Date: 02-13-2018

Case Style:

Case Number: 2018 WY 7

Judge: Davis

Court: Supreme Court of Wyoming on appeal from the District Court of Union County

Plaintiff's Attorney: Collin Hopkins, Milo Lundblad, Jerome A. Urbik, Cameron Walker

Defendant's Attorney: Paul Kapp and Patrick M. Brady

Description: [¶1] Mariusz Bogdanski and Damian Budzik were codrivers of a commercial semitruck
that was involved in an accident on Interstate 80 east of Evanston, Wyoming.
Bogdanski was injured in the accident and filed an action against Budzik, alleging that
his negligence caused the accident. He also sued FedEx Ground Package System, Inc.
(FedEx), the company whose trailers they were hauling, alleging both direct negligence
and vicarious liability for Budzik’s negligence. The district court granted summary
judgment to both Budzik and FedEx, and Bogdanski appeals the order in favor of FedEx.
We affirm summary judgment in favor of Appellee Budzik, and the summary judgment
on Bogdanski’s direct negligent training claim. However, we reverse the ruling granting
summary judgment against FedEx on Bogdanski’s claim of vicarious liability for
Budzik’s claimed negligence, and we remand to the district court for further proceedings.
ISSUES
[¶2] We restate the issues raised by this appeal as follows:1
1. Can Bogdanski maintain a direct negligence claim in
addition to a vicarious liability claim when FedEx has
stipulated that it will be vicariously liable for Budzik’s
negligence, if any?
2. Did the district court err in granting FedEx’s motion
for summary judgment on Bogdanski’s vicarious liability
claim?
FACTS
[¶3] In February of 2011, Mariusz Bogdanski and Damian Budzik were employed as
commercial truck drivers by BZ Trucking, Inc., a company operating out of Burbank,
Illinois. Bogdanski was the more experienced driver and began working for BZ Trucking
in 2005. Damian Budzik obtained his commercial driver’s license in 2008 and began
working for BZ Trucking that same year.
[¶4] For the first year of Budzik’s employment with BZ Trucking, he was provided onthe-
job training by being paired with more experienced drivers. Budzik was paired with
one driver for the first three months of his training, and then with Bogdanski for the
1 As discussed below, Bogdanski did not challenge the grant of summary judgment to Budzik in his
briefing, and we have therefore identified no issue relating to it.
2
remainder of the year. After Budzik completed his year of training, he and Bogdanski
remained driving partners.
[¶5] In 2011 BZ Trucking had a contract with FedEx to use BZ’s trucks and drivers to
haul FedEx trailers. Pursuant to that contract, Budzik and Bogdanski picked up two
FedEx trailers in Bedford, Illinois to be delivered to Sacramento, California, on February
16, 2011. The trip was to be non-stop with Bogdanski and Budzik each driving
alternating eleven-hour shifts. A shift change occurred at about 2:00 a.m. on February
17th in Rawlins, Wyoming. Budzik completed an inspection of the tractor and trailers,
and then took over driving while Bogdanski rested in the truck’s sleeper compartment.
[¶6] When Budzik began his driving shift in Rawlins, it was snowing, but not heavily.
As Budzik continued to drive west on Interstate 80, it began to snow more heavily,
reaching what Budzik described as a six out of ten in severity, with snow accumulating
on the road’s surface. About thirty miles east of Evanston, Wyoming, Budzik came upon
traffic stopped in both westbound lanes. He was driving approximately forty-five to fifty
miles per hour when he encountered the stopped traffic, and he activated his flashers and
pulled from the right lane into the left to allow a greater distance over which to stop the
truck.
[¶7] The traffic ahead of Budzik remained stopped for around five to ten minutes.
When the traffic began to move again, Budzik found that he could not get his truck to
move. He tried for about one to two minutes to get it moving and then woke Bogdanski
to ask for help. Bogdanski described what happened next:
Q. So he woke you up. Did he want you to do
something? What did he want you to do?
A. He needed my help.
Q. Did you – to do what?
A. Just to – we were – we work in a team, so I
needed to sit down and decide what is going to be our next
step.
Q. And did you do that?
A. Yes. We were going to inspect the truck to see
why the truck is not able to move forward.
Q. So after he woke you up and you got out of the
sleeper compartment, from there, where did you go?
A. It was wintertime, so I needed also some time to
dress myself properly. I went out, exited.
* * *
Q. So I take it, somehow it was decided that you
had to go out?
3
A. That period of time, Damian was assigned to be
a driver. I went – when one is assigned, the other one did not
take over and sit back behind the wheel.
Q. Because of the hour restrictions, right?
A. Yes. So I was off duty.
Q. So the plan was that you were going to go out
of the truck and try and figure out why you were not getting
traction?
A. Basically, I also was at that point more
experienced than Damian. I wanted to go outside and look
around the truck and – trying to figure out why the truck can’t
move forward.
[¶8] When Bogdanski exited the truck, he found all of the truck and trailer exterior
lights were on, including the emergency lights, the pulsating lights, and the headlights.
He inspected the entire exterior of the truck and trailers and confirmed that the only
problem was that the driver wheels were spinning. He then concluded they would need
to place chains on some of the tires to get the truck moving and that they would also need
to place warning triangles to secure the truck’s location.
[¶9] The chains and warning triangles were kept on a catwalk between the tractor and
the trailers, and Bogdanski climbed onto the catwalk to get them. While Bogdanski was
on the catwalk, another commercial truck driven by Viktor Marinov rear-ended the
stopped tractor-trailer. The impact threw Bogdanski from the catwalk, and he landed on
the shoulder of the road. He was taken by ambulance to a hospital in Evanston,
Wyoming, where he was treated and released. The next day he and Budzik drove the
truck, without trailers, first to Salt Lake City and then back to Illinois. Upon his return to
Illinois, Bogdanski applied for and received Illinois workers’ compensation medical and
disability benefits for injuries to his right shoulder, right hip, cervical spine, lumbar spine,
and left arm.
[¶10] In February of 2013, Bogdanski filed an action in the Superior Court of California,
Sacramento County, against Viktor Marinov, the driver of the other truck involved in the
accident, as well as a number of parties associated with Marinov. On February 10, 2015,
Bogdanski filed a complaint in the Third Judicial District, Uinta County, Wyoming,
against many of the same parties named in the California action, and added Budzik and
FedEx.2 Bogdanski’s claims against FedEx included direct negligence and vicarious
2 Because of the duplicate action pending against the Marinov parties in California, the district court
dismissed all defendants from the Wyoming action except Budzik and FedEx. That decision was not
appealed.
