               IN THE SUPREME COURT, STATE OF WYOMING

                                       2013 WY 141

                                                          OCTOBER TERM, A.D. 2013

                                                                  November 12, 2013

EVELYN DIFELICI, f/n/a EVELYN
BARNES,

Appellant
(Plaintiff),
                                                     S-13-0046
v.

CITY OF LANDER,

Appellee
(Defendant).


                    Appeal from the District Court of Fremont County
                       The Honorable Norman E. Young, Judge

Representing Appellant:
      Sky D Phifer, Phifer Law Office, Lander, Wyoming

Representing Appellee:
      Thomas A. Thompson of MacPherson, Kelly & Thompson, LLC, Rawlins,
      Wyoming


Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.

[¶1] Appellant Evelyn DiFelici was injured when she fell after stepping into a hole
drilled in the gutter of a street in the City of Lander. She sued the City, claiming that it
was negligent in the operation of a public utility or service, and also that she was entitled
to recover under a specific statute rendering cities and towns liable for injuries resulting
from excavations or obstructions which make streets or sidewalks unsafe.

[¶2]   The district court granted the City’s motion for summary judgment. We affirm.

                                              ISSUES

[¶3]   Appellant raises these issues, which we restate as follows:

               1.     Did the City’s failure to replace a grate over the drain
               inlet fall within the waiver of immunity for negligence of
               public employees in the operation of public utilities and
               services under Wyoming Statute § 1-39-108(a)?

               2.     Does Wyoming Statute § 15-4-307 provide a statutory
               basis on which Appellant was potentially entitled to recover
               from the City?1

                                              FACTS

[¶4] The facts of this case are largely undisputed, and in this review of an order
granting summary judgment, we will view them in the light most favorable to Appellant.
Evelyn DiFelici’s dog had a difficult recovery after delivering a litter of puppies, and the
veterinarian caring for the dog recommended that she walk her pet every three hours. On
April 27, 2009, Ms. DiFelici was walking her dog as recommended after dark. The
sidewalk did not continue onto her neighbor’s property, and Ms. DiFelici stepped off into
Washakie Street for that reason, as well as to keep her ailing dog away from the
neighbor’s schnauzer. She walked on the relatively flat concrete gutter until she stepped
into something and fell. She injured her hip and back in the fall.

[¶5] The parties agree that Ms. DiFelici fell when she stepped into a three-inch
diameter hole in the gutter adjacent to the curb. There is no dispute that until 1989,
runoff water from the street backed up into the yard of the house on the corner near
where Ms. DiFelici fell, much to the annoyance of the property owner. After the owner
1
  Appellant also identified whether the City of Lander’s failure to replace the grate over the drainage
opening constituted negligence in the operation of a surface water drainage system as an issue. We
address this question in conjunction with her argument concerning the Claims Act waiver relating to
negligence in operation of a public utility or service, and thus have not listed it separately.


                                                   1
complained, two City of Lander employees drilled a three-inch hole which drained water
into an irrigation ditch or concrete pipe under the street.

[¶6] The hole was originally covered by a grate fabricated by the employees who
drilled it. The City of Lander’s current street maintenance superintendent became aware
of the hole some time before 1995, and recalled that it was not covered by a grate from
then until after Ms. DiFelici fell. The City covered the hole with a grate after she was
injured.

                             STANDARD OF REVIEW

[¶7] Our standard of review of orders granting 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. [Snyder v. Lovercheck, 992 P.2d 1079, 1083
             (Wyo. 1999)]; 40 North Corp. v. Morrell, 964 P.2d 423, 426
             (Wyo. 1998). We examine the record from the vantage point
             most favorable to the party opposing the motion, and we give
             that party the benefit of all favorable inferences that may
             fairly be drawn from the record. Id. A material fact is one
             which, if proved, would have the effect of establishing or
             refuting an essential element of the cause of action or defense
             asserted by the parties. Id. If the moving party presents
             supporting summary judgment materials demonstrating no
             genuine issue of material fact exists, the burden is shifted to
             the non-moving party to present appropriate supporting
             materials posing a genuine issue of a material fact for trial.
             Roberts v. Klinkosh, 986 P.2d 153, 155 (Wyo. 1999); Downen
             v. Sinclair Oil Corp., 887 P.2d 515, 519 (Wyo. 1994). We
             review a grant of summary judgment deciding a question of
             law de novo and afford no deference to the district court’s
             ruling. Roberts v. Klinkosh, 986 P.2d at 156; Blagrove v. JB
             Mechanical, Inc., 934 P.2d 1273, 1275 (Wyo. 1997).

