               IN THE SUPREME COURT, STATE OF WYOMING

                                      2015 WY 18

                                                      OCTOBER TERM, A.D. 2014

                                                               February 4, 2015

NICOLE HALVORSON,

Appellant
(Plaintiff),

v.

SWEETWATER COUNTY SCHOOL DISTRICT
NO. 1,

Appellee
(Defendant).
                                                            S-14-0083, S-14-0084
SWEETWATER COUNTY SCHOOL DISTRICT
NO. 1,

Appellant
(Defendant),

v.

NICOLE HALVORSON,

Appellee
(Plaintiff).

                  Appeal from the District Court of Sweetwater County
                       The Honorable Richard L. Lavery, Judge

Representing Nicole Halvorson:

        Vance T. Countryman, Vance T. Countryman, P.C., Lander, Wyoming; Robert T. Ingram,
        Ingram Olheiser, P.C., Casper, Wyoming. Argument by Mr. Ingram.
Representing Sweetwater County School District No. 1:

        Clark D. Stith, Stith Law Office, Rock Springs, Wyoming.




Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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.
BURKE, Chief Justice.

[¶1] Nicole Halvorson filed suit against Sweetwater County School District No. 1
(School District) after she slipped and fell in the locker room of Rock Springs East Junior
High School. She claimed the School District had negligently failed to operate and
maintain the shower facilities in the locker room in a reasonably safe condition.
Following a bench trial, the district court granted judgment in favor of the School
District. In Docket No. S-14-0083, Ms. Halvorson challenges the district court’s
judgment in favor of the School District. In Docket No. S-14-0084, the School District
challenges the denial of its motion for summary judgment. We affirm the district court’s
judgment in favor of the School District in Docket No. S-14-0083 and decline to review
the court’s ruling on summary judgment in Docket No. S-14-0084.

                                         ISSUES

[¶2] In Docket No. S-14-0083, Ms. Halvorson presents a single issue, which we
rephrase as follows:

             1. Whether the district court erred in granting judgment in
                favor of Appellee, Sweetwater County School District
                No. 1.

In Docket No. S-14-0084, the School District presents the following two issues:

             1. Whether the District Court erred by denying Defendant’s
                Motion for Summary Judgment.

             2. Whether the District Court erred by finding that the
                Wyoming Recreation Safety Act did not apply where
                injury occurred in a girls’ swimming pool locker room
                after showering.

                                         FACTS

[¶3] In September 2007, Ms. Halvorson was enrolled in the eighth grade at East Junior
High School in Rock Springs, Wyoming. As part of her curriculum, Ms. Halvorson was
required to take a swimming class at the school. On the fourth day of the school year,
after her swimming class was finished, Ms. Halvorson returned to the girls’ locker room
to shower and get dressed. While crossing the locker room to borrow a friend’s comb,
Ms. Halvorson slipped and fell in the dressing area of the locker room. Ms. Halvorson
was subsequently diagnosed with a disc herniation in her lumbar spine, and she
underwent three surgeries as a result of the herniation.



                                            1
[¶4] On October 15, 2009, Ms. Halvorson filed suit against the School District
claiming that it had been negligent “in the operation and maintenance of the Rock
Springs East Junior High School building.” She alleged that, as a result of improper
drainage in the shower drain, “water from the shower built up within the curb around the
shower area to the point it spilled over the curb and flowed onto the dressing area” of the
locker room. In July 2012, the School District filed a motion for summary judgment
claiming that (1) it had no duty to Ms. Halvorson because it did not have notice of an
unsafe condition, and that (2) it was entitled to immunity under Wyoming’s Recreation
Safety Act (WRSA) because Ms. Halvorson had assumed an inherent risk of swimming
at the time she was injured. The district court denied the motion.

[¶5] The matter then proceeded to a bench trial. At trial, Ms. Halvorson attempted to
demonstrate that water had backed up in the drain in the floor of the locker room near
where she fell. Evidence introduced at trial showed that the locker room is “L” shaped,
with a communal shower at one end of the room, and a toilet and sink at the other end.
The drainage system is composed of three drains and a drainpipe. The drainpipe has its
highest point in the communal shower and descends to a second drain in the dressing area
where Ms. Halvorson fell and then to a third drain located between the door and the sink.
Ms. Halvorson’s theory at trial was that, due to a blockage in the drain near the lowest
portion of the locker room, water backed up in the communal shower as well as in the
drain in the dressing area.