4
liability for Budzik’s alleged negligence.3 In the count concerning FedEx’s vicarious
liability, the complaint alleged that Budzik “carelessly and negligently”:
a. Negligently drove on roads in weather conditions that
made it highly probable that his truck would become
stranded on the highway;
b. Failed to pull onto the shoulder when it became
apparent that heavy traffic and road conditions were
going to force him to stop his truck and become
stranded on the highway;
c. Failed to heed mandatory tire chain requirements; and
d. Failed to activate his lights and/or emergency flashers
so as to be visible to other vehicles on the highway.
[¶11] Bogdanski’s claim against Budzik was for negligence. In that count, the
complaint alleged Budzik “carelessly and negligently”:
a. Failed to pull on to the shoulder when traffic stopped;
b. Failed to drive in the right lane;
c. As Mr. Marinov testified, failed to turn on his lights
and/or emergency flashers to warn other vehicles on
the highway that he was stranded;
d. Negligently attempted to continue driving on terrain
and in weather conditions that made for reduced
traction; and
e. Failed to utilize traction aids to prevent his truck from
becoming stranded.
[¶12] On May 11, 2015, FedEx filed a written stipulation in which it agreed to be
responsible for Budzik’s negligence, if any such negligence were found. The stipulation
stated:
1. On February 17, 2011, Damian Budzik was
employed by BZ Trucking, Inc., an independent contractor
who provides services to FedEx Ground. Mr. Budzik was
driving a tractor with plate number 1000349 (State of
Indiana), and that tractor was at the location of the accident
that is the subject of the Complaint . . . .
2. If the vehicle is found to have been negligently
operated while performing actions within the scope of the
3 On appeal, the direct negligence claim at issue against FedEx is a claim for negligent training.
5
agency relationship between FedEx Ground and Damian
Budzik, FedEx Ground agrees to be responsible for any such
negligence.
3. This stipulation will not be shown or read to the
jury.
[¶13] On August 1, 2016, Budzik filed a motion for summary judgment, asserting that
he was entitled to coemployee immunity because Bogdanski had received workers’
compensation benefits for his injuries. Bogdanski opposed the motion. He asserted the
evidence showed Budzik was not entitled to immunity because he engaged in willful and
wanton misconduct by driving in a snowstorm at night and by getting the truck stuck.
[¶14] On October 14, 2016, FedEx filed its own motion for summary judgment asserting
multiple grounds on which it was entitled to judgment as a matter of law. FedEx urged
the district court to hold that a plaintiff may not proceed against a principal on
independent negligence theories of negligent hiring or training after the principal has
admitted vicarious liability.4 FedEx also asserted that there were no facts in the record
showing that either FedEx or Budzik breached a duty of care or that their actions
proximately caused Bogdanski’s injuries. Finally, FedEx argued Bogdanski could not
recover from it on a vicarious liability claim because his claims against Budzik were
barred by coemployee immunity under the applicable workers' compensation law.5
[¶15] On December 1, 2016, the district court entered an order granting Budzik’s
summary judgment motion. It found that Bogdanski’s coemployee claims against Budzik
were barred because of his receipt of workers’ compensation benefits, and that this was
true regardless of whether the court applied Wyoming or Illinois workers’ compensation
law.
[¶16] On the same date, the district court entered an order granting FedEx’s summary
judgment motion. The court concluded that Wyoming would adopt the McHaffie rule,
and on that basis ruled that FedEx was entitled to judgment as a matter of law on
Bogdanski’s negligent training claim. With respect to the remaining vicarious liability
claims, the court found the opinions of Bogdanski’s expert to be based on speculation,
and it concluded that Bogdanski had failed to oppose FedEx’s motion with evidence
showing any issue of material fact.
4This rule is known and referred to on appeal as the “McHaffie rule.” See Ferrer v. Okbamicael, 390 P.3d
836, 842-44 (Colo. 2017) (recognizing McHaffie v. Bunch, 891 S.W.2d 822 (Mo. 1995), as most
frequently cited case articulating rule).
5 The district court did not rule on this last ground or address it, and neither party has raised it on appeal,
so we will not consider it further.
6
[¶17] Bogdanski filed a timely notice of appeal from the district court’s order granting
the FedEx summary judgment motion.6
STANDARD OF REVIEW
[¶18] Our standard of review on summary judgment has been stated often and
consistently:
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 nonmovant has no obligation to respond to the
motion with materials beyond the pleadings. Id.
Once a prima facie showing is made, the burden
shifts to the party opposing the motion to present
6 Bogdanski also filed a timely notice of appeal from the district court’s order granting Budzik’s summary
judgment, but in his briefing, he informed this Court that he does not wish to challenge that order. We
therefore confine our review to the FedEx order and summarily affirm the order granting Budzik’s
summary judgment motion.
7
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. [Union Pacific R. Co. v. ]
Caballo Coal Co., ¶ 12, 246 P.3d [867] at 871 [(Wyo.
2011)].
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).
Amos v. Lincoln Cty. Sch. Dist. No. 2, 2015 WY 115, ¶ 15, 359 P.3d 954, 958-59 (Wyo.
2015). This Court affords no deference to the district court’s ruling, but instead reviews a
“summary judgment in the same light as the district court, using the same materials and
following the same standards.” Hurst v. Metropolitan Prop. & Cas. Ins. Co., 2017 WY
104, ¶ 8, 401 P.3d 891, 895 (Wyo. 2017) (quoting Lindsey v. Harriet, 2011 WY 80, ¶18,
255 P.3d 873, 880 (Wyo. 2011)).
DISCUSSION
A. Direct Negligence Claims against FedEx
[¶19] The district court granted FedEx summary judgment on Bogdanski’s claim of
negligent training on the basis of the McHaffie rule. The McHaffie rule has been stated as
8
follows: “[O]nce an employer admits respondeat superior liability for a driver’s
negligence, it is improper to allow a plaintiff to proceed against the employer on other
theories of imputed liability.” Ferrer, 390 P.3d at 843. This rule was first adopted by the
Maryland Court of Appeals in 1951. Houlihan v. McCall, 78 A.2d 661, 665 (Md. 1951).
Since then it has been applied by the Supreme Courts of California, Missouri, Arkansas,
Idaho, and Colorado, as well as intermediate appellate courts in Florida, Illinois, Texas,
and New York.7 8
[¶20] The district court explained its decision as follows:
Bogdanski asserts that FedEx was negligent in training
Budzik, which resulted in the injuries suffered by Bogdanski.
Wyoming has not ruled on whether an injured party has a
claim of negligent training; however, the majority rule is that
claims for negligent training are simply an effort to hold the
principal liable for the negligence of its agent. The Federal
District Court for the District of Wyoming has held:
First of all, the Court notes that this legal issue has not
been directly addressed by the Wyoming Supreme
Court. The majority of jurisdictions which have
considered this issue have determined that it is
improper to allow a plaintiff to proceed against [a
principal] on the independent negligence theories of
negligent entrustment and negligent hiring or training
after the principal has already admitted liability under
the doctrine of respondeat superior.
