§ 1-1-101. Provisions to be liberally construed.

The Code of Civil Procedure [this title] and all proceedings under it shall be liberally construed to promote its object and assist the parties in obtaining justice. The rule of common law that statutes in derogation thereof must be strictly construed has no application to the Code of Civil Procedure, but this shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement or of a penal nature.

History. Laws 1886, ch. 60, § 2; R.S. 1887, § 2338; R.S. 1899, § 2727; C.S. 1910, § 4263; C.S. 1920, § 5532; R.S. 1931, § 89-102; C.S. 1945, § 3-102; W.S. 1957, § 1-2; Laws 1977, ch. 188, § 1.

In general. —

Under this section the Code of Civil Procedure will be liberally construed to promote its object and assist parties in obtaining justice, the common law rule that statutes in derogation thereof must be strictly construed being inapplicable. Allen v. Houn, 30 Wyo. 186, 219 P. 573, 1923 Wyo. LEXIS 44 (Wyo. 1923).

Petition to set aside fraudulent conveyance should be construed liberally in order to promote the objects of the Code of Civil Procedure and to assist the parties in obtaining justice. Glover v. Berger, 75 Wyo. 191, 294 P.2d 793, 1956 Wyo. LEXIS 11 (Wyo. 1956).

Likewise, petition for money had and received on an oral contract for the sale of realty breached by the vendor should be construed liberally in order to promote justice. Smith v. Gorsuch, 36 Wyo. 430, 256 P. 664, 1927 Wyo. LEXIS 51 (Wyo. 1927).

And occupying claimant's statute should be construed in its entirety and liberally in order to promote its objects and assist the parties in obtaining justice. Walther v. Steward, 54 Wyo. 160, 88 P.2d 475, 1939 Wyo. LEXIS 7 (Wyo. 1939).

Sufficiency of evidence to support finding could be reviewed under an assignment of error challenging the sufficiency of the evidence to sustain “judgment.” Schiller v. Blyth & Fargo Co., 15 Wyo. 304, 88 P. 648, 1907 Wyo. LEXIS 9 (Wyo. 1907).

Practice of other states not controlling. —

Courts of this state are not controlled by principles of practice established in other jurisdictions, unless they are more reasonable and consonant with other rules of our procedure, either judicially established or prescribed by statute. Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255, 1925 Wyo. LEXIS 34 (Wyo. 1925).

Quoted in

Board of County Comm'rs v. Ridenour, 623 P.2d 1174, 1981 Wyo. LEXIS 287 (Wyo. 1981); Soles v. State, 809 P.2d 772, 1991 Wyo. LEXIS 59 (Wyo. 1991).

§ 1-1-102. Minors as parties to actions.

Every person over fourteen (14) years of age and under the age of majority, when subject to no disability other than being a minor, may sue or be sued. When plaintiff he shall sue by a next friend selected by him before suit is commenced. The next friend is liable for the cost chargeable to the plaintiff. When the minor is sued he shall appear by guardian nominated by him and appointed by the court before further proceedings are had in the case, but judgment shall be against the minor defendant only. In either case, if plaintiff or defendant neglects or refuses to nominate a next friend or guardian, the court shall appoint a next friend or guardian, who shall file his consent in writing, with the court.

History. C.L. 1876, ch. 71, Part I, § 9; R.S. 1887, § 3423; R.S. 1899, § 4332; C.S. 1910, § 5194; C.S. 1920, § 6470; R.S. 1931, § 62-303; C.S. 1945, § 14-203; W.S. 1957, § 1-509; Laws 1973, ch. 213, § 2; 1977, ch. 188, § 1.

Cross references. —

For provision reserving rights of minors in judgments or orders, see § 1-16-101 .

As to right of minor to obtain declaration of rights under Uniform Declaratory Judgments Act, see § 1-37-105 .

As to appointment of guardians generally, see §§ 3-2-101 to 3-2-112 .

As to age of majority, see § 14-1-101 .

Quoted in

Kordus v. Montes, 2014 WY 146, 2014 Wyo. LEXIS 169 (Nov. 14, 2014).

Cited in

Cheeseman v. Fenton, 13 Wyo. 436, 80 P. 823, 1905 Wyo. LEXIS 17 (1905).

Am. Jur. 2d, ALR and C.J.S. references. —

Minors as subject to constructive or substituted service of process under statutes providing for such service on nonresident motorist, 53 ALR2d 1164.

Recognition of foreign guardian as next friend or guardian ad litem, 94 ALR2d 162.

Who is minor's next of kin for guardianship purposes, 63 ALR3d 813.

Child's right of action for loss of support, training, parental attention, or the like, against a third person negligently injuring parent, 11 ALR4th 549.

Sexual child abuser's civil liability to child's parent, 54 ALR4th 93.

Parent's right to recover for loss of consortium in connection with injury to child, 54 ALR4th 112.

§ 1-1-103. Power of deputies.

A duty enjoined by statute upon a ministerial officer or an act permitted to be done by him may be performed by his lawful deputy.

History. Laws 1880, ch. 60, § 3; R.S. 1887, § 2339; R.S. 1899, § 3421; C.S. 1910, § 4264; C.S. 1920, § 5533; R.S. 1931, § 89-103; C.S. 1945, § 3-103; W.S. 1957, § 1-3; Laws 1977, ch. 188, § 1.

Cross references. —

As to deputies of state officers, see § 9-1-101 .

As to deputies of county officers, see §§ 18-3-111 , 18-3-112 .

§ 1-1-104. Sureties; justification.

A court or an officer authorized by law to approve a surety may require such person to testify orally or in writing touching his sufficiency, but this in itself shall not exonerate the officer in an action for taking insufficient surety.

History. Laws 1886, ch. 60, § 6; R.S. 1887, § 2342; R.S. 1899, § 3424; C.S. 1910, § 4267; C.S. 1920, § 5536; R.S. 1931, § 89-106; C.S. 1945, § 3-105; W.S. 1957, § 1-4; Laws 1977, ch. 188, § 1.

Cross references. —

As to rights and remedies of sureties, surety bonds and surety companies, see title 38.

§ 1-1-105. Sureties; qualifications.

Sureties shall be residents of this state, worth in the aggregate double the sum to be secured, beyond the amount of their debts, and have property liable to execution in this state equal to the sum to be secured. Every person acting as surety for another shall file with the court his affidavit showing that he meets the requirements set forth herein.

History. Laws 1886, ch. 60, § 7; R.S. 1899, § 3425; C.S. 1910, § 4268; C.S. 1920, § 5537; R.S. 1931, § 89-107; C.S. 1945, § 3-106; W.S. 1957, § 1-5; Laws 1977, ch. 188, § 1.

Cross references. —

As to qualifications of sureties with reference to county officers, see § 18-3-102 .

Cited in

Snake River Land Co. v. Utah-Idaho Sugar Co., 57 Wyo. 425, 120 P.2d 601, 1942 Wyo. LEXIS 2 (1942).

§ 1-1-106. Compensation of cross demands.

When cross demands exist between persons under circumstances that if one brought an action against the other, a counterclaim or setoff could be set up, neither can be deprived of the benefit thereof by assignment by the other, or by his death, but the two (2) demands will be deemed compensated so far as they equal each other.

History. Laws 1886, ch. 60, § 128; R.S. 1887, § 2464; R.S. 1899, § 3551; C.S. 1910, § 4397; C.S. 1920, § 5667; R.S. 1931, § 89-1022; C.S. 1945, § 3-1316; W.S. 1957, § 1-6; Laws 1977, ch. 188, § 1.

Assignment improper.—

Appellants’ assignment of the judgments to themselves as tenants in the entirety was improper because it would deprive individual appellees, holders of a cross demand, of the benefit of their claim by making the judgments held by appellants exempt from execution. Mantle v. N. Star Energy & Constr., LLC, 2020 WY 125, 473 P.3d 279, 2020 Wyo. LEXIS 145 (Wyo. 2020).

“Compensated” defined. —

This section represents a principle of natural justice, “compensated” therein meaning, as in the civil law, extinguished or satisfied. Dallas Dome Wyoming Oil Fields Co. v. Brooder, 55 Wyo. 109, 97 P.2d 311, 1939 Wyo. LEXIS 45 (Wyo. 1939).

Presentation in probate unnecessary. —

Under this section counterclaim may be set up even if not presented to executor or administrator. Dallas Dome Wyoming Oil Fields Co. v. Brooder, 55 Wyo. 109, 97 P.2d 311, 1939 Wyo. LEXIS 45 (Wyo. 1939).

Setoff not permitted. —

This section does not authorize a setoff by the maker of a note where the holder is suing the maker on a note transferred to the holder by the federal deposit insurance corporation (FDIC) after the maker's bank went into receivership and the maker seeks to offset this claim with a payment made on a separate note issued to a separate bank also in receivership to the FDIC. Gose v. Hess, 822 P.2d 846, 1991 Wyo. LEXIS 204 (Wyo. 1991).

Setoff permitted.—

Appellants asserted that part of the statute that prohibited partial assignment of judgments, but corporate appellees’ partial assignments of their judgment against appellants did not deprive appellants of the benefit of their judgments against individual appellees, as appellants still received value for their judgments by having the amount appellants owed reduced. The partial assignments were valid. Mantle v. N. Star Energy & Constr., LLC, 2020 WY 125, 473 P.3d 279, 2020 Wyo. LEXIS 145 (Wyo. 2020).

§ 1-1-107. Furnishing of transcripts.

Upon request and receipt of the lawful fees required, judges of judicial tribunals and the clerks of every court of record, shall furnish to any person an authenticated transcript of proceedings containing the judgment or final order in their court.

History. Laws 1886, ch. 60, § 787; R.S. 1887, § 3135; R.S. 1899, § 4255; C.S. 1910, § 5115; C.S. 1920, § 6377; R.S. 1931, § 89-4809; C.S. 1945, § 3-5309; W.S. 1957, § 1-7; Laws 1977, ch. 188, § 1; 2009, ch. 168, § 201.

The 2009 amendment, effective July 1, 2009, deleted “justices of the peace and” preceding “judges of” and deleted “other” preceding “judicial.”

§ 1-1-108. Voluntary partial payment of liability claims.

No voluntary partial payment of a claim based on alleged liability for injury or property damage shall be construed as an admission of fault or liability, or as a waiver or release of claim by the person receiving payment. Such payment is not admissible as evidence in any action for the purpose of determining the amount of any judgment, with respect to the parties to the occurrence from which the claim arose. Upon settlement of the claim, the parties may make any agreement they desire in respect to all voluntary partial payments. After entry of judgment, any such payment shall be treated as a credit and deducted from the amount of the judgment. If after partial voluntary payments are made it is determined by final judgment of a court of competent jurisdiction that the payor is liable for an amount less than the voluntary payments already made, the payor has no right of action for the recovery of amounts by which the voluntary payments exceed the final judgment. No voluntary partial payments shall be construed to reduce the amount of damages which may be pleaded and proved in a court proceeding between the parties.

History. Laws 1969, ch. 140, § 1; W.S. 1957, § 1-7.1; Laws 1977, ch. 188, § 1.

No credit for payments made by another. —

This section does not provide for a credit to a party, upon a judgment for payments made by another in settlement of the claim of an injured person. The clear legislative intent is that the voluntary payments accrue only to the benefit or detriment of the payor of the voluntary payments. The statute makes no mention of third parties who pay nothing as being either benefitted or harmed by the party paying and the injured party. Haderlie v. Sondgeroth, 866 P.2d 703, 1993 Wyo. LEXIS 191 (Wyo. 1993).

Applied in

Amerigas Propane, Inc. v. Bing, 875 P.2d 1276, 1994 Wyo. LEXIS 79 (Wyo. 1994).

Law reviews. —

For discussion of Rule 409, F.R.E., which excludes offers to pay or payments of an injured party's medical expenses when offered to prove negligence by the alleged tortfeasor, see XII Land & Water L. Rev. 601 (1977).

§ 1-1-109. Comparative fault.

1. As used in this section:
   1. “Actor” means a person or other entity,  including the claimant, whose fault is determined to be a proximate  cause of the death, injury or damage, whether or not the actor is  a party to the litigation;
   2. “Claimant” means a natural person, including  the personal representative of a deceased person, or any legal entity,  including corporations, limited liability companies, partnerships  or unincorporated associations, and includes a third party plaintiff  and a counterclaiming defendant;
   3. “Defendant” means a party to the litigation  against whom a claim for damages is asserted, and includes third party  defendants. Where there is a counterclaim, the claimant against whom  the counterclaim is asserted is also a defendant;
   4. “Fault” includes acts or omissions, determined  to be a proximate cause of death or injury to person or property,  that are in any measure negligent, or that subject an actor to strict  tort or strict products liability, and includes breach of warranty,  assumption of risk and misuse or alteration of a product;
   5. “Injury to person or property,” in addition  to bodily injury, includes, without limitation, loss of enjoyment  of life, emotional distress, pain and suffering, disfigurement, physical  or mental disability, loss of earnings or income, damage to reputation,  loss of consortium, loss of profits and all other such claims and  causes of action arising out of the fault of an actor;
   6. “Wrongful death” means that cause of action  authorized by Wyoming statute to recover money damages when the death  of a person is caused by the fault of an actor such as would have  entitled the party injured to maintain an action to recover damages  if death had not ensued.
2. Contributory fault shall not bar a recovery  in an action by any claimant or the claimant’s legal representative  to recover damages for wrongful death or injury to person or property,  if the contributory fault of the claimant is not more than fifty percent  (50%) of the total fault of all actors. Any damages allowed shall  be diminished in proportion to the amount of fault attributed to the  claimant.
3. Whether or not the claimant is free of  fault, the court shall:
   1. If a jury trial:
      1. Direct the jury to determine the total  amount of damages sustained by the claimant without regard to the  percentage of fault attributed to the claimant, and the percentage  of fault attributable to each actor; and
      2. Inform the jury of the consequences of  its determination of the percentage of fault.
   2. If a trial before the court without jury,  make special findings of fact, determining the total amount of damages  sustained by the claimant without regard to the percentage of fault  attributed to the claimant, and the percentage of fault attributable  to each actor.
4. The court shall reduce the amount of damages  determined under subsection (c) of this section in proportion to the  percentage of fault attributed to the claimant and enter judgment  against each defendant in the amount determined under subsection (e)  of this section.
5. Each defendant is liable only to the extent  of that defendant’s proportion of the total fault determined under  paragraph (c)(i) or (ii) of this section.

History. Laws 1973, ch. 28, § 1; W.S. 1957, § 1-7.2; Laws 1977, ch. 188, § 1; 1986, ch. 24, § 1; 1994, ch. 98, § 1.

Editor's notes. —

Many of the following annotations are taken from cases decided prior to the 1986 amendment of this section and the repeal of §§ 1-1-110 through 1-1-113.

Negligence on part of fraud victim. —

It seems clear the legislature sought to ensure negligent defendants would not be held accountable for the intentional acts of another, and the Wyoming Supreme Court is not persuaded the legislature intended negligence on the part of a fraud victim to be compared with the intentional acts of the perpetrator so as to reduce the perpetrator's liability based upon any percentage of fault apportioned to the victim. Erdelyi v. Lott, 2014 WY 48, 326 P.3d 165, 2014 Wyo. LEXIS 51 (Wyo. 2014).

Absent clear statutory language showing the legislature intended the negligence of a fraud victim to be compared to the conduct of the perpetrator, thereby potentially reducing the latter's liability for his intentionally wrongful acts, the court declines to hold that the statute is a proper matter for a jury instruction in a fraud case. Erdelyi v. Lott, 2014 WY 48, 326 P.3d 165, 2014 Wyo. LEXIS 51 (Wyo. 2014).

District court erred in instructing on comparative fault and negligence so as to allow the jury to compare the stockbroker's willful act with any negligence of the client in this constructive fraud case, and the district court further erred in providing a verdict form requiring the jury to compare the stockbroker's constructive fraud and any negligence of the client. Erdelyi v. Lott, 2014 WY 48, 326 P.3d 165, 2014 Wyo. LEXIS 51 (Wyo. 2014).

If a jury finds that a claimant knew or could have discovered the fraud more than four years before filing the action, the perpetrator of the fraud is relieved from any liability, and thus any negligence of the claimant in not discovering and timely pursuing a fraud claim is addressed in the statute, and there is no need for a separate instruction allowing a jury to compare a claimant's negligence or comparative fault with the willful act of the perpetrator in a fraud case; on remand, the jury was not to be instructed on comparative fault as between the client and the stockbroker. Erdelyi v. Lott, 2014 WY 48, 326 P.3d 165, 2014 Wyo. LEXIS 51 (Wyo. 2014).

Law applied prior to June 11, 1986. —

The supreme court continued the law of Board of County Comm'rs v. Ridenour, 623 P.2d 1174, 1981 Wyo. LEXIS 287 (Wyo. 1981) and Kirby Bldg. Sys. v. Mineral Explorations Co., 704 P.2d 1266, 1985 Wyo. LEXIS 521 (Wyo. 1985) during the period before the 1986 amendment to this section and repeal of §§ 1-1-110 through 1-1-113 took effect (June 11, 1986). Burton v. Fisher Controls Co., 723 P.2d 1214, 1986 Wyo. LEXIS 596 (Wyo. 1986).

Contractual remedies not precluded. —

The provisions of this statute relating to contribution among joint tortfeasors does not inhibit the contractual remedies. Remedies for breach of contract and breach of express and implied warranty which arise under the provisions of the Uniform Commercial Code may still be asserted. Centric Corp. v. Drake Bldg. Corp., 726 P.2d 1047, 1986 Wyo. LEXIS 628 (Wyo. 1986) (decided under former § 1-1-110 ).

Although plaintiff negligent, warranty action not precluded. —

This section does not require that recovery in a warranty action be precluded where the jury finds that the plaintiff was contributorily negligent. Sheldon v. Unit Rig & Equipment Co., 797 F.2d 883, 1986 U.S. App. LEXIS 27470 (10th Cir. Wyo. 1986), cert. denied, 479 U.S. 1090, 107 S. Ct. 1300, 94 L. Ed. 2d 156, 1987 U.S. LEXIS 734 (U.S. 1987).

Section not applicable to warranty, strict liability. —

The supreme court will not, in response to certified questions from a federal district court, engage in comprehensive judicial legislating in order to extend the application of this section from its express and intended arena of negligence into warranty and strict liability proceedings by either statutory interpretation or common-law extension. Phillips v. Duro-Last Roofing, 806 P.2d 834, 1991 Wyo. LEXIS 25 (Wyo. 1991).

The decision in Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 1991 Wyo. LEXIS 25 (Wyo. 1991) makes it clear that a reduction of damages in proportion to plaintiff's fault is not appropriate in non-negligence causes of action based on strict liability. Zierke v. Agri-Systems, 992 F.2d 276, 1993 U.S. App. LEXIS 10185 (10th Cir. Wyo. 1993).

Subsection (d) should not be read in isolation to apply comparative fault to actions other than negligence but should be read in the context of the entire section to forbid its application altogether to actions premised on theories of strict liability or breach of warranty. Schneider Nat'l v. Holland Hitch Co., 843 P.2d 561, 1992 Wyo. LEXIS 191 (Wyo. 1992).

Inapplicable to contract and fiduciary breach claims. —

This section does not bar plaintiff's recovery in a legal malpractice action based on claims for breach of contract and breach of fiduciary duty, even though the jury apportioned fault in the following manner: plaintiff, 35%; defendant, 35%; and a third party, 30%. Furthermore, neither this comparative negligence statute nor any other principle of Wyoming law requires that the plaintiff's recovery be reduced by his percentage of fault. Jackson State Bank v. King, 844 P.2d 1093, 1993 Wyo. LEXIS 1 (Wyo. 1993), limited, Long-Russell v. Hampe, 2002 WY 16, 39 P.3d 1015, 2002 Wyo. LEXIS 24 (Wyo. 2002), overruled in part, Dockter v. Lozano, 2020 WY 119, 472 P.3d 362, 2020 Wyo. LEXIS 136 (Wyo. 2020).

Inapplicable to contract claim not involving personal injury or property damage. —

Comparative fault under this section was inapplicable in a breach of contract action brought by a city against a contractor based on failure to provide motors that conformed to specifications. Strong Constr., Inc. v. City of Torrington, 2011 WY 82, 255 P.3d 903, 2011 Wyo. LEXIS 83 (Wyo. 2011).

Absolute defense of contributory negligence was abolished when legislature adopted comparative negligence statute. Halpern v. Wheeldon, 890 P.2d 562, 1995 Wyo. LEXIS 23 (Wyo. 1995).

Purpose of comparative negligence. —

The doctrine of comparative negligence is designed to ameliorate the harshness of the contributory negligence bar. Barnette v. Doyle, 622 P.2d 1349, 1981 Wyo. LEXIS 278 (Wyo. 1981).

Comparative fault applied. —

Evidence was sufficient to support the finding by the jury of total damages of $150,000, and where the jury attributed 45% of the fault to plaintiff for her injuries, pursuant to the comparative fault statute, defendant's liability was reduced to 55% of the $ 150,000. Turcq v. Shanahan, 950 P.2d 47, 1997 Wyo. LEXIS 166 (Wyo. 1997).

Judgment dismissing negligence action because under Wyo. Stat. Ann. § 1-1-109(b) the plaintiff was more than 50 percent at fault was affirmed, and trial court properly allowed defendant to amend its admissions under W.R.C.P. 36. If the errant admission had been allowed to stand, it would have essentially decided the breach-of-duty element of the action. Permitting the parties to present evidence on the fault issue advanced the search for the truth and promoted a correct legal ruling. Hodges v. Lewis & Lewis, Inc., 2005 WY 134, 121 P.3d 138, 2005 Wyo. LEXIS 160 (Wyo. 2005).

In a slip and fall case, court did not err in an instruction that defendants were all responsible for their own percentage of fault, because the jury determined plaintiff's fault to be sixty-five percent, and as long as his fault was greater than fifty percent, he was not entitled to recovery. Parrish v. Groathouse Constr., Inc., 2006 WY 33, 130 P.3d 502, 2006 Wyo. LEXIS 36 (Wyo. 2006).

In a passenger's personal injury suit against a driver, it was not error to admit evidence of the passenger's comparative fault or to instruct the jury on comparative fault because a jury could reasonably find the passenger at fault for not determining how drunk the driver was before asking the driver for a ride, since the passenger knew the driver had likely been drinking alcohol. Wise v. Ludlow, 2015 WY 43, 346 P.3d 1, 2015 Wyo. LEXIS 48 (Wyo. 2015), reh'g denied, 2015 Wyo. LEXIS 67 (Wyo. Apr. 7, 2015).

This section applies only in cases where plaintiff is contributorily negligent. Palmeno v. Cashen, 627 P.2d 163, 1981 Wyo. LEXIS 327 (Wyo. 1981).

Where the court ruled that there was no evidence of negligence on the part of the plaintiff that would justify the plaintiff's inclusion on the verdict form as an actor as to whom negligence could be attributed, there was no error in its failure to give an instruction pursuant to this section. Martinez v. City of Cheyenne, 791 P.2d 949, 1990 Wyo. LEXIS 50 (Wyo. 1990), overruled, Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863, 2004 Wyo. LEXIS 37 (Wyo. 2004).

Evidence of seat belt usage. —

Court found no inconsistency in the application of Wyo. Stat. Ann. § 31-5-1402(f), which prohibits the introduction of evidence of seat belt nonuse, in light of Wyo. Stat. Ann. § 1-1-109 ; the legislature had the right to limit the application of comparative fault principles to negligence actions arising out of automobile accidents involving unbelted occupants. Huff v. Shumate, 360 F. Supp. 2d 1197, 2004 U.S. Dist. LEXIS 27781 (D. Wyo. 2004).

Learned intermediary doctrine. —

In a prescription drug user's product liability suit against the drug manufacturer, the court determined that the Wyoming comparative fault statute has no effect on the application of the learned intermediary doctrine. Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 2003 U.S. App. LEXIS 26105 (10th Cir. Wyo. 2003).

Section inapplicable to contractual recovery for legal malpractice. —

Wyoming's comparative negligence statute did not bar plaintiff's recovery in a legal malpractice action based on claims for breach of contract and breach of fiduciary duty, nor did it require that plaintiff's recovery be reduced by his percentage of fault. Jackson State Bank v. King, 992 F.2d 256, 1993 U.S. App. LEXIS 9116 (10th Cir. Wyo. 1993).

As this section is based on the comparative negligence statute of Wisconsin, the construction given the Wisconsin statute by the highest court of that state at the time the Wyoming legislature enacted the statute is also presumed to have been adopted. Board of County Comm'rs v. Ridenour, 623 P.2d 1174, 1981 Wyo. LEXIS 287 (Wyo.), reh'g denied, 627 P.2d 163, 1981 Wyo. LEXIS 341 (Wyo. 1981), overruled in part, ABC Builders v. Phillips, 632 P.2d 925, 1981 Wyo. LEXIS 365 (Wyo. 1981).

But subsection (a) and § 1-1-114 cannot stand together. —

There is enough of a conflict between § 1-1-114 and subsection (a) of this section that the two cannot stand together. Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977).

Thus, subsection (a) is amended. —

The Wyoming legislature, in enacting § 1-1-114 , clearly intended for its provisions to apply to comparative negligence actions and amended subsection (a) to the extent that in such actions the jury shall be informed by the trial court on the effect of its percentage findings, as those findings affect the outcome of the case, and particularly the damage issue. Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977).

The legislature, by its enactment of § 1-1-114 , manifested a clear intendment for its provisions to apply without exception to all personal injury actions, including those cases brought by “any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property.” Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977).

Emotional distress damages. —

Subsection (a) does not evidence an intent by the legislature to permit emotional distress damages in connection with an injury to property. Blagrove v. JB Mechanical, Inc., 934 P.2d 1273, 1997 Wyo. LEXIS 62 (Wyo. 1997).

Section distinguished from “pure” form of comparative negligence statute. —

This section is a “not as great as” form of comparative negligence statute (similar to an “equal to or greater than” form), as distinguished from the “pure” form, under which the plaintiff may recover part of his damages if defendant's negligence is established regardless of the percentage of his own contributory negligence, such percentage being used only to determine the amount by which plaintiff's damages are reduced. Danculovich v. Brown, 593 P.2d 187, 1979 Wyo. LEXIS 397 (Wyo. 1979).

Effect of equal fault. —

Under this section a defendant who caused 50% of a loss pays nothing, and a plaintiff who was responsible for just 50% of his own damage recovers nothing. Jones v. Sheridan County Sch. Dist., 731 P.2d 29, 1987 Wyo. LEXIS 383 (Wyo. 1987).

Effect of willful, wanton misconduct by defendant. —

This section does not mandate reduction of damages on the basis of comparative negligence of the plaintiff if defendant's misconduct is willful and wanton. Danculovich v. Brown, 593 P.2d 187, 1979 Wyo. LEXIS 397 (Wyo. 1979); Barnette v. Doyle, 622 P.2d 1349, 1981 Wyo. LEXIS 278 (Wyo. 1981).

Willful conduct. —

Pursuant to the statute, willful conduct must be compared with negligence. Board of County Comm'rs v. Bassett, 8 P.3d 1079, 2000 Wyo. LEXIS 169 (Wyo. 2000).

In an action arising from an automobile accident which occurred when a fleeing suspect crashed into the plaintiffs' vehicle just after it cleared a roadblock set up to stop the fleeing suspect, the court erred in not including the fleeing suspect on the verdict form as an actor whose conduct would be compared by the jury in allocating fault. Board of County Comm'rs v. Bassett, 8 P.3d 1079, 2000 Wyo. LEXIS 169 (Wyo. 2000).

Under case law, a joint tortfeasor who acts willfully is properly included as an actor on a verdict form in a negligence case so that the jury can compare the defendant's negligence and the non-party actor's willful conduct and apportion liability. Erdelyi v. Lott, 2014 WY 48, 326 P.3d 165, 2014 Wyo. LEXIS 51 (Wyo. 2014).

Trial court errs in reducing damages for the intentional tort of outrageous conduct on the basis of comparative negligence. Bell v. Mickelsen, 710 F.2d 611, 1983 U.S. App. LEXIS 29178 (10th Cir. Wyo. 1983).

Ordinary negligence of both parties compared before addressing culpable negligence. —

When an action involves both ordinary negligence of the plaintiff and defendant and culpable negligence of the defendant, the jury must apportion the ordinary negligence of the parties before addressing the defendant's culpable negligence. Barnette v. Doyle, 622 P.2d 1349, 1981 Wyo. LEXIS 278 (Wyo. 1981).

Assumption of risk is form of contributory negligence in Wyoming. Cline v. Sawyer, 600 P.2d 725, 1979 Wyo. LEXIS 458 (Wyo. 1979).

There is no distinction between the doctrines of assumption of the risk and contributory negligence. Barnette v. Doyle, 622 P.2d 1349, 1981 Wyo. LEXIS 278 (Wyo. 1981).

Assumption of risk not absolute defense. —

Assumption of risk, as a form of contributory negligence, is not an absolute defense to a negligence action but is a basis for apportionment of fault. Brittain v. Booth, 601 P.2d 532, 1979 Wyo. LEXIS 472 (Wyo. 1979); Barnette v. Doyle, 622 P.2d 1349, 1981 Wyo. LEXIS 278 (Wyo. 1981); Walters v. Grand Teton Crest Outfitters, Inc., 804 F. Supp. 1442, 1992 U.S. Dist. LEXIS 15892 (D. Wyo. 1992).

In examining finding of assumption of risk there must be found substantial evidence from which a jury could find the existence of a risk or danger to one entering the site of the injury and from which it could find that a reasonable man of ordinary prudence would not take the risk or subject himself to the danger. Brittain v. Booth, 601 P.2d 532, 1979 Wyo. LEXIS 472 (Wyo. 1979).

Last clear chance doctrine unnecessary. —

The apportionment of damages under this section makes unnecessary the doctrine of last clear chance. Danculovich v. Brown, 593 P.2d 187, 1979 Wyo. LEXIS 397 (Wyo. 1979).

Mere use of an obviously dangerous product does not constitute negligence, as a matter of law; in order for contributory negligence to be found, there must be evidence that care commensurate with the risks involved was not used. Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1983 Wyo. LEXIS 397 (Wyo. 1983).

Negligence of all participants to be considered. —

In a comparative negligence case, the jury must consider the negligence of not only the parties but also of all the participants in the transaction which produced the injuries sued upon. Board of County Comm'rs v. Ridenour, 623 P.2d 1174, 1981 Wyo. LEXIS 287 (Wyo.), reh'g denied, 627 P.2d 163, 1981 Wyo. LEXIS 341 (Wyo. 1981), overruled in part, ABC Builders v. Phillips, 632 P.2d 925, 1981 Wyo. LEXIS 365 (Wyo. 1981).

Multiple plaintiffs or claims. —

Particular care should be taken when multiple plaintiffs or claims are present, so that only the negligence that proximately causes any particular injury is considered by the jury when apportioning fault as to that injury. Board of County Comm'rs v. Ridenour, 623 P.2d 1174, 1981 Wyo. LEXIS 287 (Wyo.), reh'g denied, 627 P.2d 163, 1981 Wyo. LEXIS 341 (Wyo. 1981), overruled in part, ABC Builders v. Phillips, 632 P.2d 925, 1981 Wyo. LEXIS 365 (Wyo. 1981).