[¶6] Following trial, the court entered its Findings of Fact, Conclusions of Law, and
Judgment in favor of the School District. The court was not persuaded by Ms.
Halvorson’s argument that water had backed up in the drain in the dressing area of the
locker room:

             The Plaintiff contends sound logic dictates that because
             drainpipes slope down and the shower drains were at the end
             of the pipe, the locker room drains must be lower than the
             shower drains. Consequently, the Plaintiff contends, when
             there was flooding in the shower, there must have been
             flooding in the locker room. This argument is not persuasive;
             it attempts to explain too much. Several of the witnesses
             testified to substantial – one to several inches – standing
             water in the shower. Yet if the Plaintiff’s argument holds,
             then flooding would have been even worse in the locker
             room. There’s no credible explanation in the Plaintiff’s
             argument for why no one would remember that severe of
             flooding in the locker room, and it’s inconsistent with the
             Plaintiff’s own testimony that there was only nine to twelve
             inches of water (like a puddle on the street) around the locker
             room drain where she slipped.


                                            2
The court further determined that the School District did not have actual or constructive
notice of an unsafe condition in the locker room at the time of Ms. Halvorson’s accident.
Accordingly, the court found that the School District did not have a duty to fix a known
unsafe condition. The district court also recognized, however, that “failure to
comprehend and recognize danger may in itself constitute negligence.” On this point, the
court found that “the Plaintiff has not proved that excessive or unreasonably dangerous
amounts of water or soapy water existed on the floor of the locker room at the time the
Plaintiff fell.” Ultimately, the court concluded that “A reasonable person would not be
troubled by the possibility of a temporarily backed up drain in a pool locker room
because the floor of a pool locker room is designed to accommodate and will inevitably
have some soapy water.” On the question of whether the School District was protected
from liability under the WRSA, the court determined that slipping in a locker room is not
an inherent risk of swimming.

[¶7] Ms. Halvorson appealed the district court’s judgment in favor of the School
District. The School District filed a cross-appeal challenging the district court’s denial of
its motion for summary judgment. The appeals were consolidated for argument and
decision.

                                      DISCUSSION

Docket No. S-14-0083

[¶8] In Docket No. S-14-0083, Ms. Halvorson appeals the district court’s entry of
judgment in favor of the School District. We apply the following standard when
reviewing a trial judge’s decision after a bench trial:

              The factual findings of a judge are not entitled to the limited
              review afforded a jury verdict. While the findings are
              presumptively correct, the appellate court may examine all of
              the properly admissible evidence in the record. Due regard is
              given to the opportunity of the trial judge to assess the
              credibility of the witnesses, and our review does not entail
              weighing disputed evidence. Findings of fact will not be set
              aside unless the findings are clearly erroneous. A finding is
              clearly erroneous when, although there is evidence to support
              it, the reviewing court on the entire evidence is left with the
              definite and firm conviction that a mistake has been
              committed. We review a district court’s conclusions of law de
              novo on appeal.

Henry v. Borushko, 2012 WY 104, ¶ 6, 281 P.3d 729, 731 (Wyo. 2012).