7 California: Armenta v. Churchill, 267 P.2d 303, 309 (Cal. 1954); accord Diaz v. Carcamo, 253 P.3d
535, 544 (Cal. 2011). Missouri: McHaffie, 891 S.W.2d at 826. Arkansas: Elrod v. G & R Constr. Co.,
628 S.W.2d 17, 19 (Ark. 1982). Idaho: Wise v. Fiberglass Sys., 718 P.2d 1178, 1182 (Id. 1986).
Colorado: Ferrer, ¶ 26, 390 P.3d at 844. Florida: Clooney v. Geeting, 352 So.2d 1216, 1220 (Fla. App.
1977). Illinois: Gant v. L.U. Transp., 770 N.E.2d 1155, 1159 (Ill. App. 2002). Texas: Rodgers v.
McFarland, 402 S.W.2d 208, 210 (Tex. Civ. App. 1966). New York: Karoon v. New York City Transit
Auth., 241 A.D.2d 323, 324 (N.Y. App. Div. 1997).
8 There is a minority rule which holds that a negligent hiring, training, retention, or supervision claim is
an independent cause of action which should be allowed to stand regardless of an admission of vicarious
liability for an employee’s negligent actions. See, e.g., Marquis v. State Farm Fire & Cas. Co., 961 P.2d
1213, 1222 (Kan. 1998); Perin v. Peuler, 130 N.W.2d 4 (Mich. 1964); Clark v. Stewart, 185 N.E. 71
(Ohio 1933); James v. Kelly Trucking Co., 661 S.E.2d 329 (S.C. 2008). These cases were cited in
Sanchez v. Home Depot, Inc., No. 1:13-CV-00117-ABJ, 2014 WL 2986672, at *3 (D. Wyo. July 2, 2014),
a Federal District Court decision correctly predicting that this Court would follow the majority rule.
9
Sanchez v. Home Depot, Inc., No. 1:13-CV-00117-ABJ, 2014
WL 2986672, at * 3 (D. Wyo. July 2, 2014) (unpublished
disposition) (citation & quotations omitted) (alteration &
emphasis in original). The Sanchez court held the Wyoming
Supreme Court would adopt the majority rule. Id. at *4. In
support of this conclusion the Sanchez court found, “[T]he
Wyoming Supreme Court has indirectly touched on this issue
in Beavis ex rel. Beavis v. Campbell County Memorial
Hospital, 20 P.3d 508 (Wyo. 2001).” Id. at *3. This Court
agrees with Sanchez and adopts the majority rule that
Bogdanski’s claims for negligent hiring, training, and
supervision cannot be maintained when vicarious liability has
been accepted by FedEx. Id.
[¶21] Bogdanski contends that the district court erred in adopting and applying the
McHaffie rule, arguing that it only applies where liability is asserted on the basis of an
employment relationship. He points out that any duty FedEx has arises from 49 C.F.R. §
390.11, which imposes a duty on motor carriers like FedEx to ensure that its contractors’
drivers obey federal safety rules.9
This separate duty is important because it means that,
unlike in Beavis, the chain of proximate causation is not
necessarily severed by a finding that Budzik was not
personally negligent. This is because FedEx’s duty was not
to exercise reasonable care to make sure Budzik exercises
reasonable care. It was to ensure that Budzik followed
specific, federally prescribed protocols for certain situations,
the non-observance of which could be, and, in fact, were the
proximate cause of Appellant’s injuries. Thus if FedEx
breached this duty, its breach could be a proximate cause of
Appellant’s injuries even if Budzik’s failure to follow these
federal protocols was not, from his perspective, negligent.
[¶22] This is a distinction without a difference. Apparently based on the regulation
identified above, FedEx decided to stipulate to liability for Budzik’s negligence, if any.
If Bogdanski can prove that Budzik was negligent, and that his negligence caused
Bogdanski’s injury, he will be entitled to recover the same damages that he would under
9 “Whenever in part 325 of subchapter A or in this subchapter a duty is prescribed for a driver or a
prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of
such duty or prohibition.” 49 C.F.R. § 390.11. Although it is not a model of clarity, the parties seem to
agree that this regulation requires motor carriers like FedEx to assure that its subcontractors’ drivers are
properly trained.
10
the direct negligence theory.10 We have previously held that a party can only recover for
a negligent failure to train or supervise if the person alleged to have been improperly
trained or supervised was negligent. Beavis v. Campbell Cty. Mem’l Hosp., 2001 WY 32,
¶¶ 19-20, 20 P.3d 508, 515-16 (Wyo. 2001). All roads lead to Rome in a case such as
this. As the Colorado Supreme Court has ably explained:
But where the employer has already conceded it is
subject to respondeat superior liability for any negligence of
its employee, direct negligence claims become superfluous.
Importantly, to prevail on direct negligence claims against the
employer, a plaintiff still must prove that the employee
engaged in tortious conduct. That is, tortious conduct by an
employee is a predicate in direct negligence claims against
the employer. See, e.g., Raleigh v. Performance Plumbing &
Heating, Inc., 130 P.3d 1011, 1016 (Colo. 2006) (in negligent
hiring cases, the employee’s “intentional or non-intentional
tort is the predicate for the plaintiff’s action against the
employer, so proof in the case involves both the employer’s
and the employee’s tortious conduct”); McHaffie, 891 S.W.2d
at 825 (elements of negligent entrustment include proof that
“the negligence of the entrustor concurred with the
negligence of the entrustee to harm the plaintiff”); Rodgers v.
McFarland, 402 S.W.2d 208, 210 (Tex. App. 1966) (in a
negligent entrustment action, “[t]he driver’s wrong . . . first
must be established, then by negligent entrustment liability
for such wrong is passed on to the owner”). Direct negligence
claims effectively impute the employee’s liability for his
negligent conduct to the employer, similar to vicarious
liability.
An employer’s negligent act in hiring, supervision and
retention, or entrustment is not a wholly independent cause of
the plaintiff’s injuries, unconnected to the employee’s
negligence. A plaintiff has no cause of action against the
employer for negligent hiring, for example, unless and until
the employee’s own negligence causes an accident.
10 Perhaps there might be a case in which the negligent failure-to-train theory could be claimed to be
sufficient to support an award of punitive damages. We need not address that speculative possibility as
no such claim was made in this case.
11
Stated differently, both vicarious liability and direct
negligence claims are tethered to the employee’s tortious acts.