Lindsey v. Harriet, 2011 WY 80, ¶ 18, 255 P.3d 873, 880 (Wyo. 2011). We can affirm
an order granting summary judgment on any basis appearing in the record. Magin v.
Solitude Homeowner’s Inc., 2011 WY 102, ¶ 20, 255 P.3d 920, 927 (Wyo. 2011) (citing
Walker v. Karpan, 726 P.2d 82, 89 (Wyo. 1986)).




                                            2
                                     DISCUSSION

The Governmental Claims Act Issues

A.    The Parties’ Positions on the Claims Act and Its Exceptions

[¶8] Wyoming’s Governmental Claims Act has been described as a “closed ended” tort
claims act because it generally grants immunity to governmental entities and public
employees, waiving that immunity only through specific statutory exceptions. Wyo. Stat.
Ann. § 1-39-104(a) (LexisNexis 2013); Rice v. Collins Commc’n, Inc., 2010 WY 109, ¶
15, 236 P.3d 1009, 1016 (Wyo. 2010); Sponsel v. Park Cnty., 2006 WY 6, ¶ 18, 126 P.3d
105, 110 (Wyo. 2006); Lawrence J. Wolfe, Comment, Wyoming’s Governmental Claims
Act: Sovereign Immunity with Exceptions—A Statutory Analysis, XV Land & Water L.
Rev. 619, 621, 623 (1980). Appellant must therefore identify an exception to the Act’s
grant of immunity in order to recover from the City. She relies upon § 1-39-108, which
provides in pertinent part as follows:

                     A governmental entity is liable for damages resulting
             from bodily injury, wrongful death or property damage
             caused by the negligence of public employees while acting
             within the scope of their duties in the operation of public
             utilities and services including gas, electricity, water, solid or
             liquid waste collection or disposal, heating and ground
             transportation.

Wyo. Stat. Ann. § 1-39-108(a) (LexisNexis 2013).

[¶9] She argues that the hole which let runoff water flow into the irrigation pipe under
Washakie Street was part of a liquid waste collection or disposal system, that it was
therefore part of a public service or utility, and that the City was negligent in the
operation of the system because it knowingly allowed the hole to remain uncovered for
many years. For purposes of reviewing the district court’s grant of summary judgment,
we accept as true Ms. DiFelici’s contention that a reasonable jury could find the City
negligent based on its failure to cover the hole in question after it became aware of the
potential hazard.

[¶10] The City bases its defense on another specific portion of the Claims Act. In 1982,
this Court held that a former provision of the Act which waived immunity for negligence
in the maintenance of “public facilities” applied to claims for negligent maintenance of a
state highway. State v. Stovall, 648 P.2d 543, 548–49 (Wyo. 1982) (interpreting § 1-39-
111). In 1986, the Wyoming Legislature repealed § 1-39-111 and enacted § 1-39-120,
which currently provides as follows:



                                              3
                  (a) The liability imposed by W.S. 1-39-106 through 1-39-112
                  [exclusions to immunity] does not include liability for
                  damages caused by:

                        (i) A defect in the plan or design of any bridge, culvert,
                  highway, roadway, street, alley, sidewalk or parking area;

                         (ii) The failure to construct or reconstruct any bridge,
                  culvert, highway, roadway, street, alley, sidewalk or parking
                  area; or

                        (iii) The maintenance, including maintenance to
                  compensate for weather conditions, of any bridge, culvert,
                  highway, roadway, street, alley, sidewalk or parking area.

Wyo. Stat. Ann. § 1-39-120 (LexisNexis 2013). 2

[¶11] The City argues that the purpose of the hole in the gutter in Washakie Street was
to drain water from the street, and that a negligent failure to install a grate over it would
fall within the immunity conferred by subsection (iii). It also denies that drilling a hole
that allowed runoff to run from the street into an irrigation ditch relates to the operation
of a public utility or service, and further argues that even if it did, the grate was only
needed to make the street safe for pedestrians because the drain adequately removed
water without it.

[¶12] The district court agreed with the City and granted summary judgment. It found
that even if Ms. DiFelici was correct that drilling a hole in the street and into an irrigation
ditch might somehow amount to a public service under § 1-39-108, the placement of a
grate had nothing to do with that function, as the uncovered hole drained the street
without the grate. The implication of this ruling is that the grate was used to keep the
street safe, and that the claims based on its absence related to maintenance of the public
street, for which Ms. DiFelici could not recover under the specific immunity of § 1-39-
120(a)(iii). We must decide how the competing provisions of the Claims Act apply in
this case.

