forth
at Wyo. Stat. Ann. § 1-39-106.
[¶19] As a final matter, we note that during oral argument, counsel for Mr. Fugle
commented extensively on the inherent unfairness and harshness of the Governmental
Claims Act as applied in this case. Mr. Fugle contends that students who are negligently
injured by the actions or inactions of school employees acting within the scope of their
responsibilities should have a legal remedy. He argues that there is no legitimate
justification for permitting the School District to be shielded from liability for injuries
sustained by students under its care. That appeal, however, is appropriately addressed to
the legislature or, perhaps, to the School District.
[¶20] We have previously explained that the doctrine of sovereign immunity “has its
roots in the ancient common law of England which held ‘The King can do no wrong’ and
hence could not be sued in any court of law.” Worthington v. State, 598 P.2d 796, 803
(Wyo. 1979) (footnote omitted). Since 1979, however, the doctrine has been controlled
by statute and, in recognition of the unfairness in preventing certain plaintiffs from
obtaining a remedy, our legislature has set forth exceptions to the doctrine:
In reality, of course, the King does “do wrong,” but the
right to seek redress for such wrong is determined by the
policy and will of the legislative body. . . .
In 1979, the Wyoming Legislature abrogated the
common law of sovereign immunity in Wyoming, and
established sovereign immunity as a legislative construct. See
Wyo. Stat. Ann. §§ 1-39-101 to 1-39-121 (LexisNexis 2013).
. . . The Wyoming Legislature’s purpose in enacting the
WGCA is clear. The legislature sought to retain the common
law principle that a governmental entity is generally immune
from lawsuits, while acknowledging that fairness requires
authorizing lawsuits against a governmental entity in certain
statutorily defined situations. The legislature therefore
created specific statutory exceptions to the general rule of
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sovereign immunity.
Campbell County Mem. Hosp. v. Pfeifle, 2014 WY 3, ¶¶ 18-19, 317 P.3d 573, 578 (Wyo.
2014). We have endeavored to interpret the statutory language pertaining to one of the
exceptions created by the legislature and have found that the exception set forth in Wyo.
Stat. Ann. § 1-39-106 does not apply and does not provide a remedy for Mr. Fugle. 1
[¶21] We would also note that the legislature has provided governmental entities the
option to secure liability insurance and, in such a case, immunity is waived to the extent
of that insurance. Wyo. Stat. Ann. §§ 21-3-129; 1-39-118(b)(i).2 It is undisputed,
however, that the School District did not obtain insurance coverage that would extend its
liability beyond the provisions of the Governmental Claims Act. In the final analysis,
Mr. Fugle’s plea for a remedy is best made to the legislature for expansion of the
1
The legislative exceptions to immunity include liability for the negligent operation of: motor vehicles,
aircraft, and watercraft (Wyo. Stat. Ann. § 1-39-105); airports (Wyo. Stat. Ann. § 1-39-107); public
utilities (Wyo. Stat. Ann. § 1-39-108); and medical facilities (Wyo. Stat. Ann. § 1-39-109).
Governmental immunity has also been waived for damages caused by the negligence of government
health care providers (Wyo. Stat. Ann. § 1-39-110) and peace officers (Wyo. Stat. Ann. § 1-39-112).
2
Wyo. Stat. Ann. § 21-3-129 provides:
Comprehensive liability insurance; waiver of governmental
immunity.
(a) The board of trustees of each school district within the state may
procure a policy or policies of comprehensive liability insurance as
provided in W.S. 1-39-118(b), self-insure as provided in W.S. 1-39-
118(c)(i) or join with other school districts as provided in W.S. 1-39-
118(c)(ii).
Wyo. Stat. Ann. § 1-39-118(b)(i) provides:
Maximum liability; insurance authorized.
...
(b) A governmental entity is authorized to purchase liability insurance
coverage covering any acts or risks including all or any portion of the
risks provided under this act. Purchase of liability insurance coverage
shall extend the governmental entity’s liability as follows:
(i) If a governmental entity has insurance coverage either
exceeding the limits of liability as stated in this section or
covering liability which is not authorized by this act, the
governmental entity’s liability is extended to the coverage.
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exceptions or to the local governmental entity for coverage. We are constrained by the
language of the statute.
[¶22] Affirmed.
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