“Derivative or dependent liability means that one element of
imposing liability on the employer is a finding of some level
of culpability by the employee in causing injury to a third
party.” McHaffie, 891 S.W.2d at 825. As one court explained:
Under either theory, the liability of the principal is
dependent on the negligence of the agent. If it is not
disputed that the employee’s negligence is to be
imputed to the employer, there is no need to prove that
the employer is liable. Once the principal has admitted
its liability under a respondeat superior theory . . . the
cause of action for negligent entrustment is duplicative
and unnecessary. To allow both causes of action to
stand would allow a jury to assess or apportion a
principal’s liability twice.
Gant v. L.U. Transp., Inc., 331 Ill.App.3d 924, 264 Ill.Dec.
459, 770 N.E.2d 1155, 1160 (2002).
Ferrer, 390 P.3d at 844-45.
[¶23] The majority rule is consistent with our comparative fault scheme. Both FedEx
and Budzik would have to be listed on the form for allocation of fault if the direct
negligence claim against FedEx was tried, which could lead to a double allocation. This
possibility is best illustrated by the case of Diaz v. Carcamo, 253 P.3d 535 (Cal. 2011).
A vehicle driven by defendant Tagliaferri collided with a semi-truck driven by defendant
Carcamo while Carcamo was in the scope of his employment with Sugar Transport. Id.
at 538. The collision caused Tagliaferri’s vehicle to collide with plaintiff Diaz’s vehicle.
Id. Sugar Transport admitted vicarious liability for Carcamo’s actions. Id. at 539. The
trial court allowed the jury to consider claims for vicarious liability and direct negligence.
Id. The intermediate appellate court affirmed, holding that California’s adoption of the
McHaffie Rule in Armenta v. Churchill, 267 P.2d 303, 309 (Cal. 1954), was no longer
proper in light of California’s subsequent adoption of comparative fault. Diaz, 253 P.3d
at 540.
[¶24] At trial the jury allocated forty-five percent of the negligence to Tagliaferri,
twenty percent to Carcamo, and thirty-five percent to Sugar Transport. Id. at 545. This
resulted in Sugar Transport paying fifty-five percent of the damages even though
Tagliaferri admitted that the accident was mostly her fault. Id. The California Supreme
Court rejected this allocation and reversed the court of appeals. It affirmed its holding in
Armenta “that an employer’s admission of vicarious liability for an employee’s negligent
12
driving in the course of employment bars a plaintiff from pursuing a claim for negligent
entrustment.” Diaz, 253 P.3d at 544.
[¶25] Finally, allowing negligent training and hiring claims to be tried with vicarious
liability claims would lead to practical complications at trial. “[E]vidence necessary to
prove direct negligence claims is likely to be unfairly prejudicial to the [driver]. For
instance, evidence of an employee’s prior convictions for traffic offenses, relevant to the
issue of the employer’s negligent hiring, may lead a jury to ‘draw the inadmissible
inference that because the [driver] had been negligent on other occasions he was
negligent at the time of the accident.’” Ferrer, 390 P.3d at 845 (quoting Houlihan, 78
A.2d at 665). Perceived flaws in training might also lead the jury to conclude that an
employee was at fault, even if his actions were not negligent. These kinds of issues could
be addressed by bifurcating vicarious claims from direct negligence hiring, training, and
retention claims under Wyoming Rule of Civil Procedure 42(b).11 This seems futile,
however. Presumably trial judges would try the vicarious liability claim, including
damages, first. If the defendant prevailed, there could be no direct negligence claim.
Beavis, ¶¶ 19-20, 20 P.3d at 516. If the plaintiff prevailed and was awarded damages,
that award would be the same as for a direct negligent training claim.
[¶26] The district court correctly held that Bogdanski could not pursue claims of both
vicarious liability and direct liability for negligent training when FedEx admitted its
liability for Budzik’s negligence. We must now review the summary judgment ruling on
the vicarious liability claim.
B. Vicarious Negligence Claim against FedEx Based on Budzik’s Claimed
Negligence
[¶27] As we noted above, under Wyoming’s summary judgment standard, the nonmoving
party has no obligation to come forward with materials beyond the pleadings if
the movant fails to make a prima facie case that there is no genuine issue of material fact.
Amos, ¶ 15, 359 P.3d at 958-59. And, as we have already also noted, we afford the
district court’s ruling on summary judgment no deference.12
11 “(b) Separate Trials. – For convenience, to avoid prejudice, or to expedite and economize, the court
may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or thirdparty
claims. When ordering a separate trial, the court must preserve any right to a jury trial.” W.R.C.P.
42(b).
12 The dissent argues that we should adopt the standard from Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), which it correctly points out applies in federal court. By
that standard, a movant may shift the burden to the nonmoving party to produce evidence of the elements
of its case without making the prima facie case required by Wyoming law, and by federal law before
Celotex. 10A Charles Alan Wright et al., Federal Practice & Procedure - Civil Procedure § 2727.1 (4th
ed. Apr. 2017 update) (under Celotex, it is not necessary for the movant to introduce any evidence to
13
[¶28] Bodganski claimed, mostly through affidavit with the attached report of an expert
on trucking industry standards, that Appellee had failed to meet industry standards in
three ways: (1) failing to place emergency triangles behind the trailers, (2) failing to
chain up in light of deteriorating weather conditions, and (3) failing to lock the rear axles
on the tractor so that they pulled together rather than separately.
[¶29] The claim that Budzik failed to timely place the emergency triangles is the most
obvious basis on which summary judgment should have been denied. 49 C.F.R. §
392.22(b) provides that “whenever a commercial motor vehicle is stopped upon the
traveled portion or the shoulder of a highway for any cause other than necessary traffic
stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the
warning devices required by § 393.95 of this subchapter.” (Emphasis added.) The
warning devices prescribed by 49 C.F.R. § 393.95 are “[t]hree bidirectional emergency
reflective triangles that conform to the requirements of [federal standards].” Bogdanski’s
expert on trucking industry standards, Michael Williams, testified that a driver should
immediately place the triangles when he knows his truck is stuck.
[¶30] Budzik’s testimony indicates that he was stopped for five to ten minutes because
of traffic backed up ahead of him, evidently because of an accident to the west. He was
stopped in the passing lane, and there was a long line of vehicles behind the rig by the
prevail on summary judgment); Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26
L.Ed.2d 142 (1970) (requiring the movant to make a prima facie case); Amos, ¶ 15, 359 P.3d at 958-59.
