Wyoming Case Law

BECKER v. MASON, 2006 WY 143 TINA BECKER, Individually, and in her capacity as Personal Representative of the Estate of Zachary Tyler Becker, Deceased, Appellant v. DON MASON; and BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF SWEETWATER, a governmental entity, Appellees. No. 05-219 Supreme Court of Wyoming. OCTOBER TERM, A.D. 2006 November 9, 2006

Appeal from the District Court of Sweetwater County, the Honorable H. Hunter Patrick, Judge.

Representing Appellant: Timothy W. Miller of Casper, Wyoming.

Representing Appellees: Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; and John D. Rossetti, Senior Assistant Attorney General, for Appellee Don Mason, and Richard Rideout of Law Offices of Richard Rideout, P.C., Cheyenne, Wyoming, for Appellee Board of County ommissioners. Argument by Messrs. Rossetti and Rideout.

VOIGT, C.J., and GOLDEN, HILL,[fn*] KITE, and BURKE, JJ.

[fn*] Chief Justice at time of oral argument.

VOIGT, Chief Justice.

[¶ 1] This is an appeal from a district court’s
dismissal of a wrongful death action on the ground that the
appellee deputy sheriff did not owe the appellant’s
decedent a duty of care under the circumstances of this
case. We reverse and remand for further proceedings
consistent herewith.


[¶ 2] Whether, under the circumstances of this case,
the appellee deputy sheriff had a duty to exercise
reasonable care to protect the appellant’s decedent.


[¶ 3] During the evening of October 24, 2003, Glenn
Towner and Mary Brandes were at horse corrals north of Rock
Springs, Wyoming. Towner was extremely intoxicated, having
consumed nearly a case of beer throughout the day. At
around 8:00 p.m., a horse knocked Brandes to the ground,
causing her to hit her head and lose consciousness. An
ambulance was called to the scene, and Sweetwater County
Deputy Sheriff Don Mason also responded.

[¶ 4] Towner told Mason that he had been drinking,
but that he wanted to go to the hospital to be with
Brandes. Mason noted that Towner appeared to be
intoxicated, but did not arrest him or make any effort to
prevent him from driving. Towner got into a vehicle and
drove toward the hospital. About two miles down the road,
his vehicle veered off the right side of the road, he
overcorrected to the left, crossed the centerline, and
collided with a vehicle in which fourteen-year-old Zachary
Tyler Becker was a passenger. Becker was killed.


[¶ 5] Both appellees filed motions to dismiss under
W.R.C.P. 12(b)(6) alleging failure to state a claim upon
which relief can be granted. Our standard for review of
such a dismissal is well known: (1) we accept the facts
stated in the complaint as true and view them in the light
most favorable to the appellant; (2) we sustain the
dismissal only if it is certain from the face of the
complaint that the appellant cannot assert any facts that
would entitle him to relief; (3) we employ the same
standards and examine the same materials as did the
district court; and (4) such review is de novo. See Askvig
v. Wells Fargo Bank Wyo., N.A., 2005 WY 138, ¶ 10,
121 P.3d 783, 787 (Wyo. 2005); Ballinger v. Thompson, 2005
WY 101, ¶ 9, 118 P.3d 429, 433 (Wyo. 2005); and
Bonnie M. Quinn Revocable Trust v. SRW, Inc., 2004 WY 65,
¶ 8, 91 P.3d 146, 148 (Wyo. 2004).