B.        Scope of § 1-39-108 exception to immunity

[¶13] We begin by analyzing whether § 1-39-108 waives immunity for a claim like that
involved in this case.



2
    This statute was held to be constitutional in White v. State, 784 P.2d 1313, 1322 (Wyo. 1989).


                                                       4
                   In interpreting statutes, our primary consideration is to
            determine the legislature’s intent. All statutes must be
            construed in pari materia and, in ascertaining the meaning of
            a given law, all statutes relating to the same subject or having
            the same general purpose must be considered and construed
            in harmony. Statutory construction is a question of law, so
            our standard of review is de novo. We endeavor to interpret
            statutes in accordance with the legislature’s intent. We begin
            by making an inquiry respecting the ordinary and obvious
            meaning of the words employed according to their
            arrangement and connection. We construe the statute as a
            whole, giving effect to every word, clause, and sentence, and
            we construe all parts of the statute in pari materia. When a
            statute is sufficiently clear and unambiguous, we give effect
            to the plain and ordinary meaning of the words and do not
            resort to the rules of statutory construction. Moreover, we
            must not give a statute a meaning that will nullify its
            operation if it is susceptible of another interpretation.

                   Moreover, we will not enlarge, stretch, expand, or
            extend a statute to matters that do not fall within its express
            provisions.

                   Only if we determine the language of a statute is
            ambiguous will we proceed to the next step, which involves
            applying general principles of statutory construction to the
            language of the statute in order to construe any ambiguous
            language to accurately reflect the intent of the legislature. If
            this Court determines that the language of the statute is not
            ambiguous, there is no room for further construction. We will
            apply the language of the statute using its ordinary and
            obvious meaning.

                    Whether a statute is ambiguous is a question of law. A
            statute is unambiguous if reasonable persons are able to agree
            as to its meaning with consistency and predictability, while a
            statute is ambiguous if it is vague or uncertain and subject to
            varying interpretations.

Rock v. Lankford, 2013 WY 61, ¶ 19, 301 P.3d 1075, 1080–81 (Wyo. 2013) (quoting
Redco Const. v. Profile Props., LLC, 2012 WY 24, ¶ 26, 271 P.3d 408, 415–16 (Wyo.
2012)).



                                            5
[¶14] Appellant argues that § 1-39-108 applies because it refers to water and to liquid
waste collection and disposal. We reject the contention that the reference to “water”
somehow encompasses runoff from rain or melting snow. The statutory phrase is “in the
operation of public utilities and services including gas, electricity, water, solid or liquid
waste collection or disposal, heating and ground transportation.” § 1-39-108.

[¶15] The principle of ejusdem generis tells us that “general words, [associated with] an
enumeration of words with specific meanings, should be construed to apply to the same
general kind or class as those specifically listed.” RME Petroleum Co. v. Wyo. Dep’t of
Revenue, 2007 WY 16, ¶ 46, 150 P.3d 673, 689–90 (Wyo. 2007) (quoting Powder River
Coal Co. v. Wyo. State Bd. of Equalization, 2002 WY 5, ¶ 19, 38 P.3d 423, 429–30
(Wyo. 2002)). The proximity of the words “gas” and “electricity” indicates that the
“water” referred to is domestic water supplied by some governmental entities, including
municipalities like the City of Lander, and not a reference to runoff water. We believe
the plain language of the statute to be sufficiently clear that no interpretation is required.

[¶16] The phrase “liquid waste collection or disposal” is not so readily understood.
Appellant suggests that the phrase is broad enough to include what are commonly called
storm sewers, systems of pipes and canals used to drain runoff water, which is also called
storm water (see discussion below).

[¶17] The record on this point is somewhat perplexing. It is undisputed that City of
Lander employees drilled into what is described as an irrigation ditch, but that the “ditch”
really conveyed water under city streets through a concrete pipe. Based on the limited
testimony in the record, the Wilson Ditch into which the hole was drilled carries water
from an unidentified source to lands “on the other side” of Lander. The record suggests
that the ditch is not owned by the City, as its owners had evidently expressed concern that
the City might ask them to shut their headgate if the pipe was carrying more than its
capacity.3 The district court’s decision also indicated that the pipe was “a private
irrigation ditch.”

[¶18] It is undisputed that the hole drilled by city employees simply drained water which
would otherwise have accumulated in a low spot in Washakie Street into an irrigation
system owned by someone else, rather than directing it into a city-owned storm sewer
system. However, the record leaves room for the possibility that the irrigation ditch was
a de facto part of the City’s surface drainage system.