As the dissent concedes, neither party briefed the issue of whether this Court should adopt the
Celotex standard in this case – neither even cited the case. They relied upon the same standard stated in
this opinion. It would be quite proper to raise the Celotex issue for this Court’s consideration, but that
simply wasn’t done. Although we often find federal case law concerning federal procedural rules similar
to ours persuasive, we are not bound by those decisions. Other states with procedural rules similar to the
federal rules, as ours are, have declined to adopt the Celotex standard. Jeffrey O. Cooper, Summary
Judgment in the Shadow of Erie, 43 Akron L. Rev. 1245, 1247-49 (2010). See also Kahf v. Charleston
South Apartments, 461 N.E.2d 723, 729 (Ind. Ct. App. 1984) (stating that the moving party must
“shoulder the burden of establishing the lack of a material factual issue”); Roubideaux v. Davenport, 530
N.W.2d 232, 235 (Neb. 1995) (“In the absence of a prima facie showing by the movant that she is entitled
to summary judgment, the opposing party is not required to reveal evidence which [sic] she expects to
produce at trial to prove the allegations contained in her petition.”). Celotex was part of a trilogy of
decisions made at the same time, which changed preexisting summary judgment rules in the federal
courts. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986). The other cases in the series have also received a mixed review in the state courts. Cooper,
supra, at 1247-49.
We have stated that “this court will not frame the issues for the litigants and will not consider
issues not raised by them and not supported by cogent argument and authoritative citation.” State v.
Campbell Cty. Sch. Dist., 2001 WY 90, ¶ 35, 32 P.3d 325, 333 (Wyo. 2001). We should not deviate from
this rule when sua sponte modification of the standard for summary judgment could impact every civil
claim for damages in the state courts. We will reserve consideration of the merits of Celotex for another
case with adequate briefing.
14
time he tried to move it. He was unable to get the truck moving due to ice and snow and
perhaps an incline. He spent a minute or two trying to get the truck unstuck, and then he
woke Bogdanski, who had to get dressed before leaving the tractor.
[¶31] Although Budzik knew that emergency triangles were located in a box on the
catwalk between the tractor and the lead trailer, he did not leave the tractor and made no
effort to place them while Bogdanski dressed and exited the vehicle. In the meantime,
the traffic backed up behind the FedEx semi moved around it by pulling into the right
lane.
[¶32] This evidence was sufficient to raise a genuine issue as to whether Budzik
breached a duty. Appellant is entitled to all favorable inferences that can be reasonably
drawn from the evidence. This truck was stalled in the passing lane on a busy interstate
highway, and a reasonable juror could conclude that it was imperative to set the triangles
immediately to avoid the sort of accident that occurred. The record, viewed in the light
most favorable to the Appellant as the nonmovant, indicates that he may have had time to
do so while there was a protective barrier of stopped vehicles behind him.
[¶33] Of course, the next question is whether the record reflects causation – i.e., that
placing the triangles would have made a difference. FedEx argues that Bogdanski did not
present evidence showing that the accident could have been avoided or would have been
less severe if the triangles had been placed. It is true that no expert, such as an accident
reconstruction specialist, testified that the triangles would have allowed an attentive
operator in the rear-ending driver Marinov’s position to realize that the FedEx semi was
stopped in the passing lane. However, it is also true that FedEx did not offer expert or
other testimony that placing the triangles would not have made a difference. Williams
did testify that reflective triangles could be seen up to one-half to three-quarters of a mile,
depending on the line of sight permitted by the terrain and any other obstructions to view.
He also pointed out the obvious – the triangles indicate that a vehicle is stopped, as
opposed to moving slowly with emergency flashers on.
[¶34] FedEx’s strategy was to point out that Bogdanski did not have an expert on this
point, rather than making a prima facie showing that the triangles would have made no
difference if they had been deployed.13 Under our summary judgment standard, however,
because FedEx did not make a prima facie showing, the burden never shifted to
Bogdanski to make that showing, and he was entitled to stand on the pleadings on that
issue. Amos, ¶ 15, 359 P.3d at 958-59.
13 The district court and the dissent also focus on Williams’ admitted inability to testify as an expert on
accident reconstruction. We are not so sure expert testimony is required, given the state of this record.
Marinov, the driver of the semi that rear-ended the FedEx truck, may testify as to the effect triangles
would have had on his recognition of the hazard the stopped truck presented. Given the standard we
apply on summary judgment, this vacuum of proof favors Bogdanski, not FedEx.
15
[¶35] The question of whether Budzik was negligent in failing to chain up and in
allegedly not locking the tractor axle or differential are closer calls. Bogdanski’s expert
Williams indicated that he failed to meet industry standards in both respects. However,
the undisputed record shows that no other trucks were chained up that night, and that
Budzik had no trouble controlling the tractor on the ice or snow until he became stuck
after being forced to stop because the interstate was blocked by other vehicles.
[¶36] In addition, no one was able to testify that the tractor in question had an axle that
could be locked so that both wheels turned on an axle at once.14 On the other hand, no
one could testify that it did not. We decline to consider whether the district court could
or should enter a W.R.C.P. 56(g) finding removing those contentions from consideration
at trial. The district court can determine how to deal with those questions on remand.
CONCLUSION
[¶37] Bogdanski will undoubtedly have a difficult case to try. At trial, the burden of
proof will fall on him to prove negligence, causation, and damages by a preponderance of
the evidence – he will not be able to avoid that burden as he did on summary judgment.15
His own arguable negligence (he trained Budzik, and did not direct him to place the
triangles immediately when Budzik woke him) will probably earn him a place on the
verdict form so that his fault can be compared. The fault of Marinov, the driver of the
other semi, will also have to be compared. However, summary judgment is not a means
to allow judges to jump ahead and write the end of the mystery if a movant fails to make
an adequate summary judgment showing, even if the nonmovant’s case appears to be
weak. On this record, Bogdanski is entitled to try his luck with a jury on his vicarious
liability claim against FedEx.
[¶38] We affirm the summary judgment granted to Budzik individually, because that
ruling was not challenged on appeal. We also affirm the district court’s ruling on the
negligent training claim. We reverse and remand the vicarious liability claim for further
proceedings consistent with this opinion.
14 The record does not even contain a copy of the accident report, which would probably have identified
the make and model of the tractor.
15 We note that the worst that can happen in this case, if it goes to trial, is that Bogdanski will get a chance
to present his claim to a jury. That jury may or may not find in his favor, but it is not a tragedy for a jury
trial to take place in district court when a movant has not made an adequate showing on summary
judgment. Perhaps he will get past a W.R.C.P. 50 motion for judgment as a matter of law, and perhaps he
will not. Rule 56 (summary judgment) plays an important role in our jurisprudence, but it does not allow
trial courts to skip ahead to the end of what appear to be weak cases when an appropriate showing has not
been made under the current standard.
16
HILL, Justice, concurring in part and dissenting in part, in which KAUTZ, J., joins.