In cases involving multiple defendants, plaintiff's negligence is compared with that of each individual defendant. If the plaintiff's negligence is greater than an individual defendant's negligence, there can be no recovery from that defendant. Board of County Comm'rs v. Ridenour, 623 P.2d 1174, 1981 Wyo. LEXIS 287 (Wyo.), reh'g denied, 627 P.2d 163, 1981 Wyo. LEXIS 341 (Wyo. 1981), overruled in part, ABC Builders v. Phillips, 632 P.2d 925, 1981 Wyo. LEXIS 365 (Wyo. 1981).

In a negligence action against multiple defendants, the plaintiff's percentage of fault, as ascertained by the jury, had to be converted to a dollar figure and subtracted from the verdict. The trial court then had to further reduce the verdict by the total dollar amount of all settlements as revealed in the settling instruments of all the settling tortfeasors. As there remained nonsettling tortfeasors, each of whose percentage of fault, as ascertained by the jury, exceeded that of the plaintiff, the plaintiff was allowed to proceed against all of these tortfeasors, jointly and severally, for the full amount of the judgment. Kirby Bldg. Sys. v. Mineral Explorations Co., 704 P.2d 1266, 1985 Wyo. LEXIS 521 (Wyo. 1985).

Loss-of-consortium award to wife reduced by percentage of fault attributed to husband. —

The common-law rule that a wife was not entitled to damages for loss of consortium had its genesis in a social, economic and political climate entirely foreign to Wyoming in 1986. Hence, a woman will no longer be denied a cause of action for loss of consortium. However, the trial court should reduce any award to the wife by the percentage of fault attributed to her husband, as a cause of action for loss of consortium is a derivative action, and the causal negligence of the injured spouse limits recovery of the claiming spouse under this section. Weaver v. Mitchell, 715 P.2d 1361, 1986 Wyo. LEXIS 513 (Wyo. 1986).

When subsection (b) applicable. —

The request and the finding under subsection (c) are to be made only in connection with actions to recover damages for negligence resulting in death or in injury to person or property. Cline v. Sawyer, 600 P.2d 725, 1979 Wyo. LEXIS 458 (Wyo. 1979).

Determination of damages and negligence required in jury trial. —

The language in subsection (c)(ii) following “special findings of fact” was not intended to apply to paragraph (ii) only, but to apply equally to paragraphs (i) and (ii). Thus in a jury trial, as in a trial before the court without a jury, there must be a determination of the amount of damages and the percentage of negligence attributable to each party. Board of County Comm'rs v. Ridenour, 623 P.2d 1174, 1981 Wyo. LEXIS 287 (Wyo.), reh'g denied, 627 P.2d 163, 1981 Wyo. LEXIS 341 (Wyo. 1981), overruled in part, ABC Builders v. Phillips, 632 P.2d 925, 1981 Wyo. LEXIS 365 (Wyo. 1981); Tate v. Mountain States Tel. & Tel. Co., 647 P.2d 58, 1982 Wyo. LEXIS 348 (Wyo. 1982).

Error to give unsupported instruction. —

It is prejudicial error to give instructions on contributory negligence if the defense of such negligence is not supported by substantial evidence. The same rule would apply with respect to the negligence of a plaintiff in a comparative negligence context. Chrysler Corp. v. Todorovich, 580 P.2d 1123, 1978 Wyo. LEXIS 201 (Wyo. 1978).

But negligence usually question for jury. —

Ordinarily, the question of negligence in a collision involving leading and following vehicles is a question of fact for the jury, but the exception to that rule is recognized when the evidence is undisputed and subject to but one reasonable inference, or is legally insufficient to raise a question of fact for the jury. Chrysler Corp. v. Todorovich, 580 P.2d 1123, 1978 Wyo. LEXIS 201 (Wyo. 1978).

Duty to make the comparison of negligence as required by this section is for the fact finder if the evidence can result in a difference of opinion. Cline v. Sawyer, 618 P.2d 144, 1980 Wyo. LEXIS 314 (Wyo. 1980).

The factual resolution of the degrees of negligence and contributory negligence belongs to the province of the jury, not the court. Ruhs v. Pacific Power & Light, 671 F.2d 1268, 1982 U.S. App. LEXIS 21320 (10th Cir. Wyo. 1982).

Settlements disclosure not required. —

This section does not require the disclosure of settlements to satisfy the jury's understanding of the consequences of attributing fault under state comparative negligence law. Wardell v. McMillan, 844 P.2d 1052, 1992 Wyo. LEXIS 206 (Wyo. 1992).

The phrase “consequences of its determination of the percentage of fault” in subsection (c)(i)(B) does not encompass informing the jury of the fact and amount of settlement with other entities no longer parties to the litigation. This statutory language requires only that the jury be told that if the plaintiff's percentage of negligence is more than 50%, the plaintiff will not recover, and that a defendant who is liable will only pay in proportion to his percentage of fault. Haderlie v. Sondgeroth, 866 P.2d 703, 1993 Wyo. LEXIS 191 (Wyo. 1993).

Nor disclosure of immunity of decedent's employer. —

In a wrongful death action against an electric company, arising out of an electrocution of a highway worker, an instruction describing Wyoming's comparative fault scheme and alerting the jury that if it found the decedent over 50% at fault then the plaintiff would recover nothing, was adequate for compliance with subsection (c)(i)(B); there was no plain error in failing to inform the jury that the decedent's employer (the highway department) was immune from suit. Furman v. Rural Elec. Co., 869 P.2d 136, 1994 Wyo. LEXIS 25 (Wyo. 1994).

Jury should be advised which actors have “available pockets.” —

In view of subsection (b), it would seem that either through the verdict form or the statement of the issues the jury should be advised as to who among the actors had “available pockets” and who was included only for determination of the computation of responsibility. Burton v. Fisher Controls Co., 723 P.2d 1214, 1986 Wyo. LEXIS 596 (Wyo. 1986).

But mistaken reference to actor as “defendant” in verdict form not prejudicially confusing. —

In action for damages resulting from an accident, the use of “defendant” rather than “actor” in the verdict form to refer to parties who had settled or who otherwise were not actual litigants during the trial did not cause prejudicial confusion. Burton v. Fisher Controls Co., 723 P.2d 1214, 1986 Wyo. LEXIS 596 (Wyo. 1986).

Defendant in default may assert failure of evidence. —

In hearing to determine damages following defendant's default, defendant could properly assert that no damages were caused by collision between his vehicle and plaintiff's; even though defaulted defendant was charged with one hundred percent of the fault, no recovery could be had if no damages were caused by his fault. Schaub v. Wilson, 969 P.2d 552, 1998 Wyo. LEXIS 186 (Wyo. 1998).

Defendant in default must be permitted to address issue of relative fault. —

The issue of fault, as distinguished from liability, is no longer separable from the issue of damages; the two are intertwined to the extent that one cannot defend on the issue of damages without being permitted to participate with respect to the issue of fault. The defendant in default must be permitted to participate in proceedings which address the issue of relative fault because it is a significant factor in any damage award. McGarvin-Moberly Constr. Co. v. Welden, 897 P.2d 1310, 1995 Wyo. LEXIS 111 (Wyo. 1995).

Because, by our comparative negligence statute, the question of fault is inextricably intertwined with the amount of damages that may be awarded against any defendant, a defendant who makes an appearance after entry of default, but before default judgment could participate fully in the discovery process and on issues concerning proximate cause and damages. McGarvin-Moberly Constr. Co. v. Welden, 897 P.2d 1310, 1995 Wyo. LEXIS 111 (Wyo. 1995).

Summary judgment is poor device for deciding questions of comparative negligence. What is contemplated by the comparative negligence statute is that the totality of the causal negligence present in the case will be examined to determine the contribution each party has made to that whole. It is the “respective contributions to the result” which determine who is most negligent, and by how much. Connett v. Fremont County Sch. Dist., 581 P.2d 1097, 1978 Wyo. LEXIS 209 (Wyo. 1978).

Recreation Safety Act limits provider's duty. —

The Recreation Safety Act, §§ 1-1-121 to 1-1-123 , is intended to limit the duty which a provider owes to a participant, and is not affected by the adoption of this section. Halpern v. Wheeldon, 890 P.2d 562, 1995 Wyo. LEXIS 23 (Wyo. 1995).

Law concerning duty to remove or warn of obvious or known danger unchanged. —

Since the law of this state is to the effect that there is no duty to remove or warn of an obvious danger or one that is known to the person injured, no change was accomplished in that law by the adoption of comparative negligence. Sherman v. Platte County, 642 P.2d 787, 1982 Wyo. LEXIS 321 (Wyo. 1982).

“Known and obvious danger” rule did not negate city's duty to keep its streets and sidewalks in a reasonably safe condition and in reasonably good repair, but the obvious danger of the streets resulting from accumulations of loose gravel after resurfacing could be considered by the trier of fact to determine the plaintiff's percentage of negligence. O'Donnell v. Casper, 696 P.2d 1278, 1985 Wyo. LEXIS 462 (Wyo. 1985) (but see Sherman v. Platte County, 642 P.2d 787, 1982 Wyo. LEXIS 321 (Wyo. 1982), annotated above).

Liability resulting from accumulation of ice, snow. —

Absent the legislature's express intention to abrogate the natural accumulation and obvious-danger rules, the rules survive the adoption of comparative negligence. Therefore, the rule remains that an owner or occupier of premises will not be liable for injuries resulting from a slip and fall on a natural accumulation of ice and snow. Eiselein v. K-Mart, 868 P.2d 893, 1994 Wyo. LEXIS 20 (Wyo. 1994).

An owner or occupier of premises owes a duty to prevent injuries resulting from an unnatural accumulation of ice which will be found if the owner or occupier creates an accumulation of water in a manner substantially different in volume or course than would naturally have occurred. Eiselein v. K-Mart, 868 P.2d 893, 1994 Wyo. LEXIS 20 (Wyo. 1994).

Even the most ably constructed and carefully maintained parking lot will probably contain minor indentions in which naturally occurring water can accumulate and freeze. Naturally occurring water which naturally concentrates in such a lot is still considered a natural accumulation, for which the owner or occupier is not liable. Eiselein v. K-Mart, 868 P.2d 893, 1994 Wyo. LEXIS 20 (Wyo. 1994).

Presumption against retrospective effect. —

There appears no language in this section to indicate it should apply retrospectively, and indeed, there exists a violent presumption that it will not. Fraley v. Worthington, 64 F.R.D. 726, 1974 U.S. Dist. LEXIS 6180 (D. Wyo. 1974) (decided under former § 1-1-110 (right to contribution among tort feasors)).

Applicability of percentage-of-fault provisions. —

Subsection (d) (liability for percent of fault) does not apply to those causes of action accruing before June 11, 1986. Halliburton Co. v. McAdams, Roux & Assocs., 773 P.2d 153, 1989 Wyo. LEXIS 113 (Wyo. 1989).

Subsections (b) through (d) come into play only if the case is tried by a jury or to the court and a party requests, or the court on its own makes, a determination of the percentage of fault attributable to each defendant. Melehes v. Wilson, 774 P.2d 573, 1989 Wyo. LEXIS 114 (Wyo. 1989), reh'g denied, 1989 Wyo. LEXIS 150 (Wyo. June 12, 1989).

Under 1986 version of statute, district court erred in requiring defendant to pay 100 percent of plaintiffs' damages, where plaintiffs were found to be free from negligence and defendant was determined to be only 50 percent at fault. Anderson Highway Signs & Supply, Inc. v. Close, 6 P.3d 123, 2000 Wyo. LEXIS 123 (Wyo. 2000).

Indemnity available on strict liability and breach of warranty grounds. —

This section, in the absence of an express contract of indemnity, provides negligent actors a right of indemnity against another actor who was liable for the third party's injuries on strict liability or breach of warranty grounds. Schneider Nat'l v. Holland Hitch Co., 843 P.2d 561, 1992 Wyo. LEXIS 191 (Wyo. 1992).

New trial required. —

Erroneous instruction regarding comparative fault principles as applied to claims based on strict liability and breach of warranty, along with misleading closing remarks regarding apportionment, required a new trial where after the verdict was returned, certain questions regarding the applicability of this section were certified to the Wyoming supreme court. Phillips v. Duro-Last Roofing, Inc., 973 F.2d 869, 1992 U.S. App. LEXIS 19548 (10th Cir. Wyo. 1992).

Right of contribution is dependent upon existence of statute and involves joint tortfeasors. Northern Utils. Div. of K N Energy v. Evansville, 822 P.2d 829, 1991 Wyo. LEXIS 187 (Wyo. 1991) (decided under prior law).

Judgment entered without credit from settling defendants. —

A nonsettling defendant, found to be 100% at fault, was not entitled to credit the amount the plaintiff received from settling defendants against the judgment he had to pay. Credit need not be given, because the amount of judgment for which each defendant is liable is always limited by the percentage of fault assigned to that defendant. Haderlie v. Sondgeroth, 866 P.2d 703, 1993 Wyo. LEXIS 191 (Wyo. 1993).

Where the jury found that defendant was ninety percent at fault, if defendant were given credit for co-defendant's settlement, she would not be required to satisfy her full responsibility to the plaintiffs, and that result would not be consistent with this section or with the court's decision in Haderlie v. Sondgeroth, 866 P.2d 703, 1993 Wyo. LEXIS 191 (Wyo. 1993).Rudy v. Bossard, 997 P.2d 480, 2000 Wyo. LEXIS 36 (Wyo. 2000).

Contractor/subcontractor claims. —

In an action against a contractor for injuries to employees of its subcontractor arising from an accident during work on a construction project, the contractor had a viable contractual indemnity claim against the subcontractor which was not barred by application of the comparative fault statute. Diamond Surface v. Cleveland, 963 P.2d 996, 1998 Wyo. LEXIS 118 (Wyo. 1998).

Legislature may change approach. —

While it is true that the legislature, in enacting Wyo. Stat. Ann. § 1-1-109 , generally espoused the comparative negligence approach for negligence actions, that is not to say that the legislature is precluded from subsequently limiting, or even rejecting altogether, the application of comparative negligence in negligence actions arising out of particular circumstances. Greenwalt v. Ram Rest. Corp., 2003 WY 77, 71 P.3d 717, 2003 Wyo. LEXIS 96 (Wyo. 2003), reh'g denied, 2003 Wyo. LEXIS 109 (Wyo. July 24, 2003).

Applied in

Cervelli v. Graves, 661 P.2d 1032, 1983 Wyo. LEXIS 300 (Wyo. 1983); Goggins v. Harwood, 704 P.2d 1282, 1985 Wyo. LEXIS 526 (Wyo. 1985); Cities Serv. Co. v. Northern Prod. Co., 705 P.2d 321, 1985 Wyo. LEXIS 543 (Wyo. 1985); Stroup v. Oedekoven, 995 P.2d 125, 1999 Wyo. LEXIS 205 (Wyo. 1999).

Quoted in

Martinez v. Union P. R. Co., 714 F.2d 1028, 1983 U.S. App. LEXIS 24763 (10th Cir. 1983); Harmon v. Town of Afton, 745 P.2d 889, 1987 Wyo. LEXIS 543 (Wyo. 1987); Glenn v. Union Pac. R.R. Co., 2011 WY 126, 262 P.3d 177, 2011 Wyo. LEXIS 131 (Sept. 9, 2011).

Stated in

Lake v. D & L Langley Trucking, Inc., 2010 WY 75, 233 P.3d 589, 2010 Wyo. LEXIS 79 (June 9, 2010).

Cited in

Sanders v. Pitner, 508 P.2d 602, 1973 Wyo. LEXIS 151 (Wyo. 1973); Hendrickson v. Heinze, 541 P.2d 1133, 1975 Wyo. LEXIS 172 (Wyo. 1975); Venes v. Heck, 642 F.2d 380, 1981 U.S. App. LEXIS 19846 (10th Cir. 1981); Jones v. Chevron U.S.A., Inc., 718 P.2d 890, 1986 Wyo. LEXIS 547 (Wyo. 1986); Coryell v. Town of Pinedale, 745 P.2d 883, 1987 Wyo. LEXIS 541 (Wyo. 1987); Radosevich v. Board of County Comm'rs, 776 P.2d 747, 1989 Wyo. LEXIS 164 (Wyo. 1989); Seaton v. State Highway Comm'n, Dist. No. 1, 784 P.2d 197, 1989 Wyo. LEXIS 236 (Wyo. 1989); Horowitz v. Schneider Nat'l, Inc., 992 F.2d 279, 1993 U.S. App. LEXIS 10201 (10th Cir. 1993); State Farm Mut. Auto. Ins. Co. v. Colley, 871 P.2d 191, 1994 Wyo. LEXIS 43 (Wyo. 1994); Cooperman v. David, 214 F.3d 1162, 2000 U.S. App. LEXIS 11925 (10th Cir. 2000); Beavis v. Campbell County Mem. Hosp., 2001 WY 32, 20 P.3d 508, 2001 Wyo. LEXIS 42 (Wyo. 2001); Beckwith v. Weber, 2012 WY 62, — P.3d —, 2012 Wyo. LEXIS 66 (Apr. 25, 2012); Carson v. Wyo. Workers' Safety & Comp. Div., 2014 WY 42, 2014 Wyo. LEXIS 44 (Mar 31, 2014).

Law reviews. —

See comment, “Comparative Negligence in Wyoming,” VIII Land & Water L. Rev. 597 (1973).

See article, “Comparative Negligence Problems with the Special Verdict: Informing the Jury of the Legal Effects of Their Answers,” X Land & Water L. Rev. 199 (1975).

For article, “The Wyoming Uninsured Motorist Act: A Regulatory Reconciliation of Mandated Coverages with the Standard Uninsured Motorist Endorsement,” see XI Land & Water L. Rev. 213 (1976).

For comment, “Landowner Liability Under the Wyoming Recreational Use Statute,” see XV Land & Water L. Rev. 649 (1980).

For case note, “Worker's Compensation — Constitutionality of Wyoming's Co-employee Immunity Statute under Article 10, Section 4, of the Wyoming Constitution.Meyer v. Kendig, 641 P.2d 1235, 1982 Wyo. LEXIS 310 (Wyo. 1982),” see XVIII Land & Water L. Rev. 355 (1983).

For case note, “Torts — Assumption of Risk and the Obvious Danger Rule. Primary or Secondary Assumption of Risk? Sherman v. Platte County, 642 P.2d 787, 1982 Wyo. LEXIS 321 (Wyo. 1982),” see XVIII Land & Water L. Rev. 373 (1983).

For article, “Comparative Negligence and Strict Tort Liability — A Marriage of Necessity,” see XVIII Land & Water L. Rev. 643 (1983).

For comment, “Comparative Negligence Practice in Wyoming,” see XVIII Land & Water L. Rev. 713 (1983).

For case note, “Torts — The Obvious Danger Rule — A Qualified Adoption of Secondary Assumption of Risk Analysis. O'Donnell v. City of Casper, 696 P.2d 1278, 1985 Wyo. LEXIS 462 (Wyo. 1985),” see XXI Land & Water L. Rev. 251 (1986).

For case note, “Torts — Should a Plaintiff's Intervening Act Be An Absolute Defense Under Comparative Negligence? Buckley v. Bell, 703 P.2d 1089, 1985 Wyo. LEXIS 517 (Wyo. 1985),” see XXI Land & Water L. Rev. 591 (1986).

For case note, “Torts — Wyoming Finds an Appropriate Case to Adopt Strict Products Liability. Ogle v. Caterpillar Tractor Co., 716 P.2d 334, 1986 Wyo. LEXIS 511 (Wyo. 1986),” see XXII Land & Water L. Rev. 223 (1987).

For article, “Comparative Negligence and Strict Tort Liability — The Marriage Revisited,” see XXII Land & Water L. Rev. 455 (1987).

For article, “Lender Liability in Wyoming,” see XXVI Land & Water L. Rev. 707 (1991).

For casenote, “Res Ipsa Loquitur — The Wyoming Supreme Court Relaxes the Elements a Plaintiff Needs to Establish Before Invoking the Doctrine. Goedert v. Newcastle Equipment Co., 802 P.2d 157, 1990 Wyo. LEXIS 147 (Wyo. 1990),” see XXVII Land & Water L. Rev. 207 (1992).

For comment, “The Availability of Indemnity in Tort Actions Involving the Wyoming Comparative Negligence Statute—Multiple Parties Cause Multiple Problems,” see XXIX Land & Water L. Rev. 253 (1994).

For article, “Wyoming's New Comparative Fault Statute,” see XXXI Land & Water L. Rev. 509 (1996)

For casenote, “Torts-I may be liable but it's not my fault!: The Wyoming Supreme Court rules that defaulting defendants can now challenge fault. McGarvin-Moberly Constr. Co. v. Welden, 897 P.2d 1310, 1995 Wyo. LEXIS 111 (Wyo. 1995),” see XXXI Land & Water L. Rev. 645 (1996)

For article, “The Law of Indemnity in Wyoming: Unravelling the Confusion,” see XXXI Land & Water L. Rev. 811 (1996).

For article, “Recreational Injuries and Inherent Risks: Wyoming's Recreation Safety Act: An Update, see XXXIII Land & Water L. Rev. 249 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Application of last clear chance doctrine in comparative negligence case, 59 ALR2d 1261.

Comparative negligence rule where misconduct of 3 or more persons is involved, 8 ALR3d 722.

Comment note on the doctrine of comparative negligence and its relation to the doctrine of contributory negligence, 32 ALR3d 463.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 ALR3d 1438.

Contribution or indemnity between joint tortfeasors on basis of relative fault, 53 ALR3d 184.

Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 ALR3d 339.

Judicial adoption of comparative negligence doctrine as applicable retrospectively, 78 ALR3d 421.

Choice of law as to application of comparative negligence doctrine, 86 ALR3d 1206.

Liability of one negligently causing fire for injuries sustained by person other than firefighter, 91 ALR3d 1202.

Automobile occupant's failure to use seat belts as contributory negligence, 92 ALR3d 9.

Liability for injuries in connection with revolving door on nonresidential premises, 93 ALR3d 132.

Nonuse of automobile seat belts as evidence of comparative negligence, 95 ALR3d 239.

Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 ALR4th 1194.

Applicability of comparative negligence doctrine to actions based on strict liability in tort, 9 ALR4th 633.

Effect of adoption of comparative negligence rules on assumption of risk, 16 ALR4th 700.

Effect of plaintiff's comparative negligence in reducing punitive damages recoverable, 27 ALR4th 318.

Liability of operator of grocery store to invitee slipping on spilled liquid or semiliquid substance, 24 ALR4th 696.

Modern trends as to contributory negligence of children, 32 ALR4th 56.

Patient's failure to reveal medical history to physician as contributory negligence or assumption of risk in defense of malpractice action, 33 ALR4th 790.

Tennis club's liability for tennis player's injuries, 52 ALR4th 1253.

Liability to one struck by golf ball, 53 ALR4th 282.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning electrical generation and transmission equipment, 55 ALR4th 1010.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning lawnmowers, 55 ALR4th 1062.

Tort liability for window washer's injury or death, 69 ALR4th 207.

Comparative fault: calculation of net recovery by applying percentage of plaintiff's fault before or after subtracting amount of settlement by less than all joint tortfeasors, 71 ALR4th 1108.

Right of tortfeasor initially causing injury to recover indemnity or contribution from medical attendant aggravating injury or causing new injury in course of treatment, 72 ALR4th 231.

Products liability: contributory negligence or assumption of risk as defense in negligence action based on failure to provide safety device for product causing injury, 75 ALR4th 443.

Products liability: contributory negligence or assumption of risk as defense in action for strict liability or breach of warranty based on failure to provide safety device for product causing injury, 75 ALR4th 538.

Rescue doctrine: applicability and application of comparative negligence principles, 75 ALR4th 875.

Modern status of rule imputing motor vehicle driver's negligence to passenger on joint venture theory, 3 ALR5th 1.

Comparative Negligence: Judgment allocating fault in action against less than all potential defendants as precluding subsequent action against parties not sued in original action, 4 ALR5th 753.

Joint and several liability of physicians whose independent negligence in treatment of patient causes indivisible injury, 9 ALR5th 746.

Sufficiency of evidence to raise last clear chance doctrine in cases of automobile collision with pedestrian or bicyclist—modern cases, 9 ALR5th 826.

Applicability of comparative negligence principles to intentional torts, 18 ALR5th 525.

Applicability of comparative negligence doctrine to actions based on negligent misrepresentation, 22 ALR5th 464.

Liability for injuries to, or death of, water-skiers, 34 ALR5th 77.

Products liability: defective motor vehicle air bag systems, 39 ALR5th 267.

Recovery for emotional distress based on fear of contracting HIV or AIDS, 59 ALR5th 535.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 ALR5th 625.

Liability of owner, operator, or other parties, for personal injuries allegedly resulting from snow or ice on premises of parking lot, 74 ALR5th 49.

Comparative negligence, contributory negligence and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow, 83 ALR5th 589.

Contributory negligence or comparative negligence based on failure of patient to follow instructions as defense in action against physician or surgeon for medical malpractice, 84 ALR5th 619.

Products liability: Liability of manufacturer, supplier, or seller of passenger or freight elevator, hoist, or elevator component for injury or damage resulting from alleged defect in elevator or component, 117 ALR5th 267.

Applicability of maritime law rule of comparative negligence to strict products liability cases brought in admiralty, 74 ALR Fed 316.

§§ 1-1-110 through 1-1-113. [Repealed.]

Repealed by Laws 1986, ch. 24, § 2.

Cross references. —

As to liability of each defendant for proportional amount of damages, see § 1-1-109 .

Editor's notes. —

These sections, which derived from Laws 1973, ch. 67, § 1 and Laws 1977, ch. 188, § 1, related to contributions among joint tortfeasors, and releases or covenants not to sue.

§ 1-1-114. Pleading of damages.

In all cases the court shall inform the jury of the consequences of its verdict.

History. Laws 1976, ch. 10, § 1; W.S. 1957, § 1-7.7; Laws 1977, ch. 188, § 1; 2009, ch. 168, § 101.

The 2009 amendment, effective July 1, 2009, deleted the former first and second sentences which related to dollar amounts for damages.

The former first two sentences of this section are unconstitutional in that they prescribe the content of pleadings, a procedural function, thereby infringing upon the constitutional and inherent power of the supreme court to make rules. White v. Fisher, 689 P.2d 102, 1984 Wyo. LEXIS 341 (Wyo. 1984) (decided under prior law).

Wyoming legislature intended for provisions of this section to apply to incidents occurring only on or after May 28, 1976, its effective date. Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977) (decided under prior law).

Mere reading of language in this section evinces clear and definite meaning. Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977) (decided under prior law); Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 1980 Wyo. LEXIS 323 (Wyo. 1980) (decided under prior law).

Use of phrase, “In all cases,” in this section, permitting advice to the jury concerning the effect of the percentage findings in its verdict under the comparative negligence statute, conveys a clear and commonly understood meaning which can be applied in a fashion consistent with the other provisions of the statute. The phrase relates to a class of civil actions which are characterized as personal injury or wrongful death and refers without exception to all cases which fall into this class. Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977) (decided under prior law).

The legislature, by its enactment of this section, manifested a clear intendment for its provisions to apply without exception to all personal injury actions, including those cases brought by “any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property.” Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977) (decided under prior law).

There is enough conflict between this section and § 1-1-109 that the two cannot stand together. Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977) (decided under prior law).

Thus § 1-1-109 is amended. —

The Wyoming legislature, in enacting this section, clearly intended for its provisions to apply to comparative negligence actions and amended § 1-1-109 to the extent that in such actions the jury shall be informed by the trial court on the effect of its percentage findings, as those findings affect the outcome of the case, and particularly the damage issue. Johnson v. Safeway Stores, 568 P.2d 908, 1977 Wyo. LEXIS 315 (Wyo. 1977) (decided under prior law).

Quoted in

Woodward v. Haney, 564 P.2d 844, 1977 Wyo. LEXIS 258 (Wyo. 1977).

Cited in

Haderlie v. Sondgeroth, 866 P.2d 703, 1993 Wyo. LEXIS 191 (Wyo. 1993).

Law reviews. —

For article, “Comparative Negligence and Strict Tort Liability — A Marriage of Necessity,” see XVIII Land & Water L. Rev. 643 (1983).

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).

For article, “Comparative Negligence and Strict Tort Liability — The Marriage Revisited,” see XXII Land & Water L. Rev. 455 (1987).

Am. Jur. 2d, ALR and C.J.S. references. —

Effect of anticipated inflation on damages for future losses — modern cases, 21 ALR4th 21.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of parent, 61 ALR4th 251.

Excessiveness or adequacy of damages awarded for noneconomic loss caused by personal injury or death of spouse, 61 ALR4th 309.

Plaintiff's rights to punitive or multiple damages when cause of action renders both available, 2 ALR5th 449.

Wrongful death damages for loss of expectancy of inheritance from decedent, 42 ALR5th 465.

Excessiveness or adequacy of damages awarded for injuries to trunk or torso, or internal injuries, 48 ALR5th 129.

Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care, 49 ALR5th 685.

§ 1-1-115. Civil liability for unpaid checks.

1. Any person who issues a check which is  not paid because the check has been dishonored for any reason has  thirty (30) days following the date of a written demand mailed to  the drawer of the check by United States postal service certificate  of mailing at the address shown on the check or his last known address  or personally served pursuant to the Wyoming Rules of Civil Procedure,  to pay to the holder of the check the amount of the check and a collection  fee not to exceed thirty dollars ($30.00). The demand shall state  that the drawer is required to pay the value of the check and the  collection fee demanded and shall state the collection fee provided  for in this section.
2. Any person who fails to pay the amount  of the check and the collection fee as set forth in subsection (a)  of this section within thirty (30) days following the date of a written  demand, mailed to or served on the drawer in accordance with subsection  (a) of this section, is liable to the holder of the check for three  (3) times the amount of the check, but in no case less than one hundred  dollars ($100.00), a collection fee of thirty dollars ($30.00), and  court costs.
3. In extraordinary cases, including cases  in which the court determines that the party who wrote the check has  raised dilatory or bad faith defenses, the court may award the prevailing  party reasonable attorney fees.
4. Nothing in this section shall prevent  the criminal prosecution of the person who issues the check. However,  any payment made by the defendant to a victim pursuant to an order  for restitution entered in a criminal case pursuant to W.S. 7-9-101 through 7-9-112 or 6-3-704(b), shall be set off against any judgment in favor of the  victim in a civil action brought under this section arising out of  the same facts or event.
5. A cause of action under this section may  be brought in small claims court, if the amount of the demand does  not exceed the jurisdiction of that court, or in any other appropriate  court.
6. As used in this section, “check,” “drawee,”  “drawer” and “issue” have the same meaning as defined in W.S. 6-3-701 .

History. Laws 1984, ch. 28, § 1; 1985, ch. 72, § 1; 1997, ch. 201, § 1; 1999, ch. 53, § 1.

Cross references. —

As to criminal penalties for check fraud, see § 6-3-701 et seq.

Cited in

Mt. Rushmore Broad., Inc. v. Statewide Collections, 2002 WY 39, 42 P.3d 478, 2002 Wyo. LEXIS 40 (Wyo. 2002); Dave v. Valdez, 2012 WY 59, 275 P.3d 485, 2012 Wyo. LEXIS 62 (Apr. 13, 2012).