[¶ 6] Our focus will be upon the specific rationale
the district court followed in dismissing the amended
complaint. First, the court identified Wyo. Stat. Ann.
§ 1-39-112 (LexisNexis 2005) as the source of the
appellees’ liability, if any: “A governmental entity is
liable for damages resulting from tortious conduct of peace
officers while acting within the scope of their duties.”
Second, the district court noted that the evaluation of a
peace officer’s conduct under Wyo. Stat. Ann. §
1-39-112 requires application of general tort law
principles. See Keehn v. Town of Torrington, 834 P.2d 112,
114 (Wyo. 1992). Next, the court pointed out that the
complaint alleged the tort of negligence, the elements of
which cause of action are: “(1) a duty, (2) a violation of
that duty, (3) which is the proximate cause of, (4) injury
to the plaintiff.” MacKrell v. Bell H2S Safety, 795 P.2d
776, 779 (Wyo. 1990). And finally, the court stated the
well-known principles that the question of whether or not a
duty exists is a question of law for the court, and duty
may arise via contract, statute, or the common law. See
Downtown Auto Parts, Inc. v. Toner, 2004 WY 67, ¶ 8,
91 P.3d 917, 919 (Wyo. 2004); and Natrona County v. Blake,
2003 WY 170, ¶ 6, 81 P.3d 948, 951 (Wyo. 2003).

[¶ 7] The district court resolved this case in favor
of the appellees by declaring that the deputy sheriff had
no legally enforceable duty or obligation to detain or
arrest Towner. In reaching that conclusion, the court
relied upon McCoy v. Crook County Sheriff’s Dep’t, 987 P.2d
674, 677 (Wyo. 1999). Because McCoy was central to the
district court’s reasoning, we will review it in detail.

[¶ 8] At about 9:30 p.m. on June 16, 1994, the Crook
County Sheriff’s Office received a telephonic complaint
that someone was “hot-rodding” a motorbike around the town
of Hulett. A deputy sheriff responded and observed Joe
Arlint on a motorbike, speeding 44 m.p.h. in a 30 m.p.h.
zone. The deputy stopped Arlint, who was loud,
uncooperative, and verbally abusive. Hulett’s
chief-of-police then arrived as backup. Despite subsequent
medical evidence and other testimony indicating Arlint was
drunk, neither officer observed behavior that indicated
such to them. Id. at 675-76. Arlint was issued four traffic
tickets — speeding, no driver’s license in
possession, no registration, and no insurance — but
he was not arrested, the officers did not impound the
motorbike, and they did not take the keys. Instead, they
told Arlint to park the motorbike and walk home. Id. at
676. The officers then left. Some time later that night,
Arlint was seriously injured in an accident on the
motorbike. He died four months later from those injuries.

[¶ 9] Arlint’s mother brought a wrongful death
action against the officers, alleging that they had a duty
to arrest Arlint for driving while under the influence. The
district court granted summary judgment to the officers on
three grounds: (1) the officers owed no duty to Arlint; (2)
the doctrine of qualified immunity applied to protect the
officers; and (3) the officers’ negligence, if any, was not
the proximate cause of Arlint’s death. Id. at 676. On
appeal to this Court, we found the first issue to be
determinative under the following analysis:

We first consider whether the officers in question had a
legally enforceable duty or obligation to arrest Mr.
Arlint. It is well settled that in order to establish a
cause of action in tort there must first be a “duty, or
obligation, recognized by the law, requiring the actor to
conform to a certain standard of conduct, for the
protection of others against unreasonable risks.” Duke v.
Housen, 589 P.2d 334, 341 (Wyo. 1979); Prosser and Keeton
on The Law of Torts, § 30, p. 164 (5th ed. 1984). A
recent law review article presents a cogent analysis
concerning the difference between a peace officer’s
general authority and legal duties which give rise to tort

A tort is a breach of a duty imposed by law. The general
duties of a law enforcement officer are provided by
statute and obligate the officer to maintain public order
and to make arrests for violation of the laws of the state
or the ordinances of any municipality. The statutes
provide the boundaries of the police function but do not
explain where tort liability may arise.

Stephen R. McAllister & Peyton H. Robinson, The Potential
Civil Liability of Law Enforcement Officers and Agencies,
67-Sep. J. Kan. B.A. 14, 16-17 (1998) (emphasis added). We
have not considered this question in the past, and in so
doing we now look first to Wyoming’s statutory scheme.