                                             3
[¶9] In order to establish a claim of negligence, a plaintiff must prove: (1) the
defendant owed the plaintiff a duty of reasonable care; (2) the defendant breached the
duty; and (3) the defendant’s breach was the proximate cause of injury or loss to the
plaintiff. Collings v. Lords, 2009 WY 135, ¶ 6, 218 P.3d 654, 656 (Wyo. 2009). Ms.
Halvorson brought suit against the School District under a theory of premises liability,
claiming that the School District had been negligent in the operation and maintenance of
the shower facilities in the girls’ locker room. In Wyoming, this theory provides that a
landowner must (1) use ordinary care to keep the premises in a reasonably safe condition,
and (2) protect visitors against known dangers and dangers that are discoverable by use of
reasonable care. Rhoades v. K-Mart Corp., 863 P.2d 626, 629 (Wyo. 1993); Downen v.
Sinclair Oil Corp., 887 P.2d 515, 518 (Wyo. 1994). The district court applied the
definition of ordinary care set forth in Wyoming Civil Pattern Jury Instruction 3.02
(2013), which provides that “Ordinary care means the degree of care which should
reasonably be expected of the ordinary careful person under the same or similar
circumstances.” With respect to the affirmative duty to protect against known dangers, a
plaintiff may demonstrate negligence by showing that the landowner had actual or
constructive notice of the dangerous condition, and failed to repair it. Rhoades, 863 P.2d
at 629 (citing Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 552 (Wyo. 1980)).
Actual or constructive notice is not required, however, when the “operating methods of a
proprietor are such that dangerous conditions are continuous or easily foreseeable.”
Rhoades, 863 P.2d at 630. This rule is referred to as the “operating methods rule.”

[¶10] Ms. Halvorson claims that the district court’s conclusion that the School District
did not have actual or constructive notice of an unsafe condition in the locker room is
clearly erroneous. She also claims, however, that actual or constructive notice was not
required under the operating methods rule. Ms. Halvorson contends that the district court
“failed to apply the operating methods rule to the undisputed evidence of recurring
problems with, and blockages in, the shower room drain system.” Ultimately, she claims
the district court erred in concluding that the School District exercised ordinary care to
keep the premises in a safe condition.1


1
  Ms. Halvorson also devotes a substantial portion of her brief to the claim that the School District owed
her a heightened standard of care because she was a minor at the time of the accident and because school
attendance is compulsory. However, she did not provide any meaningful argument or authority
supporting a heightened standard of care in the proceedings before the district court and she does not
contend that the district court erred in applying a standard of ordinary care to keep the premises in a
reasonably safe condition. Indeed, in her proposed Findings of Fact and Conclusions of Law, Ms.
Halvorson described the applicable standard of care as follows: “The Defendant and its employees owed a
duty to the students, to include Plaintiff, to keep the floor drains free of debris and to prevent the
accumulation of shower water, conditioner and shampoo around the floor drains in the communal locker
room.” Because Ms. Halvorson did not meaningfully advocate a heightened standard of care in the
proceedings below, we decline to consider her argument on appeal. State ex rel. Dep’t of Family Servs. v.




                                                    4
[¶11] Whether the School District exercised ordinary care is a question of fact. Hincks
v. Walton Ranch Co., 2007 WY 12, ¶ 18, 150 P.3d 669, 672 (Wyo. 2007) (a question of
material fact existed for jury determination as to whether the livestock owner exercised
reasonable care to prevent cattle from escaping from his pasture onto a public highway);
see also Loredo v. Solvay America, Inc., 2009 WY 93, ¶ 17, 212 P.3d 614, 628 (Wyo.
2009); Cordero Mining Co. v. United States Fid. & Guar. Ins. Co., 2003 WY 48, ¶ 30, 67
P.3d 616, 626 (Wyo. 2003) (whether a party injured due to the negligence of another is
generally a question of fact). Accordingly, we must uphold the district court’s
determination that the School District exercised ordinary care unless, after reviewing the
entire record, we are left with the definite and firm conviction that a mistake has been
made. After conducting a review of all of the evidence, we find no clear error in the
district court’s conclusion that the School District exercised ordinary care to keep the
shower facilities in a reasonably safe condition.

[¶12] First, we note that witness testimony was not consistent on the issue of whether
water was backed up in the dressing area of the locker room, where Ms. Halvorson fell.
Several students offered testimony relating to the amount of water that collected in the
showers. The first student, a classmate of Ms. Halvorson’s, stated that she did not “think
there was any water collecting” in the shower during the first week of school. A second
student stated in her deposition testimony that she did not ever see water build up around
the shower room or the shower room drains. However, this testimony contradicted her
statements at trial, where she testified that the water would “build up and usually get an
inch high, maybe.” A third student, another classmate of Ms. Halvorson’s, testified that
she recalled standing water in the shower as a frequent occurrence. However, she stated
that she did not ever recall an incident in which water pooled to the level of the curb
surrounding the shower area causing it to spill into the dressing area of the locker room.
A fourth student testified that the curb around the shower area blocked water from
escaping the showers, but that “it didn’t help all the time.” She stated that both the
shower and dressing area drains were clogged and that “[t]here would be water coming
up” and accumulating around the drains. Finally, Ms. Halvorson testified that water
accumulated in the shower area as well as the dressing area of the locker room. She
stated that she slipped in a puddle surrounding the drain in the dressing area. 2

[¶13] The district court found that the first and third students were credible witnesses.