Law reviews. —

For article, “Collecting Debt in Wyoming: The Fair Debt Collection Practices Act as a Trap for the Unwary,” see XXXI Land & Water L. Rev. 731 (1996).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and application of provision of Fair Debt Collection Practices Act relating to validation of debts (15 U.S.C. § 1692g), 150 ALR Fed 101.

§ 1-1-116. Civil liability for theft of services.

1. Notwithstanding any criminal penalties which may apply, an owner or operator of a franchised or otherwise duly licensed provider of services may bring a civil action to enjoin or restrain any violation of W.S. 6-3-402 when the violation involves theft of services and may in the same action seek damages from the person violating W.S. 6-3-402 .
2. In order to maintain an action for injunctive  relief under this section, it is not necessary for the plaintiff to  show actual damages or the threat of actual damages.
3. As used in this section, “services” has the same meaning as specified in W.S. 6-3-401(a)(v).

History. Laws 1985, ch. 149, § 1; 2020 ch. 90, § 1, effective July 1, 2020.

The 2020 amendment, effective July 1, 2020, in (a) substituted “violation of W.S. 6-3-402 when the violation involves theft of services” for “violation of W.S. 6-3-408 ” and “violating W.S. 6-3-402 ” for “violating W.S. 6-3-408 ”; and in (c) substituted “W.S. 6-3-401(a)(v)” for “W.S. 6-3-408” and made a stylistic change.

§ 1-1-117. Affidavits of noninvolvement.

1. In any action, whether in tort, contract  or otherwise, in which the plaintiff seeks damages, a party may, in  lieu of answering or otherwise pleading, file an affidavit certifying  that he was not directly or indirectly involved in the occurrence  or occurrences alleged in the action. If an affidavit is filed, the  court shall order the dismissal of the claim against the certifying  party, except as provided for in subsection (b) of this section. The  affidavit shall be filed within the time required for filing an answer,  if no answer is filed; and, in any event, at least twenty (20) days  prior to trial. Any order of dismissal based on the affidavit shall  not be entered within ten (10) days after the affidavit is filed.
2. Any party may oppose the dismissal or  move to vacate the order of dismissal and reinstate the certifying  party, provided he can show that the certifying party was directly  or indirectly involved in the occurrence or occurrences alleged in  the action. After the filing of an affidavit under this section, the  party opposing the dismissal may have discovery with respect to the  involvement or noninvolvement of the party filing the affidavit, provided  the discovery is completed within sixty (60) days of the filing of  the affidavit.

History. Laws 1986, ch. 5, § 1.

Editor's notes. —

Laws 1986, ch. 48, § 1, also enacted a § 1-1-117 . See § 1-1-118 and notes thereto.

Dismissal. —

When plaintiff was rear-ended by a drunk, eighteen-year-old driver, she recovered compensatory damages in an action against the driver and was made whole; thus, her second suit against the driver's parents and uncle was barred. The district court properly granted defendants' motion for summary judgment and dismissed the uncle from the case after he filed an affidavit of non-involvement under this section. Fuentes v. Jednat, 2010 WY 40, 229 P.3d 949, 2010 Wyo. LEXIS 43 (Wyo. 2010).

Applied in

Chasson v. Community Action of Laramie County, Inc., 768 P.2d 572, 1989 Wyo. LEXIS 36 (Wyo. 1989).

§ 1-1-118. Amateur rodeos; liability for injuries; consent to participate.

1. No public school or nonprofit organization  sponsoring an amateur rodeo is liable for injuries suffered by a contestant  as a result of his voluntary participation in a rodeo event except  for injuries caused by the willful, wanton or reckless act of the  sponsoring organization or its employees.
2. A minor shall be deemed to be a voluntary  participant for purposes of this section if he has signed a written  consent to participate in the rodeo event and the consent is also  signed by one (1) of the minor’s parents or by his legal guardian.

History. Laws 1986, ch. 48, § 1; W.S. 1977, § 1-1-117 .

Cross references. —

As to age of majority, see § 14-1-101 .

Editor's notes. —

Laws 1986, ch. 48, § 1, enacted this section as § 1-1-117 , but since a previous act (Laws 1986, ch. 5, § 1) had already enacted a § 1-1-117 , this section has been redesignated as § 1-1-118 .

Am. Jur. 2d, ALR and C.J.S. references. —

Validity, construction and effect of provision releasing school from liability for injuries to students caused by interscholastic and other extracurricular activities, 85 ALR4th 344.

§ 1-1-119. Release or covenant not to sue.

When a release or a covenant not to sue or not to enforce judgment is given in good faith to one (1) of two (2) or more persons liable in tort for the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide.

History. Laws 1987, ch. 137, § 1.

Editor's notes. —

Former § 1-1-113 related to the same subject matter as this section, before being repealed in 1986. See, also, § 1-1-109 and notes thereto.

Am. Jur. 2d, ALR and C.J.S. references. —

Release of one joint tortfeasor as discharging liability of others under uniform contribution among tortfeasors act and other statutes expressly governing effect of release, 6 ALR5th 883.

Validity and effect of “Mary Carter” or similar agreement setting maximum liability of one cotortfeasor and providing for reduction or extinguishment thereof relative to recovery against nonagreeing cotortfeasor, 22 ALR5th 483.

§ 1-1-120. Persons rendering emergency assistance exempt from civil liability.

1. Any person licensed as a physician and  surgeon under the laws of the state of Wyoming, or any other person,  who in good faith renders emergency care or assistance without compensation  at the place of an emergency or accident, is not liable for any civil  damages for acts or omissions in good faith.
2. Persons or organizations operating volunteer  ambulances or rescue vehicles supported by public or private funds,  staffed by unpaid volunteers, and which make no charge, or charge  an incidental service or user fee, for services rendered during medical  emergencies, and the unpaid volunteers who staff ambulances and rescue  vehicles are not liable for any civil damages for acts or omissions  in good faith in furnishing emergency medical services. This immunity  does not apply to acts or omissions constituting gross negligence  or willful or wanton misconduct. For purposes of this section, “unpaid  volunteers” means persons who either receive incidental remuneration  on a per call basis or receive no more than one thousand dollars ($1,000.00)  annually for volunteer ambulance and rescue activities. The immunity  provided by this subsection shall extend to a physician while serving  in his capacity as medical director of any ambulance service, to hospitals  and hospital employees for activities directly related to providing  clinical training as part of an emergency medical service class approved  by the department of health, and to students while participating in  emergency medical services training approved by the department of  health. If an unpaid volunteer’s, medical director’s, hospital’s or  trainee’s acts or omissions are subject to the provisions of the Wyoming  Governmental Claims Act, immunity under this section is waived to  the extent of the maximum liability provided under W.S. 1-39-118 .
3. Any person who provides assistance or  advice without compensation other than reimbursement of out-of-pocket  expenses in mitigating or attempting to mitigate the effects of an  actual or threatened discharge of hazardous materials, or in preventing,  cleaning up or disposing of or in attempting to prevent, clean up  or dispose of any discharge of hazardous materials, is not liable  for any civil damages for acts or omissions in good faith in providing  the assistance or advice. This immunity does not apply to acts or  omissions constituting gross negligence or willful or wanton misconduct.  As used in this subsection:
   1. “Discharge” includes leakage, seepage  or other release;
   2. “Hazardous materials” includes all materials  and substances which are now or hereafter designated or defined as  hazardous by any state or federal law or by the regulations of any  state or federal government agency.

History. Laws 1961, ch. 42, § 1; W.S. 1957, § 33-343.1; Laws 1977, ch. 135, § 1; W.S. 1977, § 33-26-143; Rev. W.S. 1977, § 1-1-119 ; Laws 1987, ch. 79, § 2; ch. 229, § 1; 2003, ch. 113, § 1; 2005, ch. 112, § 1.

Cross references. —

For the Wyoming Emergency Medical Services Act, see chapter 36 of title 33.

The 2005 amendment in (b), inserted the fourth sentence, and in the last sentence added “medical director's, hospital's or trainee's” after “If an unpaid volunteer’s.”

Laws 2005, ch. 112, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 24, 2005.

Editor's notes. —

Laws 1987, ch. 79, § 2, effective May 22, 1987, renumbered former § 33-26-143 as § 1-1-119 , effective May 22, 1987. Since Laws 1987, ch. 137, § 1, also added a § 1-1-119 , this section has been renumbered as § 1-1-120 .

Wyoming Governmental Claims Act. —

See §§ 1-39-101 , 1-39-103(a)(viii).

Care or assistance must be rendered “without compensation.” —

It will be noted the legislature has here recognized the right of a doctor or other person to have immunity when he renders emergency care or assistance in good faith, only if it is rendered “without compensation.” Lutheran Hosps. & Homes Soc'y of Am. v. Yepsen, 469 P.2d 409, 1970 Wyo. LEXIS 173 (Wyo. 1970).

Quoted in

Ellsworth Bros. v. Crook, 406 P.2d 520, 1965 Wyo. LEXIS 161 (Wyo. 1965).

Cited in

Danculovich v. Brown, 593 P.2d 187, 1979 Wyo. LEXIS 397 (Wyo. 1979).

Law reviews. —

For case note on Lutheran Hosps. & Homes Soc'y of America v. Yepsen, 469 P.2d 409, 1970 Wyo. LEXIS 173 (Wyo. 1970), see VII Land & Water L. Rev. 717 (1972).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction of “good Samaritan” statute excusing from civil liability one rendering care in emergency, 39 ALR3d 222.

Liability of otherwise uninvolved person for harm resulting from refusal to telephone, or to allow another to telephone, for emergency or police help, 37 ALR4th 1196.

Liability of operator of ambulance service for personal injuries to person being transported, 68 ALR4th 14.

Construction and application of “good samaritan” statutes, 68 ALR4th 294.

Rescue doctrine: liability of one who negligently causes motor vehicle accident for injuries to person subsequently attempting to rescue persons or property, 73 ALR4th 737.

Application of “firemen's rule” to bar recovery by emergency medical personnel injured in responding to, or at scene of, emergency, 89 ALR4th 1079.

Duty of retail establishment, or its employees, to assist patron choking on food, 2 ALR5th 966.

Infliction of emotional distress: toxic exposure, 6 ALR5th 162.

Modern status of sudden emergency doctrine, 10 ALR5th 680.

Common-law strict liability in tort of prior landowner or lessee to subsequent owner for contamination of land with hazardous waste resulting from prior owner's or lessee's abnormally dangerous or ultrahazardous activity, 13 ALR5th 600.

Liability for negligence of ambulance attendants, emergency medical technicians and the like, rendering emergency medical care outside hospital, 16 ALR5th 605.

Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care, 49 ALR5th 685.

What constitutes “hazardous waste” subject to regulation under Resource Conservation and Recovery Act USCS §§ 6901 et seq.)?, 135 ALR Fed 197.

§ 1-1-121. Recreation Safety Act; short title.

This act shall be known and may be cited as the “Recreation Safety Act”.

History. Laws 1989, ch. 228, § 1.

Editor's notes. —

Laws 1989, ch. 262, § 1, also enacted a § 1-1-121 , but it was renumbered as § 1-1-124 .

Meaning of “this act.” —

For the definition of “[t]his act,” referred to in this section, see § 1-1-122(a)(vi).

Nature of risk. —

Whether the risk of being thrown was an inherent risk of riding a mule, in light of proffered evidence that the mule in question was likely to throw a rider, was a question of fact. Walters v. Grand Teton Crest Outfitters, Inc., 804 F. Supp. 1442, 1992 U.S. Dist. LEXIS 15892 (D. Wyo. 1992).

Duty to provide instruction. —

Once a skier asked a resort employee how to exit the advanced terrain park area without “taking” any of the features, the resort had a duty to provide her with appropriate instructions, which might have included a specific warning to beware of the drop into the half-pipe at the end of the catwalk that provided an exit out of the terrain park area, and the trial court erred when it found that the risk of falling into the half-pipe was an inherent risk of the skier's alpine skiing and that therefore the resort did not owe her a duty under the Recreation Safety Act. Dunbar v. Jackson Hole Mt. Resort Corp., 392 F.3d 1145, 2004 U.S. App. LEXIS 25807 (10th Cir. Wyo. 2004).

Application to ski lifts. —

In answer to two certified questions, the Supreme Court of Wyoming held that Wyoming's Recreational Safety Act (RSA), Wyo. Stat. Ann. § 1-1-121 et seq., does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity. That exemption does not exclude the operation of a ski lift by a recreational provider from the protections of the RSA. Muller v. Jackson Hole Mt. Resort, 2006 WY 100, 139 P.3d 1162, 2006 Wyo. LEXIS 104 (Wyo. 2006).

Inherent risk. —

Wyoming Recreational Safety Act (RSA), Wyo. Stat. Ann. § 1-1-121 et seq., is, in part, a products liability statute that is unambiguous on its face and the RSA does not necessarily exclude a ski lift from its protections. The inherent risks of skiing are not limited only to the act of skiing, and an injury suffered while boarding a ski lift (with skis stowed on the exterior of the lift) may be an inherent risk of skiing. Muller v. Jackson Hole Mt. Resort, 2006 WY 100, 139 P.3d 1162, 2006 Wyo. LEXIS 104 (Wyo. 2006).

Finding that the horse rider's injuries were the result of an inherent risk of horseback riding as defined by the Wyoming Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 , was proper because the legislature defined the term “inherent risk” in Wyo. Stat. Ann. § 1-1-122(a)(i)and the district court did not err in declining to further define the legislature's language. The district court properly instructed the jury and provided an appropriate form of special verdict for the jury's use. Beckwith v. Weber, 2012 WY 62, 277 P.3d 713, 2012 Wyo. LEXIS 66 (Wyo. 2012).

Cited in

Peterson v. Wyoming Game & Fish Comm'n, 989 P.2d 113, 1999 Wyo. LEXIS 166 (Wyo. 1999).

§ 1-1-122. Definitions.

1. As used in this act:
   1. “Inherent risk” with regard to any sport  or recreational opportunity means those dangers or conditions which  are characteristic of, intrinsic to, or an integral part of any sport  or recreational opportunity;
   2. “Provider” means any person or governmental entity which for profit or otherwise, offers or conducts a sport or recreational opportunity or regulates an interscholastic sport or recreational opportunity. This act does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity;
   3. “Sport or recreational opportunity” means commonly understood sporting activities including baseball, softball, football, soccer, basketball, swimming, hockey, wrestling, cheerleading, rodeo, dude ranching, nordic or alpine skiing and other alpine sports, snowboarding, mountain climbing, outdoor education programs, river floating, hunting, fishing, backcountry trips, horseback riding and any other equine activity, snowmobiling and similar recreational opportunities and includes the use of private lands for vehicle parking and land access related to the sport or recreational opportunity. “Sport or recreational opportunity” does not include skiing in a ski area as defined by the Ski Safety Act;
   4. “Equine activity” means:
      1. Equine shows, fairs, competitions, performances  or parades that involve any or all breeds of equines;
      2. Any of the equine disciplines;
      3. Equine training or teaching activities,  or both;
      4. Boarding equines;
      5. Riding, inspecting or evaluating an equine  belonging to another, whether or not the owner has received some monetary  consideration or other thing of value for the use of the equine or  is permitting a prospective purchaser of the equine to ride, inspect  or evaluate the equine;
      6. Rides, trips, hunts or other equine activities  of any type however informal or impromptu;
      7. Day use rental riding, riding associated  with a dude ranch or riding associated with outfitted pack trips;  and
      8. Placing or replacing horseshoes on an  equine.
   5. Repealed by Laws 1996, ch. 78, § 2.
   6. “This act” means W.S. 1-1-121 through 1-1-123 .

History. Laws 1989, ch. 228, § 1; 1993, ch. 162, § 1; 1996, ch. 78, §§ 1, 2; 2009, ch. 47, § 1; 2011, ch. 91, § 1; 2015 ch. 178, § 1, effective July 1, 2015; 2017 ch. 192, § 2, effective July 1, 2017.

The 2009 amendment, effective July 1, 2009, added “and includes the use of private lands for vehicle parking and land access related to the sport or recreational opportunity” in (a)(iii).

The 2011 amendment, in (a)(iii), substituted “and other alpine sports, snowboarding, mountain climbing, outdoor education programs” for “mountain climbing.”.

Laws 2011, ch. 91, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 2, 2011.

The 2017 amendment , effective July 1, 2017, added the last sentence of (a)(iii) and made a related change.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

“Inherent risk.” —

River rafting operator failed to produce any admissible evidence that bumping heads with another passenger was an inherent risk in river rafting, and therefore operator was not entitled to summary judgment under Recreation Safety Act. Madsen v. Wyoming River Trips, Inc., 31 F. Supp. 2d 1321, 1999 U.S. Dist. LEXIS 77 (D. Wyo. 1999).

What an “inherent risk” means in any given set of circumstances is a variable that the Wyoming Legislature included in the Wyoming Recreational Safety Act (RSA), Wyo. Stat. Ann. § 1-1-121 et seq., by design. Muller v. Jackson Hole Mt. Resort, 2006 WY 100, 139 P.3d 1162, 2006 Wyo. LEXIS 104 (Wyo. 2006).

Finding that the horse rider's injuries were the result of an inherent risk of horseback riding as defined by the Wyoming Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 , was proper because the legislature defined the term “inherent risk” in Wyo. Stat. Ann. § 1-1-122(a)(i)and the district court did not err in declining to further define the legislature's language. The district court properly instructed the jury and provided an appropriate form of special verdict for the jury's use. Beckwith v. Weber, 2012 WY 62, 277 P.3d 713, 2012 Wyo. LEXIS 66 (Wyo. 2012).

Wyoming Recreation Safety Act (WRSA)-- which does not exempt or identify specific inherent risks--did not conflict with the types of risks or injuries listed in a release signed by the plaintiff when she rented ski equipment; the release at issue did not incorporate by reference the WRSA. Cunningham v. Jackson Hole Mt. Resort Corp., 673 Fed. Appx. 841, 2016 U.S. App. LEXIS 22608 (10th Cir. 2016), cert. denied, 137 S. Ct. 2270, 198 L. Ed. 2d 714, 2017 U.S. LEXIS 3994 (U.S. 2017).

If a motion for summary judgment is filed, a trial court must scrutinize the facts brought forward by the parties with great care, and if the court can say that, given that evidence, this is an “inherent risk” of a recreational activity under this section and the guidance of Colo. Rev. Stat. Ann. § 33-44-103 (3.5), N.M. Stat. Ann. § 24-15-10, and Utah Code Ann. § 78-27-52 with regards to skiing and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it; however, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder). Jackson Hole Mt. Resort Corp. v. Rohrman, 2006 WY 156, 150 P.3d 167, 2006 Wyo. LEXIS 177 (Wyo. 2006).

District court did not err by granting the ski resort summary judgment under the Wyoming Recreation Safety Act (WRSA) in the skier’s negligence lawsuit because the skier’s injury, which was caused when he skied into an unmarked six-and-a-half foot tree on an off-piste run that was submerged and made invisible by a recent heavy snowfall, was an inherent risk of skiing for which the WRSA precluded liability. Standish v. Jackson Hole Mt. Resort Corp., 997 F.3d 1095, 2021 U.S. App. LEXIS 14338 (10th Cir. 2021).

Equine activity injuries. —

Although the Wyoming Recreation Safety Act's definition of an equine activity extends to injuries received while evaluating the horse in contemplation of a sale, it plainly does not extend to a breach of warranty action arising from the sale. Keller v. Merrick, 955 P.2d 876, 1998 Wyo. LEXIS 31 (Wyo. 1998).

Company that provided guided horseback rides in a wilderness area of a national park was entitled to summary judgment on a negligence claim by the estate of a horseback rider because any risks associated with spooked, runaway horses, including the rider’s fall from the horse, were inherent in the activity of horseback riding, and, pursuant to the Wyoming Recreation Safety Act, the company owed no duty to protect the rider from the inherent risks of horseback riding. Dullmaier v. Xanterra Parks & Resorts, 883 F.3d 1278, 2018 U.S. App. LEXIS 4792 (10th Cir. Wyo. 2018).

Wyoming Recreation Safety Act does not establish public policy creating a public duty for equine providers. Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1999 U.S. Dist. LEXIS 17646 (D. Wyo. 1999).

Slipping saddle due to loose cinch was an inherent risk of horseback riding under Wyoming Recreation Safety Act, and therefore horse provider had no duty to protect customers against it. Cooperman v. David, 214 F.3d 1162, 2000 U.S. App. LEXIS 11925 (10th Cir. Wyo. 2000).

Because horseback riding is considered a sport or recreational opportunity under this section, a provider was not required to eliminate, alter, or control the inherent risks associated with horseback riding, and any person who chose to take part in the provider's horseback riding services assumed all inherent risks which were associated with that activity. As a result, a rider could not sue the provider for negligence if the damage, injury or death alleged in her complaint was the result of an inherent risk of horseback riding. Kovnat v. Xanterra Parks & Resorts, 770 F.3d 949, 2014 U.S. App. LEXIS 20140 (10th Cir. Wyo. 2014).

Application to Ski Lifts. —

Wyoming Recreational Safety Act (RSA), Wyo. Stat. Ann. § 1-1-121 et seq., is, in part, a products liability statute that is unambiguous on its face and the RSA does not necessarily exclude a ski lift from its protections. The inherent risks of skiing are not limited only to the act of skiing, and an injury suffered while boarding a ski lift (with skis stowed on the exterior of the lift) may be an inherent risk of skiing. Muller v. Jackson Hole Mt. Resort, 2006 WY 100, 139 P.3d 1162, 2006 Wyo. LEXIS 104 (Wyo. 2006).

Application to golf. —

Genuine questions of material fact existed as to whether the operator of a golf course increased the risk that a spectator would be struck by a golf ball, beyond the risk inherent in the sport, when the course's agent instructed a player to tee off when golfers and spectators were on and around the green and the player expressed concern that he could hit the group ahead of him. Creel v. L & L, 2012 WY 124, 287 P.3d 729, 2012 Wyo. LEXIS 130 (Wyo. 2012).

Quoted in

Carden v. Kelly, 175 F. Supp. 2d 1318, 2001 U.S. Dist. LEXIS 20055 (D. Wyo. 2001); Dunbar v. Jackson Hole Mt. Resort Corp., 392 F.3d 1145, 2004 U.S. App. LEXIS 25807 (2004); Halvorson v. Sweetwater County Sch. Dist. No. 1, 2015 WY 18, 2015 Wyo. LEXIS 19 (Feb. 4, 2015).

Stated in

Halpern v. Wheeldon, 890 P.2d 562, 1995 Wyo. LEXIS 23 (Wyo. 1995).

Cited in

Estate of Harshman v. Jackson Hole Mt. Resort Corp., 200 F. Supp. 2d 1329, 2002 U.S. Dist. LEXIS 7946 (D. Wyo. 2002).

Law reviews. —

For article, “Recreational Injuries and Inherent Risks: Wyoming's Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).

§ 1-1-123. Assumption of risk.

1. Any person who takes part in any sport  or recreational opportunity assumes the inherent risks in that sport  or recreational opportunity, whether those risks are known or unknown,  and is legally responsible for any and all damage, injury or death  to himself or other persons or property that results from the inherent  risks in that sport or recreational opportunity.
2. A provider of any sport or recreational  opportunity is not required to eliminate, alter or control the inherent  risks within the particular sport or recreational opportunity.
3. Actions based upon negligence of the provider  wherein the damage, injury or death is not the result of an inherent  risk of the sport or recreational opportunity shall be preserved pursuant  to W.S. 1-1-109 .
4. The assumption of risk provisions in subsections  (a) through (c) of this section apply irrespective of the age of the  person assuming the risk.
5. This act shall not apply to skiing in a ski area as defined by the Ski Safety Act.

History. Laws 1989, ch. 228, § 1; 1996, ch. 78, § 1; 2011, ch. 91, § 1; 2017 ch. 192, § 2, effective July 1, 2017.

The 2011 amendment, added (d).

Laws 2011, ch. 91, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 2, 2011.

The 2017 amendment , effective July 1, 2017, added (e).

Scope. —

This act bars recovery for “inherent risks” only, not for all risks. Walters v. Grand Teton Crest Outfitters, Inc., 804 F. Supp. 1442, 1992 U.S. Dist. LEXIS 15892 (D. Wyo. 1992).

Summary judgment. —

If a motion for summary judgment is filed, a trial court must scrutinize the facts brought forward by the parties with great care, and if the court can say that, given that evidence, this is an “inherent risk” of a recreational activity under this section and the guidance of Colo. Rev. Stat. Ann. § 33-44-103 (3.5), N.M. Stat. Ann. § 24-15-10, and Utah Code Ann. § 78-27-52 with regards to skiing and reasonable minds cannot differ about that, then summary judgment is appropriate. If the risk is an inherent one, then the provider has no duty to eliminate, alter, or control it; however, if reasonable minds could differ as to whether or not the risk was one inherent to the recreational activity, then summary judgment is not appropriate and the answer to the question must be assigned to the jury (or other fact finder). Jackson Hole Mt. Resort Corp. v. Rohrman, 2006 WY 156, 150 P.3d 167, 2006 Wyo. LEXIS 177 (Wyo. 2006).

In reviewing summary judgment granted for a ski resort on the basis of the Wyoming Recreation Safety Act, the court defined the risk at the level of specificity supported by the record, and asked: Whether encountering boulders, and gaps between them, in changing snow conditions in an off-piste area of a ski resort was an “inherent risk” of alpine skiing? Roberts v. Jackson Hole Mt. Resort Corp., 884 F.3d 967, 2018 U.S. App. LEXIS 5552 (10th Cir. Wyo. 2018).

Action against a ski resort was properly decided on the basis of summary judgment because boulders and the gaps of widely varying dimensions between them—at times exposed to the elements and at others lightly covered by fresh snow—were an inherent risk of skiing an off-piste run. The provider did nothing to exacerbate the inherent risk posed by the hazard. Roberts v. Jackson Hole Mt. Resort Corp., 884 F.3d 967, 2018 U.S. App. LEXIS 5552 (10th Cir. Wyo. 2018).

District court properly granted summary judgment in favor of a horseback riding services provider with respect to a rider's claim that her fall and resulting injuries were the result of her saddle cinch being too loose because, when the cinching of a saddle can be too tight or too loose, and the cinching is not done with scientific precision, it is inherent in the sport that the provider at times will cinch too loosely or too tightly. Kovnat v. Xanterra Parks & Resorts, 770 F.3d 949, 2014 U.S. App. LEXIS 20140 (10th Cir. Wyo. 2014).

Equine activity injuries. —

Although the Wyoming Recreation Safety Act's definition of an equine activity extends to injuries received while evaluating the horse in contemplation of a sale, it plainly does not extend to a breach of warranty action arising from the sale. Keller v. Merrick, 955 P.2d 876, 1998 Wyo. LEXIS 31 (Wyo. 1998).

Slipping saddle due to loose cinch was an inherent risk of horseback riding under Wyoming Recreation Safety Act, and therefore horse provider had no duty to protect customers against it. Cooperman v. David, 214 F.3d 1162, 2000 U.S. App. LEXIS 11925 (10th Cir. Wyo. 2000).

In an action to recover for personal injuries suffered by the plaintiff while on a day trip trail horseback ride in a national forest with the defendants, the court denied the defendants' motion for summary judgment where (1) the plaintiff was a very inexperienced rider and was injured when her horse stumbled, fell, and rolled over her, and (2) the plaintiff presented an affidavit from a master riding instructor who opined that the defendants' failure to properly educate the plaintiff on how to handle the horse, their failure to match the plaintiff to the horse, combined with taking the plaintiff up a steep rocky slope with no marked trail created a risk of the horse slipping and falling that was not inherent in day trip trail horseback riding. Carden v. Kelly, 175 F. Supp. 2d 1318, 2001 U.S. Dist. LEXIS 20055 (D. Wyo. 2001).

Ski lifts. —

In answer to two certified questions, the Supreme Court of Wyoming held that Wyoming's Recreational Safety Act (RSA), Wyo. Stat. Ann. § 1-1-121 et seq., does not apply to a cause of action based upon the design or manufacture of sport or recreational equipment or products or safety equipment used incidental to or required by the sport or recreational opportunity. That exemption does not exclude the operation of a ski lift by a recreational provider from the protections of the RSA. Muller v. Jackson Hole Mt. Resort, 2006 WY 100, 139 P.3d 1162, 2006 Wyo. LEXIS 104 (Wyo. 2006).

Preemption by federal law not shown. —

In an action to recover for personal injuries suffered by the plaintiff while on a day trip trail horseback ride in a national forest with the defendants, the court found that the Wyoming Recreation Safety Act (§§ 1-1-121 through 1-1-123 ) was not preempted by Forest Service regulations and the defendants' special-use permit. Carden v. Kelly, 175 F. Supp. 2d 1318, 2001 U.S. Dist. LEXIS 20055 (D. Wyo. 2001).

River rafting. —

River rafting operator failed to produce any admissible evidence that bumping heads with another passenger was an inherent risk in river rafting, and therefore operator was not entitled to summary judgment under Recreation Safety Act. Madsen v. Wyoming River Trips, Inc., 31 F. Supp. 2d 1321, 1999 U.S. Dist. LEXIS 77 (D. Wyo. 1999).

Wyoming Recreation Safety Act does not establish public policy creating a public duty for equine providers. Street v. Darwin Ranch, Inc., 75 F. Supp. 2d 1296, 1999 U.S. Dist. LEXIS 17646 (D. Wyo. 1999).

Snowboarding injuries. —

Under the Wyoming Recreation Safety Act, there were no issues of material fact about the duty in a snowboarding fatality case when the question was whether the loss of control by an experienced 16 year old snowboarder, familiar with a man-made tabletop jump, was an inherent risk when the jump was altered the night before the accident, tested the morning of the accident, used throughout the day, and located in a specially designed roped-off terrain park containing other man-made jumps and warning signs on national forest land. Estate of Harshman v. Jackson Hole Mt. Resort Corp., 200 F. Supp. 2d 1329, 2002 U.S. Dist. LEXIS 7946 (D. Wyo. 2002), vacated, 379 F.3d 1161, 2004 U.S. App. LEXIS 16758 (10th Cir. Wyo. 2004).

Once a skier asked a resort employee how to exit the advanced terrain park area without “taking” any of the features, the resort had a duty to provide her with appropriate instructions, which might have included a specific warning to beware of the drop into the half-pipe at the end of the catwalk that provided an exit out of the terrain park area, and the trial court erred when it found that the risk of falling into the half-pipe was an inherent risk of the skier's alpine skiing and that therefore the resort did not owe her a duty under the Recreation Safety Act. Dunbar v. Jackson Hole Mt. Resort Corp., 392 F.3d 1145, 2004 U.S. App. LEXIS 25807 (10th Cir. Wyo. 2004).

Provisions not affected by comparative negligence statute. —

The Recreation Safety Act, § 1-1-121 to this section, is intended to limit the duty which a provider owes to a participant, and is not affected by the adoption of the comparative negligence statute, § 1-1-109 .Halpern v. Wheeldon, 890 P.2d 562, 1995 Wyo. LEXIS 23 (Wyo. 1995).