[¶19] Viewing that inconclusive evidence in the light most favorable to Appellant, we
must then determine what the legislature meant by the phrase “liquid waste collection or
disposal” in § 1-39-108. The New Mexico Tort Claims Act was available to the

3
 It is not clear whether the ditch owner was concerned that the water from the pipe could back up into
holes drilled into it by the City if it was flowing at full capacity, but that seems a logical possibility.


                                                     6
Wyoming Legislature when it drafted and enacted the Wyoming Governmental Claims
Act, and many of the provisions of Wyoming’s Act are similar to those in the New
Mexico Act. City of Torrington v. Cottier, 2006 WY 145, ¶ 12 n.5, 145 P.3d 1274, 1279
(Wyo. 2006); Wolfe, supra, at 623.

[¶20] The New Mexico Tort Claims Act contains a provision similar to § 1-39-108:

              The immunity granted pursuant to Subsection A of Section 4
              [N.M. Stat. Ann. § 41-4-4] of the Tort Claims Act does not
              apply to liability for damages resulting from bodily injury,
              wrongful death or property damage caused by the negligence
              of public employees while acting within the scope of their
              duties in the operation of the following public utilities and
              services: gas; electricity; water; solid or liquid waste
              collection or disposal; heating; and ground transportation.

N.M. Stat. Ann. § 41-4-8(A) (West 2013) (emphasis added).

[¶21] The New Mexico Supreme Court originally interpreted this provision to apply to
systems intended to drain water from rainfall or snowmelt. In City of Albuquerque v.
Redding, 605 P.2d 1156 (N.M. 1980), a bicyclist was injured when her front tire slipped
through a drain grate, throwing her off her bike. The New Mexico Act also specifically
granted governmental entities immunity for “a defect in plan or design of any bridge,
culvert, highway, roadway, street, alley, sidewalk, or parking area . . . .” N.M. Stat. Ann.
41-4-11(B). The City of Albuquerque argued that it was immune from suit based on that
section, as the City of Lander does based on § 1-39-120.

[¶22] The New Mexico Supreme Court held that the section waiving immunity for the
public service of collecting or disposing of liquid waste was more specific than the
general statute relating to defects in the plan or design of streets, and that it therefore
applied. Redding, 605 P.2d at 1158. It also held that the grate through which water
drained into the storm sewer system was part of a system for the collection or disposal of
runoff water, which it evidently considered to be “liquid waste,” although it arrived at its
conclusion without detailed analysis. Id.

[¶23] The New Mexico Court of Appeals reluctantly followed this binding precedent in
allowing a property damage claim based on overflow from an arroyo owned by the city
because it was part of a storm drainage system. Espander v. City of Albuquerque, 849
P.2d 384, 389 (N.M. Ct. App. 1993). It expressed serious reservations as to whether
runoff could be considered “waste” given the definition of that term in other statutes, but
felt bound by Redding to conclude that it was. Id. at 387–89.




                                              7
[¶24] The New Mexico Supreme Court revisited the issue of whether runoff water is
“liquid waste” under its Tort Claims Act in Bybee v. City of Albuquerque, 896 P.2d 1164,
1165 (N.M. 1995). The appellant attempted to cross a concrete ditch operated by a
subdivision of the City of Albuquerque, slipped on algae, and shattered his ankle. He
claimed an exception to the general immunity of the Tort Claims Act based on the New
Mexico statute quoted above and the Redding case.

[¶25] The court overruled Redding and Espander, describing its holding in Redding as
“disingenuous” because it ignored the distinction between Albuquerque’s sewage and
surface water drainage systems. Bybee, 896 P.3d at 1166. It quoted New Mexico statutes
defining the term “waste” as “sewage, industrial wastes or any other liquid, gaseous or
solid substance which may pollute any waters of the state.” Id. It noted that by statute
“sewer systems” were a combination of means to conduct wastes to an ultimate point for
treatment or disposal by means to assure they did not contaminate the state’s water
supplies. Id. at 1166–67.

[¶26] Storm runoff, on the other hand, drained through a series of diversion devices into
the Rio Grande River. It was not treated and was used to replenish the state’s water
reserves. Id. at 1167. Although storm runoff picks up silt and debris from the streets, it
could not be called liquid waste on that account—New Mexico’s Water Quality Control
Commission would not under its statutory mandate allow something that could be
considered “waste” to drain untreated into a major river system. Id.