Wyo. Stat. Ann. § 7-2-102 (Lexis 1999), relating to
arrests, provides:

(b) A peace officer may arrest a person without a warrant

(1) Any criminal offense is being committed in the
officer’s presence by the person to be arrested;

* * *

(iii) The officer has probable cause to believe that a
misdemeanor has been committed, that the person to be
arrested has committed it and that the person, unless
immediately arrested:

(A) Will not be apprehended;

(B) May cause injury to himself or others or damage to
property; or

(C) May destroy or conceal evidence of the commission of
the misdemeanor.

(Emphasis added). According to this statute, arrest is
discretionary even when the officer has probable cause and
the person to be arrested “[m]ay cause injury to himself
or others.”

Wyo. Stat. Ann. § 7-2-103 (Lexis 1999) goes on to

(b) A person may be released if, after investigation, it
appears that the person:

(i) Does not present a danger to himself or others[.]

One might reasonably argue that a person who is drunk and
in possession of a motor vehicle automatically presents a
danger to himself or others. Apparently, however, the
legislature believes otherwise or it would have made
arrest mandatory under such circumstances in §
7-2-102. It did not do so.

Wyo. Stat. Ann. § 31-5-1204(d) (Lexis 1999)

Whenever any person is halted by a police officer for any
violation of this act . . . the person shall, in the
discretion of the officer, either be given a traffic
citation or be taken without unnecessary delay before the
proper judge. . . .

(Emphasis added.) The term “this act” refers to
§§ 31-5-101 through 31-5-1214, which
includes Wyoming’s drunk driving statute, Wyo. Stat. Ann.
§ 31-5-233. Finally, Wyo. Stat. Ann. §
31-5-1205(k) (Michie 1997) specifically allows the officer
discretion to arrest, cite or issue a summons for
violation of § 31-5-233.

Obviously, the statutes authorize officers to arrest and
detain drunk drivers. However, none of the statutes
mandate the arrest of such persons. To the contrary, the
statutes emphasize officer discretion in determining the
appropriate action to take with drunk drivers.

Id. at 677-78.

[¶ 10] In reaching our conclusion in McCoy, we
discussed the related concept of an officer’s duty to
investigate potential DWUI offenses:

In Keehn v. Town of Torrington, 834 P.2d 112, 115-16
(Wyo. 1992), we stated:

Subsumed within the general duty to apprehend, arrest,
and remove drunk drivers from Wyoming’s roadways is the
duty to investigate potential DWUI violations. This brings
us to the precise duty issue raised by this appeal: What
is the nature and extent of a peace officer’s duty to
investigate a potential DWUI violation when, during an
unrelated traffic stop, it is reasonably suspected that
the driver has been drinking alcoholic beverages. While
this case presents the opportunity to define specifically
a peace officer’s duty in this respect, we decline to do
so both on the ground that it is beyond our arena of
expertise and on the ground that rigid rules are not
consistent with the realities of law enforcement.
Consequently, we resort to traditional tort principles and
hold that a peace officer’s duty to investigate a
potential DWUI violation during an unrelated traffic stop
is dictated by what a reasonable peace officer of ordinary
prudence would do under the circumstances.

Keehn bypassed the precise issue of whether there is a
legally enforceable duty to arrest and stated simply that
officers had a duty to investigate potential DUI
violations. Keehn further recognized the fact that rigid
rules are simply not compatible with the realities of law
enforcement in today’s society. Wyoming statutes recognize
that fact as well by granting to peace officers the
discretion to arrest or issue a traffic ticket as the
situation, in the officer’s judgment, dictates. Indeed, to
impose upon peace officers the duty to arrest and detain
all potential DUI violators would force police to choose
between potential liability on the one hand for false
arrest and on the other hand for failure to make an
arrest. Such a choice would effectively paralyze the
government’s right to carry out its essential functions
free of the threat of undue litigation. See Shore v. Town
of Stonington, 187 Conn. 147, 444 A.2d 1379, 1384 (Conn.

Id. at 678.