Inherent risk. —

Finding that the horse rider's injuries were the result of an inherent risk of horseback riding as defined by the Wyoming Recreation Safety Act, Wyo. Stat. Ann. §§ 1-1-121 to 1-1-123 , was proper because the legislature defined the term “inherent risk” in Wyo. Stat. Ann. § 1-1-122(a)(i)and the district court did not err in declining to further define the legislature's language. The district court properly instructed the jury and provided an appropriate form of special verdict for the jury's use. Beckwith v. Weber, 2012 WY 62, 277 P.3d 713, 2012 Wyo. LEXIS 66 (Wyo. 2012).

In an action against a ski resort, conclusory expert testimony was not itself enough to preclude summary judgment under the Wyoming Recreation Safety Act. The expert’s testimony contained no analysis about the inherent risk of encountering covered boulders on off-piste trails, or whether this hazard was an inherent risk of a trail littered with trees and other natural obstacles. Roberts v. Jackson Hole Mt. Resort Corp., 884 F.3d 967, 2018 U.S. App. LEXIS 5552 (10th Cir. Wyo. 2018).

District court did not err by granting the ski resort summary judgment under the Wyoming Recreation Safety Act (WRSA) in the skier’s negligence lawsuit because the skier’s injury, which was caused when he skied into an unmarked six-and-a-half foot tree on an off-piste run that was submerged and made invisible by a recent heavy snowfall, was an inherent risk of skiing for which the WRSA precluded liability. Standish v. Jackson Hole Mt. Resort Corp., 997 F.3d 1095, 2021 U.S. App. LEXIS 14338 (10th Cir. 2021).

Jury decides whether risk inherent to sport. —

Whether a particular risk is inherent to a sport or recreational opportunity, when genuine issues of material fact exist, is properly presented to the jury. Halpern v. Wheeldon, 890 P.2d 562, 1995 Wyo. LEXIS 23 (Wyo. 1995).

Application to golf. —

Genuine questions of material fact existed as to whether the operator of a golf course increased the risk that a spectator would be struck by a golf ball, beyond the risk inherent in the sport, when the course's agent instructed a player to tee off when golfers and spectators were on and around the green and the player expressed concern that he could hit the group ahead of him. Creel v. L & L, 2012 WY 124, 287 P.3d 729, 2012 Wyo. LEXIS 130 (Wyo. 2012).

Quoted in

Halvorson v. Sweetwater County Sch. Dist. No. 1, 2015 WY 18, 2015 Wyo. LEXIS 19 (Feb. 4, 2015).

Law reviews. —

For article, “Recreational Injuries and Inherent Risks: Wyoming's Recreation Safety Act: An Update,” see XXXIII Land & Water L. Rev. 249 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Liability for injuries to, or death of, water-skiers, 34 ALR5th 77.

§ 1-1-123.1. Ski Safety Act; short title.

This act shall be known and may be cited as the “Ski Safety Act.”

History. 2017 ch. 192, § 1, effective July 1, 2017.

Effective dates. —

Laws 2017, ch. 192, § 3, makes the act effective July 1, 2017.

§ 1-1-123.2. Definitions.

1. As used in this act:
   1. “Freestyle terrain” includes terrain parks and terrain features such as jumps, rails, half pipes and other constructed and natural features found in terrain parks;
   2. “Inherent risk” with regard to skiing in a ski area means those dangers or conditions which are part of the sport of skiing, including:
      1. Changing weather conditions;
      2. Falling or surface snow conditions, whether natural or man-made, as they exist or change;
      3. Surface or subsurface conditions including bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, trees or other natural objects;
      4. Collisions or impacts with natural objects such as the objects specified in subparagraph (C) of this paragraph including encounters with wildlife;
      5. Impact with ski lift towers, signs, posts, fences or enclosures, hydrants, water pipes or other man-made structures and their components subject to W.S. 1-1-123 .3(k);
      6. Variations in steepness or terrain, whether natural or as a result of ski trail or feature design, or snowmaking or grooming operations such as roads, freestyle terrain, jumps and catwalks or other terrain modifications; and
      7. Collisions with other skiers.
   3. “Ski area” means the ski trails and other places within the boundary of a ski area under the control of a ski area operator and administered as a single enterprise within the state;
   4. “Ski area operator” means a person having the responsibility for the operations of a ski area and the owners, partners and members, managers, employees, agents, volunteers, board members, representatives, affiliates and assigns of the person. “Ski area operator” includes an agency of the state or a political subdivision thereof;
   5. “Ski area vehicle” means a vehicle used in the operation and maintenance of a ski area which is owned by or under the direction and control of the ski area operator such as a snowmobile, all-terrain vehicle, snow grooming vehicle, sled and other similar vehicle;
   6. “Ski lift” means a chairlift, gondola, tramway, cable car or other aerial lift and any rope tow, conveyor, t-bar, j-bar, handle tow or other surface lift used by a ski area operator to transport skiers;
   7. “Ski trail” means a trail, slope, run, freestyle terrain, competition terrain, tree skiing area, tubing park area or other area at or near a ski area designated by the ski area operator to be used by skiers for the purpose of skiing;
   8. “Skier” means a person who is using a ski area for the purpose of skiing;
   9. “Skiing” includes sliding downhill or jumping on snow or ice on skis or a toboggan, sled, tube, snowbike, snowboard or other device;
   10. “This act” means W.S. 1-1-123 .1 through 1-1-123.5.

History. 2017 ch. 192, § 1, effective July 1, 2017.

Effective dates. —

Laws 2017, ch. 192, § 3, makes the act effective July 1, 2017.

§ 1-1-123.3. Duties of ski area operators; signs for trails; notices to skiers; duties of skiers.

1. A ski area operator shall post and maintain a sign visible to skiers at or near the beginning of a trail that depicts and explains the degree of difficulty of the trail relative to each individual ski area.
2. A ski area operator shall post and maintain a sign at or near the loading area of a ski lift that states the relative degree of difficulty of the trails serviced by the lift.
3. A ski area operator shall print a warning notice on all ski lift tickets and season passes and shall post and maintain a warning sign at or near the ski area’s ticket sales building that is no smaller than six (6) square feet in size and states the following:

   WARNING. Under Wyoming law, a skier assumes the inherent risks of skiing and is legally responsible for damage, injury or death to person or property that results from the inherent risks of skiing.

4. A ski area operator shall post and maintain a warning sign at the ski area’s ticket sales building that is no smaller than six (6) square feet in size and that notifies the skier of the duties imposed on the skier by this act and the limitations on liability provided in this act.
5. A ski area operator shall:
   1. Mark or identify on trail maps the ski area boundaries;
   2. Post a sign notifying the public if a trail or portion thereof is closed at the identified entrance of the trail or portion thereof. A trail without an identified entrance may be closed with ropes or fences.
6. A ski area operator shall have no duty arising out of the operator’s status as a ski area operator to a skier skiing beyond a ski area boundary marked or identified as required by subsection (e) of this section or skiing in an area posted as closed or otherwise fenced or roped off in accordance with subsection (e) of this section.
7. A ski area operator shall post signs in the ski area or on trail maps warning skiers of encounters with ski area vehicles.
8. A ski area operator shall equip ski area vehicles with a light and a fluorescent flag mounted at least five (5) feet above the bottom of the vehicle’s tracks visible at any time the vehicle is moving on or in the vicinity of a ski trail.
9. A ski area operator shall annually inspect, operate and maintain ski lifts in accordance with the most current version of the American National Standards Institute B-77.1 aerial tramway standards. Notwithstanding any other provision of law, a ski lift shall not be deemed a common carrier.
10. A ski area operator shall mark hydrants, water pipes and all other man-made structures on slopes and trails which are not visible to skiers under conditions of ordinary visibility from a distance of one hundred (100) feet and shall cover the structures with a shock-absorbent material typically used by ski area operators for the purpose. Any type of marker shall be sufficient under this subsection including but not limited to wooden poles, flags or signs if the marker is visible from a distance of one hundred (100) feet and if the marker itself does not constitute a serious hazard to skiers. As used in this subsection “man-made structures” shall not include variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, catwalks and other terrain modifications.
11. A skier shall have the responsibility to observe all posted information and other signs and warnings posted in accordance with this act and shall be presumed to have seen and understood all signs, warnings and other information posted in accordance with this act.

History. 2017 ch. 192, § 1, effective July 1, 2017.

Effective dates. —

Laws 2017, ch. 192, § 3, makes the act effective July 1, 2017.

§ 1-1-123.4. Assumption of risks; limitations on actions.

1. A skier expressly accepts and assumes the inherent risks of skiing and is legally responsible for damage, injury or death to himself or other persons or property that results from the inherent risks in skiing.
2. A skier may not make any claim against or recover from any ski area operator for injury resulting from any inherent risk of skiing.
3. A skier is not precluded under this act from suing another skier for any damage, injury or death to person or property that results from the other skiers’ acts or omissions. Notwithstanding any other provision of law, the risk of collision with other skiers is not an inherent risk nor a risk assumed by a skier in an action by a skier against another skier.

History. 2017 ch. 192, § 1, effective July 1, 2017.

Effective dates. —

Laws 2017, ch. 192, § 3, makes the act effective July 1, 2017.

§ 1-1-123.5. Negligence; civil actions.

1. A violation by any person or ski area operator of any provision of this act shall, to the extent the violation causes damage, injury or death to person or property, constitute evidence of negligence on the part of the person or ski area operator violating this act.
2. Actions based upon negligence of a person or ski area operator wherein the damage, injury or death is not the result of an inherent risk of skiing shall be preserved pursuant to W.S. 1-1-109 .

History. 2017 ch. 192, § 1, effective July 1, 2017.

Effective dates. —

Laws 2017, ch. 192, § 3, makes the act effective July 1, 2017.

§ 1-1-124. Pretrial screening.

1. The supreme court may promulgate rules  to provide a screening procedure to expedite the prelitigation resolution  of claims arising from any alleged act, error or omission in the rendering  of licensed or certified professional or health care services.
2. The screening procedure authorized by  this section shall be designed to reduce the burden of malpractice  cases on the state judicial system and to encourage the prompt resolution  of nonmeritorious claims. The expedited procedure may include the  creation of professional review panels to review claims and to determine:
   1. Whether there is substantial evidence  that the acts complained of occurred, constituted malpractice and  resulted in injury to the claimant; and
   2. A recommended award if requested by the  parties.
3. The supreme court shall annually report  to the joint judiciary interim committee the costs of operating the  expedited screening procedure and shall submit a recommendation for  the proration and assessment of costs among the professions subject  to the pretrial screening procedure.

History. Laws 1989, ch. 262, § 1; W.S. 1977, § 1-1-121 ; 2008, ch. 44, § 1.

Cross references. —

As to professional review panel, see § 9-2-1801 et seq. and notes thereto.

The 2008 amendment, substituted “joint judiciary interim committee” for “legislature” in (c).

Laws 2008, ch. 44, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, of the Wyo. Const. Approved March 5, 2008.

Editor's notes. —

Laws 1989, ch. 228, § 1, and ch. 262, § 1, both enacted a § 1-1-121 ; the section enacted by ch. 262, § 1, was therefore changed to § 1-1-124 .

Conflicting legislation. —

Laws 2008, ch. 44, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

Stated in

State ex rel. Wyo. Ass'n of Consulting Eng'rs & Land Surveyors v. Sullivan, 798 P.2d 826, 1990 Wyo. LEXIS 116 (Wyo. 1990).

§ 1-1-125. Immunity for volunteers; volunteer firefighters; search and rescue.

1. As used in this section:
   1. “Compensation” does not include actual  and necessary expenses that are incurred by a volunteer in connection with the services that the volunteer performs for a nonprofit organization and that are reimbursed to the volunteer or otherwise paid nor does  it include any incidental personal privileges received by volunteers  for their services;
   2. “Nonprofit organization” means those nonprofit  organizations exempt from federal income tax pursuant to section 501(c) of the Internal Revenue Code;
   3. “Volunteer” means:
      1. An officer, director, trustee or other  person who performs services for a nonprofit organization but does  not receive compensation, either directly or indirectly, for those  services;
      2. A volunteer firefighter who performs  services for a volunteer fire department under W.S. 35-9-616(a)(ix) whether or not the firefighter receives compensation or a pension;
      3. An individual engaged in search and rescue operations  under a county sheriff’s coordination pursuant to W.S. 18-3-609(a)(iii) or supervision pursuant to W.S. 19-16-101 whether or not the individual receives compensation.
2. Except as  provided in subsection (c) of this section, a volunteer who provides  services or performs duties on behalf of a nonprofit organization, a volunteer fire department or a sheriff  as part of a search and rescue operation is personally  immune from civil liability for any act or omission resulting in damage  or injury if at the time of the act or omission:
   1. The person  was acting within the scope of his duties as a volunteer for the nonprofit  organization, volunteer fire department or a sheriff as part of a search and rescue operation; and
   2. The act or omission did not constitute  willful or wanton misconduct or gross negligence.
3. This section does not grant immunity to  any person causing damage as a result of the negligent operation of  a motor vehicle.
4. In any suit  against a nonprofit organization, a volunteer fire  department or a sheriff as part of a search  and rescue operation for civil damages based upon the  negligent act or omission of a volunteer, proof of the act or omission  shall be sufficient to establish the responsibility of the organization, department or sheriff under  the doctrine of respondeat superior, notwithstanding the immunity  granted to the volunteer with respect to any act or omission included under subsection (b) of this section.

History. Laws 1992, ch. 32, § 1; 1997, ch. 155, § 1; 2017 ch. 113, § 1, effective March 2, 2017; 2017 ch. 172, § 1, effective July 1, 2017.

The 2017 amendments. — The first 2017 amendment, by ch. 113, § 1, redesignated former (a)(iii) as (a)(iii) through (a)(iii)(B); in (a)(iii)(B), substituted “ W.S. 35-9-601 -(h)” for “35-9-616(a)(ix)” and “the firefighter” for “he”; added (a)(iii)(C); in (b) and (b)(i), added “or a sheriff as part of a search and rescue operation”; in (d), added “or a sheriff as part of a search and rescue operation”, substituted “department or sheriff under the doctrine” for “department under the doctrine”; and made related changes.

Laws 2017, ch. 113, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by Art. 4, § 8, Wy. Const. Approved Mar. 2, 2017.

The second 2017 amendment, by ch. 172, § 1, effective July 1, 2017, near the end substituted “35-9-616(a)(ix)” for “35-9-601(h).”

While neither amendment gave effect to the other, both have been given effect in this section as set out above.

Internal Revenue Code. —

Section 501(c) of the federal Internal Revenue Code, referred to in subsection (a)(ii), appears as 26 U.S.C. § 501(c).

Prospective application. —

Laws 1992, ch. 32, § 2, provides: “The provisions of this act shall apply only to causes of action accruing on or after July 1, 1992.”

§ 1-1-126. Civil liability for stalking.

1. A person who is the victim of stalking  as defined by W.S. 6-2-506 may maintain a civil action against an individual who  engages in a course of conduct that is prohibited under W.S. 6-2-506 for damages incurred by the victim as a result of that  conduct. The aggrieved party may also seek and be awarded exemplary  damages, reasonable attorney’s fees and costs of the action.
2. A civil action may be maintained under  this section whether or not the individual who is alleged to have  engaged in a course of conduct prohibited under W.S. 6-2-506 has been charged or convicted under W.S. 6-2-506 for the alleged crime.
3. Neither the pendency nor the termination  of a civil action under this section shall prevent the criminal prosecution  of a person who violates W.S. 6-2-506 .

History. Laws 1993, ch. 92, § 1.

Editor's notes. —

As to the enactment of another § 1-1-126 by Laws 1993, ch. 61, § 1, see § 1-1-127 and notes thereto.

Evidence sufficient to establish stalking. —

In an action by the owner of a funeral home against the county coroner and the owner of another funeral home alleging a protected property interest in a rotation policy established by the coroner, the evidence was sufficient to support a jury verdict on the cross-claim of the defendant funeral home owner for stalking where (1) the plaintiff told the defendant that he would ruin him financially and in terms of his reputation, (2) after the defendant opened his funeral home, the plaintiff followed him around the community at least once a month, (3) the defendant, who also operated an ambulance service, testified that the plaintiff often drove to the scene of an ambulance call and watched him, and (4) the jury saw a remarkably complex diagram created by the plaintiff with the defendant's name in the middle surrounded by the names of 14 other members of the community. Veile v. Martinson, 258 F.3d 1180, 2001 U.S. App. LEXIS 17097 (10th Cir. Wyo. 2001).

Cited in

Hoblyn v. Johnson, 2002 WY 152, 55 P.3d 1219, 2002 Wyo. LEXIS 173 (Wyo. 2002); Dave v. Valdez, 2012 WY 59, 275 P.3d 485, 2012 Wyo. LEXIS 62 (Apr. 13, 2012).

Law reviews. —

For comment, “Utilizing the Tools: Successfully Implementing the Stalking Statutes,” see XXXV Land & Water L. Rev. 521 (2000).

§ 1-1-127. Civil liability for shoplifting.

1. A person over ten (10) years of age who violates W.S. 6-3-402 with regard to property offered for sale by a wholesale or retail store is civilly liable to the merchant of the property in an amount consisting of:
   1. Return of the property in original condition  or actual damages equal to the full marked or listed price of the  property; plus
   2. A civil liability of twice the amount  of the full marked or listed price of the property but not less than  fifty dollars ($50.00) nor more than one thousand dollars ($1,000.00);  plus
   3. Reasonable attorney’s fees and court costs.
2. If an unemancipated minor violates W.S. 6-3-402 with regard to property offered for sale by a wholesale or retail store, the parents or guardian of the child shall be civilly liable as provided by subsection (a) of this section, provided liability under this subsection shall not apply to foster parents, to parents whose parental custody and control of the child have been terminated by court order prior to the violation or to any governmental or private agency that has been appointed guardian for the minor child pursuant to court order or action of the department of family services. Civil liability under this subsection is not subject to the limitation on liability provided by W.S. 14-2-203 or any other law that limits the liability of parents for damages caused by an unemancipated minor.
3. A conviction or a plea of guilty to a violation of W.S. 6-3-402 with regard to property offered for sale by a wholesale or retail store is not a prerequisite to the bringing of a civil suit under this section.
4. An action to recover damages and any civil  liability under this section may be brought in small claims court  if the total amount of the demand for damages and any civil liability  does not exceed the jurisdiction of that court, or in any other appropriate  court.
5. In order to recover damages and any civil  liability under this act, the merchant of the property shall also  notify law enforcement officials.

History. Laws 1993, ch. 61, § 1; W.S. 1977, § 1-1-126 ; 2020 ch. 90, § 1, effective July 1, 2020.

The 2020 amendment, effective July 1, 2020, in the introductory language of (a), (b), and (c) substituted “W.S. 6-3-402 with regard to property offered for sale by a wholesale or retail store” for “W.S. 6-3-404(a) or (b).”

Editor's notes. —

This section was enacted as § 1-1-126 but, since another § 1-1-126 had been enacted by Laws 1993, ch. 92, § 1, this section has been redesignated as § 1-1-127 .

Measure of damages. —

Amount of restitution order under Wyo. Stat. Ann. § 7-9-103(b) related to larceny conviction was inappropriate because the actual pecuniary damages suffered by the store under Wyo. Stat. Ann. § 7-9-101(a)(iii) was the sale price of the clothes taken, not the full retail value, as that was the fair market value on the date of the loss; the store was entitled to the damages it could recover in a civil action under this section. Solis v. State, 2010 WY 165, 245 P.3d 323, 2010 Wyo. LEXIS 174 (Wyo. 2010).

§ 1-1-128. Civil liability for theft of identity.

1. A person who is the victim of theft of  identity as defined by W.S. 6-3-901 may maintain a civil action to enjoin or restrain any  violation of W.S. 6-3-901 and may in the same action seek damages from the person  violating W.S. 6-3-901. In order to maintain an action for injunctive relief  under this section, it is not necessary for the plaintiff to show  actual damages or the threat of actual damages. A prevailing party  in an action under this section may recover court costs and reasonable  attorney fees.
2. A conviction or plea of guilty is not  a prerequisite to the bringing of a civil action under this section.
3. A cause of action for theft of identity  is not deemed to have accrued until the wrongdoer is discovered.
4. Nothing in this section shall prevent  the criminal prosecution of a person for theft of identity. However,  any payment made by the defendant to a victim pursuant to an order  for restitution entered in a criminal case pursuant to W.S. 6-3-901 and 7-9-101 through 7-9-115 , shall be set off against any judgment in favor of the  victim in a civil action brought under this section arising out of  the same facts or event.

History. Laws 1999, ch. 175, § 1.

Cited in

Dave v. Valdez, 2012 WY 59, 275 P.3d 485, 2012 Wyo. LEXIS 62 (Apr. 13, 2012).

§ 1-1-129. Immunity from liability for volunteer health care professionals; insurance required of nonprofit health care facility.

1. As used in this section:
   1. “Health care professional” means any of  the following who provide medical or dental diagnosis, care or treatment:
      1. Physicians, osteopaths and physician assistants  licensed to practice as provided in title 33, chapter 26 of the Wyoming  statutes;
      2. All nurses licensed to practice as provided  in title 33, chapter 21 of the Wyoming statutes;
      3. Pharmacists licensed to practice as provided  in title 33, chapter 24 of the Wyoming statutes;
      4. Dentists and dental hygienists licensed  to practice as provided in title 33, chapter 15 of the Wyoming statutes;  and
      5. Optometrists licensed to practice as provided  in title 33, chapter 23 of the Wyoming statutes.
   2. “Low income uninsured person” means a  person who meets all of the following requirements:
      1. The person’s income is not greater than  two hundred percent (200%) of the current poverty line as defined  by federal law, as amended;
      2. The person currently is not receiving  medical, disability or other assistance under any federal or state  government health care program; and
      3. Either of the following applies:
         1. The person is not a policyholder, certificate  holder, insured, contract holder, subscriber, enrollee, member, beneficiary  or other covered individual under a health insurance or health care  policy, contract or plan; or
         2. The person is a policyholder, certificate  holder, insured, contract holder, subscriber, enrollee, member, beneficiary  or other covered individual under a health insurance or health care  policy, contract or plan, but the insurer, policy, contract or plan  denies coverage or is the subject of insolvency or bankruptcy proceedings  in any jurisdiction.
   3. “Nonprofit health care facility” means  a charitable nonprofit corporation or association organized and operated  under title 17, chapters 19 or 22 of the Wyoming statutes, or any  charitable organization not organized and not operated for profit,  that exclusively provides health care services to low income uninsured  persons, except that “health care facility” does not include a hospital,  including a swing bed hospital, facility or center defined under W.S. 35-2-901 or any other medical facility that is operated for profit;
   4. “Operation” means an invasive procedure  that involves cutting or otherwise infiltrating human tissue by mechanical  means, including surgery, laser surgery, ionizing radiation, therapeutic  ultrasound or the removal of intraocular foreign bodies. “Operation”  does not include the administration of medication by injection, unless  the injection is administered in conjunction with a procedure infiltrating  human tissue by mechanical means other than the administration of  medicine by injection;
   5. “Tort action” means a civil action for  damages for injury, death or loss to person or property other than  a civil action for damages for a breach of contract or another agreement  between persons or government entities;
   6. “Volunteer” means an individual who provides  any medical, dental or other health care related diagnosis, care or  treatment without the expectation of receiving, and without receipt  of, any compensation or other form of remuneration from a low income  uninsured person, another person on behalf of a low income uninsured  person, any health care facility or any other person or government  entity.
2. Subject to subsection (d) of this section,  a health care professional who is a volunteer and complies with subsection  (c) of this section is not liable in damages to any person or government  entity in a tort or other civil action, including an action on a medical,  dental or other health-related claim for injury, death or loss to  person or property that allegedly arises from an action or omission  of the volunteer in the provision at a nonprofit health care facility  to a low income uninsured person of medical, dental or other health-related  diagnosis, care or treatment, including the provision of samples of  medicine and other medical or dental products, unless the action or  omission constitutes willful or wanton misconduct.
3. To qualify for immunity under subsection  (b) of this section, a volunteer health care professional shall do  all of the following prior to the initial diagnosis, care or treatment:
   1. Inform the person of the provisions of  this section either personally or by means of a writing so stating  provided by the nonprofit health care facility and signed by the person,  or by another individual on behalf of, and in the presence of, the  person; and
   2. Obtain the informed consent of the person  and a written waiver, signed by the person, or by another individual  on behalf of, and in the presence of, the person.
4. Except as provided in this subsection,  the immunities provided by subsection (b) of this section are not  available to a volunteer health care professional, if at the time  of an alleged injury, death or loss to person or property, the volunteer  health care professional involved was performing an operation or delivering  a baby. This subsection does not apply to a volunteer health care  professional who provides diagnosis, care or treatment or performs  an operation or delivers a baby when necessary to preserve the life  of a person in a medical emergency.
5. In order for the immunity under subsection  (b) of this section to apply and before the rendering of any services  by the volunteer health care professional at the nonprofit health  care facility, there must be a written agreement between the volunteer  health care professional and the facility pursuant to which the volunteer  health care professional will provide medical, dental or health care  related diagnosis, care or treatment under the control of the facility  to patients of the facility.
6. A nonprofit health care facility entering  into a written agreement under subsection (e) of this section shall  maintain liability coverage of not less than one million dollars ($1,000,000.00)  per occurrence, except that no such coverage shall be required to  be maintained by the facility if such coverage is maintained by all  volunteer health care professionals rendering services at the facility.  A nonprofit health care facility shall be liable for the negligent  acts of a volunteer health care professional providing diagnosis,  care or treatment at the facility only in the circumstances and to  the extent the facility is required to maintain liability coverage  under this subsection.

History. Laws 2003, ch. 100, § 1; 2004, ch. 90, § 1.

The 2004 amendment, inserted “volunteer” preceding “health care professional” throughout; and in (f) added the exception at the end of the first sentence and the condition at the end of the second sentence.

Laws 2004, ch. 90, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 5, 2004.

§ 1-1-130. Actions against health care providers; admissibility of evidence.

1. In any civil action or arbitration brought  by an alleged victim of an unanticipated outcome of medical care against  a health care provider, any and all statements, affirmations, gestures  or conduct expressing apology, sympathy, commiseration, condolence,  compassion or a general sense of benevolence that are made by a health  care provider or an employee of a health care provider to the alleged  victim, or to a relative or representative of the alleged victim,  and that relate to the discomfort, pain, suffering, injury or death  of the alleged victim as the result of the unanticipated outcome of  medical care, are inadmissible as evidence of an admission of liability  or as evidence of an admission against interest.
2. For purposes of this section:
   1. “Health care provider” means a person  who is licensed, certified or otherwise authorized or permitted by  the laws of this state to administer health care in the ordinary course  of business or practice of a profession;
   2. “Relative” means a spouse, parent, grandparent,  stepfather, stepmother, child, grandchild, brother, sister, half brother,  half sister or parent of a spouse, and includes those relationships  established by adoption;
   3. “Representative” means a legal guardian,  attorney, person designated to make decisions on behalf of a patient  under a medical power of attorney or any person recognized in law  or custom as a patient’s agent;
   4. “Unanticipated outcome” means the result  of a medical treatment or procedure that differs from an expected  result.

History. Laws 2004, Sp. Sess., ch. 1, § 1.

Effective dates. —

Laws 2004, Sp. Sess., ch. 1, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved July 17, 2004.

§ 1-1-131. Short title.

This act shall be known and may be cited as the “Successor Corporation Asbestos-Related Liability Fairness Act.”

History. Laws 2011, ch. 117, § 1.

Effective date. —

Laws 2011, ch. 117, § 2, makes the act effective July 1, 2011.

§ 1-1-132. Definitions.

1. As used in this act:
   1. “Asbestos claim” means any claim, wherever  or whenever made, for damages, losses, indemnification, contribution  or other relief arising out of, based on or in any way related to  asbestos, including:
      1. The health effects of exposure to asbestos,  including a claim for personal injury or death, mental or emotional  injury, risk of disease or other injury, or the costs of medical monitoring  or surveillance;
      2. Any claim made by or on behalf of any  person exposed to asbestos, or a representative, spouse, parent, child  or other relative of the person; and
      3. Any claim for damage or loss caused by  the installation, presence or removal of asbestos.
   2. “Corporation” means a corporation for  profit, including a domestic corporation organized under the laws  of this state or a foreign corporation organized under laws other  than the laws of this state;
   3. “Successor” means a corporation that assumes  or incurs or has assumed or incurred successor asbestos-related liabilities  that is a successor and became a successor before May 13, 1968, or  is any of that successor corporation’s successors;
   4. “Successor asbestos-related liabilities”  means any liability, whether known or unknown, asserted or unasserted,  absolute or contingent, accrued or unaccrued, liquidated or unliquidated  or due or to become due, which is related to asbestos claims and was  assumed or incurred by a corporation as a result of or in connection  with a merger or consolidation or the plan of merger or consolidation  related to the merger or consolidation with or into another corporation,  or that is related in any way to asbestos claims based on the exercise  of control or the ownership of stock of the corporation before the  merger or consolidation. The term includes liabilities that, after  the time of the merger or consolidation for which the fair market  value of total gross assets is determined under W.S. 1-1-135 , were or are paid or otherwise discharged, or committed  to be paid or otherwise discharged, by or on behalf of the corporation  or by a successor of the corporation or by or on behalf of a transferor,  in connection with settlements, judgments or other discharges in this  state or another jurisdiction;
   5. “Transferor” means a corporation from  which successor asbestos-related liabilities are or were assumed or  incurred.

History. Laws 2011, ch. 117, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Effective date. —

Laws 2011, ch. 117, § 2, makes the act effective July 1, 2011.

§ 1-1-133. Applicability.

1. The limitations in W.S. 1-1-134 shall apply to any successor corporation.
2. The limitations of W.S. 1-1-134 shall not apply to:
   1. Workers’ compensation benefits paid by  or on behalf of an employer to an employee under the provisions of  Wyoming statutes, title 27, chapter 14 or a comparable workers’ compensation  law of another jurisdiction;
   2. Any claim against a corporation that does  not constitute a successor asbestos-related liability;
   3. Any obligation under the National Labor  Relations Act, 29 U.S.C. Section 151, et seq., as amended, or under any collective bargaining  agreement;
   4. A successor that, after a merger or consolidation,  continued in the business of mining asbestos or in the business of  selling or distributing asbestos fibers or in the business of manufacturing,  distributing, removing or installing asbestos-containing products;  or
   5. Any claim against a corporation that was  filed in a court of competent jurisdiction prior to the effective  date of this act.

History. Laws 2011, ch. 117, § 1.

Effective date. —

Laws 2011, ch. 117, § 2, makes the act effective July 1, 2011.

§ 1-1-134. Limitations on successor asbestos-related liabilities.

1. Except as further limited in subsection  (b) of this section, the cumulative successor asbestos-related liabilities  of a successor corporation are limited to the fair market value of  the total gross assets of the transferor determined as of the time  of the merger or consolidation. The successor corporation shall not  have responsibility for successor asbestos-related liabilities in  excess of this limitation.
2. If the transferor had assumed or incurred  successor asbestos-related liabilities in connection with a prior  merger or consolidation with a prior transferor, then the fair market  value of the total assets of the prior transferor determined as of  the time of the earlier merger or consolidation shall be substituted  for the limitation set forth in subsection (a) of this section for  purposes of determining the limitation of liability of a successor  corporation.

History. Laws 2011, ch. 117, § 1.

Effective date. —

Laws 2011, ch. 117, § 2, makes the act effective July 1, 2011.

§ 1-1-135. Establishing fair market value of total assets.