[¶39] I concur with the majority opinion’s adoption of the McHaffie Rule and the
opinion’s disposition of Mr. Bogdanski’s negligent training claim against FedEx. I
disagree, however, that triable issues of fact preclude summary judgment on Mr.
Bogdanski’s vicarious liability claim against FedEx, and I therefore respectfully dissent
from the reversal of the district court's grant of summary judgment.
[¶40] My disagreement with the majority opinion stems from my view of how a movant
must meet its initial summary judgment burden in a case such as this where the
nonmovant will bear the burden of persuasion at trial. I would interpret Rule 56(c) in
keeping with federal precedent, which, dating back to Celotex Corp. v. Catrett, 477 U.S.
317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), has defined the parties’ respective burdens
as follows:
The movant bears the initial burden of making a prima
facie demonstration of the absence of a genuine issue of
material fact and entitlement to judgment as a matter of law.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). In so doing, a movant that will
not bear the burden of persuasion at trial need not negate the
nonmovant’s claim. Id. at 325, 106 S.Ct. 2548. Such a
movant may make its prima facie demonstration simply by
pointing out to the court a lack of evidence for the nonmovant
on an essential element of the nonmovant’s claim. Id.
If the movant carries this initial burden, the nonmovant
that would bear the burden of persuasion at trial may not
simply rest upon its pleadings; the burden shifts to the
nonmovant to go beyond the pleadings and “set forth specific
facts” that would be admissible in evidence in the event of
trial from which a rational trier of fact could find for the
nonmovant. Fed.R.Civ.P. 56(e).
Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003); see also Savant
Homes, Inc. v. Collins, 809 F.3d 1133, 1137-38 (10th Cir. 2016).
[¶41] I will begin by explaining why I would follow the Celotex line of cases in
reviewing the district court’s summary judgment ruling. I will then turn to the result that
follows when we apply what I believe is fundamentally the most sound assignment of
summary judgment burdens in a case like this.
A. Celotex Interpretation of Rule 56(c)
17
[¶42] In Celotex, the Supreme Court held:
Under Rule 56(c), summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
In our view, the plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.
Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
[¶43] Our Court has twice recognized the basic premise underlying Celotex, holding:
The entry of a summary judgment is proper “against a party
who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986).
Franks v. Olson, 975 P.2d 588, 593 (Wyo. 1999); see also Harper v. Fidelity and Guar.
Life Ins. Co., 2010 WY 89, ¶ 30, 234 P.3d 1211, 1221 (Wyo. 2010) (citing the same
Celotex holding).
[¶44] This Court has not, however, been presented with the opportunity to address
whether our recognition of the Celotex holding affects a summary judgment movant’s
burden in a case where the nonmovant bears the burden of persuasion. I believe this case
presents that opportunity.16
16 I understand the parties did not cite Celotex in their summary judgment arguments and the district court
did not apply a Celotex analysis in its ruling. Still, this Court may affirm summary judgment on any legal
basis supported by the record, Williams v. Matheny, 2017 WY 85, ¶ 9, 398 P.3d 521, 524 (Wyo. 2017),
and the record in this case supports the application of Celotex and affirming on that basis. Additionally,
while the parties did not cite Celotex in their summary judgment arguments, they argued summary
judgment very much as if Celotex were the governing standard. FedEx, the movant, cited Rule 56(c) and
argued that based on the record before the court, Mr. Bogdanski had no evidence to support his claims.
Mr. Bogdanski opposed the motion, not by arguing that FedEx failed to come forward with evidence
18
[¶45] Because of the similarities between Wyoming’s rules of civil procedure and the
federal rules, we have traditionally looked to federal precedent to interpret our rules. See,
e.g, Windham v. Windham, 2015 WY 61, ¶ 20, 348 P.3d 836, 842 (Wyo. 2015) (quoting
Lamar Outdoor Adver. v. Farmers Co–Op Oil Co., 2009 WY 112, ¶ 12, 215 P.3d 296,
301 (Wyo.2009)) (“Because the Wyoming Rules of Civil Procedure are patterned after
the Federal Rules of Civil Procedure, federal court interpretations of their rules are highly
persuasive in our interpretation of the corresponding Wyoming rules.”). I see no reason
to change course here.
[¶46] First, I do not see the Celotex holding as a significant departure from our own
precedent defining summary judgment burdens. We have held:
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 nonmovant has no obligation to respond
to the motion with materials beyond the pleadings. Id.
Amos v. Lincoln Cty. Sch. Dist. No. 2, 2015 WY 115, ¶ 15, 359 P.3d 954, 958-59 (Wyo.
2015).
[¶47] Celotex maintains this same order of summary judgment burdens, placing the
initial burden on the movant to make the prima facie showing required by Rule 56(c), but
clarifies how the movant’s initial burden is met when it is the nonmovant who bears the
burden of persuasion at trial. As one authority has explained:
Finally, it is important to note that, as established in
Celotex, it is not necessary for the movant to introduce any
evidence in order to prevail on summary judgment, at least in
cases in which the nonmoving party will bear the burden of
sufficient shift the summary judgment burden, but by submitting evidence he contended was sufficient to
create a genuine issue of material fact. Finally, I note that FedEx filed its summary judgment motion
twenty months after Mr. Bogdanski filed his complaint, just over three months before the scheduled jury
trial, and Mr. Bogdanski made no suggestion he needed additional time for discovery. In other words, if
Mr. Bogdanski had evidence to support his claims against FedEx, he could have and no doubt would have
submitted that evidence in opposition to FedEx’s summary judgment motion. I therefore see no undue
surprise or unfairness to the parties in affirming summary judgment using a Celotex-based analysis.
19
proof at trial. The movant can seek summary judgment by
establishing that the opposing party has insufficient evidence
to prevail as a matter of law, thereby forcing the opposing
party to come forward with some evidence or risk having
judgment entered against him. On the other hand, the party
moving for summary judgment cannot sustain its burden
merely by denying the allegations in the opponent’s
pleadings, or merely by asserting that the nonmovant lacks
evidence to support its claim. The movant must show why
the opponent’s allegations of fact are insufficient to support
the claim for relief as a matter of law or why the court
should conclude that its opponent lacks sufficient evidence.
10A Charles A. Wright et al., Federal Practice & Civil Procedure § 2727.1 (2016 4th
ed.) (footnotes omitted) (emphasis added).