Kisling, 2013 WY 91, ¶ 16, 305 P.3d 1157, 1163 (Wyo. 2013).
2
  The record does not indicate the exact ages of the students who testified. Because we cannot confirm
that the students had reached the age of majority, we refrain from identifying the students by name. See
Rule 1(b) of the Rules Governing Redactions from Court Records.




                                                   5
The court, however, expressed credibility concerns regarding the testimony of the other
students and Ms. Halvorson. The court noted the inconsistencies between the second
student’s deposition testimony and her testimony at trial and found that she “had a
diminished recollection of events and appeared somewhat confused in her recollections.”
Similarly, the court found that the fourth student’s testimony was “not helpful” because
she “was inconsistent in her recollections and seemed to exaggerate her claims about the
extent of the flooding.” Finally, with respect to Ms. Halvorson, the court noted that she
testified inconsistently on the issue of whether the fourth student witnessed her fall. The
court remarked that “At trial, Ms. Halvorson testified that [the fourth student] left the
locker room before she fell and did not see the fall. Then, during cross examination she
conceded that she had previously testified that [the fourth student] did see her fall and
they both laughed.” Ultimately, the court concluded that Ms. Halvorson’s recollection of
the accident was “frankly not very good.” We find that the district court’s credibility
determinations are supported by the record. Even if the court had found all of the
witnesses to be credible, however, we note that the testimony of the students who
participated in the swimming class at East Junior High School is largely unsupportive of
Ms. Halvorson’s theories that water backed up in the drain near the dressing area or that
“water from the shower built up within the curb around the shower area to the point it
spilled over the curb and flowed onto the dressing area.” As a result, considering that
water carried from wet feet and bodies, as opposed to water “flowing” over a shower
boundary, is generally unavoidable in a locker room and does not tend to indicate a
substandard degree of care, a critical piece of Ms. Halvorson’s theory of negligence
lacked solid evidentiary support.

[¶14] We find additional evidence in the record to support the district court’s
determination that the School District exercised ordinary care to ensure that the locker
room floor was not unreasonably dangerous. We note that Ms. Halvorson presented no
evidence or testimony indicating that the drainage system in the locker room was
inadequately designed or constructed. Richard Bettolo, who has been employed as a
plumber for the School District for 16 years, stated that he had been required to use a
“snake” to unclog the drain in the locker room on only one occasion, suggesting that
clogging was not a common occurrence. Further, the evidence indicated that the locker
room floor was regularly cleaned by janitorial staff. Jolene Sliger, the head custodian at
East Junior High School, testified that the floor was cleaned and disinfected on a daily
basis. After sweeping or vacuuming the floor, the janitorial staff applied “Re-Juv-Nal” to
disinfect the floor every night and, in accordance with the product instructions, did not
rinse the disinfectant after it was applied. She stated that the floors were never polished
or waxed. Further, during the summers, the locker room floor was scrubbed and rinsed as
part of a deep clean of the entire school.

[¶15] The evidence also indicated that the School District implemented appropriate
procedures to respond to complaints about slow drains resulting from hair and other
debris. If a teacher or student reported that a drain was slow, Ms. Sliger informed


                                            6
maintenance and placed an entry in a work order log. Ms. Sliger testified that reports of
slow drains were typically addressed by maintenance on the same day that the reports
were received. The work order log kept by the School District indicated that a slow drain
was reported in December 2006, eight months prior to Ms. Halvorson’s accident, and in
March 2008, approximately six months after the accident. No reports of a slow or
clogged drain were made in the days before or after Ms. Halvorson’s accident.