1. A successor corporation may establish  the fair market value of total gross assets for the purpose of the  limitations under W.S. 1-1-134 through any method reasonable under the circumstances,  including:
   1. By reference to the going concern value  of the assets or to the purchase price attributable to or paid for  the assets in an arms-length transaction; or
   2. In the absence of other readily available  information from which the fair market value can be determined, by  reference to the value of the assets recorded on a balance sheet.
2. Total gross assets include intangible  assets.
3. To the extent total gross assets include  any liability insurance that was issued to the transferor whose assets  are being valued for purposes of this section the applicability, terms,  conditions and limits of such insurance shall not be affected by this  section, nor shall this section otherwise affect the rights and obligations  of an insurer, transferor or successor under any insurance contract  or any related agreements, including, without limitation, preenactment  settlements resolving coverage-related disputes, and the rights of  an insurer to seek payment for applicable deductibles, retrospective  premiums or self-insured retentions or to seek contribution from a  successor for uninsured or self-insured periods or periods where insurance  is uncollectible or otherwise unavailable. Without limiting the foregoing,  to the extent total gross assets include any such liability insurance,  a settlement of a dispute concerning any such liability insurance  coverage entered into by a transferor or successor with the insurers  of the transferor before July 1, 2011 shall be determinative of the  total coverage of such liability insurance to be included in the calculation  of the transferor’s total gross assets.

History. Laws 2011, ch. 117, § 1.

Effective date. —

Laws 2011, ch. 117, § 2, makes the act effective July 1, 2011.

§ 1-1-136. Adjustment.

1. Except as provided in subsections (b)  through (d) of this section, the fair market value of total gross  assets at the time of the merger or consolidation shall increase annually  at a rate equal to the sum of:
   1. The prime rate as listed in the first  edition of the Wall Street Journal published for each calendar year  since the merger or consolidation, unless the prime rate is not published  in that edition of the Wall Street Journal, in which case any reasonable  determination of the prime rate on the first day of the year may be  used; and
   2. One percent (1%).
2. The rate found in subsection (a) of this  section shall not be compounded.
3. The adjustment of the fair market value  of total gross assets shall continue as provided in subsection (a)  of this section until the date the adjusted value is first exceeded  by the cumulative amounts of successor asbestos-related liabilities  paid or committed to be paid by or on behalf of the successor corporation  or a predecessor or by or on behalf of a transferor after the time  of the merger or consolidation for which the fair market value of  total gross assets is determined.
4. No adjustment of the fair market value  of total gross assets shall be applied to any liability insurance  that may be included in the definition of total gross assets by W.S. 1-1-135(c).

History. Laws 2011, ch. 117, § 1.

Effective date. —

Laws 2011, ch. 117, § 2, makes the act effective July 1, 2011.

§ 1-1-137. Scope of act.

1. The courts of this state shall construe  the provisions of this act liberally with regard to successors.
2. This act shall apply to all asbestos claims  filed against a successor on or after July 1, 2011.

History. Laws 2011, ch. 117, § 1.

Effective date. —

Laws 2011, ch. 117, § 2, makes the act effective July 1, 2011.

§ 1-1-138. Donation of emergency responder equipment; exemption from civil and criminal liability; definitions; relation to other law.

1. Any person who donates surplus emergency  response equipment to any emergency responder shall not be liable  for damages in any civil action or subject to prosecution in any criminal  proceeding resulting from the nature, age, condition or packaging  of such equipment; except that this exemption shall not apply to the  grossly negligent, willful, wanton or reckless acts of donors.
2. As used in this section:
   1. “Emergency responder” means as provided  in W.S. 35-9-152(a)(i);
   2. “Emergency response equipment” means all  equipment designed for or typically used in the course of performing  the duties required of an emergency responder.
3. Should any grant of immunity, exception or imposition of liability within the Wyoming Governmental Claims Act, W.S. 1-39-101 through 1-39-120 , conflict with any provision of this section, the Wyoming Governmental Claims Act shall prevail.

History. Laws 2011, ch. 65, § 1; 2017 ch. 41, § 1, effective July 1, 2017.

The 2017 amendment , effective July 1, 2017, in the middle of (c), substituted “1-38-120” for “1-39-121.”

Editor's notes. —

Laws 2011, Chapters 65 and 117 both enacted W.S. 1-1-131 . This section, as enacted by Laws 2011, Chapter 65, has been redesignated as W.S. 1-1-138 at the direction of the legislative service office.

Effective date. —

Laws 2011, ch. 65, § 2, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved February 22, 2011.

§ 1-1-139. Civil liability for female genital mutilation.

1. A person who is the victim of female genital mutilation as defined by W.S. 6-1-104(a)(xvii) may maintain a civil action against an individual who engages in conduct that is prohibited under W.S. 6-2-502(a)(v) for damages incurred by the victim as a result of that conduct. The victim may also be awarded exemplary damages, reasonable attorney’s fees, costs of the action and any other appropriate relief. A victim of female genital mutilation may bring a civil action under this section at any time within ten (10) years of:
   1. The procedure being performed; or
   2. The victim’s eighteenth birthday.
2. A civil action may be maintained under this section whether or not the individual who is alleged to have engaged in conduct prohibited under W.S. 6-2-502(a)(v) has been charged or convicted under W.S. 6-2-502(a)(v) for the alleged crime.
3. Neither the pendency nor the termination of a civil action under this section shall prevent the criminal prosecution of a person who violates W.S. 6-2-502(a)(v).

History. 2020 ch. 105, § 1, effective July 1, 2020.

Effective date. —

Laws 2020, ch. 105, § 4, makes the act effective July 1, 2020.

§ 1-1-140. Public utility exemption from civil liability; catastrophes caused by an act of God.

1. Except as provided in subsection (b) of this section, a public utility is not liable for damages to real or personal property or damages for claims resulting from economic losses in any civil action against the public utility for a catastrophe caused by an act of God.
2. Subsection (a) of this section shall not apply to damages if a negligent, willful, wanton or reckless act of the public utility was a proximate cause of the catastrophe.
3. As used in this section:
   1. “Economic losses” includes damages caused by a failure to provide an adequate supply of gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation;
   2. “Municipality” means as defined in W.S. 37-1-101(a)(iii);
   3. “Public utility” means as defined in W.S. 37-1-101(a)(vi), excluding the state or a municipality.
4. Should any grant of immunity, exception or imposition of liability within the Wyoming Governmental Claims Act, W.S. 1-39-101 through 1-39-120 , conflict with any provision of this section, the Wyoming Governmental Claims Act shall prevail.

History. 2020 ch. 77, § 1, effective July 1, 2020.

Effective date. —

Laws 2020, ch. 77, § 3, makes the act effective July 1, 2020.

Editor’s notes. —

Laws 2020, ch. 77, § 2, provides: “It is intended by this act to codify the common law existing in this state as of July 1, 2020, as it relates to the liability of a public utility for damages to real or personal property or damages for claims resulting from economic losses in a civil action against a public utility for a catastrophe caused by an act of God.”

§ 1-1-141. COVID-19 exposure and illness; assumption of the risk.

1. As used in this section:
   1. “Claimant” means any person or estate of a person seeking recovery of damages in a COVID-19 liability claim;
   2. “COVID-19” means severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and any mutation or viral fragments thereof or any disease or condition caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was the subject of the public health emergency declared by the governor under W.S. 35-4-115(a)(i) on March 13, 2020;
   3. “COVID-19 liability claim” means a cause of action for:
      1. The transmission, infection, exposure or potential exposure of COVID-19 to a claimant:
         1. At any health care facility or on any person’s or entity’s premises that resulted in injury to or death of the claimant; or
         2. Caused by the actions of any health care provider or other person that resulted in injury to or death of the claimant.
      2. Acts or omissions by a health care facility or provider in arranging for or providing health care services or medical care to the claimant that resulted in injury to or death of the claimant, or where the response to COVID-19 reasonably interfered with the arranging for or the providing of health care services or medical care for the claimant; or
      3. Manufacturing, labeling, donating or distributing personal protective equipment or sanitizer that is directly related to the provision of personal protective equipment or sanitizer to the claimant by any person or entity during the public health emergency declared under COVID-19 that departs from the normal manufacturing, labeling, donating or distributing of personal protective equipment by an entity and that proximately causes injury to or the death of the claimant.
   4. “Personal protective equipment” means equipment worn to minimize exposure to hazards that cause injury or illness, including gloves, masks, face shields, safety glasses, shoes, earplugs, muffs, respirators, coveralls, vests and full body suits;
   5. “Sanitizer” means any substance generally used to decrease infectious agents including viruses on the body, objects or other spaces that receive human contact.
2. Subject to subsection (c) of this section, in any action involving a COVID-19 liability claim against a person or entity, there shall be a rebuttable presumption that the claimant accepted and assumed the risk of catching COVID-19 if the claimant entered the premises of another person or entity.
3. The assumption of risk specified in subsection (b) of this section shall not apply to acts or omissions constituting gross negligence or willful or wanton misconduct.
4. Nothing in this section shall be construed to limit or restrict the immunity available in W.S. 35-4-114(d) or any other immunity available under law.

History. 2021 ch. 118, § 1, effective April 6, 2021.

Effective date. —

Laws 2021, ch. 118, § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved April 6, 2021.

§ 1-2-101. Form.

A person may be sworn by any form he deems binding on his conscience.

History. Laws 1886, ch. 60, § 4; R.S. 1887, § 2340; R.S. 1899, § 3422; C.S. 1910, § 4265; C.S. 1920, § 5534; R.S. 1931, § 89-104; C.S. 1945, § 3-2801; W.S. 1957, § 1-8; Laws 1977, ch. 188, § 1.

§ 1-2-102. Officers authorized to administer.

1. The following officers are authorized to administer oaths:
   1. Justices of the Wyoming supreme court;
   2. Judges of the Wyoming district courts;
   3. Judge of the United States district court for the district of Wyoming;
   4. Clerks of the Wyoming supreme court, Wyoming district courts and Wyoming circuit courts;
   5. Clerk of the United States district court for the district of Wyoming;
   6. Commissioners and magistrates appointed by authority of the laws of the United States or of Wyoming;
   7. Repealed by Laws 2011, ch. 113, § 3.
   8. County clerks;
   9. County treasurers;
   10. Clerks of school districts in Wyoming;
   11. Clerks of any incorporated city or town in Wyoming;
   12. County commissioners within their respective counties;
   13. Repealed by Laws 2009, ch. 168, § 202.
   14. Judges of the Wyoming circuit courts;
   15. Notarial officers.
2. Except for notarial officers, officers listed in this section are authorized to administer oaths, but are not authorized to perform other notarial acts as defined in W.S. 32-3-102(a)(xviii), unless specified otherwise in W.S. 32-3-105(a).

History. Laws 1890-91, ch. 2, § 1; R.S. 1899, § 4295; Laws 1905, ch. 23, § 1; C.S. 1910, § 5156; C.S. 1920, § 6432; R.S. 1931, § 89-1501; C.S. 1945, § 3-2802; Laws 1953, ch. 29, § 1; 1955, ch. 156, § 1; W.S. 1957, § 1-9; Laws 1969, ch. 13, § 1; 1977, ch. 188, § 1; 1991, ch. 99, § 1; 2008, ch. 20, § 2; 2009, ch. 168, § 202; 2011, ch. 113, §§ 2, 3; 2012, ch. 98, § 1; 2021 ch. 27, § 2, effective July 1, 2021.

Cross references. —

For provision that master commissioner or special master has the same power to administer oaths as the sheriff, see § 1-17-323 .

As to authority of state auditor and state treasurer to administer oaths, see § 9-1-401 .

For authority of members of Wyoming aeronautics commission to administer oaths and affirmations, see § 10-3-301 .

For authority of commissioned officers to administer oath required on enlistment in national guard, see § 19-9-302 .

As to administering oath to trustees of a school district, see § 21-3-106 .

For authority of trustees of school districts to administer oaths, see § 21-3-122 .

For authority of secretary of board of trustees of the University of Wyoming to administer oaths, see § 21-17-206 .

As to authority of election judges to administer oaths, see § 22-15-105 .

As to authority of officers, employees, agents or selling agents authorized by state game and fish commission to sell and issue licenses and permits to administer oaths, see § 23-1-701 .

For authority of employees of highway department to administer oaths to each other and to witnesses, see § 24-3-116 .

For authority of insurance commissioner to administer oaths or affirmations, see §§ 26-2-116 to 26-2-118 , 26-2-122 , 26-2-123 .

As to power of commissioner of labor and statistics to administer oaths, see § 27-2-109 .

For power of members of employment service commission and their authorized representatives to administer oaths, see § 27-3-602 .

For authority of inspector of mines to administer oaths, see § 30-2-212 .

For authority of members and secretary of Wyoming oil and gas conservation commission to administer oaths, see §§ 30-5-103 and 30-5-112 .

For authority of state board of architects to administer oaths, see § 33-4-104 .

As to persons authorized to administer oaths to new attorneys, see § 33-5-112 .

For authority of board of chiropractors to administer oaths, see § 33-10-104 .

For authority of state board of embalming to administer oaths, see § 33-16-304 .

As to authority of members of board of examiners and optometry to administer oaths, see § 33-23-105 .

For authority of engineering and surveying board to administer oaths, see § 33-29-119.

For authority of state director of public health to administer oaths, see § 35-1-240 .

As to authority of members of board of land commissioners to administer oaths, see § 36-2-102 .

For authority of commissioner of land to administer oaths, see §§ 36-3-107 and 36-7-404 .

For authority of members of public service commission to administer oaths, see §§ 37-2-206 .

For authority of members of board of control to administer oaths, see § 41-4-211 .

For authority of superintendent of water division to administer oaths, see § 41-4-306 .

For provision that depositions may be taken before an officer authorized to administer oaths, see Rule 28, W.R.C.P.

For Wyoming Uniform Law on Notarial Acts, see § 34-26-101 et seq.

The 2008 amendment, effective July 1, 2008, added (b).

The 2009 amendment, effective July 1, 2009, deleted (a)(xiii) which read: “Justices of the peace within their respective counties.”

The 2011 amendment, effective July 1, 2011, repealed former (a)(vii), which read: “Notaries public”; added (a)(xv); and in (b), inserted “Except for notarial officers,” and deleted “32-1-105(c) or” preceding “34-26-103(a).”

The 2012 amendment, substituted “circuit” for “county” in (a)(iv) and (a)(xiv).

Laws 2012, ch. 98 § 4, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 15, 2012.

The 2021 amendment, effective July 1, 2021, in (b), substituted "32-3-102(a)(xviii)" for "34-26-101(b)(iii)" and "32-3-105(a)" for "34-26-103(a)."

Editor's notes. —

This section as originally enacted provided, in addition, for the administration of oaths by the clerk and the judge of the United States circuit court including the state of Wyoming. United States circuit courts have been abolished and their powers and duties transferred to district courts.

Failure to follow statutory provisions exactly. —

In proceeding to condemn land for highway where appraisers were not sworn by themselves and instead by county clerk, failure to follow provisions of statute exactly would be mere irregularity not subject to collateral attack. Miller v. Hagie, 59 Wyo. 383, 140 P.2d 746, 1943 Wyo. LEXIS 19 (Wyo. 1943).

Am. Jur. 2d, ALR and C.J.S. references. —

Disqualification of official empowered to administer oath when he is attorney for person taking oath, 21 ALR3d 483.

§ 1-2-103. Affirmation in lieu of oath; manner of administering.

Persons conscientiously opposed to swearing or to taking any oath may affirm, and are subject to the penalties of perjury as in the case of swearing an oath. Whenever any person is required to take an oath in any court, or before any person or officer authorized by law to administer oaths, it is lawful for the court, officer or person administering the same, to administer it in the following manner: the person taking the oath or swearing shall, with his or her right hand uplifted, swear or take the oath, concluding with the words “so help me God”.

History. Laws 1890-91, ch. 2, § 2; R.S. 1899, § 4296; C.S. 1910, § 5157; C.S. 1920, § 6433; R.S. 1931, § 89-1502; C.S. 1945, § 3-2803; W.S. 1957, § 1-10; Laws 1977, ch. 188, § 1.

Cross references. —

As to penalties for perjury, see § 6-5-301 .

Perjury charge supported by proof oath administered by clerk of court. —

Under this section and § 5-7-101 , declaring that, in the performance of his duties, the clerk of court shall be under the direction of the court, and providing for the administering of oaths, an averment in an information charging perjury that the accused was in due form of law sworn by the court, having competent authority to administer to him the oath of a witness before the court, is supported by the proof that the oath was administered to him by the clerk. Fletcher v. State, 20 Wyo. 284, 123 P. 80, 1912 Wyo. LEXIS 35 (Wyo. 1912).

§ 1-2-104. Certification of documents.

1. A matter required or authorized to be  supported, evidenced, established or proven by the sworn statement,  declaration, verification, certificate, oath or affidavit, in writing  of the person making it, other than a deposition, an acknowledgment,  an oath of office or an oath required to be taken before a specified  official other than a notary public, may be supported, evidenced,  established or proven by the person certifying in writing “under penalty  of false swearing” that the matter is true. The certification shall  state the date and place of execution and the following:

   “I certify under penalty of false swearing that the foregoing is true”.

2. A person who knowingly makes a false certification  under subsection (a) of this section is guilty of false swearing in  violation of W.S. 6-5-303(c).

History. Laws 2007, ch. 199, § 1.

Effective dates. —

Laws 2007, ch. 199, § 3, makes the act effective July 1, 2007.

Quoted in

Harmon v. Star Valley Med. Ctr., 2014 WY 90, 2014 Wyo. LEXIS 99 (Jul 16, 2014).

§ 1-3-101. Applicability of provisions.

This chapter shall not apply in the case of a continuing and subsisting trust, nor to an action by a vendee of real property in possession thereof to obtain a conveyance of it.

History. Laws 1886, ch. 60, § 27; R.S. 1887, § 2363; R.S. 1899, § 3446; C.S. 1910, § 4289; C.S. 1920, § 5558; R.S. 1931, § 89-401; C.S. 1945, § 3-401; W.S. 1957, § 1-11; Laws 1977, ch. 188, § 1.

A resulting trust is not a continuing and subsisting trust. Herndon v. Hege, 528 P.2d 682, 1974 Wyo. LEXIS 248 (Wyo. 1974).

Hence, the statute of limitations commences to run against enforcement of resulting trust from the time the act occurs which creates the trust. Herndon v. Hege, 528 P.2d 682, 1974 Wyo. LEXIS 248 (Wyo. 1974).

If a cestui que trust is in possession, or if the trustee continues to acknowledge in some fashion the trust, or if the cestui has no knowledge that the trustee had taken title in his individual name, there are grounds for contending that the statute of limitations would be tolled while those conditions existed. Herndon v. Hege, 528 P.2d 682, 1974 Wyo. LEXIS 248 (Wyo. 1974).

Applied in

In re Estate of Sullivan, 506 P.2d 813, 1973 Wyo. LEXIS 141 (Wyo. 1973).

Law reviews. —

See article, “Wyoming's Law of Decedents' Estates, Guardianship and Trusts: A Comparison with the Uniform Probate Code — Part II,” VIII Land & Water L. Rev. 187 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Possession by mortgagee for limitation period before foreclosure as barring right of redemption, 7 ALR2d 1131.

Estoppel to rely on statute of limitations, 24 ALR2d 1413.

Applicability of statute of limitations to quo warranto proceedings involving corporations, 26 ALR2d 828.

Authority of agent to make payment on behalf of principal, as regards statute of limitations, 31 ALR2d 139.

Promissory estoppel as to statute of limitations, 48 ALR2d 1069.

Raising defense of statute by demurrer, equivalent motion to dismiss or by motion for judgment on pleadings, 61 ALR2d 300.

What statute of limitations governs creditor's action under bulk sales acts against purchaser, 61 ALR2d 935.

Statute of limitations as defense to action or proceeding for alimony or support of child allowed by decree or order of court, 70 ALR2d 1250.

Validity and applicability to existing causes of action not already barred of statute enlarging period of limitation, 79 ALR2d 1080.

Effect on accrual of cause of action against physician, surgeon or dentist for malpractice of patient's ignorance of extent of injuries or of his right to cause of action, 80 ALR2d 368.

General appearance as avoiding otherwise effective bar of statute of limitations, 82 ALR2d 1200.

Claim barred by limitations as within Bulk Sales Law, 85 ALR2d 1211.

Appointment of guardian as affecting running of statute of limitations against infant, 86 ALR2d 965.

Settlement negotiations as estopping reliance on statute of limitations, 39 ALR3d 127.

Insurer's failure to pay amount of admitted liability as precluding reliance on statute of limitations, 41 ALR3d 1111.

Agreement of parties as estopping reliance on statute of limitations, 43 ALR3d 756.

Promises to settle or perform as estopping reliance on statute of limitations, 44 ALR3d 482.

Plaintiff's diligence as affecting his right to have defendant estopped from pleading the statute of limitations, 44 ALR3d 760.

Fiduciary or confidential relationship as affecting estoppel to plead statute of limitations, 45 ALR3d 630.

Delay caused by other litigation as estopping reliance on statute of limitations, 45 ALR3d 703.

Tort claim against which period of statute of limitations has run as subject to setoff, counterclaim, cross bill or cross action in tort action arising out of same accident or incident, 72 ALR3d 1065.

Choice of law as to applicable statute of limitations in contract actions, 78 ALR3d 639.

Legal malpractice by permitting statutory time limitation to run against client's claim, 90 ALR3d 293.

Statute of limitations as bar to arbitration under agreement, 94 ALR3d 533.

Post-traumatic syndrome as tolling running of statute of limitations, 12 ALR5th 546.

Statute of limitations in civil actions for damages under the Racketeer Influence and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968, 156 ALR Fed 361.

§ 1-3-102. When actions may be commenced.

Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues, but where a different limitation is prescribed by statute, that shall govern.

History. Laws 1886, ch. 60, § 29; R.S. 1887, § 2365; R.S. 1899, § 3450; C.S. 1910, § 4294; C.S. 1920, § 5563; R.S. 1931, § 89-405; C.S. 1945, § 3-405; W.S. 1957, § 1-12; Laws 1977, ch. 188, § 1.

Contractually created shorter periods. —

Clearly, contractually created shorter periods are ‘within’ the limitation period. Nuhome Invs., LLC v. Weller, 2003 WY 171, 81 P.3d 940, 2003 Wyo. LEXIS 207 (Wyo. 2003).

Ranch's action against corporation for failure to provide services was time-barred. —

Finding that a ranch's action seeking damages resulting from a corporation's failure to provide engineering and surveying services was time-barred was appropriate because, whether Wyo. Stat. § 1-3-107 began to run on the date of the act, error or omission, or on the date the cause of action accrued, the lawsuit was untimely. The ranch's cause of action was time barred if not commenced within two years of the act, error or omission giving rise to the cause of action, or if, the two-year time limit started to run upon “accrual” of the cause of action, the ranch's claim was still time barred because the cause of action accrued on or before May 5, 2005. Lucky Gate Ranch, L.L.C. v. Baker & Assocs., 2009 WY 69, 208 P.3d 57, 2009 Wyo. LEXIS 75 (Wyo. 2009).

Quoted in

Badley v. Birchby, 487 P.2d 798, 1971 Wyo. LEXIS 238 (Wyo. 1971).

Cited in

National Tailoring Co. v. Scott, 65 Wyo. 64, 196 P.2d 387, 1948 Wyo. LEXIS 16 (1948); Cox v. City of Cheyenne, 2003 WY 146, 79 P.3d 500, 2003 Wyo. LEXIS 177 (Wyo. 2003).

Law reviews. —

See “Abstractor's Liability in Examination of Title,” 6 Wyo. L.J. 189.

Am. Jur. 2d, ALR and C.J.S. references. —

Law requiring service of notice before bringing suit as affecting time from which statute of limitations begins to run, 3 ALR2d 711.

Limitation period as affected by requirement of notice or presentation of claim against governmental body, 3 ALR2d 711.

Bringing in new party after statute of limitations has run, 8 ALR2d 6.

Waiver or tolling of statute of limitations by executor or administrator, 8 ALR2d 660.

Statutory provisions regarding delivery of summons or other process for commencement of action to officer for service as equivalent of service of process for purpose of statute of limitation, 16 ALR2d 1079.

First and last day included or excluded for purposes of statute, 20 ALR2d 1249.

Statute of limitations as bar to arbitration under agreement, 37 ALR2d 1125.

Statement of account as reviving barred items, 51 ALR2d 331.

When statute of limitations starts to run against enforcement of constructive trust, 55 ALR2d 220.

Illness or death of party, counsel or witness as excuse for failure to timely prosecute action, 80 ALR2d 1399.

Appointment of committee for incompetent as affecting running of limitations against him, 86 ALR2d 965.

Timely suit to enforce policy as interrupting limitations against claimant's amended pleading to reform it, or vice versa, 92 ALR2d 168.

Acceptance of past due interest as waiver precluding acceleration which will institute limitations period, 97 ALR2d 997.

Time from which statute begins to run against action for wrongful death, 97 ALR2d 1151.

When statute of limitations or laches commences to run against action to set aside fraudulent conveyance or transfer in fraud of creditors, 100 ALR2d 1094.

Validity of contractual limitation of time for action, 6 ALR3d 1197.

Accrual of cause of action and tolling of limitation period of § 6 of the Federal Employers' Liability Act (45 U.S.C. § 56), 16 ALR3d 637.

Death before accrual of cause of action of one in whose favor it would have accrued as affecting running of limitation, 28 ALR3d 1141.

Liability in damages for preventing bringing of action before its being barred by statute of limitations, 33 ALR3d 1077.

What constitutes “publication” of libel in order to start running of period of limitations, 42 ALR3d 807.

Promises or attempts by seller to repair goods as tolling statute of limitations for breach of warranty, 68 ALR3d 1277.

Effect of injured employee's proceeding for workmen's compensation benefits on running of statute of limitations governing action for personal injury arising from same incident, 71 ALR3d 849.

Owner's surveying of land as entry thereon tolling running of statute of limitations for purposes of adverse possession, 76 ALR3d 1202.

Imprisonment of party to civil action as tolling statute of limitations, 77 ALR3d 735.

When statute of limitations begins to run as to cause of action for development of latent industrial or occupational disease, 1 ALR4th 117.

What statute of limitations governs damage action against attorney for malpractice, 2 ALR4th 284.

What statute of limitations governs action arising out of transaction consummated by use of credit card, 2 ALR4th 677.

What statute of limitations governs physician's action for wrongful denial of hospital privileges, 3 ALR4th 1214.

When statute of limitations begins to run as to cause of action for nuisance based on air pollution, 19 ALR4th 456.

Time when cause of action accrues for civil action under state antitrust, monopoly or restraint of trade statutes, 90 ALR4th 1102.

Insurer's waiver of defense of statute of limitations, 104 ALR5th 331.

§ 1-3-103. Recovery of real property; generally.

An action for the recovery of the title or possession of lands, tenements or hereditaments can only be brought within ten (10) years after the cause of such action accrues.

History. Laws 1886, ch. 60, § 30; R.S. 1887, § 2366; R.S. 1899, § 3451; C.S. 1910, § 4295; C.S. 1920, § 5564; R.S. 1931, § 89-406; C.S. 1945, § 3-501; W.S. 1957, § 1-13; Laws 1977, ch. 188, § 1.

• I. General Consideration.
• II. Adverse Possession.
  • A. In General.
  • B. Elements.

§ 1-3-104. Recovery of real property; legal disability.

Any person entitled to bring an action for the recovery of real property who is under any legal disability when the cause of action accrues may bring his action within ten (10) years after the disability is removed.

History. Laws 1886, ch. 60, § 31; R.S. 1887, § 2367; R.S. 1899, § 3452; C.S. 1910, § 4296; C.S. 1920, § 5565; R.S. 1931, § 89-407; C.S. 1945, § 3-502; W.S. 1957, § 1-14; Laws 1977, ch. 188, § 1.

Cross references. —

For provision concerning minors as parties to actions, see § 1-1-102 .

For provision reserving rights of minors in judgments or orders, see § 1-16-101 .

For age of majority, see § 14-1-101 .

Cited in

Hill v. Mayall, 886 P.2d 1188, 1994 Wyo. LEXIS 161 (Wyo. 1994); Sullivan v. Bailiff, 867 F. Supp. 992, 1994 U.S. Dist. LEXIS 16706 (D. Wyo. 1994).

Law reviews. —

See comment, “Remedial Title Legislation for Wyoming,” VII Land & Water L. Rev. 561 (1972).

Am. Jur. 2d, ALR and C.J.S. references. —

Tolling of state statute of limitations in favor of one commencing action despite existing disability, 30 ALR4th 1092.

Post-traumatic syndrome as tolling running of statute of limitations, 12 ALR5th 546.

§ 1-3-105. Actions other than recovery of real property.

1. Civil actions other than for the recovery  of real property can only be brought within the following periods  after the cause of action accrues:
   1. Within ten (10) years, an action upon  a specialty or any contract, agreement or promise in writing;
   2. Within eight (8) years, an action:
      1. Upon a contract not in writing, either  express or implied; or
      2. Upon a liability created by statute other  than a forfeiture or penalty.
   3. Within five (5) years after the debtor  establishes residence in Wyoming, an action on a foreign claim, judgment  or contract, express or implied, contracted or incurred and accrued  before the debtor became a resident of Wyoming;
   4. Within four (4) years, an action for:
      1. Trespass upon real property;
      2. The recovery of personal property or for  taking, detaining or injuring personal property;
      3. An injury to the rights of the plaintiff,  not arising on contract and not herein enumerated; and
      4. For relief on the ground of fraud.
   5. Within one (1) year, an action for:
      1. Libel or slander;
      2. Assault or battery not including sexual  assault;
      3. Malicious prosecution or false imprisonment;  or
      4. Upon a statute for a penalty or forfeiture,  except that if a different limitation is prescribed in the statute  by which the remedy is given the action shall be brought within the  period prescribed by the statute.
2. Notwithstanding subsection (a) of this  section, a civil action based upon sexual assault as defined by W.S. 6-2-301(a)(v) against a minor may be brought within the later of:
   1. Eight (8) years after the minor’s eighteenth  birthday; or
   2. Three (3) years after the discovery.

History. Laws 1886, ch. 60, §§ 32-36; R.S. 1887, §§ 2368-2372; Laws 1890-91, ch. 72, § 1; R.S. 1899, §§ 3453-3457; C.S. 1910, §§ 4297-4301; Laws 1911, ch. 63, § 1; C.S. 1920, §§ 5566-5570; Laws 1931, ch. 73, §§ 83, 84; R.S. 1931, §§ 89-408 to 89-412; C.S. 1945, §§ 3-503 to 3-507; W.S. 1957, §§ 1-15 to 1-19; Laws 1977, ch. 188, § 1; 1993, ch. 215, § 1.

§ 1-3-106. When certain causes of action accrue.

A cause of action for the wrongful taking of personal property is not deemed to have accrued until the wrongdoer is discovered. A cause of action on the ground of fraud is not deemed to have accrued until the discovery of the fraud.

History. Laws 1886, ch. 60, § 35; R.S. 1887, § 2371; R.S. 1899, § 3456; C.S. 1910, § 4300; C.S. 1920, § 5569; R.S. 1931, § 49-411; C.S. 1945, § 3-506; W.S. 1957, § 1-18; Laws 1977, ch. 188, § 1.