[¶27] The court noted that it might seem contradictory for the legislature to waive
immunity for operation of a sewer system but to not waive it for a storm water runoff
diversion system. It found the distinction rational because water is of constitutional
significance in New Mexico, because the legislature may have wanted to encourage the
construction of diversion channels, and because of the potentially unlimited risk of
property damage and injury or death which can result from flash flooding. Id.

[¶28] We find the New Mexico Supreme Court’s approach persuasive, and therefore
examine our own statutes to determine whether the legislature intended to include storm
water runoff in the phrase “liquid waste.” Wyoming Statute § 35-11-103(c)(ii) defines
“wastes” exactly as the New Mexico statute construed in Bybee did: “‘Wastes’ means
sewage, industrial waste and all other liquid, gaseous, solid, radioactive, or other
substances which may pollute any waters of the state.” Wyo. Stat. Ann. § 35-11-
103(c)(ii) (LexisNexis 2013). The definitions of “sewerage system,” “treatment works,”
and “disposal system” all describe means of treating wastes so that they do not pollute the
ground or surface waters of Wyoming. § 35-11-103(c)(iii), (iv), and (v). “Pollution” is
defined as allowing wastes and other substances which degrade water into any waters of
the state. § 35-11-103(c)(i). Pollution of the waters of the state is prohibited. § 35-11-
301.



                                             8
[¶29] On the other hand, Wyoming Statute § 16-10-103(a) specifically authorizes any
governing body to design, plan, construct, reconstruct, acquire, operate, improve, extend,
or maintain a “surface water drainage system, sometimes referred to as a storm water
drainage system.” Wyo. Stat. Ann. § 16-10-103(a) (LexisNexis 2013). The term “storm
water” or “stormwater” is commonly used to refer to water resulting from rainfall or
snowmelt. See, e.g., 33 U.S.C. § 1362(14) (2013); Wyo. Stat. Ann. §§ 18-12-112(a)(xii);
18-16-107(a)(xiv); 35-11-1415(a)(ix)(F) (LexisNexis 2013); Hughey v. JMS Dev. Corp.,
78 F.3d 1523, 1532 (11th Cir. 1996) (in which the court wondered whether a federal
district court injunction prohibiting the discharge of stormwater required the defendant to
stop the rain).4

[¶30] We believe that if the legislature had intended to waive immunity for the operation
of a system used to carry storm water or runoff, it would have used those terms, or the
term “surface water,” rather than “liquid waste.” We also recognize that there are good
reasons to distinguish between waste carried by a sewer system and runoff from rain or
snowmelt. As in New Mexico, water is of constitutional significance in Wyoming. See
N.M. Const. art. 16; Wyo. Const. art. 8; (establishing water as property of the state,
creating a board of control and state engineer, and establishing priority of appropriation
as creating the better right to water). In a hotly contested appeal, a member of this Court
made the following uncontroversial observation:

                Water is the lifeblood of Wyoming. It is a scarce resource
                which must be effectively managed and efficiently used to
                meet the various demands of society.

In Re General Adjudication of All Rights to Use Water in Big Horn River System, 835
P.2d 273, 279 (Wyo. 1992) (plurality opinion).

[¶31] We presume that the legislature has acted in a thoughtful and rational manner with
full knowledge of existing law when it enacts a statute. Redco Const., ¶ 37, 271 P.3d at

4
  Runoff from rain or snowmelt can pick up waste and carry it to surface or ground waters, and citizens
and governmental entities can be required to take steps to prevent runoff containing those pollutants from
entering the state’s waters. See, e.g., Wyo. Rules and Regulations, Dep’t of Envtl. Quality, Water Quality
Div., ch. 2, §§ 3(a)(xxxviii), (lvi), and (lxxxix), § 6, and App. N(h)(ii)(A)(I)(2.)a. and (h)(ii)(A)(II); 33
U.S.C. § 1342(l) and (p), § 1362(6), (12), (14), (19); Ronald I. Mirvis, Annotation, What Constitutes
“Point Source” of Pollution Subject to Control by Provisions of Water Pollution Control Act, as
Amended (33 U.S.C.A. § 1362(14)), 52 A.L.R. Fed. 885, § 3 (1981 & 2013 Cum. Supp.). The United
States Environmental Protection Agency has promulgated specific storm water runoff regulations
governing separate storm sewer systems in large and small cities. These rules are intended to reduce
contamination of surface and ground water from oil and grease from roadways, pesticides from lawns,
sediment from construction sites, and trash of various kinds. See, e.g, Stormwater Phase II Final Rule,
Small MS4 Stormwater Program Overview, EPQ 833-F-00-002 (January 2000, revised December 2005);
40 C.F.R. Part 122, Subpart B. The complex law governing these kinds of issues is not involved in this
appeal.