[¶48] In addition to being in keeping with our general allocation of summary judgment
burdens, the Celotex approach is supported by sound policy justifications. As the
Supreme Court explained:
The Federal Rules of Civil Procedure have for almost
50 years authorized motions for summary judgment upon
proper showings of the lack of a genuine, triable issue of
material fact. Summary judgment procedure is properly
regarded not as a disfavored procedural shortcut, but rather as
an integral part of the Federal Rules as a whole, which are
designed “to secure the just, speedy and inexpensive
determination of every action.” Fed.Rule Civ.Proc. 1; see
Schwarzer, Summary Judgment Under the Federal Rules:
Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 467
(1984). Before the shift to “notice pleading” accomplished by
the Federal Rules, motions to dismiss a complaint or to strike
a defense were the principal tools by which factually
insufficient claims or defenses could be isolated and
prevented from going to trial with the attendant unwarranted
consumption of public and private resources. But with the
advent of “notice pleading,” the motion to dismiss seldom
fulfills this function any more, and its place has been taken by
the motion for summary judgment. Rule 56 must be construed
with due regard not only for the rights of persons asserting
claims and defenses that are adequately based in fact to have
those claims and defenses tried to a jury, but also for the
rights of persons opposing such claims and defenses to
20
demonstrate in the manner provided by the Rule, prior to trial,
that the claims and defenses have no factual basis.
Celotex, 477 U.S. at 326-27, 106 S.Ct. at 2554-55.
[¶49] For the reasons stated above, I would join the majority of other state jurisdictions
and interpret Rule 56(c) in keeping with the Celotex line of federal precedent.17 When
that is done in this case, and the summary judgment burdens are properly defined, it is
impossible to find a triable issue of fact.
B. Application of the Celotex Rule
[¶50] Mr. Bogdanski asserted that Mr. Budzik was negligent in his: (1) failure to put
chains on the truck’s drive wheels when approaching steep grades in a heavy snowstorm;
(2) failure to use proper driving methods to regain traction on the slippery road, and: (3)
failure to immediately put out reflective emergency triangles. On summary judgment,
FedEx pointed out that Mr. Bogdanski had not designated an accident reconstructionist or
human factors expert to provide testimony concerning these alleged failings and how they
contributed to Mr. Bogdanski’s injuries and that the record was otherwise devoid of
evidence to support Mr. Bogdanski’s claims. In opposition to summary judgment, Mr.
Bogdanski relied solely on the opinions of his motor fleet safety expert, Michael
Williams.
[¶51] The difficulty with Mr. Bogdanski’s sole reliance on Mr. Williams’ opinions was
that those opinions, as I will discuss below, were largely speculative and unsupported by
foundational facts. As such, the opinions would not be admissible at trial and were
insufficient to establish a genuine issue of material fact. Rivers v. Moore, Myers &
Garland, LLC, 2010 WY 102, ¶¶ 23-24, 236 P.3d 284, 293 (Wyo. 2010) (expert’s bald
assertion of an opinion, unsupported by foundational facts, is inadmissible and will not
serve to show a material issue of fact); RB, Jr. v. Big Horn Cty. Sch. Dist. No. 3, 2017
WY 13, ¶ 30, 388 P.3d 542, 551 (Wyo. 2017) (quoting Jones v. Schabron, 2005 WY 65,
¶ 11, 113 P.3d 34, 38 (Wyo. 2005)) (“Speculation, conjecture, the suggestion of a
possibility, guesses, or even probability are insufficient to establish an issue of material
fact.”).
1. Failure to Use Snow Chains
17 See Waste Conversion Tech., Inc. v. Midstate Recovery, LLC, 2008 WL 5481231, * 26, n.19 (Conn.
Super. Ct. 2008) (noting “Celotex has been adopted by rule or court decision in a majority of states,” and
citing cases).
21
[¶52] On the question of snow chain use, Mr. Williams opined that based on the
recorded weather conditions on the date of the accident: 1) it “was good weather to
expect ice and slippery conditions on the road;” 2) “Mr. Budzik knew or should have
known that tire chains were needed to maintain traction on the highway;” and 3) “Damian
Budzick was negligent by not installing chains on his vehicle and recklessly operated his
vehicle in severely hazardous weather conditions.” On examination, though, Mr.
Williams conceded he had no factual support for his opinion. He testified:
Q. Okay. Do you know if any of the other vehicles
in – on the highway were chained up?
A. I have no idea.
Q. Is there any evidence in the record that Damian
Budzik had any trouble keeping his vehicle on the road prior
to coming to a stop?
A. No.
Q. * * * Is there any evidence in the record to
suggest that Damian Budzik was unable to bring his vehicle
to a safe stop and not run into the vehicles in front of him?
A. No.
* * *
Q. * * * I mean, you don’t have any basis in fact to
say that Damian Budzik should have been chained up prior to
the time he came to a stop; isn't that true?
A. That’s my opinion, that he should have, but I
don’t have any basic facts to support that.
[¶53] In addition to Mr. Williams’ admitted lack of foundation for his opinion, FedEx
pointed out in its summary judgment reply that Mr. Williams’ assumed facts were
contrary to the evidence of record. Mr. Budzik testified: he had no difficulty controlling
the truck at any time as he drove through Wyoming; there were other trucks on the road,
none of which were using chains; and he had traction when he came to a stop before the
accident. Mr. Williams’ inadmissible opinion was insufficient to refute Mr. Budzik’s
uncontroverted testimony and was insufficient to establish a genuine issue of material
fact.
2. Failure to Regain Traction
[¶54] Mr. Bogdanski’s sole evidence on Mr. Budzik’s alleged breach of duty in failing
to regain traction was again the opinion of Mr. Williams. Mr. Williams opined:
Mr. Budzik dispayed a lack of experience by his failure to
execute basic maneuvers in attempting to move his vehicle
off the road and prevent an emergency situation. Truck
22
driving schools teach a simple technique to use to move a
commercial motor vehicle on icy roads in the absence of sand
or gravel. By placing the transmission in 3rd gear, locking
the power divider then slowly depressing the accelerator.
This will lock both rear axles so that they are pulling together
and reduces the force to the wheels, helping to keep them
from spinning.
[¶55] As the majority opinion recognizes at ¶ 36, the record contains no evidence that
the truck Mr. Budzik was driving had the axel interlock device required to perform Mr.
Williams’ recommended maneuver. Moreover, Mr. Williams testified:
Q. And let me ask you. I mean, what information
do you have about what Damian Budzik did or didn’t do to
try to get himself going?
A. Well, the only thing that I had information was
that he had tried to get out of there, spinning the wheels
enough that it got them nice and slick so he couldn’t get out.
And then he did not put the triangles out, which is –
Q. Okay. All right. But the truth, though, is that
you don’t know what he actually did physically to get the
truck moving?
A. No.
Q. What I just said is a correct statement?
A. Correct.
[¶56] Mr. Williams’ opinion is again one without foundation. Rather than investigating
the actions Mr. Budzik took to regain traction and then evaluating those actions, Mr.