[¶16] Finally, the parties offered conflicting expert testimony and measurements relating
to the degree of slipperiness of the locker room floor. Both parties’ experts measured the
“coefficient of friction” on the locker room floor in 2010 to determine the degree of
slipperiness of the floor. A coefficient of .5 or greater is considered safe under the
industry standard. Dr. William Rowley, a mechanical engineer, testified that the floors
exhibited a .54 coefficient of friction against a bare foot. Gerald Halweg, however,
measured the coefficient of friction using leather and neolite, a material commonly used
for shoe soles. He determined that the coefficient of friction ranged from .26 to .43,
depending on the material used and whether the material was wet or dry. Mr. Halweg
also testified that the janitorial staff had applied Re-Juv-Nal incorrectly and that he had
found residue on tiles in the locker room.

[¶17] The district court took issue with the testimony of both experts. With respect to
Mr. Halweg’s testimony, the court noted that

             His opinion that the custodial staff used Rejuvnal incorrectly
             by not rinsing it because they did not follow the instructions
             is directly contradicted by the instructions. His opinion that
             the custodial staff used cross-contaminated mops, based on a
             statement of an unidentified person, deserves little weight.
             His opinion that tile samples taken several years after the fall
             are covered by a residue is not supported by any testing to
             identify the residue, or even so much as a picture.

With respect to Dr. Rowley’s testimony, the court found that

             his testimony suffers from one of the same flaws as Mr.
             Halweg[’s].     He testified that he conducted eight
             measurements of the friction angle, . . . but only reported one
             measured value of the coefficient of friction, failing to offer
             any description of how accurate his measurements are, such
             as, for example, a confidence interval. . . . [W]ithout more
             information the Court is unable to assess how reliable his
             friction measurements are.

We find that the weight accorded to the expert testimony by the district court is supported


                                            7
by the evidence contained in the record and by sound reasoning. We would add,
however, that the measurements of the slipperiness of the floor in 2010 indicate very little
about the condition of the floor in 2007, when Ms. Halvorson’s accident occurred. We
find a more salient point in the fact that, as noted by the district court, the experts agreed
that the type of tile used in the locker room is considered safe in the industry, and that the
tile was appropriate for pool, shower, and locker room application.

[¶18] Based on the evidence recited above, the district court concluded that Ms.
Halvorson had not proved that the floor of the locker room was unreasonably slippery:

              Even if the Court assumes that the tile floor of the locker
              room would be unreasonably dangerous with too much soapy
              water on it, the Court finds . . . that the Plaintiff has not
              proved that excessive or unreasonably dangerous amounts of
              water or soapy water existed on the floor of the locker room
              at the time the Plaintiff fell.

The court further concluded that

              Even if the Court assumed that the drain was backed up and
              tile with soapy water on it was unreasonably dangerous, the
              Court would find that the Plaintiff has not shown that a
              reasonable person would not rely on student complaints as
              notice of a need to fix a clog. It is not reasonable to expect all
              or most parts of any building to be covered by routine
              maintenance every year, and common sense dictates that
              absent a pattern of problems . . . , drains need not be fixed
              before they are clogged. Moreover, the Court must consider
              how a reasonable person would evaluate this situation ex
              ante. A reasonable person would not be troubled by the
              possibility of a temporarily backed up drain in a pool locker
              room because the floor of a pool locker room is designed to
              accommodate and will inevitably have some soapy water.

Considering the evidence contained in the record as a whole, we are not left with the
definite and firm conviction that a mistake has been made. As noted above, the evidence
that the drains functioned improperly in the area where Ms. Halvorson fell was disputed.
Further, the evidence indicates that the floors were regularly cleaned by janitorial staff,
and that procedures were in place to address water collection caused by slow drains. We
find no clear error in the district court’s conclusion that Ms. Halvorson did not carry her
burden of proving the School District failed to exercise ordinary care to keep the locker
room floor in a reasonably safe condition.