Active concealment. —

Client's efforts to obtain information were met with active concealment by the stockbroker and others, and under these circumstances, the evidence did not support dismissal of the case on the basis of the statute of limitations. Erdelyi v. Lott, 2014 WY 48, 326 P.3d 165, 2014 Wyo. LEXIS 51 (Wyo. 2014).

Negligence. —

If a jury finds that a claimant knew or could have discovered the fraud more than four years before filing the action, the perpetrator of the fraud is relieved from any liability, and thus any negligence of the claimant in not discovering and timely pursuing a fraud claim is addressed in the statute, and there is no need for a separate instruction allowing a jury to compare a claimant's negligence or comparative fault with the willful act of the perpetrator in a fraud case; on remand, the jury was not to be instructed on comparative fault as between the client and the stockbroker. Erdelyi v. Lott, 2014 WY 48, 326 P.3d 165, 2014 Wyo. LEXIS 51 (Wyo. 2014).

When statute runs in fraud cases. —

The statute begins to run in fraud cases when there is discovery by the aggrieved party of the facts constituting the fraud. Mason v. Laramie Rivers Co., 490 P.2d 1062, 1971 Wyo. LEXIS 265 (Wyo. 1971).

Fraud and conversion. —

In a case relating to the theft and resale of beer, the discovery rule applied to the fraud and conversion statutes of limitation; however, whether the explanations for a delay in discovery were credible and reasonably diligent were questions for the jury. The parties disputed what steps were necessary to determine the cause of the beer losses and to determine who was involved in those losses. Robert L. Kroenlein Trust v. Kirchhefer, 2015 WY 127, 357 P.3d 1118, 2015 Wyo. LEXIS 144 (Wyo. 2015).

Words “until the discovery of the fraud” mean from the time the fraud was known or could have been discovered in the exercise of reasonable diligence. They do not necessarily mean until the party complaining had actual notice of the fraud alleged to have been committed. Mason v. Laramie Rivers Co., 490 P.2d 1062, 1971 Wyo. LEXIS 265 (Wyo. 1971); Taylor v. Estate of Taylor, 719 P.2d 234, 1986 Wyo. LEXIS 557 (Wyo. 1986).

Actual knowledge of fraud will be inferred if the aggrieved party, by the exercise of due diligence, could have discovered it. Mason v. Laramie Rivers Co., 490 P.2d 1062, 1971 Wyo. LEXIS 265 (Wyo. 1971).

In action against former husband for recovery of overriding oil and gas royalties which were due to the former wife by virtue of an assignment of the same by the husband, as ordered in a divorce decree, but which were not remitted to her, the husband was guilty of conversion, so, therefore, the four-year limitation period of § 1-3-105(a)(iv)(B) was applicable. Because this failure to remit was a recurring tort involving a series of tortious acts, each of which formed the basis of a separate claim, and each of which accrued when the husband, on different occasions throughout the years, received royalties and made no remittances, and the wife discovered, or could have discovered, that she was not receiving her royalty share, the wife could recover for her share of royalties received but not remitted by the husband within four years preceding the filing of her action. As to the rest, i.e., the royalties received but not remitted beyond this four-year period, she was barred. Young v. Young, 709 P.2d 1254, 1985 Wyo. LEXIS 628 (Wyo. 1985).

Action for conversion of road grader. —

A cause of action for conversion did not accrue on the date that the plaintiff first attempted to recover a road grader from the defendant, but on the later date that the defendant lied to the plaintiff and falsely reported that the grader was no longer on his property. Cross v. Berg Lumber Co., 7 P.3d 922, 2000 Wyo. LEXIS 167 (Wyo. 2000), reh'g denied, 2000 Wyo. LEXIS 179 (Wyo. Aug. 8, 2000).

Cited in

Richardson Assocs. v. Lincoln-Devore, Inc., 806 P.2d 790, 1991 Wyo. LEXIS 19 (Wyo. 1991).

Am. Jur. 2d, ALR and C.J.S. references. —

Effect of lack of knowledge of product's defect on running of statute of limitations in products liability claim, 91 ALR3d 991.

What statute of limitations governs damage action against attorney for malpractice, 2 ALR4th 284.

What statute of limitations governs physician's action for wrongful denial of hospital privileges, 3 ALR4th 1214.

Insurance agents or brokers as professionals or nonprofessionals for purposes of malpractice statutes of limitations, 121 ALR 5th 365.

Fraudulent concealment, so as to toll statute of limitations, as presenting common question of proof in antitrust class action, 70 ALR Fed 498.

When does state statute of limitations begin to run in civil action for securities fraud under § 10(b) of Securities Exchange Act of 1934 (15 USC § 78j(b)), 71 ALR Fed 257.

Application of fraudulent concealment doctrine to statute of limitations in antitrust case (15 USC § 15b), 72 ALR Fed 430.

When does statute of limitations begin to run in action under False Claims Act (31 USCS §§ 3729 -3733), 139 ALR Fed 645.

What constitutes “inquiry notice” sufficient to commence running of statute of limitations in securities fraud action — Post-Lampf cases, 148 ALR Fed 629.

§ 1-3-107. Act, error or omission in rendering professional or health care services.

1. A cause of action arising from an act,  error or omission in the rendering of licensed or certified professional  or health care services shall be brought within the greater of the  following times:
   1. Within two (2) years of the date of the  alleged act, error or omission, except that a cause of action may  be instituted not more than two (2) years after discovery of the alleged  act, error or omission, if the claimant can establish that the alleged  act, error or omission was:
      1. Not reasonably discoverable within a two  (2) year period; or
      2. The claimant failed to discover the alleged  act, error or omission within the two (2) year period despite the  exercise of due diligence.
   2. For injury to the rights of a minor, by  his eighth birthday or within two (2) years of the date of the alleged  act, error or omission, whichever period is greater, except that a  cause of action may be instituted not more than two (2) years after  discovery of the alleged act, error or omission, if the claimant can  establish that the alleged act, error or omission was:
      1. Not reasonably discoverable within the  two (2) year period; or
      2. That the claimant failed to discover the  alleged act, error or omission within the two (2) year period despite  the exercise of due diligence.
   3. For injury to the rights of a plaintiff  suffering from a legal disability other than minority, within one  (1) year of the removal of the disability;
   4. If under paragraph (i) or (ii) of this  subsection, the alleged act, error or omission is discovered during  the second year of the two (2) year period from the date of the act,  error or omission, the period for commencing a lawsuit shall be extended  by six (6) months.
2. This section applies to all persons regardless  of minority or other legal disability.

History. Laws 1976, ch. 18, § 1; W.S. 1957, § 1-18.1; Laws 1977, ch. 188, § 1.

Cross references. —

For provision concerning minors as parties to actions, see § 1-1-102 . As to age of majority, see § 14-1-101 .

Existing causes of action. —

Section 3, ch. 18, Laws 1976, reads: “(a) Notwithstanding the provisions of this act, any action which could have been brought on the effective date of this act may be brought within the shorter of the following periods:

“(i) The period of the statute of limitations that would have applied to the action before the passage of this act; or

“(ii) The period of the statute of limitations specified in this act and applied as if the act, error or omission had occurred on the effective date of this act.”

Section 5, ch. 18, Laws 1976, makes the act effective on May 28, 1976.

Constitutionality—

Statute of limitations for minors violated Wyo. Const. art. 1, § 8. The court also held that the exception now contained in Wyo. Stat. Ann. § 1-3-114 — “except for an action arising from error or omission in the rendering of licensed or certified professional or health care services” — was constitutionally infirm. Kordus v. Montes, 2014 WY 146, 337 P.3d 1138, 2014 Wyo. LEXIS 169 (Wyo. 2014).

Termination of course of treatment and discovery of claim within first year.—

March 16, 2016 was the date on which the doctor last treated the patient and because she discovered her claim on March 29, 2016, at the latest, she discovered it within the first year following termination of treatment and the limitations period thus began running on March 16, 2016; the statute of limitations expired on June 25, 2018 and the patient’s complaint was untimely filed on June 29, 2018. Candelaria v. Karandikar, 2020 WY 140, 475 P.3d 548, 2020 Wyo. LEXIS 162 (Wyo. 2020).

Time limitations based on year claim discovered.—

If a claim is discovered within the first year following an alleged act, error, or omission, the limitations period for medical malpractice claims is two years from the date of the alleged act, error, or omission; if a claim is discovered in the second year, the limitations period is two years and six months from the date of the alleged act, error, or omission. Candelaria v. Karandikar, 2020 WY 140, 475 P.3d 548, 2020 Wyo. LEXIS 162 (Wyo. 2020).

Construction.—

For medical malpractice statute of limitations purposes, as to the meaning of the statute’s phrase, “within the greater of the following times,” the more reasonable interpretation is that it refers to the provisions that immediately follow it; in those cases where more than one of the subsections applies, the statute allows application of the one that provides the longer limitations period. Candelaria v. Karandikar, 2020 WY 140, 475 P.3d 548, 2020 Wyo. LEXIS 162 (Wyo. 2020).

Six-month extension not applicable.—

Patient discovered her claim less than two weeks after her last treatment with the doctor not in the second year as discussed in case law, and therefore the six-month extension of the limitations period did not apply. Candelaria v. Karandikar, 2020 WY 140, 475 P.3d 548, 2020 Wyo. LEXIS 162 (Wyo. 2020).

Running of statute for attorney malpractice.—

Plaintiff, who sought the return of a $30,000 retainer he paid defendant attorney to defend him against a first degree murder charge, knew or should have known of his alleged cause of action against defendant no later than January 19, 2017. Because plaintiff filed his complaint on May 9, 2019, the two-year professional malpractice statute of limitations barred plaintiff’s complaint. Foltz v. Oblasser, 2020 WY 51, 461 P.3d 417, 2020 Wyo. LEXIS 53 (Wyo. 2020).

Federal law applicable to labor claim. —

The National Labor Relation Act's six month statute of limitations applies to an employee's claim of breach of duty of fair representation against his union, and not this section's two year limitations period for professional negligence. Winders v. United Transp. Union, 833 F. Supp. 860, 1993 U.S. Dist. LEXIS 14157 (D. Wyo. 1993).

No exoneration prerequisite for malpractice claim against criminal defense attorney.—

Wyoming Supreme Court declines to create an exception to the discovery rule to adopt an exoneration prerequisite to bringing a legal malpractice claim against a criminal defense attorney, particularly when the professional malpractice statute of limitations makes no distinction between legal malpractice suits arising out of civil and criminal cases. Dockter v. Lozano, 2020 WY 119, 472 P.3d 362, 2020 Wyo. LEXIS 136 (Wyo. 2020).

Application to realtors. —

A claim against a realtor is a claim for professional negligence, and realtors are licensed professionals who fall within the scope of Wyo. Stat. Ann. § 1-3-107(a); accordingly, the two-year limitations period of the section applies to all claims against realtors, even those that arose prior to July 1, 2000. Rawlinson v. Greer, 2003 WY 28, 64 P.3d 120, 2003 Wyo. LEXIS 34 (Wyo. 2003).

Because a home owner and its occupants learned of water in their crawl space three years before they filed a negligence action against a real estate agency and an associate broker, the matter was time-barred under Wyo. Stat. Ann. § 1-3-107(a), and the trial court correctly granted the agency and broker summary judgment pursuant to W.R.C.P. 56(c). Rawlinson v. Greer, 2003 WY 28, 64 P.3d 120, 2003 Wyo. LEXIS 34 (Wyo. 2003).

Professional negligence claim against real estate broker by non-client buyers asserting negligent misrepresentation was governed by the 2-year statute of limitations in this section. Hulse v. BHJ, Inc., 2003 WY 75, 71 P.3d 262, 2003 Wyo. LEXIS 92 (Wyo. 2003).

Real estate buyer's claim that the agent violated his duty of disclosure was moot on appeal because the district court's independent ruling that the statute of limitations had run trumped its first erroneous ruling on the question of duty, the buyer failed to challenge the district court's statute of limitations ruling, and that ruling provided an independent ground for dismissal. Ferrell v. Knighten, 2013 WY 37, 298 P.3d 161, 2013 Wyo. LEXIS 41 (Wyo. 2013).

Prisoner not under “legal disability”. —

Under Wyo. Stat. Ann § 1-3-107 (2005), imprisonment is not a “legal disability other than minority” that suspends the running of the statute of limitations, because a convicted felon is not “legally dead” in Wyoming, and both convicted felons and prisoners have the right to file lawsuits. Ballinger v. Thompson, 2005 WY 101, 118 P.3d 429, 2005 Wyo. LEXIS 121 (Wyo. 2005).

Rule 6(a), W.R.C.P., applicable to computation of time under this section. —

Rule 6(a), W.R.C.P., setting guidelines for computation of time for court purposes, is applicable to the two-year time limit contained in this section; an application of Rule 6(a), W.R.C.P., does not enlarge the time periods provided for in this section but merely creates a uniform rule for determining when the time limit begins to run and when it ends. Olson v. Campbell County Memorial Hosp., 652 P.2d 1365, 1982 Wyo. LEXIS 395 (Wyo. 1982).

Termination of course of treatment starts running of limitation period. —

The act, error or omission which starts the running of the statute of limitations against medical malpractice actions is the termination of the course of treatment for the same or related illnesses or injuries. Accordingly, the limitation period established by subsection (a)(i) began to run with respect to a claim against a doctor, for his failure to diagnose and properly treat a pituitary tumor, on the date he last treated the plaintiff. Metzger v. Kalke, 709 P.2d 414, 1985 Wyo. LEXIS 603 (Wyo. 1985).

Plaintiff discovers wrongful “act” when learns that harm resulted from doctor's wrongful conduct. —

A plaintiff discovers an “alleged act, error or omission” within the meaning of subsection (a)(iv) when she learns that her harm resulted from the wrongful conduct of the defendant, not just when she discovers the harm itself. In a medical malpractice action, it did not matter what the plaintiff “suspected” or “should have known.” When she actually discovered the doctor's alleged wrong — his failure to diagnose her tumor, and the fact that he should have diagnosed it, given her symptoms and history — during the second year after its occurrence, she was entitled to rely on subsection (a)(iv). Metzger v. Kalke, 709 P.2d 414, 1985 Wyo. LEXIS 603 (Wyo. 1985).

Attorneys' negligence “reasonably discoverable” within few months of bank failure. —

In a third party action by the directors of a failed bank against the attorneys whose negligence allegedly contributed to the failure, the negligence was reasonably discoverable at the time of the bank closure or within a few months thereafter and the claim, which was brought almost four years from the date the bank closed, was therefore barred by this section. Boller v. Western Law Ass'n, P.C., 828 P.2d 1184, 1992 Wyo. LEXIS 38 (Wyo. 1992), reh'g denied, 1992 Wyo. LEXIS 56 (Wyo. Apr. 28, 1992), cert. denied, 506 U.S. 869, 113 S. Ct. 198, 121 L. Ed. 2d 140, 1992 U.S. LEXIS 5361 (U.S. 1992).

Plaintiff discovers wrongful “act” when learns that harm resulted from doctor's wrongful conduct. —

Under Wyo. Stat. Ann. § 1-39-113 , with respect to the statute of limitations, Wyo. Stat. Ann. § 1-3-107 , the date of the act, error, or omission had to be determined before it could be concluded that the patient timely filed a governmental claim against the doctor within the two-year period; date of discovery of employment relationship was crucial. Jost v. Goss, 2010 WY 104, 236 P.3d 994, 2010 Wyo. LEXIS 112 (Wyo. 2010).

Statute of limitations defense raised by motion to dismiss. —

A statute-of-limitations defense was appropriately raised in a Rule 12(b)(6), W.R.C.P., motion to dismiss for failure to state a claim where the answers, counterclaims, cross-claims and initial third-party claims filed by third-party plaintiffs reflected on their faces that the third-party claims were barred by the statute of limitations. Boller v. Western Law Ass'n, P.C., 828 P.2d 1184, 1992 Wyo. LEXIS 38 (Wyo. 1992), reh'g denied, 1992 Wyo. LEXIS 56 (Wyo. Apr. 28, 1992), cert. denied, 506 U.S. 869, 113 S. Ct. 198, 121 L. Ed. 2d 140, 1992 U.S. LEXIS 5361 (U.S. 1992).

Plaintiff's claims all arose from acts, errors or omissions in the rendering of licensed or certified professional or health care services on December 5, 2012, but plaintiff failed to bring those claims within the two year limitations period. Therefore, the district court properly granted defendant's motion to dismiss. Vance v. Wyomed Lab., Inc., 2016 WY 61, 375 P.3d 746, 2016 Wyo. LEXIS 61 (Wyo. 2016).

Equitable estoppel not established. —

In a legal malpractice case, equitable estoppel, based on the attorney's alleged misleading statements to the client, did not apply to extend the time for filing suit because the client had all the essential facts for his cause of action more than two years before he filed suit. Ballinger v. Thompson, 2005 WY 101, 118 P.3d 429, 2005 Wyo. LEXIS 121 (Wyo. 2005).

Discovery rule held inapplicable to legal malpractice suit. —

In a legal malpractice case based on a personal representative's attorney's allowing insurance on estate property to lapse, the discovery rule did not apply to extend the time for filing suit. Despite misleading statements the attorney allegedly made to the client, the client had all the essential facts for his cause of action more than two years before he filed suit. Ballinger v. Thompson, 2005 WY 101, 118 P.3d 429, 2005 Wyo. LEXIS 121 (Wyo. 2005).

In negligence action against surveyors for conducting erroneous land surveys and against the board of county commissioners for filing the surveys, the plaintiffs did not “discover” the tortious act for purposes of the accrual of their cause of action until they received a corrected land surveyor's report. The statute of limitations did not begin to run on an earlier date when the title insurance agent advised them that he would not continue to issue title insurance policies because of the survey discrepancies. Bredthauer v. Christian, Spring, Seilbach & Assocs., 824 P.2d 560, 1992 Wyo. LEXIS 10 (Wyo. 1992).

Running of statute of limitation in suits charging negligent performance of professional duties. —

See Banner v. Dayton, 474 P.2d 300, 1970 Wyo. LEXIS 191 (Wyo. 1970).

In legal malpractice action, for purposes of summary judgment motion, even where a factual dispute exists, the statute of limitations issue is still a question of law within the province of the court. Hiltz v. Robert W. Horn, P.C., 910 P.2d 566, 1996 Wyo. LEXIS 14 (Wyo. 1996).

The statute of limitations for a legal malpractice cause of action had run where the action was commenced more than two years after defendant knew of had reason to know that he had a cause of action. Connell v. Barrett, 949 P.2d 871, 1997 Wyo. LEXIS 148 (Wyo. 1997).

Where buyers purchased a home from sellers on June 1, 2006, where the buyers experienced significant flooding that required engineer-designed remediation on the house at a cost of more than $ 25,000, where the buyers filed suit against the sellers and the sellers' real estate agent in September of 2007 alleging fraudulent non-disclosure, and where the buyers filed an amended complaint in August of 2008 to add their real estate agent and broker as defendants, summary judgment was properly granted in favor of the buyers' real estate agent and broker because the two-year statute of limitations under Wyo. Stat. Ann. § 1-3-107 began to run on the date of the alleged act or omission, which in this case was June 1, 2006, the last day that the real estate agent and broker performed professional services for the buyers under their contract. Further, no exception applied because the buyers had sufficient knowledge about the water problems and the non-disclosure of those problems; as such, any professional negligence by their agent and broker was reasonably discoverable within the statutory two-year period. Adelizzi v. Stratton, 2010 WY 148, 243 P.3d 563, 2010 Wyo. LEXIS 156 (Wyo. 2010).

Trial court properly granted summary judgment to defendant emergency room (ER) doctor based on the two-year statute of limitations for medical malpractice actions. The fact that defendant was out of state was not enough to toll the statute of limitations, given the fact that plaintiff had no intention of bringing legal action against the ER doctor within the limitation period. Adams v. Walton, 2011 WY 58, 248 P.3d 1167, 2011 Wyo. LEXIS 61 (Wyo. 2011).

In a professional negligence case, the engineering corporation’s motion for summary judgment was improperly granted as the non-profit corporation’s claims against it were not time-barred because genuine issues of material fact existed as to when the non-profit should reasonably have been on notice that it needed to investigate the adequacy of the design, plans, and specifications for the building as questions remained regarding whether the 2006 incident of bird in the attic of the building; the 2007 incident of cracking concrete in the covered parking area, or the 2013 incident of a binding door and plaster cracks in the building should have put the non-profit on notice of the engineering corporation’s alleged negligence. Pioneer Homestead Apts. III v. Sargent Eng'rs, Inc., 2018 WY 80, 421 P.3d 1074, 2018 Wyo. LEXIS 84 (Wyo. 2018).

Bail bondsman did not establish that his activities fit within the professional duties of bail bondsman, and therefore the trial court erred by applying the two-year statute of limitations which applied to the rendering of professional services to the pedestrian's action. It was not established that taking custody of persons who had been arrested following their release was part of the professional responsibilities of a bail bondsman as nothing in the complaint alleged that a bondsman received raining in such activity or that knowledge of such practices was required for licensure. Irene v. Seneca Ins. Co., 2014 WY 145, 337 P.3d 483, 2014 Wyo. LEXIS 167 (Wyo. 2014).

Continuing treatment. —

Trial court erred in granting summary judgment to a doctor in a malpractice suit, finding that the Wyo. Stat. Ann. § 1-3-107 statute of limitations had run. The final act in the surgeon's continuous course of treatment was the second surgery performed on February 26, 1999, to remove a surgical sponge, not the first surgery to repair the torn rotator cuff, and the suit was brought within two years of the date of the second surgery. Jauregui v. Mem'l Hosp., 2005 WY 59, 111 P.3d 914, 2005 Wyo. LEXIS 68 (Wyo. 2005), reh'g denied, 2005 Wyo. LEXIS 80 (Wyo. June 8, 2005), overruled in part, Harmon v. Star Valley Med. Ctr., 2014 WY 90, 331 P.3d 1174, 2014 Wyo. LEXIS 99 (Wyo. 2014).

Running of statute for attorney malpractice. —

The statute of limitations for the claim of attorney malpractice began to run when both attorney and client learned that the estate would be subject to the payment of interest on taxes and potential penalties. Murphy v. Housel & Housel, 955 P.2d 880, 1998 Wyo. LEXIS 30 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 55 (Wyo. Apr. 8, 1998).

Client's legal malpractice suit was properly dismissed as time-barred under Wyo. Stat. Ann § 1-3-107(a); his imprisonment was not a ‘legal disability other than minority’ under § 1-3-107(a)(iii) so as to extend the statute of limitations, as the statute did not list imprisonment as a disability, and in Wyoming, prisoners had the right to file lawsuits. Ballinger v. Thompson, 2005 WY 101, 118 P.3d 429, 2005 Wyo. LEXIS 121 (Wyo. 2005).

Continuous representation doctrine. —

The court rejected defendant's contention that the continuous representation doctrine tolled the statute of limitations because Wyoming has not adopted the continuous representation doctrine. Connell v. Barrett, 949 P.2d 871, 1997 Wyo. LEXIS 148 (Wyo. 1997).

In a legal malpractice case based on a personal representative's attorney's allowing insurance on estate property to lapse, the continuous representation doctrine did not extend the time for the client to file suit, because that doctrine was absent from Wyoming's legal malpractice statute, and the Wyoming Supreme Court declined to judicially adopt it. Ballinger v. Thompson, 2005 WY 101, 118 P.3d 429, 2005 Wyo. LEXIS 121 (Wyo. 2005).

Discharge from hospital started running of limitation period. —

Patient's medical malpractice claim was timely under Wyo. Stat. Ann. § 1-3-107(a)(i) because he presented his claim just under two years from the date of his discharge; he presented evidence that the hospital treated him for the pain and dysfunction in his shoulder and arm until he was discharged. Nobles v. Mem'l Hosp. of Laramie County, 2013 WY 66, 301 P.3d 517, 2013 Wyo. LEXIS 70 (Wyo. 2013).

Statute of repose asserted on remand. —

Because a statute of repose and a statute of limitations can be applied to the same facts to bar the same cause of action, they are not truly inconsistent; therefore, a defendant land surveyor could subsequently assert on remand a new statute of limitations (§ 1-3-111(a)) labeled as a statute of repose, after stipulating in the prior adjudication that subsection (a)(i) of this section controlled the case. Bredthauer v. TSP, 864 P.2d 442, 1993 Wyo. LEXIS 175 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 192 (Wyo. Dec. 21, 1993).

Construction with wrongful death statute. —

This section and the wrongful death statute (§ 1-38-101 ) must be construed together; thus, where a decedent had failed to bring his claim against a physician and hospital within two-years, he had no viable action at the time of his death and a wrongful death action on behalf of his survivors was barred. Edwards v. Fogarty, 962 P.2d 879, 1998 Wyo. LEXIS 110 (Wyo. 1998), reh'g denied, 1998 Wyo. LEXIS 125 (Wyo. Aug. 26, 1998).

Section applies to licensed outfitters. —

Supreme Court of Wyoming held that the plain language of the Wyoming Outfitters and Guides Act, Wyo. Stat. Ann. § 23-2-407 , defined guides as “professional,” and that it need not look any further than the plain language of Wyo. Stat. Ann. § 1-3-107(a) to conclude that the two-year statute of limitations applied to causes of action arising from an act, error or omission in the rendering of licensed outfitter or professional guide services. Prokop v. Hockhalter, 2006 WY 75, 137 P.3d 131, 2006 Wyo. LEXIS 82 (Wyo. 2006).

Where a customer was injured during a hunting expedition, the two-year statute of limitations clearly applied to an outfitting company and one of its members because they were licensed outfitters; the statute of limitations also applied to the other member because the suit against the other member arose from the same act, error, or omission that the customer asserted caused the injuries. Bylin v. Billings, 568 F.3d 1224, 2009 U.S. App. LEXIS 13557 (10th Cir. Wyo. 2009), cert. denied, 559 U.S. 936, 130 S. Ct. 1506, 176 L. Ed. 2d 110, 2010 U.S. LEXIS 1204 (U.S. 2010).

Section applies to licensed outfitters whether claim based in tort or contract. —

Supreme Court of Wyoming held that the 2-year statute of limitations for professionals in Wyo. Stat. Ann. § 1-3-107(a) applied to actions brought against licensed outfitters and professional guides, and if the cause of action against an outfitter or a guide arose from the rendering of licensed or certified professional services, the 2 year statute of limitations in § 1-3-107(a) applied whether the claim against them was pled in tort or contract. Prokop v. Hockhalter, 2006 WY 75, 137 P.3d 131, 2006 Wyo. LEXIS 82 (Wyo. 2006).

Action relating to obtaining credit not based on rendering professional or health care services. —

Two-year statute of limitations under this section did not apply because a patient's claim under the Wyoming Consumer Protection Act that a dentist committed unfair and deceptive trade practices by compelling to her obtain a credit card to settle her account was not based on the rendering of professional or health care services. St. John v. Joshua G. Wagner, DDS, PC, 2013 WY 69, 302 P.3d 906, 2013 Wyo. LEXIS 74 (Wyo. 2013).

Due diligence. —

In a sale of property that did not reserve plaintiffs' mineral interests in the property, although plaintiffs sued the closing agent, its general counsel, and the brokerage firm involved in the transaction more than seven years after the sale, because a genuine issue of material fact existed as to whether plaintiffs exercised due diligence by trusting the representation of the closing agent's employee that the deeds had been changed to reserve plaintiffs' mineral interests in the property had to be evaluated in light of all the facts, summary judgment was improperly granted to the closing agent and its general counsel in light of the employee's representations. Moats v. Prof'l Assistance, LLC, 2014 WY 6, 319 P.3d 892, 2014 Wyo. LEXIS 5 (Wyo. 2014).

Statute of limitations not extended by third party misrepresentations. —

In a sale of property that did not reserve plaintiffs' mineral interests in the property, where plaintiffs sued the closing agent, its general counsel, and the brokerage firm involved in the transaction more than seven years after the sale, summary judgment was properly granted in favor of the brokerage firm as the misrepresentations by the closing agent's employee should not extend the statute of limitations as to the brokerage firm. Moats v. Prof'l Assistance, LLC, 2014 WY 6, 319 P.3d 892, 2014 Wyo. LEXIS 5 (Wyo. 2014).

Ranch's action against corporation for failure to provide services was time-barred. —

Finding that a ranch's action seeking damages resulting from a corporation's failure to provide engineering and surveying services was time-barred was appropriate because, whether Wyo. Stat. § 1-3-107 began to run on the date of the act, error or omission, or on the date the cause of action accrued, the lawsuit was untimely. The ranch's cause of action was time-barred if not commenced within two years of the act, error or omission giving rise to the cause of action, or if, the two-year time limit started to run upon “accrual” of the cause of action, the ranch's claim was still time barred because the cause of action accrued on or before May 5, 2005. Lucky Gate Ranch, L.L.C. v. Baker & Assocs., 2009 WY 69, 208 P.3d 57, 2009 Wyo. LEXIS 75 (Wyo. 2009).

Applied in

Echols v. Keeler, 735 P.2d 730, 1987 Wyo. LEXIS 426 (Wyo. 1987); Greenwood v. Wierdsma, 741 P.2d 1079, 1987 Wyo. LEXIS 518 (Wyo. 1987); Sharsmith v. Hill, 764 P.2d 667, 1988 Wyo. LEXIS 150 (Wyo. 1988); Mills v. Garlow, 768 P.2d 554, 1989 Wyo. LEXIS 23 (Wyo. 1989).

Quoted in

Richardson Assocs. v. Lincoln-Devore, Inc., 806 P.2d 790, 1991 Wyo. LEXIS 19 (Wyo. 1991); Walters v. Grand Teton Crest Outfitters, Inc., 804 F. Supp. 1442, 1992 U.S. Dist. LEXIS 15892 (D. Wyo. 1992); Peters v. W. Park Hosp., 2003 WY 117, 76 P.3d 821, 2003 Wyo. LEXIS 141 (Wyo. 2003).

Cited in

Lesh v. Allstate Ins. Co., 723 F. Supp. 624, 1989 U.S. Dist. LEXIS 12514 (D. Wyo. 1989); Bender v. Phillips, 8 P.3d 1074, 2000 Wyo. LEXIS 171 (Wyo. 2000); Rawlinson v. Cheyenne Bd. of Pub. Utils., 2001 WY 6, 17 P.3d 13, 2001 Wyo. LEXIS 4 (Wyo. 2001); Hoke v. Motel 6 Jackson & Accor N. Am., Inc., 2006 WY 38, 131 P.3d 369, 2006 Wyo. LEXIS 41 (Wyo. Mar. 27, 2006).

Law reviews. —

See note, “The Statute of Limitations in Actions for Undiscovered Malpractice,” 12 Wyo. L.J. 30.

See case note on Lutheran Hosps. & Homes Soc'y of America v. Yepsen, 469 P.2d 409, 1970 Wyo. LEXIS 173 (Wyo. 1970), VII Land & Water L. Rev. 717 (1972).

For comment, “Wyoming's Governmental Claims Act: Sovereign Immunity with Exceptions — A Statutory Analysis,” see XV Land & Water L. Rev. 619 (1980).