Williams offers a maneuver “that would be a way he could get that truck out.” There is
of course no way to know whether that maneuver would have worked to free the truck in
this case, but even if we were to indulge Mr. Williams’ speculation and assume it would
work, the record contains no evidence that the truck Mr. Budzik was operating had the
equipment required to perform the maneuver. Mr. Williams’ speculative opinion is
simply not admissible evidence that Mr. Budzik breached a duty of care, and Mr.
Bogdanski has otherwise failed to identify any evidence to support this claim.
3. Failure to Place Warning Triangles
[¶57] I agree with the majority opinion that a genuine issue of fact exists on the question
of whether Mr. Budzik breached a duty of care by failing to immediately place warning
triangles outside the tractor-trailer. I disagree, however, that Mr. Bogdanski presented
evidence sufficient to show an issue of fact on causation—that is, whether that alleged
breach of duty was a proximate cause of Mr. Bogdanski’s injuries.
23
[¶58] On the question of proximate cause, Mr. Bogdanski’s sole evidence was again the
opinion of Mr. Williams. On this question, Mr. Williams opined: “The failure of Mr.
Budzik to initiate emergency procedures immediately resulted in an accident resulting in
the severe injury to Mr. Bo[g]danski.” When questioned on this opinion, however, Mr.
Williams testified:
Q. All right. Now, Budzik didn’t hit anybody, but
Vi[k]tor Marinov, he hit somebody, right?
A. Yes.
Q. Who did he hit?
A. Well, he hit Budzik. But Mr. Marinov was –
what was he doing, 60 miles an hour?
Q. Right.
A. So he had nothing to do with what Budzik did
or didn’t do. I mean, he had the accident. But I can’t go back
and say Marinov you were wrong, because he has nothing to
do with what I say, and I don’t care if he was going 60.
If he put the triangles out and he would have seen
them, maybe there’s a chance he would move over and not
have had the accident. Drivers do that. I mean I can’t explain
why. I can’t go into a big scenario why Marinov was going
60 and everybody else – don’t know.
Q. Well, what you just said, Mike, you will agree
that that is speculation on your part, you don’t have any facts?
A. Absolutely.
Q. All right. But one of the facts we do know is
that Marinov was going 60 miles an hour, correct?
A. Correct.
Q. And Marinov could not bring his vehicle to a
safe stop?
A. That’s correct.
Q. And you agree with me that as a professional
truck driver, whether it’s the Smith’s program or any
defensive truck driving lesson, you are required to maintain
your speed such that you can bring your vehicle to a safe spot
– stop?
A. Absolutely.
Q. Did Vi[k]tor Marinov on that day do that?
A. From the evidence that I see, no, he did not.
Q. * * * You will agree with me that the Wyoming
Highway Patrol Investigation determined that Viktor Marinov
was driving at a speed too fast for conditions?
24
A. Well, now you’re getting into an area that I
have never gone into, because I know nothing about Vi[k]tor
Marinov or his – what happened to him, or the lawsuit or
anything else. I have – the only thing I have on Vi[k]tor
Marinov is I have his bill of lading.
Q. Okay.
A. And that’s it. I have no knowledge of him.
Q. Never crossed your mind that when you were
analyzing this case, and that it’s brought because Mr.
Bogdanski claims significant injury, it never crossed your
mind that you should analyze how it was that the vehicle and
Mr. Bogdanski potentially was struck by Vi[k]tor Marinov
and why that happened?
[Objection]
THE WITNESS: Again, I have nothing [to do] with
that. My – my opinion and what I looked at, Marinov hit
him. I don’t know why he was doing 60, can’t say what
caused him to hit the back of the Bogdanski vehicle. But
what I can say is, Budzik did not put out the triangles as he
should have, and there’s a chance that Marinov could have
moved over to the other lane.
[¶59] To qualify as a legal cause of a plaintiff’s injuries, the alleged conduct must be a
substantial factor in bringing about the plaintiff’s injuries. Amos, ¶ 27, 359 P.3d at 961
(quoting Foote v. Simek, 2006 WY 96, ¶ 22, 139 P.3d 455, 464 (Wyo. 2006)). We have
said:
A person, no doubt, could create many “what if” scenarios
that, in hindsight, might have prevented this tragic incident.
But, negligence and proximate cause are never presumed
from the happening of an accident, and mere conjecture
cannot form the basis of liability. Vasquez v. Wal–Mart, 913
P.2d 441, 443 (Wyo.1996); Downen v. Sinclair Oil Corp.,
887 P.2d 515, 520 (Wyo.1994); DeWald v. State, 719 P.2d
643, 652 (Wyo.1986); Apperson v. Kay, 546 P.2d 995, 998
(Wyo.1976). Guesswork is not a substitute for evidence or
inference, and inference cannot be based on mere possibility.
Forbes Co. v. MacNeel, 382 P.2 [P.2d] 56, 57 (Wyo.1963);
Wright v. Conway, 34 Wyo. 1, 242 P. 1107, 1111 (1926).
General or conclusory allegations cannot establish a genuine
issue of material fact. Tidwell v. HOM, Inc., 896 P.2 [P.2d]
1322, 1324–25 (Wyo.1995).
25
Jones, ¶ 23, 113 P.3d at 39-40 (quoting with approval the lower court’s ruling).
[¶60] On the question of causation, Mr. Williams offered, by his own admission, only
conjecture and speculation. The record is otherwise devoid of evidence that the failure to
immediately place warning triangles played any part in this accident, and Mr. Bogdanski
thus failed to establish that a genuine issue of material fact exists on this question.
[¶61] Assuming this matter goes to trial, Mr. Bogdanski will have the burden to prove
all elements of his negligence claims. Based on Mr. Bogdanski’s evidence, or lack
thereof, I have no doubt that FedEx will move for and be granted a directed verdict. In
my view, the majority ruling thus fails to accomplish the goal of giving truly disputed
issues of fact to a jury for resolution, which should be our reason for rejecting summary
judgment and requiring a trial. By sending this case back for trial, we have instead done
little more than add unnecessary cost, delay, and expenditure of judicial resources to the
resolution of this case.
[¶62] Our result would be different were we to use a Celotex analysis, which illustrates
the wisdom of Celotex. The Celotex analysis recognizes there is little to be gained by a
trial if a plaintiff has had a full opportunity for discovery and is still unable to produce
evidence sufficient to meet his burden of proof, or even to show a genuine issue of
material fact. That is the case here, and I would therefore use the Celotex analysis and
affirm the district court’s grant of summary judgment to FedEx.

Outcome: We affirm the summary judgment granted to Budzik individually, because that
ruling was not challenged on appeal. We also affirm the district court’s ruling on the
negligent training claim. We reverse and remand the vicarious liability claim for further
proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

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