                                              8
[¶19] Because we find no clear error in the district court’s conclusion that Ms.
Halvorson failed to carry her burden of proving the existence of a dangerous condition, or
that the School District did not exercise ordinary care to prevent water from accumulating
on the locker room floor, the operating methods rule is not applicable in the present case.
The operating methods rule relieves a plaintiff from the burden of showing that the
defendant had notice of a dangerous condition. However, the plaintiff must still prove
the existence of a dangerous condition caused by the failure to use ordinary care in the
manner in which the proprietor conducts his business. Ms. Halvorson relies on Rhoades
to support her assertion that the district court erred by failing to apply the operating
methods rule. Unlike that case, however, where the plaintiff demonstrated a dangerous
condition created by a spilled substance, Ms. Halvorson did not show the existence of a
dangerous condition in this case. Id., 863 P.2d at 628. Under these circumstances, the
operating methods rule is not applicable. Similarly, because we find no error in the
district court’s conclusion that Ms. Halvorson failed to carry her burden of proving the
existence of a dangerous condition, we need not address the issue of whether the School
District had a duty to repair a dangerous condition. The district court’s decision in
Docket No. S-14-0083 is affirmed.

Docket No. S-14-0084

[¶20] In Docket No. S-14-0084, the School District challenges the district court’s denial
of its motion for summary judgment under the Wyoming Recreation Safety Act.
Pursuant to the WRSA, a participant “in any sport or recreational opportunity assumes
the inherent risks in that sport or recreational opportunity.” Wyo. Stat. Ann. § 1-1-123(a)
(LexisNexis 2013). “Inherent risks” are defined as “those dangers or conditions which
are characteristic of, intrinsic to, or an integral part of any sport or recreational
opportunity.” Wyo. Stat. Ann. § 1-1-122(a)(i). According to the School District, the
district court erred in concluding that showering is not an “inherent risk” of swimming
under the WRSA.

[¶21] Because we affirm the district court’s decision in favor of the School District in
Docket No. S-14-0083, we do not need to determine whether the district court erred in
denying the School District’s motion for summary judgment. Additionally, we note that
challenges to the denial of a defendant’s summary judgment motion are generally not
reviewable. Irene v. Seneca Ins. Co., 2014 WY 145, ¶ 23, 337 P.3d 483, 492 (Wyo.
2014). As we explained in State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813
(Wyo. 1994), the denial of summary judgment is an interlocutory order and merges with
the final judgment:

             The denial of a motion for summary judgment is not an
             appealable order. St. Paul Fire and Marine Ins. Co. v. Albany
             County School Dist. No. 1, 763 P.2d 1255, 1257 (Wyo. 1988);
             Kimbley v. City of Green River, 663 P.2d 871, 888 (Wyo.


                                            9
             1983); Boyles Galvanizing & Plating Co. v. Hartford Acc. &
             Indem. Co., 372 F.2d 310, 312 (10th Cir. 1967). When a
             motion for summary judgment is denied, an interlocutory
             order is issued after the district court rules that genuine issues
             of material fact are disputed and the moving party is not
             entitled to a judgment as a matter of law. W.R.C.P. 56(c).
             Generally, interlocutory orders are not appealable. W.R.C.P.
             54(b). The unresolved issues presented in a motion for
             summary judgment which is denied merge with the final
             judgment which is subject to appeal. Morgan v. American
             University, 534 A.2d 323, 327 (D.C.App. 1987). However,
             even in an appeal of a final judgment, the pre-trial denial of a
             motion for summary judgment is not generally reviewed. All-
             States Leasing Co. v. Pacific Empire Land Corp., 31 Ore.
             App. 733, 571 P.2d 192, 194 (1977). See R. F. Chase,
             Annotation, Reviewability of Order Denying Motion For
             Summary Judgment, 15 A.L.R.3d 899 (1967) (collecting
             cases). The denial of the summary judgment becomes, in
             effect, moot except in rare cases. E.E.O.C. v. Sears, Roebuck
             & Co., 839 F.2d 302, 353 n.55 (7th Cir. 1988); Fleitz v. Van
             Westrienen, 114 Ariz. 246, 560 P.2d 430, 433 (1977).

Id. at 820. Accordingly, we decline to review the School District’s challenge to the
denial of its motion for summary judgment. The School District’s appeal in Docket No.
S-14-0084 is dismissed.




                                            10