[¶ 11] The appellant contends that the district
court’s reliance upon McCoy was misplaced because McCoy
only answered the question of whether the statutory
authority to arrest a person for DWUI also created a
statutory duty to arrest that person. Instead, the
appellant reasons that the officer’s duty in the instant
case arose out of his obligation under the common law to do
what a reasonable peace officer would have done under the
circumstances. First, the appellant cites the above-quoted
language from Keehn, in particular this Court’s statement
that “a peace officer’s duty to investigate a potential
DWUI violation during an unrelated traffic stop is dictated
by what a reasonable peace officer of ordinary prudence
would do under like circumstances.” Keehn, 834 P.2d at 116.
Next, the appellant cites Brown v. Avery, 850 P.2d 612, 615
(Wyo. 1993), where we said:

In its facts, as disclosed by the record, this case
resembles Keehn. In Keehn, we analyzed the conduct of the
police officers under traditional negligence principles,
and we held a police officer’s duty in assessing a
person’s fitness to drive a vehicle is to act as a
reasonable police officer under the existing

We resolved Brown, as had the district court, not by
finding no duty on the part of the officer, but by finding
that, even if we assumed the officer was negligent, the
record was insufficient to justify a finding that the
officer’s conduct was the proximate cause of the
plaintiff’s injuries.[fn1]

[¶ 12] Finally, the appellant points out several
other cases in which this Court measured police officers’
conduct under the common law’s reasonable person standard:
Blake, 2003 WY 170, ¶¶ 19-24, 81 P.3d at
957-58 (duty found in alleged negligent supervision of
prisoner who committed murder two days after escaping from
county jail); Bd. of County Comm’rs ex rel. Teton County
Sheriff’s Dept. v. Bassett, 8 P.3d 1079, 1082-85 (Wyo.
2000) (officers’ alleged negligence in setting up roadblock
to stop fleeing suspect measured by common law tort
standard of Keehn) ; Duncan v. Town of Jackson, 903 P.2d
548, 552 (Wyo. 1995) (peace officers responding to report
of accident, if acting within the scope of their duties,
“have a common law duty to act as reasonable peace officers
of ordinary prudence under like circumstances”); and DeWald
v. State, 719 P.2d 643, 649-50 (Wyo. 1986) (so long as
officer does not violate duty of due care in operating his
own vehicle in a high-speed chase, his conduct is not the
proximate cause of harm that occurs to a third person
involved in a collision with the fleeing suspect).

[¶ 13] Neither appellee suggests that, in the
instant case, Mason’s duty, if any, to protect the deceased
from Towner should not be measured under common law tort
principles. In fact, they both concede that, in the law
enforcement context, negligence is the failure to act as a
reasonable peace officer of ordinary prudence would act
under like circumstances. However, in stating the issue,
both appellees limit that issue to the question of whether
or not Mason had a duty to arrest Towner. They then find
McCoy to be dispositive of that issue, with the answer
being in the negative. The appellees’ reasoning is that, if
an officer’s decision whether or not to arrest in a DWUI
situation, even where probable cause to arrest exists, is
discretionary and cannot form the basis for a tort duty,
then surely the same is true in the present circumstances,
where a traffic stop had not even occurred. Generally, they
contend that, in the DWUI context, McCoy has claimed the

[¶ 14] We are inclined to believe that Keehn, rather
than McCoy, dictates the result in this case. Or perhaps
more accurately stated, while McCoy held that, in the DWUI
situation, the statutory authority to arrest did not create
a statutory duty to arrest, it did not reverse Keehn’s
holding that “a peace officer’s duty to investigate a
potential DWUI violation during an unrelated traffic stop
is dictated by what a reasonable peace officer of ordinary
prudence would do under the circumstances.” Keehn, 834 P.3d
at 116. The law in Wyoming is that existing circumstances
may create a duty on the part of the officer to investigate
a potential DWUI. This case should not have been dismissed
for failure to state a claim upon which relief can be
granted. It is not clear from the pleadings that the
appellant will be unable to state any facts to support a
negligent investigation allegation. The complaint did not
just allege failure to arrest; rather, it alleged numerous
failures, such as the failure to determine how Towner
intended to travel to the hospital, the failure to
determine whether Towner was fit to drive, the failure to
provide or obtain transportation for Towner, the failure to
otherwise restrain Towner, the failure to prevent Towner
from driving, and the failure to monitor Towner’s


