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Board of County Commissioners of Teton County v. Bassett7/25/2000
ortional fault rather than shift the burden of insolvency of one joint tortfeasor to the others for the protection of potential plaintiffs.
Contrary to appellees' argument, our application of Wyo. Stat. Ann § 1-1-109 is not precluded by Danculovich. Brown, while driving under the influence of alcohol and exceeding the speed limit, failed to negotiate a curve causing a rollover crash in which Danculovich was killed. Danculovich, 593 P.2d at 190. The trial court ruled that the record would not support a finding by the jury of willful and wanton misconduct for punitive damages and removed the issue from the jury's consideration. Id. at 192. On appeal, we held that there was sufficient evidence for the jury to have found willful and wanton misconduct for punitive damages and so reversed and remanded. Id. at 194.
In dicta, we added that Danculovich's ordinary negligence, if any, could not be compared with Brown's willful and wanton conduct--if such the jury found--because, we said, the trial court may have ruled as it did out of fear that the jury would be confused by comparing negligence, gross negligence (as then required by the so-called "guest statute," since invalidated, Nehring v. Russell, 582 P.2d 67 (Wyo. 1978)), and willful and wanton conduct. Danculovich, 593 P.2d at 194-96. Justices Rose and McClintock, specially concurred, warning that the issue on which our dicta pronounced was not raised below or addressed by the trial court, was not raised or briefed by the parties in this court, was not warranted by the record, and the dictum was unnecessary and unwise. Danculovich, 593 P.2d at 196-99. Whether or not our decision today vindicates the views of Justices Rose and McClintock, there are substantial elements distinguishing Danculovich from the case we now consider. At the time the case was decided, Wyo. Stat. Ann § 1-1-109 used only the phrase "negligence" not "fault" which includes conduct "in any measure negligent." The "guest statute," which required a plaintiff to prove "gross negligence" was in effect; subsection (e) limiting a defendant's liability to his apportionment of negligence was not present; and importantly, the comparison was of the conduct of only the plaintiff and the defendant driver--not the conduct of another "actor."
Appellants reiterate their contention that DeWald justifies their insistence at the instruction conference that an instruction should have been given to the jury that the actions of the police officers could result in liability only if the jury found "extreme or outrageous conduct" on the part of the officers. Appellants insist here that DeWald established a duty or standard of care for police officers different from that to which others are held; that is, not a duty to act as ordinarily prudent police officers would act in like circumstances to avoid undue risk of harm to citizens, but only to avoid undue risk of harm by conduct that is extreme and outrageous. Appellants misapprehend the significance of DeWald, because DeWald advanced no such separate or different duty or standard of care. In that case, we held that the facts precluded a finding of causation of the plaintiff's damages by the officer's conduct.
DeWald was killed when, as he waited for a traffic light to change at an intersection near downtown Laramie, Maddox crashed into DeWald's car with his vehicle. Highway Patrol officers had endeavored to stop Maddox just outside of Laramie for driving while intoxicated. Maddox did not stop when signaled to do so by the patrolmen, and they pursued him, but dropped back when the speed of the chase reached fifty-five miles per hour. DeWald, 719 P.2d at 645. In the wrongful death claim against the State of Wyoming, the district cour
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