                                                      9
418. It would certainly be rational for the legislature to encourage governmental entities
to develop means to return surface water to natural watercourses and aquifers by limiting
their liability for the operation of those systems. Moreover, we need not look far afield or
far back in history to appreciate the overwhelming liability which could result from
claims that a surface water drainage system did not operate properly.5 We have no doubt
that the legislature was aware of these kinds of risks when it enacted § 1-39-108 over
thirty years ago.

[¶32] We find that the waiver of immunity in § 1-39-108 does not extend to systems
intended to remove storm or runoff water, which deprives Appellant of an exception to
the immunity conferred on the City by the Claims Act. We also agree with the district
court that the hole the City drilled was used to drain water from the street into an
irrigation ditch, and that it was therefore maintenance to compensate for weather
conditions under § 1-39-120(a)(iii).6 Appellant’s claim is therefore barred both by the
absence of an applicable exception to immunity and a specific statutory immunity.

Applicability of § 15-4-307

[¶33] Appellant also claims that she is entitled to pursue her claim under Wyoming
Statute § 15-4-307. That statute provides as follows:

                        Any person who renders a street insufficient or unsafe
                 for travel by any excavations or obstructions not authorized
                 by law or ordinance, or is negligent in the management of any
                 authorized excavation or obstruction, or fails to maintain
                 proper guards or lights is liable for all damages recovered by
                 any person injured as a result of the obstruction or negligence.
                 No action may be maintained against the city or town for
                 damages unless the person or persons creating the condition
                 are joined as parties defendant. In case of judgment against

5
 The Wyoming State Climate Office, housed at the University of Wyoming, describes flooding as “one
of the more significant natural hazards in the state.” Wyoming Floods, Water Resources Data System,
http://wyofloods.wrds.uwyo.edu/ (last visited Nov. 4, 2013). The August 1985 flood in Cheyenne, for
example, caused twelve deaths and $65 million in damage. Id. The more recent Colorado floods in
September 2013 cost about $2 billion, and much of the damage to homes and businesses could be
uninsured.     Chris Isidore, Colorado Floods: Costly and Often Uninsured, CNN Money,
http://money.cnn.com/2013/09/19/news/ economy/colorado-flood-damage/index.html (Sept. 19, 2013).
6
   The parties briefed and argued the question of whether replacement of a grate is “maintenance” or
“operation” of a public utility or service. Appellant cited the City of Lander’s Urban Storm Drainage
System standards and specifications and a city ordinance, both of which require grates as part of the
City’s storm drainage system. We do not agree that mention of grates in these documents causes them to
be part of a public service or utility, but do not discuss the issue further given our interpretation of § 1-39-
108(a).


                                                        10
              the defendants, execution shall at first issue only against the
              defendant causing the insufficiency or danger, and the city or
              town is not required to pay the judgment until that execution
              is returned unsatisfied. If the city or town pays the judgment,
              it is the owner thereof and may enforce its payment from the
              other defendants. The city or town is also entitled to
              execution against them and to take such other proceedings as
              judgment creditors are entitled to take.

Wyo. Stat. Ann. § 15-4-307 (LexisNexis 2013).

[¶34] Ms. DiFelici argues that the hole drilled by the City was an excavation, and that
she was therefore entitled to recover under this statute regardless of the limitations
contained in the Claims Act. The City argues that the statute does not apply to the
actions of its employees, but instead only to the actions of third parties. It also argues
that under Wyoming Statute § 15-4-308, actions against a city or town may only be
brought as permitted by the Governmental Claims Act, and that therefore Ms. DiFelici’s
claim under this statute was also barred. The district court did not address these issues,
but instead granted summary judgment because it found that the three-inch hole in the
street was not an excavation under § 15-4-307.