[¶ 15] Upon arriving at the horse corrals and
determining that the intoxicated Towner intended to travel
to the hospital to be with Brandes, Mason had a duty to do
what an ordinarily prudent law enforcement officer would
have done under like circumstances. Saying that the
decision of whether or not to exercise one’s statutory
authority by arresting a drunk driver is discretionary, and
therefore cannot form the basis for a tort claim based on
negligent failure to arrest, does not answer all the
questions in this case, particularly by dismissal based
upon failure to state a claim upon which relief can be

[¶ 16] Reversed and remanded for further proceedings
consistent herewith.

[fn1] Brown was injured in a car accident that occurred
about an hour after the driver of the vehicle in which she
was a passenger was stopped by police, but the driver was
not given field sobriety tests or arrested despite the fact
that the officer could smell the odor of alcohol coming
from him during the traffic stop.

HILL, Justice, dissenting, with whom GOLDEN, Justice,

[¶ 17] I concur with the majority’s interpretation
of our prior decisions in McCoy v. Crook County Sheriff’s
Department, 987 P.2d 674 (Wyo. 1999), and Keehn v. Town of
Torrington, 834 P.2d 112 (Wyo. 1992). I cannot agree,
however, that the duty identified in Keehn may be imposed
under the facts alleged in the Complaint.

[¶ 18] As the majority notes, Keehn held that “a
peace officer’s duty to investigate a potential DWUI
violation during an unrelated traffic stop is dictated by
what a reasonable peace officer of ordinary prudence would
do under like circumstances.” 834 P.2d at 115-16.
Constitutionally, a “peace officer may temporarily detain
an individual for the purpose of investigation only when he
has a reasonable suspicion, based on all the circumstances,
that criminal activity `may be afoot.'” 834 P.2d at 116
(citing Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884,
20 L.Ed.2d 889, 911 (1968)). Clearly, a reasonable peace
officer of ordinary prudence would not detain an individual
in circumstances inconsistent with constitutional
dictates. Accordingly, whether a duty to investigate a
potential DWUI violation has arisen is dependent upon the
existence of a reasonable suspicion that a crime had been
or was being committed.

[¶ 19] The existence of a reasonable suspicion is
the critical difference between Keehn and this case. In
Keehn, the duty arose out of a police-citizen contact
during a traffic stop. In the course of the stop certain
facts were observed that gave rise to a reasonable
suspicion that the citizen was operating a motor vehicle
while driving under the influence in violation of Wyoming
statute. As alleged in this case, Towner was not operating
a motor vehicle during the contact with Officer Mason. The
Complaint contains no allegation that Towner informed
Officer Mason that he had been driving that day or that he
would be driving to the hospital. The Complaint does not
allege that Officer Mason observed Towner approach, enter,
or drive away in a motor vehicle. In short, there are no
facts alleged that would have supported a reasonable
suspicion that a DWUI had been or was going to be
committed, which would have justified an investigatory
detention of Towner.

[¶ 20] I believe that application of the duty to
investigate a DWUI under the facts alleged in this case
would greatly expand the scope of the duty identified in
Keehn. The death of Zachary Becker is unquestionably
tragic. However, as we said in Keehn:

As to the factual realities, governments simply do not
have the resources to protect all citizens at all times
from the consequences of all illegal or tortious activity.
Consequently, law enforcement agencies and personnel must
be afforded some discretion as to how to marshall [sic]
their time, talents, and assets to achieve the greatest
overall good. That an intoxicated driver or other law
violator causes injury to another does not, without more,
necessarily mean that a governmental entity or public
employee was negligent. See Wyo. Stat. §
1-39-102(b) (June 1988) (governmental entities or public
employees are not subject to strict liability). Rather,
the facts of each case must be independently examined.

834 P.2d at 116-17. The facts, as alleged here, do not give
rise to a legally enforceable duty. I would affirm the
district court’s dismissal.