Safety Failures, Yelling at Injured Worker don’t Create Case for Tort Suit

Case File

Evidence of a coworker's safety-rule violations and workplace misconduct did not create a jury question on willful and wanton conduct where the coworker lacked knowledge of a specific high-probability risk to the injured employee.

Case

Courtney v. Meyer, No. S-25-0260 (Wyo. 06/18/26)

What Happened?

An employee for a waste system sustained serious injuries during the course of his employment when his hand was caught in the pinch point of a garbage truck's lift arms as the arms were being raised.

The injury occurred when the employee stepped out of the garbage truck because he had to vomit but, unbeknownst to the employee's coworker who was still in the truck, the employee had placed his hand on the pinch point while the coworker was activating the lift arm.

The employee sued the coworker, alleging co-employee liability under Wyoming tort law. The coworker moved for summary judgment, asserting that there was no dispute of material fact as to whether his conduct was willful and wanton. The district court granted the motion, so the employee appealed to the Wyoming Supreme Court.

Rule of Law

Wyoming's Workers' Compensation Act generally provides compensation to employees injured in extra-hazardous jobs regardless of fault, and in return, employers are immunized from liability for their employees' work-related injuries. Additionally, the act immunizes co-employees acting in the scope of their employment from liability unless they intentionally act to cause physical harm or injury to the injured employee.

The Wyoming Supreme Court has interpreted "intentionally act" to be the equivalent of "willful and wanton misconduct." The court has defined "willful and wanton misconduct" as the intentional doing of an act or the intentional failure to act in reckless disregard of the consequences and under circumstances and conditions that a reasonable person would know or have reason to know would, in a high degree of probability, result in harm to another.

To establish willful and wanton misconduct, there must be proof that the co-employee acted with a state of mind approaching intent to do harm or committed an act of unreasonable character in disregard of known or obvious risks so great as to make it highly probable that harm would follow.

The key factors in finding co-employee liability under Wyoming law are a co-employee with:

(1) Knowledge of the hazard or serious nature of the risk involved.

(2) Responsibility for the injured employee's safety and work conditions.

(3) Willful disregard of the need to act to protect the injured worker's safety despite the awareness of the high probability that serious injury or death may result.

What the Wyoming Supreme Court Said

The court explained that the dispositive factor in the case was the coworker's knowledge of the hazard or serious nature of the risk involved. In this case, while there was evidence that coworker violated safety rules and training principles and didn't take the injured employee to the hospital (but instead called him a dumb*** and yelled at him), it didn't rise to the level of willful misconduct in the court's view.

To establish willful misconduct, the employee had to produce evidence that the coworker knew there was risk the employee would place his hand in the pinch point of the garbage truck's lift arm or that it was obvious to the coworker that he would do so or that it was highly probable raising the lift arms would result in harm.

However, the court did not find such evidence.

"[The employee] has not produced evidence that the risk was known or obvious or that [the coworker] knew or should have known that his conduct was highly likely to result in harm," the court wrote. "The danger involved in raising the lift arms was not obvious, and the risk of [the employee's] injuries was not highly probable."

Regarding the coworker's alleged safety challenges, the court explained that neither of his prior infractions demonstrated that he knew or should have known of an unsafe condition creating a high likelihood that the employee would be harmed.

Verdict: The Wyoming Supreme Court affirmed the district court's ruling in the coworker's favor.

Takeaway

In Wyoming, co-employee liability requires willful and wanton misconduct in causing the injury.

Case Examples: In reaching its decision that court explored several precedent cases --

Lovato v. Case, 520 P.3d 1144 (Wyo. 2022). Mr. Case operated a truck transporting concrete to a construction site, and Mr. Lovato worked with the crew forming and finishing the wet concrete. Mr. Case was instructed to move the truck to a new pour site and as he was driving to that site, he ran over Mr. Lovato, injuring his foot. Mr. Lovato asserted, at the time of the accident, Mr. Case knowingly violated safety standards by failing to keep a proper lookout, by failing to clear the area before driving by getting out of his truck and looking around, and by talking on his cell phone without using a handheld device, all acts contrary to company policy. The court assumed all Mr. Lovato's allegations were true and concluded these facts "could certainly support a conclusion Mr. Case was negligent," but they did not create a genuine issue of material fact as to whether there was a known or obvious risk of a high probability of harm. 

Vandre v. Kuznia, 310 P.3d 919 (Wyo. 2013). Mr. Vandre was injured when an asphalt paving machine driven by one of his co-employees, Mr. Dorsey, hit him as he walked along the shoulder of the road. Mr. Vandre sued his co-employee supervisors who directed Mr. Dorsey to move the paver. The co-employee supervisors were aware there was a potentially dangerous "blind spot" in front of the machine and did not take any precautions to mitigate the dangerous condition. The court explained, "[T]he risk that someone would be hit by the paver during mobilization was a mere possibility that had never happened before. The danger involved in driving the paver was not obvious and the risk of [Mr.] Vandre's injuries w[as] not highly probable. Simply put, the co-employee supervisors' actions were not an extreme departure from ordinary care in a situation where a high degree of danger was apparent." According to the court, the co-employee's conduct "may arguably have been a thoughtless error in judgment, [but did] not rise to the level of willful misconduct."

Poulos v. HPC, Inc., 765 P.2d 364 (Wyo. 1988). Mr. Poulos inhaled toxic fumes while cleaning tanks at an oil well site and died. His estate sued his co-employees, including his supervisor, for wrongful death, alleging their conduct was willful and wanton. The court held that, except for the supervisor, Mr. Poulos' co-employees were immune from liability because, while they were aware of the risk of exposure to toxic fumes and the safety rules implemented to minimize the risk, they were unaware of a particular risk to Mr. Poulos on the day he died. In contrast, the supervisor had personally entered the tanks that day and testified the fumes made him feel "worse than drunk." Nevertheless, he allowed Mr. Poulos to work in the tank without ensuring Mr. Poulos' safety. The court held that a "trier of fact could reasonably find a known or obvious risk presenting a high probability of harm."

Bertagnolli v. Louderback, 67 P.3d 627 (Wyo. 2003). Co-employee supervisors were aware it was unsafe to work on a mine shuttle belt unless it was "locked out." They knew "of numerous ways a worker could be injured [working on the shuttle belt] through amputation of body parts or even loss of life" and recognized the work done on and around the shuttle belt was "extremely hazardous." Mr. Bertagnolli objected to working on the shuttle belt unless it was locked out, and his supervisors instructed him to proceed or risk being fired. The court  reversed summary judgment, holding there were genuine issues of material fact regarding whether Mr. Bertagnolli's "supervisors `intentionally act(ed) to cause physical harm or injury' and their actions constituted willful and wanton misconduct." 

Case v. Goss, 776 P.2d 188 (Wyo. 1989). The court reversed summary judgment where a co-employee supervisor was aware of the dangerous condition, failed to take steps to remedy it, and threatened to fire a complaining employee who was ultimately injured.

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