For case note, “Appeal and Error” —The Omnipotent Wyoming Supreme Court: New Allegations and Evidence Will Be Heard for the First Time on Appeal. Boller v. Western Law Associates, 828 P.2d 1184, 1992 Wyo. LEXIS 38 (Wyo. 1992),” see XXVIII Land & Water L. Rev. 677 (1993).

For case note, “Should a Wrongful Death Action Expire Before the Decedent Does? A Wrong Turn for Wrongful Death,” see XXXV Land & Water L. Rev. 235 (2000).

Am. Jur. 2d, ALR and C.J.S. references. —

When statute of limitation begins to run upon action against attorney for malpractice, 18 ALR3d 978.

Application of statute of limitations to damage actions against public accountants for negligence in performance of professional services, 26 ALR3d 1438.

When statute of limitations commences to run against malpractice action based on leaving foreign substance in patient's body, 70 ALR3d 7.

Statute of limitations relating to medical malpractice actions as applicable to actions against unlicensed practitioner, 70 ALR3d 114.

When statute of limitations begins to run against malpractice action in connection with sterilization or birth control procedures, 93 ALR3d 218.

When statute of limitations begins to run in dental malpractice suits, 3 ALR4th 318.

What statute of limitations governs physician's action for wrongful denial of hospital privileges, 3 ALR4th 1214.

Statute of limitations applicable to third person's action against psychiatrist, psychologist or other mental health practitioner, based on failure to warn persons against whom patient expressed threats, 41 ALR4th 1078.

Time of discovery as affecting running of statute of limitations in wrongful death action, 49 ALR4th 972.

Applicability of “foreign object” exception in medical malpractice statutes of limitations, 50 ALR4th 250.

Statute of limitations in wrongful death action based on medical malpractice, 70 ALR4th 535.

When limitations period begins to run on claim for optometrist's malpractice, 70 ALR4th 600.

Medical malpractice liability of sports medicine care providers for injury to, or death of, athlete, 33 ALR5th 619.

When statute of limitations begins to run upon action against attorney for legal malpractice — deliberate wrongful acts or omissions, 67 ALR5th 587.

Medical malpractice statutes of limitation minority provisions, 71 ALR5th 307.

Surveyor's liability for mistake in, or misrepresentation as to accuracy of, survey of real property, 117 ALR5th 23.

Effect of fraudulent or negligent concealment of patient's cause of action on timeliness of action under medical malpractice statute of repose. 19 A.L.R.6th 475.

§ 1-3-108. Official bonds and statutory undertakings.

An action upon the official bond of an officer, assignee, trustee, executor, administrator or guardian, or upon a bond given in pursuance of a statute can only be brought within ten (10) years after the cause of action accrues.

History. Laws 1886, ch. 60, § 37; R.S. 1887, § 2373; R.S. 1899, § 3458; C.S. 1910, § 4302; C.S. 1920, § 5571; R.S. 1931, § 89-413; C.S. 1945, § 3-508; W.S. 1957, § 1-20; Laws 1977, ch. 188, § 1.

Law reviews. —

See “Abstractor's Liability in Examination of Title,” 6 Wyo. L.J. 184.

Am. Jur. 2d, ALR and C.J.S. references. —

What period of limitation governs in an action against a public officer and a surety on official bond, 18 ALR2d 1176.

Liability on statutory bond as within statute of limitations prescribing specific limitation period for liabilities created by statute, 32 ALR2d 1240.

What statute of limitations governs action to reform bond, 36 ALR2d 687.

Limitation statute applicable to action on bonds of public body, 38 ALR2d 930.

When statute of limitations begins to run against action on bond of personal representative, 44 ALR2d 807.

§ 1-3-109. Actions not otherwise limited.

An action for relief, not hereinbefore provided for, can only be brought within ten (10) years after the cause of action accrues.

History. Laws 1886, ch. 60, § 38; R.S. 1887, § 2374; R.S. 1899, § 3459; C.S. 1910, § 4303; C.S. 1920, § 5572; R.S. 1931, § 89-414; C.S. 1945, § 3-509; W.S. 1957, § 1-21; Laws 1977, ch. 188, § 1.

Applicable in all actions whether formerly denominated at law or in equity. —

Since actions at law and suits in equity are blended and there is in Wyoming but one form of action, called a civil action, the statutes of limitations apply in all actions whether formerly denominated at law or in equity. Town of Glenrock v. Abadie, 71 Wyo. 414, 259 P.2d 766, 1953 Wyo. LEXIS 25 (1953). See Rule 2, W.R.C.P.

But section is available in judicial proceedings only as defense and can never be asserted by a plaintiff as a cause of action in him or as conferring upon him an affirmative right of action. The principle has sometimes been expressed in the figure of speech that the statute is available only as a shield, not as a sword. Northern Pacific R. Co. v. United States, 277 F.2d 615, 1960 U.S. App. LEXIS 5155 (10th Cir. Wyo. 1960).

When no justiciable controversy. —

There is no justiciable controversy as contemplated by Declaratory Judgment Act where it appears on face of the pleadings that the statute of limitations is applicable thereto. Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 1944 Wyo. LEXIS 19 (Wyo. 1944).

Right to reformation of deed barred. —

In an action brought by a town to quiet title to a one-half interest in minerals underlying property conveyed by defendant to the town 30 years before, defendant's cross-petition for reformation of the deed was barred by this section. Town of Glenrock v. Abadie, 71 Wyo. 414, 259 P.2d 766, 1953 Wyo. LEXIS 25 (Wyo.), reh'g denied, 72 Wyo. 111, 262 P.2d 393, 1953 Wyo. LEXIS 36 (Wyo. 1953).

In an action to quiet title, wherein a cross-petition was filed for reformation of a deed, the fact that the parties and their positions remained the same as they were when the deeds in question were made, and the rights of innocent purchasers for value without notice were not concerned, was no defense to the running of the statute of limitations upon the right of action for reformation of the deed. Town of Glenrock v. Abadie, 72 Wyo. 111, 262 P.2d 393, 1953 Wyo. LEXIS 36 (Wyo. 1953).

Reformation of warranty deed not permitted where deed clearly conveys title. —

Inasmuch as a 1933 warranty deed clearly conveyed the land being disputed in a quiet title action with no reservations whatsoever, the court did not permit reformation to express the alleged intent of the party that the property was conveyed to be used solely as an airport, which would have been a clear violation of this section. Samuel Mares Post No. 8, Am. Legion v. Board of County Comm'rs, 697 P.2d 1040, 1985 Wyo. LEXIS 470 (Wyo. 1985).

Quoted in

United States v. Northern Pac. Ry., 169 F. Supp. 735, 1959 U.S. Dist. LEXIS 3874 (D. Wyo. 1959); Trustees of Wyo. Laborers Health & Welfare Plan v. Morgen & Oswood Constr. Co., 850 F.2d 613, 1988 U.S. App. LEXIS 8635 (10th Cir. 1988).

Stated in

Wyoming Constr. Co. v. Western Cas. & Sur. Co., 275 F.2d 97, 1960 U.S. App. LEXIS 5521 (10th Cir. 1960); Ultra Res., Inc. v. Hartman, 2010 WY 36, 226 P.3d 889, 2010 Wyo. LEXIS 39 (Mar. 23, 2010).

Cited in

Wolbol v. Steinhoff, 25 Wyo. 227, 168 P. 251, 1917 Wyo. LEXIS 22 (1917); Cook v. Elmore, 27 Wyo. 163, 192 P. 824, 1920 Wyo. LEXIS 30 (1920); Horse Creek Conservation Dist. v. Lincoln Land Co., 54 Wyo. 320, 92 P.2d 572, 1939 Wyo. LEXIS 22 (1939); Campbell v. Wyoming Dev. Co., 55 Wyo. 347, 100 P.2d 124, 1940 Wyo. LEXIS 13 (1940); Badley v. Birchby, 487 P.2d 798, 1971 Wyo. LEXIS 238 (Wyo. 1971); Cathcart v. Meyer, 2004 WY 49, 88 P.3d 1050, 2004 Wyo. LEXIS 62 (2004).

Am. Jur. 2d, ALR and C.J.S. references. —

What statute of limitations governs physician's action for wrongful denial of hospital privileges, 3 ALR4th 1214.

Laches or acquiescence as defense, so as to bar recovery of arrearages of permanent alimony or child support, 5 ALR4th 1015.

State statute of limitations applicable to inverse condemnation or similar proceedings by landowner to obtain compensation for direct appropriation of land without the institution or conclusion of formal proceedings against specific owner, 26 ALR4th 68.

Limitation of actions: invasion of right of privacy, 33 ALR4th 479.

§ 1-3-110. “Substantial completion” defined.

As used in this act [§§ 1-3-110 through 1-3-113 ] “substantial completion” means the degree of completion at which the owner can utilize the improvement for the purpose for which it was intended.

History. Laws 1973, ch. 82, § 1; W.S. 1957, § 1-21.1; Laws 1977, ch. 188, § 1.

“Substantial completion.”

Homeowners' suit alleging defects in a condominium's HVAC system was not barred by the statute of repose because (1) the statute began to run when the condominium and system were substantially completed, as defined in Wyo. Stat. Ann. § 1-3-110 , which occurred when the condominium and system could be used for their intended purposes, and (2) the condominium and system could not be used for their intended purposes until a certificate of occupancy was issued less than ten years before the homeowners filed suit. Horning v. Penrose Plumbing & Heating, Inc., 2014 WY 133, 336 P.3d 151, 2014 Wyo. LEXIS 156 (Wyo. 2014).

Cited in

Worden v. Village Homes, 821 P.2d 1291, 1991 Wyo. LEXIS 183 (Wyo. 1991).

§ 1-3-111. Improvements to real property; generally.

1. Unless the parties to the contract agree  otherwise, no action to recover damages, whether in tort, contract,  indemnity or otherwise, shall be brought more than ten (10) years  after substantial completion of an improvement to real property, against  any person constructing, altering or repairing the improvement, manufacturing  or furnishing materials incorporated in the improvement, or performing  or furnishing services in the design, planning, surveying, supervision,  observation or management of construction, or administration of construction  contracts for:
   1. Any deficiency in the design, planning,  supervision, construction, surveying, manufacturing or supplying of  materials or observation or management of construction;
   2. Injury to any property arising out of  any deficiency listed in paragraph (i) of this subsection; or
   3. Injury to the person or wrongful death  arising out of any deficiency listed in paragraph (i) of this subsection.
2. Notwithstanding the provisions of subsection  (a) of this section, if an injury to property or person or an injury  causing wrongful death occurs during the ninth year after substantial  completion of the improvement to real property, an action to recover  damages for the injury or wrongful death may be brought within one  (1) year after the date on which the injury occurs.
3. This section shall not be construed to  extend the period for bringing an action allowed by the laws of this  state.

History. Laws 1973, ch. 82, § 1; W.S. 1957, § 1-21.2; Laws 1977, ch. 188, § 1; 1981, ch. 166, § 1.

Cross references. —

As to saving clause for persons under disabilities, see § 1-3-114 .

Purpose of section. —

Section 2, ch. 166, Laws 1981, states that the purpose of that act is to allocate the burden of insuring improvements to the possessor after 10 years as it is not in the public interest to impose liability in perpetuity on those providing goods or services necessary for the improvement.

Former subsection (a) violated constitution. —

Subsection (a), as it read prior to the 1981 amendment, violated article 1, §§ 8 and 34 and article 3, § 27, Wyo. Const.Phillips v. ABC Builders, 611 P.2d 821, 1980 Wyo. LEXIS 273 (Wyo. 1980).

Section is constitutional and does not violate the open courts, uniform operation of general law, and special and local laws provisions of the Wyoming constitution. Worden v. Village Homes, 821 P.2d 1291, 1991 Wyo. LEXIS 183 (Wyo. 1991).

Section was intended to apply without regard for discovery in application of its 10-year period. Richardson Associates v. Lincoln-Devore, 806 P.2d 790, 1991 Wyo. LEXIS 19 (Wyo. 1991).

“Improvement to real property.” —

Given the insufficient factual record regarding the use and permanency of the product at issue, a question of fact existed as to whether the product constituted an “improvement to real property” which would afford the defendant the protection of the statute of repose. Covington v. W.R. Grace-Conn, Inc., 952 P.2d 1105, 1998 Wyo. LEXIS 5 (Wyo. 1998).

“Substantial completion.”

Homeowners' suit alleging defects in a condominium's HVAC system was not barred by the statute of repose because (1) the statute began to run when the condominium and system were substantially completed, as defined in Wyo. Stat. Ann. § 1-3-110 , which occurred when the condominium and system could be used for their intended purposes, and (2) the condominium and system could not be used for their intended purposes until a certificate of occupancy was issued less than ten years before the homeowners filed suit. Horning v. Penrose Plumbing & Heating, Inc., 2014 WY 133, 336 P.3d 151, 2014 Wyo. LEXIS 156 (Wyo. 2014).

Section inapplicable for failure to maintain, inspect. —

Where the alleged negligent action of the defendants (failure to discover, disclose and warn) occurred after construction was completed and was not a “deficiency in the design, planning, supervision, construction, surveying, manufacturing or supplying of materials or observation or management of construction,” this section was not applicable to the plaintiff's cause of action for negligent failure to maintain and inspect the property and discover and disclose a dangerous condition which was known or should have been known. Goodrich v. Seamands, 870 P.2d 1061, 1994 Wyo. LEXIS 35 (Wyo. 1994).

Defense not waived by failure to plead. —

An affirmative defense, specifically the statute of repose found in this section, is not deemed waived by the failure to plead it or by admitting an inconsistent factual allegation. Loftus v. Romsa Constr., 913 P.2d 856, 1996 Wyo. LEXIS 50 (Wyo. 1996).

Construction of public school building by school district is sovereign activity, and the applicable statutes of limitations cannot be invoked to bar the school district from bringing an action against a contractor or an architect for damages arising out of that construction in order to vindicate public rights. Laramie County Sch. Dist. Number One v. Muir, 808 P.2d 797, 1991 Wyo. LEXIS 51 (Wyo. 1991).

Statute of repose asserted on remand. —

Because a statute of repose and a statute of limitations can be applied to the same facts to bar the same cause of action, they are not truly inconsistent; therefore, a defendant land surveyor could subsequently assert on remand a new statute of limitations (subsection (a) of this section) labeled as a statute of repose, after stipulating in the prior adjudication that another statute of limitations, § 1-3-107(a)(i) (rendering professional services), controlled the case. Bredthauer v. TSP, 864 P.2d 442, 1993 Wyo. LEXIS 175 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 192 (Wyo. Dec. 21, 1993).

Quoted in

NuHome Invs., LLC v. Weller, 2003 WY 171, 81 P.3d 940, 2003 Wyo. LEXIS 207 (Wyo. 2003).

Cited in

Mills v. Reynolds, 807 P.2d 383, 1991 Wyo. LEXIS 31 (Wyo. 1991); Pioneer Water & Sewer Dist. v. Civil Eng'g Professionals, Inc., 905 P.2d 1245, 1995 Wyo. LEXIS 204 (Wyo. 1995).

Law reviews. —

For case note, “Statute of Limitations for Architects and Builders as Special Legislation, Phillips v. ABC Builders, 611 P.2d 821, 1980 Wyo. LEXIS 273 (Wyo. 1980),” see XVI Land & Water L. Rev. 313 (1981).

For case note, “Builder-Vendors' Broadened Liability for Selecting an Unsafe Homesite. Homeowners-Sellers' Duty to Warn. ABC Builders, Inc. v. Phillips, 632 P.2d 925, 1981 Wyo. LEXIS 365 (Wyo. 1981),” see XVII Land & Water L. Rev. 467 (1982).

Am. Jur. 2d, ALR and C.J.S. references. —

What statute of limitations governs action by contractee for defective or improper performance of work by private building contractor, 1 ALR3d 914.

Validity and construction of time limitation upon action against architect or engineer, 93 ALR3d 1242.

Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability, 12 ALR4th 866.

Validity and construction of statute terminating right of action for product-caused injury at fixed period after manufacture, sale or delivery of product, 30 ALR5th 1.

Modern status of the application of “discovery rule” to postpone running of limitations against actions relating to breach of building and construction contracts, 33 ALR5th 1.

Surveyor's liability for mistake in, or misrepresentation as to accuracy of, survey of real property, 117 ALR5th 23.

What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations, 122 ALR 5th 1.

§ 1-3-112. Improvements to real property; exception as to persons in possession or control.

The limitation prescribed by this act [§§ 1-3-110 through 1-3-113 ] shall not be asserted by way of defense by any person in actual possession or control, as owner, tenant or otherwise, of the improvement at the time any deficiency in the improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.

History. Laws 1973, ch. 82, § 1; W.S. 1957, § 1-21.3; Laws 1977, ch. 188, § 1.

Quoted in

Worden v. Village Homes, 821 P.2d 1291, 1991 Wyo. LEXIS 183 (Wyo. 1991).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations, 122 ALR 5th 1.

§ 1-3-113. Improvements to real property; extension of limitations precluded.

Nothing in this act [§§ 1-3-110 through 1-3-113 ] shall be construed as extending the period prescribed by law for the bringing of any action.

History. Laws 1973, ch. 82, § 1; W.S. 1957, § 1-21.4; Laws 1977, ch. 188, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations, 122 ALR 5th 1.

§ 1-3-114. Legal disabilities.

If a person entitled to bring any action except for an action arising from error or omission in the rendering of licensed or certified professional or health care services or for a penalty or forfeiture, is, at the time the cause of action accrues, a minor or subject to any other legal disability, the person may bring the action within three (3) years after the disability is removed or within any other statutory period of limitation, whichever is greater.

History. Laws 1886, ch. 60, § 39; R.S. 1887, § 2375; R.S. 1889, § 3460; C.S. 1910, § 4304; C.S. 1920, § 5573; Laws 1931, ch. 73, § 85; R.S. 1931, § 89-415; C.S. 1945, § 3-510; W.S. 1957, § 1-22; Laws 1973, ch. 213, § 2; 1976, ch. 18, § 2; 1977, ch. 188, § 1.

Cross references. —

As to age of majority, see § 14-1-101 .

Minor tolling provision. —

Statute of limitations for minors, Wyo. Stat. Ann. § 1-3-107(a)(ii), violated Wyo. Const. art. 1, § 8. The court also held that the exception now contained in Wyo. Stat. Ann. § 1-3-114 “except for an action arising from error or omission in the rendering of licensed or certified professional or health care services” was constitutionally infirm. Kordus v. Montes, 2014 WY 146, 337 P.3d 1138, 2014 Wyo. LEXIS 169 (Wyo. 2014).

Because the limitation period in § 1-38-102(d) is a condition precedent, and not a statute of limitation, the minor tolling provision of this section is not applicable to the wrongful death statute. Corkill v. Knowles, 955 P.2d 438, 1998 Wyo. LEXIS 39 (Wyo. 1998).

Law reviews. —

See “Attorney's Liability in Title Examination,” 6 Wyo. L.J. 177.

Am. Jur. 2d, ALR and C.J.S. references. —

Proof of unadjudged incompetency which prevents running of statute of limitations, 9 ALR2d 964.

Time of existence of mental incompetency which will prevent or suspend running of statute of limitations, 41 ALR2d 726.

Imprisonment of party to civil action as tolling statute of limitations, 77 ALR3d 735.

Tolling of state statute of limitations in favor of one commencing action despite existing disability, 30 ALR4th 1092.

Tolling of statute of limitations, on account of minority of injured child, as applicable to parent's or guardian's right of action arising out of same injury, 49 ALR4th 216.

Wrongful death: surviving parent's minority as tolling limitation period on suit for child's wrongful death, 54 ALR4th 362.

Local government tort liability: minority as affecting notice of claim requirement, 58 ALR4th 402.

Attorney malpractice — Tolling or other exceptions to running of statute of limitations, 87 ALR5th 473.

Effect of appointment of legal representative for person under mental disability on running of state statute of limitations against such person,111 ALR5th 159.

Effect of appointment of legal representative for minor on running of state statute of limitations against minor, 1 ALR6th 407.

When is person, other than one claiming posttraumatic stress syndrome or memory repression, within coverage of statutory provision tolling running of limitations period on basis of mental disability. 23 A.L.R.6th 697.

§ 1-3-115. Liability created by federal statute.

All actions upon a liability created by a federal statute, other than a forfeiture or penalty, for which no period of limitations is provided in such statute, shall be commenced within two (2) years after the cause of action has accrued.

History. Laws 1943, ch. 77, § 1; C.S. 1945, § 3-511; W.S. 1957, § 1-23; Laws 1977, ch. 188, § 1.

Existing causes of action. —

Section 2, ch. 77, Laws 1943, reads: “This act shall not apply to any existing cause of action which accrued more than one year before this act takes effect, provided suit be instituted thereon within one year after this act takes effect.”

Section 3, ch. 77, Laws 1943, makes the act effective from and after passage. Approved February 23, 1943.

Section hostile against federal causes of action. —

Although the two-year limitations period provided in this section is not necessarily hostile to a federal cause of action by virtue of the amount of time provided, a comparison of the amount of time provided for causes of action arising under state law with the amount of time provided for actions arising under federal law demonstrates the statute's hostility against federal causes of action. Trustees of Wyoming Laborers Health & Welfare Plan v. Morgen & Oswood Constr. Co., 850 F.2d 613, 1988 U.S. App. LEXIS 8635 (10th Cir. Wyo. 1988), overruled in part, NLRB v. Viola Industries-Elevator Div., Inc., 979 F.2d 1384, 1992 U.S. App. LEXIS 28309 (10th Cir. Kan. 1992), overruled in part, NLRB v. Viola Industries-Elevator Div., 979 F.2d 1384, 1992 U.S. App. LEXIS 28310 (10th Cir. Kan. 1992).

Pursuit of state court remedies does not toll section. —

A plaintiff under 42 USCS § 1983 does not toll the running of this section by pursuing remedies in state courts. Spiegel v. School Dist., 600 F.2d 264, 1979 U.S. App. LEXIS 14003 (10th Cir. Wyo. 1979), overruled in part, Garcia v. Wilson, 731 F.2d 640, 1984 U.S. App. LEXIS 24023 (10th Cir. N.M. 1984).

Criminal charges do not toll statute of limitations. —

Where civil rights claims brought pursuant to 42 USCS § 1983 arise out of the same incident as criminal charges, the pendency of the criminal charges does not toll the statute of limitations. Lafferty v. Nickel, 663 P.2d 168, 1983 Wyo. LEXIS 316 (Wyo. 1983), overruled, Ray v. St. Vincent Healthcare, Inc., 2006 WY 98, 139 P.3d 464, 2006 Wyo. LEXIS 102 (Wyo. 2006).

Section was inapplicable to action brought under the Federal Employee Retirement Income Security Act by trustees of a pension plan to recover delinquent contributions. Trustees of Wyoming Laborers Health & Welfare Plan v. Morgen & Oswood Constr. Co., 850 F.2d 613, 1988 U.S. App. LEXIS 8635 (10th Cir. Wyo. 1988), overruled in part, NLRB v. Viola Industries-Elevator Div., Inc., 979 F.2d 1384, 1992 U.S. App. LEXIS 28309 (10th Cir. Kan. 1992), overruled in part, NLRB v. Viola Industries-Elevator Div., 979 F.2d 1384, 1992 U.S. App. LEXIS 28310 (10th Cir. Kan. 1992).

Section 1983 claims. —

The statute of limitations for 42 USCS § 1983 actions brought in this state is controlled by the personal injury statute of limitations, § 1-3-105 .Sullivan v. Bailiff, 867 F. Supp. 992, 1994 U.S. Dist. LEXIS 16706 (D. Wyo. 1994).

Statute of limitations for claims brought in Wyoming state courts under 42 U.S.C.S. § 1983 was four years pursuant to Wyo. Stat. Ann. § 1-3-105(a)(iv)(C), not two years under Wyo. Stat. Ann. § 1-3-115 ; the inmate's motion to amend his counterclaim and cross-claim under this section to add a § 1983 cause of action was brought within four years and should not have been denied as untimely. Ray v. St. Vincent Healthcare, Inc., 2006 WY 98, 139 P.3d 464, 2006 Wyo. LEXIS 102 (Wyo. 2006).

Punitive damages claim not “penalty” action. —

A claim for punitive damages does not transform a civil suit brought under 42 USCS § 1983 into a “penalty” action outside the scope of this section. Spiegel v. School Dist., 600 F.2d 264, 1979 U.S. App. LEXIS 14003 (10th Cir. Wyo. 1979), overruled in part, Garcia v. Wilson, 731 F.2d 640, 1984 U.S. App. LEXIS 24023 (10th Cir. N.M. 1984).

When actions for civil rights violations arise. —

Actions giving rise to alleged civil rights violations arise upon unlawful arrest, confinement and prosecution and not upon the reversal of these convictions. Lafferty v. Nickel, 663 P.2d 168, 1983 Wyo. LEXIS 316 (Wyo. 1983), overruled, Ray v. St. Vincent Healthcare, Inc., 2006 WY 98, 139 P.3d 464, 2006 Wyo. LEXIS 102 (Wyo. 2006).

Federal cause of action based on termination of employment necessarily accrues when termination becomes final. Spiegel v. School Dist., 600 F.2d 264, 1979 U.S. App. LEXIS 14003 (10th Cir. Wyo. 1979), overruled in part, Garcia v. Wilson, 731 F.2d 640, 1984 U.S. App. LEXIS 24023 (10th Cir. N.M. 1984).

Action involving continuous series of actions occurring within statutory time period not barred. —

A federal civil rights action brought by a psychologist was not time-barred by this section, as the defendant, also a psychologist, had embarked on a continuous campaign to destroy the plaintiff's professional standing, involving a series of actions, including contacts with others which occurred, in part at least, within the statutory two-year period. Corbitt v. Andersen, 778 F.2d 1471, 1985 U.S. App. LEXIS 25531 (10th Cir. Wyo. 1985), limited, Pindell v. Wilson-Mckee, 60 F. Supp. 2d 1244, 1999 U.S. Dist. LEXIS 12878 (D. Wyo. 1999).

Cited in

Natrona County School Dist. No. 1 v. McKnight, 764 P.2d 1039, 1988 Wyo. LEXIS 152 (Wyo. 1988).

Am. Jur. 2d, ALR and C.J.S. references. —

Period of limitations or laches to be applied under 29 U.S.C. §§ 185, 187 in action for breach of labor contract or damages from unfair labor practice, 19 ALR3d 1034.

State statute of limitations as affecting federal civil rights actions under 42 U.S.C. § 1981, 29 ALR Fed 710.

What limitation periods apply under 28 U.S.C. § 2415 to government suits, 31 ALR Fed 348.

Time for bringing private civil action for discrimination in housing under §§ 810 and 812 of Fair Housing Act (42 USC §§ 3610 and 3612), 62 ALR Fed 267.

Laches or other assertion of untimeliness as defense to action under title VII of Civil Rights Act of 1964 (42 USC §§ 2000e et seq.) brought by equal employment opportunity commission, 67 ALR Fed 381.

When does state statute of limitations begin to run in civil action for securities fraud under § 10(b) of Securities Exchange Act of 1934 (15 USC § 78j(b)), 71 ALR Fed 257.

Applicable state limitations period in actions under § 10(b) of Securities Exchange Act of 1934 (15 USC § 78j(b)) and SEC Rule 10b-5 (17 CFR § 240.10b-5), 72 ALR Fed 763.

Extensions of time under § 108(a) of the Bankruptcy Code (11 USC § 108(a)), 80 ALR Fed 374.

What constitutes “inquiry notice” sufficient to commence running of statute of limitations in securities fraud action — Post-Lampf cases, 148 ALR Fed 629.

§ 1-3-116. Absence from state, abscondence or concealment.

If a cause of action accrues against a person when he is out of the state, or has absconded or concealed himself, the period limited for the commencement of the action does not begin to run until he comes into the state or while he is so absconded or concealed. If after the cause of action accrues he departs from the state or absconds or conceals himself, the time of his absence or concealment is not computed as a part of the period within which the action shall be brought.

History. Laws 1886, ch. 60, § 42; R.S. 1887, § 2378; R.S. 1899, § 3463; C.S. 1910, § 4307; C.S. 1920, § 5576; R.S. 1931, § 89-418; C.S. 1945, § 3-519; W.S. 1957, § 1-24; Laws 1977, ch. 188, § 1.

Cross references. —

As to service of process outside state, see § 5-1-107 .

Construed in pari materia. —

Section 1-39-102 must be read together with this section and § 1-6-301 .Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

Defendant must be beyond reach of law for service. —

In order to consider the invocation of this section it must be read to mean and understood to say that the defendant has absconded, concealed himself or departed from the state in such manner so that he is beyond the reaches of the law for purposes of service. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

There can be no reason for a tolling statute except where service is impossible or unusually difficult. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

The need and reason for the tolling statute fails where there is another readily available method of service. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

Where there is provision for substituted service section is inapplicable, and the limitation statute means what it says. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

Where a provision authorizes service on the nonresident motorist or the resident motorist who has concealed himself or who has absconded, the tolling statute serves no purpose. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

The absence from the state of a defendant in a wrongful death action did not toll the statute of limitations by reason of the applicability of this section where the defendant could have been served at any time through substituted service upon the secretary of state. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

Statute of limitations not tolled. —

Defendant's absence from state did not serve to toll statute of limitations, because substituted service of process could have been made upon defendant within state in accordance with § 1-6-301(a). Ryel v. Anderies, 4 P.3d 193, 2000 Wyo. LEXIS 89 (Wyo. 2000).

Trial court properly granted summary judgment to defendant emergency room (ER) doctor based on the two-year statute of limitations for medical malpractice actions. The fact that defendant was out of state was not enough to toll the statute of limitations, given the fact that plaintiff had no intention of bringing legal action against the ER doctor within the limitation period. Adams v. Walton, 2011 WY 58, 248 P.3d 1167, 2011 Wyo. LEXIS 61 (Wyo. 2011).

Tolling provision not rescinded by long-arm statute. —

After the cause of action for medical malpractice accrued, the defendant departed from the state of Wyoming, and then, as this section plainly states, during his absence, the statute of limitations was tolled. The policy behind the tolling provision in the statute of limitations was not rescinded by the existence of the long-arm statute (§ 5-1-107 ), since only if the plaintiff had known where to find the defendant, which she did not, would the long-arm statute have operated to permit effective service. Greenwood v. Wierdsma, 741 P.2d 1079, 1987 Wyo. LEXIS 518 (Wyo. 1987), limited, Adams v. Walton, 2011 WY 58, 248 P.3d 1167, 2011 Wyo. LEXIS 61 (Wyo. 2011).

Section does not require plaintiff use diligence in determining out-of-state whereabouts of defendant to be served. Greenwood v. Wierdsma, 741 P.2d 1079, 1987 Wyo. LEXIS 518 (Wyo. 1987), limited, Adams v. Walton, 2011 WY 58, 248 P.3d 1167, 2011 Wyo. LEXIS 61 (Wyo. 2011).

Burden of proof. —

Where a petition on a note and to foreclose a mortgage alleged, and the answer denied, that after the execution of the note defendants departed and remained absent from the state and the note as set out in petition showed on its face that it had matured more than the statutory period prior to the commencement of the action, the burden of proving the absence of defendant from the state was on the plaintiff. Ingersoll v. Davis, 14 Wyo. 120, 82 P. 867, 1905 Wyo. LEXIS 36 (Wyo. 1905).