[¶35] It is tempting to decide this issue on the size of the hole in Washakie Street rather
than to construe the mysterious § 15-4-307, but its meaning is an issue we must address.
Section 15-4-307 was enacted in 1923, although it was amended with grammatical
changes in 1965. 1923 Wyo. Sess. Laws ch. 74, § 73; 1965 Wyo. Sess. Laws ch. 112, §
274. It has not been amended since, although it has been renumbered. The Court can
only speculate that it was intended to statutorily enhance the common law rule that a
municipality has a non-delegable duty to maintain its streets and sidewalks, and that it
may therefore be liable for the act of a third party whose excavation or failure to warn
causes injury to motorists, passengers or pedestrians. See, e.g., 40 Am. Jur. 2d Highways,
Streets, and Bridges § 372 (2008); Restatement (Second) of Torts § 418 (1965); 4 John
Martinez, Local Government Law § 27:7 (2d ed. 2013); 19 Eugene McQuillan, Municipal
Corporations §§ 54:3, 54:4, and 54:11 (3d ed. 2004) (explaining the common law rule, as
well as statutes imposing municipal liability under similar circumstances in some states);
Cause of Action against Municipality for Injury Caused by Defective Sidewalk, 21 Causes
of Action 2d 71 (2003). The statute makes cities or towns guarantors if a contractor or
other person cannot pay a judgment based upon it. It has no express requirement that the
city or town be negligent in failing to discover the condition, and this Court has never had
occasion to determine whether such a requirement is implied or not.

[¶36] The predecessor of § 15-4-308 was also enacted in 1923, and it was amended with
minor grammatical changes to provide as follows in 1965:



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                       No action may be maintained against the city or town
                on account of injuries received by means of any defect in the
                condition of any bridge, street, sidewalk or thoroughfare,
                unless it is commenced within one (1) year from the
                happening or the injury, nor unless notice is first given in
                writing to the manager or the clerk within thirty (30) days of
                the injury or damage. The notice shall state the place and
                time of the injury and that the person injured will claim
                damages of the city or town. The notice is not required when
                the person injured is bereft of reason.

1923 Wyo. Sess. Laws ch. 74, § 74; 1965 Wyo. Sess. Laws ch. 112, § 275. The original
statute preceded enactment of the Governmental Claims Act by many years, and it was
evidently intended to provide a claim notice procedure and statute of limitations for
claims made under what is now § 15-4-307. The section was originally entitled “Actions
Against City for Injuries.” The title changed to “Limitation of actions against city or
town for injuries; notice of claim” in the 1965 statutes, although we are unable to relate
that change to any law passed by the legislature. Wyo. Stat. § 15.1-275 (Michie 1965).

[¶37] The statute was amended to read as it does now in the same legislation that created
the Claims Act in 1979:

                No action may be maintained against the city or town on
                account of injuries received by means of any defect in the
                condition of any bridge, street, sidewalk or thoroughfare
                except as provided by W.S. 1-39-101 through 1-39-119.

1979 Wyo. Sess. Laws ch. 157, § 2, codified at Wyo. Stat. 15-4-246 (Michie 1980). The
title was shortened to “Limitation of actions against city or town for injuries” when the
amendment was enacted. Id. The title suggests that the purpose of the amendment may
have been, at least in part, to replace the old limitations and claim provisions with those
contained in the Claims Act.7 See Wyo. Stat. Ann. §§ 1-39-113, 114 (LexisNexis 2013)
(establishing claims procedures and a statute of limitations for governmental claims). 8


7
  Wyoming Statute § 8-1-105 provides that headnotes inserted in a bill by the Legislative Service Office
are not part of the substantive law of the enactment. We have nonetheless held that a statutory title or
headnote may be useful in interpreting a statute. City of Cheyenne v. Bd. of Cnty. Comm’rs of Cnty. of
Laramie, 2012 WY 156, ¶ 15, 290 P.3d 1057, 1061 (Wyo. 2012) (citing Counts v. State, 2008 WY 156, ¶
18, 197 P.3d 1280, 1285 (Wyo. 2008); Patel v. CWCapital Asset Mgmt., LLC, 2010 WY 147, ¶ 7, 242
P.3d 1015, 1018 (Wyo. 2010)).
8
  Ms. DiFelici’s complaint alleged compliance with the claim requirements of the Governmental Claims
Act, including submission of a claim under penalty of perjury. The parties later stipulated that the case
could proceed against the City of Lander.


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[¶38] In 2007, the section was renumbered as § 15-4-308. 2007 Wyo. Sess. Laws ch.
124, § 1. Section 15-4-308 has not been amended to refer to § 1-39-120, which confers
express immunity for street maintenance, although that section was added in 1986. 1986
Wyo. Sess. Laws ch. 89, § 1. The 1986 legislation adopting § 1-39-120 amended the
definition of “this act” to include § 1-39-120, but § 15-4-308 was never amended to
simply refer to the Claims Act in its entirety.

[¶39] As already explained, this Court held in Stovall that governmental entities could
be held liable for failing to properly maintain streets and highways. That holding was
legislatively overruled by the enactment of § 1-39-120 and the repeal of § 1-39-111 in
1986. 1986 Wyo. Sess. Laws ch. 89, § 3. Section 15-4-307 was not modified or repealed
during the 1986 or any later legislative session.

[¶40] We can only conclude that the legislature intended the Claims Act to coexist with
§ 15-4-307. It had a number of opportunities to repeal § 15-4-307 but did not do so. It
even modified § 15-4-308, which provided the claims procedure and limitations period
for § 15-4-307, to refer to §§ 1-39-101 through 119 of the Claims Act. We have held that
repeals by implication are not favored, and the fact that the legislature modified § 15-4-
308 indicates that it did not intend to repeal § 15-4-307. See Mathewson v. City of
Cheyenne, 2003 WY 10, ¶ 11, 61 P.3d 1229, 1233, (Wyo. 2003) (“[R]epeals by
implication are not favored and will not be indulged if there is any other reasonable
construction. One asserting implied repeal [must show] beyond question that . . . its later
legislative action evinced an unequivocal purpose of affecting a repeal.” (quoting
Shumway v. Worthey, 2001 WY 130, ¶ 15, 37 P.3d 361, 367 (Wyo. 2001))). See also
Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 504, 56 S. Ct. 349, 352, 80 L. Ed. 351
(1936).

[¶41] The City argues that § 15-4-307 applies only when a person or entity other than a
governmental entity or its public employees creates an excavation or obstruction. We
agree. The plain language of the statute supports this construction. It requires the person
or persons creating the obstruction to be joined in order to maintain an action against a
city or town, thereby indicating that someone other than a city employee must be
responsible for the obstruction. It provides that a city or town does not have to pay a
judgment until an execution against the defendant causing the insufficiency or damage is
returned unsatisfied, and that the city or town is entitled to execute against the persons or
entities creating the condition if it pays a judgment against them.

[¶42] As already noted, we must read § 15-4-307 in pari materia with the Claims Act.
The Claims Act requires a governmental entity to defend and indemnify a public
employee who negligently causes injury while acting within the scope of his or her
duties. Wyo. Stat. Ann. § 1-39-104(b), (c), and (d) (LexisNexis 2013). It does not allow
the governmental entity to recover from the negligent employee if it is forced to pay a
judgment. The Claims Act is therefore inconsistent with § 15-4-307.


                                              13
[¶43] Moreover, although § 15-4-308 does not refer to § 1-39-120, which expressly
confers immunity relating to street maintenance, the legislature repealed § 1-39-111, on
which this Court relied in finding an exception to the Act’s immunity in Stovall v. State.
There would therefore be no exception to immunity for street maintenance by public
employees under the Claims Act, even if § 15-4-308 does not expressly incorporate § 1-
39-120.

[¶44] We presume the legislature to act with full knowledge of the law, and so we must
conclude that it knew of § 15-4-307 and chose to retain it, even specifically amending §
15-4-308 when it enacted the Claims Act. Redco Const., ¶ 37, 271 P.3d at 418. The irony
of this ruling is not lost upon us. Although the legislature has gone to considerable
lengths to immunize governmental entities for their own activities in maintaining streets
and highways by passing § 1-39-120 of the Claims Act, we here conclude that it has on
the other hand decided to allow injured parties to recover from cities and towns for the
acts of judgment-proof third persons or entities over whom they may have no control.
However, we are not free to add to legislation under the guise of interpretation, but must
instead take statutes as we find them. Starrett v. State, 2012 WY 133, ¶ 9, 286 P.3d
1033, 1037 (Wyo. 2012) (citation omitted).

[¶45] An interesting summary of the types of defects which have been found to be both
sufficient and insufficient to confer liability on municipalities may be found in 19
McQuillan, supra, §§ 54:86–54:88. Because we conclude that § 15-4-307 does not apply
to the negligence of public employees of cities or towns, it is unnecessary for us to
determine whether the three-inch hole in the gutter in Washakie Street could be
considered an “excavation” under that statute.

                                    CONCLUSION

[¶46] The term “liquid waste” in Wyoming Statute § 1-39-108(a) does not include
runoff or storm water, and there is thus no exception to immunity available to the
Appellant. We also find that the hole drilled in the gutter of Washakie Street to drain
water into a privately-owned irrigation ditch was maintenance of a street to compensate
for weather conditions, and that the specific immunity of § 1-39-120 therefore also bars
her claim. Finally, we conclude that Wyoming Statute § 15-4-307 does not create a cause
of action based on the negligence of public employees of cities and towns for excavations
or obstructions of streets. We therefore affirm.




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