Burden is on plaintiff to prove absence of defendant or to prove that he had absconded in order to conceal himself. Rosa v. Cantrell, 705 F.2d 1208, 1982 U.S. App. LEXIS 23413 (10th Cir. Wyo. 1982), cert. denied, 464 U.S. 821, 104 S. Ct. 85, 78 L. Ed. 2d 94, 1983 U.S. LEXIS 1117 (U.S. 1983).

Sufficiency of evidence. —

Testimony that defendants, who were husband and wife, left their home in the state and witness subsequently saw them at the “Denver Tramway Company,” where the husband was working, and that they were living there, “a block away from South Broadway,” without further testimony as to the town, city, county or state in which the places mentioned were situated was insufficient to show defendants' absence from the state, within the meaning of this section. Ingersoll v. Davis, 14 Wyo. 120, 82 P. 867, 1905 Wyo. LEXIS 36 (Wyo. 1905).

Lack of manufacturer identification on defective product. —

The mere fact that the product causing plaintiffs' injury had no mark identifying the manufacturer did not justify tolling the limitations period for plaintiffs' cause of action against the manufacturer under a theory of “concealment,” given that alternative methods of service were available. Nowotny v. L & B Contract Indus., 933 P.2d 452, 1997 Wyo. LEXIS 46 (Wyo. 1997).

Effect of former adjudication. —

Where petition on cause of action appearing on its face to be barred by limitations is demurred to (now moved against) for that reason and demurrer (now motion) sustained and another suit is thereafter brought on same facts with petition alleging facts showing statute has not run, latter suit cannot be maintained, as judgment upon demurrer (now motion) in first suit, though error, was a former adjudication barring any other suit. Price v. Bonnifield, 2 Wyo. 80, 1879 Wyo. LEXIS 9 (1879). See Rule 7, W.R.C.P.

Subsequent disability. —

When statute once begins to run, it is not arrested by any subsequent disability; and that rule was held to apply to the disability of coverture. Bliler v. Boswell, 9 Wyo. 57, 59 P. 798, 1900 Wyo. LEXIS 3 (Wyo.), reh'g denied, 9 Wyo. 57, 59 P. 798, 1900 Wyo. LEXIS 4 (Wyo. 1900).

Ten-year statute of limitations was not tolled in action on promissory note, where the lender knew the borrower's location in California, visited the borrower in California, knew the location of the borrower's residence, knew the borrower's mailing address and knew that the borrower was not avoiding service during this period. Stanbury v. Larsen, 803 P.2d 349, 1990 Wyo. LEXIS 151 (Wyo. 1990).

Applied in

Bon v. Lemp, 444 P.2d 333, 1968 Wyo. LEXIS 193 (Wyo. 1968).

Cited in

Kuhn v. McKay, 7 Wyo. 42, 49 P. 473, 1897 Wyo. LEXIS 9 (1897); Hammons v. International Playtex, Inc., 676 F. Supp. 1114, 1988 U.S. Dist. LEXIS 261 (D. Wyo. 1988); Habermehl v. Potter, 153 F.3d 1137, 1998 U.S. App. LEXIS 20746 (10th Cir. 1998); Hoke v. Motel 6 Jackson & Accor N. Am., Inc., 2006 WY 38, 131 P.3d 369, 2006 Wyo. LEXIS 41 (Wyo. Mar. 27, 2006).

Am. Jur. 2d, ALR and C.J.S. references. —

What constitutes concealment which will prevent running of statute of limitations, 1 ALR2d 630.

Provision of statute of limitations excluding period of defendant's absence from the state as applicable to a local cause of action against individual who was a nonresident when the same arose, 17 ALR2d 502.

Tolling of statute of limitations where process is not served before expiration of limitation period as affected by statutes defining commencement of an action or expressly relating to interruption of running of limitations, 27 ALR2d 236.

Absence of judgment debtor from state as suspending or tolling running of period of limitations as to judgment, 27 ALR2d 839.

Tolling of statute of limitations during absence from state as affected by fact that party claiming benefit of limitations remained subject to service during absence or nonresidence, 55 ALR3d 1158.

Posttraumatic syndrome as tolling running of statute of limitations, 12 ALR5th 546.

§ 1-3-117. Effect of foreign law.

If by the laws of the state or country where the cause of action arose the action is barred, it is also barred in this state.

History. Laws 1886, ch. 60, § 43; R.S. 1887, § 2379; R.S. 1899, § 3464; C.S. 1910, § 4308; C.S. 1920, § 5577; R.S. 1931, § 89-419; C.S. 1945, § 3-520; W.S. 1957, § 1-25; Laws 1977, ch. 188, § 1.

Limitations law of jurisdiction in which cause of action arises is law of this state, even though a defendant is properly before a Wyoming court, the place where he may be personally served with process and a remedy found. Duke v. Housen, 589 P.2d 334, 1979 Wyo. LEXIS 343 (Wyo.), reh'g denied, 590 P.2d 1340, 1979 Wyo. LEXIS 371 (Wyo. 1979), cert. denied, 444 U.S. 863, 100 S. Ct. 132, 62 L. Ed. 2d 86, 1979 U.S. LEXIS 3006 (U.S. 1979).

Whether characterized as substantive or procedural. —

The limitation of action statute of the foreign jurisdiction in which a cause in question arose is applied by the forum court regardless of whether or not the foreign limitation could be characterized as substantive or procedural: thus, in almost all instances, if a plaintiff's cause of action is time-barred in the jurisdiction in which the cause of action arose, it would be barred by the passage of time in the forum court as well. Duke v. Housen, 589 P.2d 334, 1979 Wyo. LEXIS 343 (Wyo.), reh'g denied, 590 P.2d 1340, 1979 Wyo. LEXIS 371 (Wyo. 1979), cert. denied, 444 U.S. 863, 100 S. Ct. 132, 62 L. Ed. 2d 86, 1979 U.S. LEXIS 3006 (U.S. 1979).

Application of “borrowing” statute. —

In applying a “borrowing” statute, a court must consider not only the borrowed limitation of action statute itself, but also any applicable tolling or other statutes as well as pertinent court cases of that state where the cause of action accrued. Duke v. Housen, 589 P.2d 334, 1979 Wyo. LEXIS 343 (Wyo.), reh'g denied, 590 P.2d 1340, 1979 Wyo. LEXIS 371 (Wyo. 1979), cert. denied, 444 U.S. 863, 100 S. Ct. 132, 62 L. Ed. 2d 86, 1979 U.S. LEXIS 3006 (U.S. 1979).

Wyo. Stat. Ann. § 1-3-117 (2015) did not provide a basis to apply the Shoshone and Arapahoe Law and Order Code's two-year statute of limitations to a non-Indian plaintiff's action against two tribal members for injuries sustained in an accident that occurred on a state highway within the reservation as the reservation was neither a state nor a country. C'Hair v. Dist. Court of the Ninth Judicial Dist., 2015 WY 116, 357 P.3d 723, 2015 Wyo. LEXIS 131 (Wyo. 2015).

Accrual of cause of action on mortgage obligation. —

Where a mortgage contains a promise or obligation to pay the indebtedness, and the indebtedness is to be paid in Colorado at a specified time, but it was not then and there paid, the cause of action accrues at that time and at that place. Baker v. First Nat'l Bank, 603 P.2d 397, 1979 Wyo. LEXIS 488 (Wyo. 1979).

Accrual of action involving mineral production. —

Although subject matter of contract was mineral production in Wyoming, cause of action arose in Colorado where contract was made and negotiated in Colorado, documents were delivered there, and alleged breach clearly occurred in Colorado; under this section, applicable statute of limitations was therefore that of Colorado. BHP Petroleum (Ams.), Inc. v. Texaco Exploration & Prod., Inc., 1 P.3d 1253, 2000 Wyo. LEXIS 73 (Wyo. 2000).

Application of “borrowing” statute. —

When applying a foreign jurisdiction's statute of limitations pursuant to Wyoming's borrowing statute, a Wyoming court should not also consider or apply that foreign jurisdiction's choice of law statutes or case law. Therefore, in a negligence case arising from a vehicle accident in Montana, the Montana three-year statute of limitations applied, but not its choice of law principles. Boutelle v. Boutelle, 2014 WY 147, 337 P.3d 1148, 2014 Wyo. LEXIS 171 (Wyo. 2014).

Quoted in

Cantonwine v. Fehling, 582 P.2d 592, 1978 Wyo. LEXIS 217 (Wyo. 1978); Stanbury v. Larsen, 803 P.2d 349, 1990 Wyo. LEXIS 151 (Wyo. 1990).

Cited in

Kuhn v. McKay, 7 Wyo. 42, 49 P. 473, 1897 Wyo. LEXIS 9 (1897); Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 1993 Wyo. LEXIS 85 (Wyo. 1993); Hronek v. Saint Joseph's Children's Home, 866 P.2d 1305, 1994 Wyo. LEXIS 6 (Wyo. 1994).

Law reviews. —

For note, “An Interest Analysis Approach to Wyoming's Borrowing Statute,” see XV Land & Water L. Rev. 717 (1980).

Am. Jur. 2d, ALR and C.J.S. references. —

Conflict of laws as to validity and effect of arbitration provision in contract for purchase or sale of goods, products or services, 95 ALR3d 1145.

Validity and effect of stipulation in contract to effect that it shall be governed by law of particular state which is neither place where contract is made nor place where it is to be performed, 16 ALR4th 967.

Validity, construction and application, in nonstatutory personal injury actions, of state statute providing for borrowing of statute of limitations of another state, 41 ALR4th 1025.

§ 1-3-118. Right to commence new action.

If in an action commenced in due time a judgment for the plaintiff is reversed, or if the plaintiff fails otherwise than upon the merits and the time limited for the commencement of the action has expired at the date of the reversal or failure, the plaintiff, or his representatives if he dies and if the cause of action survives, may commence a new action within one (1) year after the date of the failure or reversal. This provision also applies to any claim asserted in any pleading by a defendant.

History. Laws 1886, ch. 60, § 44; R.S. 1887, § 2380; R.S. 1899, § 3465; C.S. 1910, § 4309; C.S. 1920, § 5578; R.S. 1931, § 89-420; C.S. 1945, § 3-521; W.S. 1957, § 1-26; Laws 1977, ch. 188, § 1.

Cross references. —

As to abatement of actions by death, see § 1-4-102 .

Section applies only where first action was commenced in due time. Riley v. Union P. R. Co., 182 F.2d 765, 1950 U.S. App. LEXIS 2864 (10th Cir. Wyo. 1950).

Where public employee did not serve copies of her personal injury complaint on the state attorney general or the director of the department of employment in the manner required by Wyo. Stat. Ann. § 27-14-105(b) the complaint was barred by the statute of limitation, Wyo. Stat. Ann. § 1-3-105 because service was not perfected until after expiration of the four year statute of limitations. However, the savings statute, Wyo. Stat. Ann. § 1-3-118 , applied to allow the employee to refile the action. Haney v. Cribbs, 2006 WY 158, 148 P.3d 1118, 2006 Wyo. LEXIS 180 (Wyo. 2006).

And in Wyoming. —

This section does not apply to actions brought in a state other than Wyoming. Riley v. Union P. R. Co., 182 F.2d 765, 1950 U.S. App. LEXIS 2864 (10th Cir. Wyo. 1950).

Question whether original action sufficiently commenced. —

Where an amended petition showed that the time between the accrual of the cause of action and the filing of such petition exceeded the period of limitations, a demurrer (now motion) to the petition did not raise the question whether the summons issued on filing the original petition was a sufficient commencement of the action to entitle plaintiff to a new action within one year under this section. Columbia Sav. & Loan Ass'n v. Clause, 13 Wyo. 166, 78 P. 708, 1904 Wyo. LEXIS 33 (1904). See Rule 7, W.R.C.P.

No application to cases filed under the Wyoming Governmental Claims Act. —

Where plaintiff's minivan was struck by a county road grader on October 31, 2007, plaintiff's complaint filed against the county on February 20, 2009 was barred by the one-year period of limitations for bringing an action under the Wyoming Governmental Claims Act; likewise, plaintiff's second complaint filed against the county on July 27, 2009 was time-barred. The Supreme Court of Wyoming held that the savings statute did not apply to actions filed under the WGCA. Hall v. Park County, 2010 WY 124, 238 P.3d 580, 2010 Wyo. LEXIS 132 (Wyo. 2010).

No exceptions for voluntary dismissals.

Supreme court reversed the district court’s determination that the statute did not apply to dismissals without prejudice at the request of the plaintiff, and it reinstated a passenger’s suit against a driver because the statute was unambiguous and contained no “carve outs” or exceptions for voluntary dismissals; whether the passenger’s new action was substantially the same as the former and the measure of appropriate damages if he prevailed were questions to be determined in the district court. Hugus v. Reeder, 2022 WY 13, 503 P.3d 32, 2022 Wyo. LEXIS 13 (Wyo. 2022).

Inability to complete service. —

This section, the Wyoming savings statute, is designed for situations where the plaintiff files an action in a timely manner and makes a diligent good faith effort to serve the defendant but is unable to complete service within the 60-day time period of Rule 3(b), W.R.C.P., through no fault of his own. Rosa v. Cantrell, 705 F.2d 1208, 1982 U.S. App. LEXIS 23413 (10th Cir. Wyo. 1982), cert. denied, 464 U.S. 821, 104 S. Ct. 85, 78 L. Ed. 2d 94, 1983 U.S. LEXIS 1117 (U.S. 1983).

Improper joinder. —

Where service of process by the coroner was quashed because the sheriff was improperly joined as a party, a new action could be commenced under the provisions of this section within one year thereafter. Clause v. Columbia Sav. & Loan Ass'n, 16 Wyo. 450, 95 P. 54, 1908 Wyo. LEXIS 34 (Wyo. 1908).

Federal court dismissal. —

This section affords a plaintiff a year from a federal court dismissal to commence a new action in the state court. Ball v. Renner, 54 F.3d 664, 1995 U.S. App. LEXIS 15055 (10th Cir. Wyo. 1995).

The one-year time frame in this section controls over the 30-day tolling period that 28 USCS § 1367(d) provides for dismissed supplemental claims where state law does not grant a longer tolling period. Ball v. Renner, 54 F.3d 664, 1995 U.S. App. LEXIS 15055 (10th Cir. Wyo. 1995).

Dismissal with prejudice as sanction for discovery violations. —

District court did not exceed its authority or violate the Wyoming Constitution's separation of powers provision by dismissing a passenger's second personal injury complaint in response to repeated discovery violations because the procedural rule authorizing the sanction of dismissal with prejudice for discovery violations was clearly within the district court's authority to control the course of litigation. Reynolds v. Bonar, 2013 WY 144, 313 P.3d 501, 2013 Wyo. LEXIS 150 (Wyo. 2013).

Quoted in

McAteer v. Stewart, 696 P.2d 72, 1985 Wyo. LEXIS 456 (Wyo. 1985).

Cited in

Terex Corp. v. Hough, 2002 WY 112, 50 P.3d 317, 2002 Wyo. LEXIS 118 (Wyo. 2002); Bell v. Schell, 2004 WY 153, 101 P.3d 465, 2004 Wyo. LEXIS 197 (2004); Roush v. State, 2014 WY 45, 2014 Wyo. LEXIS 48 (Apr 8, 2014); Dirks v. Jimenez, 2015 WY 36, 2015 Wyo. LEXIS 41 (Mar. 6, 2015).

Am. Jur. 2d, ALR and C.J.S. references. —

Successive actions as within statutory provision fixing time within which new action may be commenced after nonsuit or judgment not on merits, 54 ALR2d 1229.

Statute permitting new action, after failure of original action timely commenced, as applicable where original action was filed in another state, 55 ALR2d 1038.

Determination of beginning of period allowed by statute for commencement of new action after failure, otherwise than on the merits, of action timely begun, 79 ALR2d 1270.

Voluntary dismissal or nonsuit as within provision of statute extending time for new action in case of dismissal or failure of original action otherwise than upon the merits, 79 ALR2d 1290.

Character or kind of action or proceeding within operation of statute which permits new action after expiration of period of limitation, upon failure of previous action commenced within the period, 79 ALR2d 1309.

Statute permitting new action after failure of original action commenced within period of limitation, as applicable in cases where original action fails for lack of jurisdiction, 6 ALR3d 1043.

Applicability, as affected by change in parties, of statute permitting commencement of new action within specified time after failure of prior action not on merits, 13 ALR3d 848.

Effect of statute permitting new action to be brought within specified period after failure of original action other than on the merits to limit period of limitations, 13 ALR3d 979.

Application to period of limitations fixed by contract of statute permitting new action to be brought within specified time after failure of prior action for cause other than on the merits, 16 ALR3d 452.

§ 1-3-119. Effect of partial payment or new promise in writing.

When payment has been made upon any demand founded on contract or a written acknowledgment thereof, or promise to pay the same has been made and signed by the party to be charged, the time for commencing an action runs from the date of such payment, acknowledgment or promise.

History. Laws 1886, ch. 60, § 45; R.S. 1887, § 2381; R.S. 1899, § 3466; C.S. 1910, § 4310; C.S. 1920, § 5579; R.S. 1931, § 89-421; C.S. 1945, § 3-522; W.S. 1957, § 1-27; Laws 1977, ch. 188, § 1.

Propriety of suing upon original obligation. —

In action on note, it is proper to sue upon original obligation, relying upon a reply, after bar of statute of limitations has been alleged in defendant's answer, avoiding that bar through claim of acknowledgment of indebtedness. Investment & Sec. Co. v. Bunten, 56 Wyo. 77, 103 P.2d 414, 1940 Wyo. LEXIS 28 (1940). See Rule 7 and 8, W.R.C.P.

Promise to pay balance implied. —

Part payment takes action on debt out of statute of limitation, since promise to pay balance is implied. Smith v. Smith, 39 Wyo. 107, 270 P. 174, 1928 Wyo. LEXIS 84 (Wyo. 1928).

Sufficient acknowledgment to revive debt. —

Letters which make excuses for nonpayment of a note and do not deny the obligation, nor regard indebtedness as nonexistent, are sufficient acknowledgment to revive the debt or claim otherwise barred by limitations. Investment & Sec. Co. v. Bunten, 56 Wyo. 77, 103 P.2d 414, 1940 Wyo. LEXIS 28 (Wyo. 1940).

Statute of limitations was tolled by letter from property owner's attorney to a contractor's attorney which acknowledged a debt clearly identifiable in the contractor's subsequent claim. Longstaff v. Mills, 773 P.2d 149, 1989 Wyo. LEXIS 119 (Wyo. 1989).

Circumstances of payment considered. —

Circumstances surrounding payments by brother to sister could be considered in determining whether payments were applicable to brother's note, relieving note of bar by limitations. Smith v. Smith, 39 Wyo. 107, 270 P. 174, 1928 Wyo. LEXIS 84 (Wyo. 1928).

Maker's intentions not shown by endorsements. —

Maker's intentions in making payments are not shown by endorsement of payments on note in determining whether payments took note out of statute of limitations. Smith v. Smith, 39 Wyo. 107, 270 P. 174, 1928 Wyo. LEXIS 84 (Wyo. 1928).

Effect of payment by comaker. —

A payment on a note by one of two jointly and severally liable thereon, made without the knowledge or consent of the other, does not suspend the running of the statute in favor of the other. Cowhick v. Shingle, 5 Wyo. 87, 37 P. 689, 1894 Wyo. LEXIS 23 (Wyo. 1894).

Where one of two makers of a joint and several promissory note makes a payment thereon, so doing does not prevent running of the statute of limitations as to the other maker. Bergman v. Bly, 66 F. 40, 1895 U.S. App. LEXIS 2292 (8th Cir. Wyo. 1895).

Proceeds of foreclosure sale not deemed payment. —

The application of proceeds of a mortgage foreclosure sale on the mortgage note is not a payment which arrests the running of limitations within this section. Union Stockyards Nat'l Bank v. Maika, 16 Wyo. 141, 92 P. 619, 1907 Wyo. LEXIS 43 (Wyo. 1907).

Cited in

NuHome Invs., LLC v. Weller, 2003 WY 171, 81 P.3d 940, 2003 Wyo. LEXIS 207 (Wyo. 2003).

Am. Jur. 2d, ALR and C.J.S. references. —

Moral obligation to pay barred debt as consideration for a new promise, 8 ALR2d 787.

Entry or endorsement by creditor on note, bond or other obligation as evidence of part payment which will toll the statute of limitations, 23 ALR2d 1331.

Acknowledgment or promise to pay judgment as affecting running of statute of limitations, 45 ALR2d 967.

Acknowledgment, new promise or part payment as affecting running of limitations on account stated, 51 ALR2d 331.

Payment by 1 of 2 or more joint or several debtors as suspending or tolling limitations, 74 ALR2d 1287.

Acceptance of past due interest, default in payment of which accelerates maturity of note or mortgage, as suspending the running of limitations, 97 ALR2d 997.

Necessity and sufficiency, in order to toll statute of limitations as to debt, of statement of amount of debt in acknowledgment or new promise to pay, 21 ALR4th 1121.

When statute of limitations commences to run against promise to pay debt “when able,” “when convenient,” or the like, 67 ALR5th 479.

§ 1-4-101. Causes of action that survive.

In addition to the causes of action which survive at common law, causes of action for mesne profits, injuries to the person, an injury to real or personal estate, or any deceit or fraud also survive. An action may be brought notwithstanding the death of the person entitled or liable to the same, but in actions for personal injury damages, if the person entitled thereto dies recovery is limited to damages for wrongful death.

History. Laws 1886, ch. 60, § 28; R.S. 1887, § 2364; R.S. 1899, § 3447; C.S. 1910, § 4290; C.S. 1920, § 5559; R.S. 1931, § 89-402; C.S. 1945, § 3-402; Laws 1947, ch. 124, § 1; W.S. 1957, § 1-28; Laws 1977, ch. 188, § 1.

Cross references. —

For provision giving personal representative the right to bring new action when cause of action survives and timely suit failed otherwise than on the merits, see § 1-3-118 .

“Survival” defined. —

In the context of a survival action, “survive” means to continue to live or exist beyond the life, or existence of; to live through; to live on after passing through; to remain alive. Thus, this section cannot apply to harm allegedly done to an estate after death. Connely v. McColloch (In re Estate of Drwenski), 2004 WY 5, 83 P.3d 457, 2004 Wyo. LEXIS 9 (Wyo. 2004).

Cause of action for personal injuries survives. —

Formerly, cause of action for purely personal injuries, caused by negligence of another, did not survive death of wrongdoer. Tuttle v. Short, 42 Wyo. 1, 288 P. 524, 1930 Wyo. LEXIS 31 (Wyo. 1930).

By amendment in 1947 the legislature effectively permitted a cause of action for personal injuries to survive. Parsons v. Roussalis, 488 P.2d 1050, 1971 Wyo. LEXIS 248 (Wyo. 1971).

Before the 1947 amendment to this section, which extended the section to personal injuries and added the proviso as to personal injury damages, it was held that this section did not authorize the personal representative of a person who had died from injuries to recover from the estate of a deceased wrongdoer for pecuniary losses suffered by the family of the injured person. Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380, 1949 Wyo. LEXIS 20 (1949). See § 1-39-101 .

Causes of action for damages or injury to persons and property survive and are assignable, and consequently can be the subject of a claim for conventional subrogation. Northern Utils. Div. of K N Energy v. Evansville, 822 P.2d 829, 1991 Wyo. LEXIS 187 (Wyo. 1991).

This section is ambiguous as to the applicability of language in second sentence beginning with “but.” De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

What that language refers to. —

The language in the second sentence beginning with “but” refers to those cases where death results from the injuries complained of. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

The language in the second sentence beginning with “but” does not attach to the words “injuries to the person” under circumstances other than wrongful death actions where the negligence causes the death. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

Cause survives where death due to unconnected illness. —

A cause of action for personal injuries survives under this section where the injured party dies of an illness unconnected with the alleged negligence of a defendant. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

It is not reasonable to relate wrongful death recovery to negligent acts not causing death. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

Where a person is injured by another, if he dies from other causes, an action for personal injury survives; however, if death results from the same injuries, the action may not be maintained by the personal representative for the estate, but may be brought under the wrongful death act for the next of kin. Robinson v. Pacificorp, 10 P.3d 1133, 2000 Wyo. LEXIS 193 (Wyo. 2000).

Where decedent's death is due to wrongful injuries, suit is permitted under either this section or §§ 1-38-101 and 1-38-102 .Parsons v. Roussalis, 488 P.2d 1050, 1971 Wyo. LEXIS 248 (Wyo. 1971).

But recovery is limited to that stemming from wrongful death. —

pain and suffering of the decedent, according to the words of this section, having no part in establishing damages. Parsons v. Roussalis, 488 P.2d 1050, 1971 Wyo. LEXIS 248 (Wyo. 1971).

Complete remedy for wrongful death not allowed. —

Wyoming's survival statute with its language in the second sentence beginning with “but” is unique in that it does not allow a complete remedy for wrongful death as in other jurisdictions. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

Both a recovery for the estate and a recovery for the survivors are not available in wrongful death actions because of the language in the second sentence of this section which begins with “but.” De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

Distinctions between survival and wrongful death statutes. —

The prime difference between survival and wrongful death statutes is that the survival statute merely continues a cause of action in existence. The injured party's claim after death is an asset of the estate, while the wrongful death statute creates a new cause of action for the benefit of designated persons who have suffered the loss of a loved one and provider. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977); Rosa v. Cantrell, 705 F.2d 1208, 1982 U.S. App. LEXIS 23413 (10th Cir. Wyo. 1982), cert. denied, 464 U.S. 821, 104 S. Ct. 85, 78 L. Ed. 2d 94, 1983 U.S. LEXIS 1117 (U.S. 1983).

Survival statutes permit the personal representative of the deceased to prosecute any claims for personal injury the deceased would have had but for his death but do not permit recovery for harms suffered by the decedent's family as a result of his death. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

The survival statute protects the creditors of the estate; the Wrongful Death Act does not. De Herrera v. Herrera, 565 P.2d 479, 1977 Wyo. LEXIS 263 (Wyo. 1977).

Quoted in

Rodriguez v. Casey, 2002 WY 111, 50 P.3d 323, 2002 Wyo. LEXIS 117 (Wyo. 2002).

Cited in

Taylor v. Estate of Taylor, 719 P.2d 234, 1986 Wyo. LEXIS 557 (Wyo. 1986).

Law reviews. —

For case note, “Should a Wrongful Death Action Expire Before the Decedent Does? A Wrong Turn for Wrongful Death,” see XXXV Land & Water L. Rev. 235 (2000).

Am. Jur. 2d, ALR and C.J.S. references. —

Survival of action for invasion of right of privacy, 14 ALR2d 750, 57 ALR3d 16.

Survival of action based on delay in passing upon application for insurance, 32 ALR2d 487.

Claim for negligently damaging or destroying personal property as surviving tortfeasor's death, 40 ALR2d 533.

Statutory liability for physical injuries inflicted by animal as surviving defendant's death, 40 ALR2d 543.

Death of beneficiary as affecting right of action under death statute, 43 ALR2d 1291.

Survival of obligation of guaranty, 41 ALR2d 1213.

Action or claim for punitive damages as surviving death of person wronged, 63 ALR2d 1327.

Death as terminating coexecutor's, coadministrator's or testamentary cotrustee's liability for defaults or wrongful acts of fiduciary in handling trust or estate, 65 ALR2d 1019.

Survivability of cause of action created by civil rights statute, 88 ALR2d 1153.

Survival of cause of action under Civil Damage Act, 94 ALR2d 1140.

Survivability of action for libel by will, 21 ALR3d 754.

Death of putative father as precluding action for determination of paternity or for support of illegitimate child, 58 ALR3d 188.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value of earnings decedent would have made after death, 76 ALR3d 125.

Validity of exception for specific kind of tort action in survival statute, 77 ALR3d 1349.

Products liability: forklift trucks, 95 ALR3d 541.

Judgment in favor of, or adverse to, person injured as barring action for his death, 26 ALR4th 1264.

Claim for punitive damages in tort action as surviving death of tortfeasor or person wronged, 30 ALR4th 707.

Defamation action as surviving plaintiff's death, under statute not specifically covering action, 42 ALR4th 272.

When is death “instantaneous” for purposes of wrongful death or survival action, 75 ALR4th 151.

Right of workers' compensation insurer or employer paying to a workers' compensation fund, on the compensable death of an employee with no dependants, to indemnity or subrogation from proceeds of wrongful death action brought against third-party tortfeasor, 7 ALR5th 969.

Excessiveness or inadequacy of punitive damages awarded in personal injury or death cases, 12 ALR5th 195.

Wrongful death damages for loss of expectancy of inheritance from decedent, 42 ALR5th 465.

Survival of action or cause of action based on violation of antitrust laws, 11 ALR Fed 963.

§ 1-4-102. Abatement of actions by death.

No action or proceeding pending in any court abates by the death of either or both of the parties thereto except as herein provided; an action for libel, slander, malicious prosecution, assault, assault and battery or nuisance shall abate by the death of either party.

History. Laws 1886, ch. 60, § 195; R.S. 1887, § 2531; R.S. 1899, § 3622; C.S. 1910, § 4477; C.S. 1920, § 5747; R.S. 1931, § 89-1227; C.S. 1945, § 3-2301; W.S. 1957, § 1-29; Laws 1977, ch. 188, § 1; 2004, ch. 42, § 1.

Cross references. —

As to limitation of actions for libel, slander, assault, battery and malicious prosecution, see § 1-3-105 .

For provision that proceedings on orders of attachment shall not abate if the defendant dies or a defendant corporation loses its charter, see § 1-4-101 .

For provision that cause of action for wrongful death survives the death of the person liable, see § 1-38-101 .

As to criminal nuisances, see § 6-6-201 et seq.

As to substitution of parties when one dies, see Rule 25, W.R.C.P.

The 2004 amendment substituted “battery or nuisance” for “battery, nuisance, or against a justice of the peace for misconduct in office.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Section is expressly limited to pending actions and cannot be construed as referring to actions which have not yet been commenced. Mull v. Wienbarg, 66 Wyo. 410, 212 P.2d 380, 1949 Wyo. LEXIS 20 (Wyo. 1949).

Time to bring appellate proceedings not suspended. —

Statutes dealing with revivor of actions after death of a party do not suspend running of time limit within which appellate proceedings must be brought to view judgment or final order of trial court. Rowray v. McCarthy, 48 Wyo. 108, 42 P.2d 54, 1935 Wyo. LEXIS 23 (Wyo. 1935).

Death of appellant after original decision on appeal had been rendered does not require substitution of appellant's heirs and administrator as parties, on respondent's motion for substitution and petition for rehearing, under this section, where former opinion would not be disturbed. Lovejoy v. Lovejoy, 38 Wyo. 358, 267 P. 91, 1928 Wyo. LEXIS 54 (Wyo. 1928).

Death statutes. —

Sections 1-39-101 and 1-39-102 are not mere survival statutes and recovery may be had though deceased died instantaneously. Coliseum Motor Co. v. Hester, 43 Wyo. 298, 3 P.2d 105, 1931 Wyo. LEXIS 27 (Wyo. 1931).

Successor in trust as party. —

By analogy to the practice in the district court under the code, the successor in trust would seem to be a proper party. Field v. Leiter, 16 Wyo. 1, 90 P. 378, 1907 Wyo. LEXIS 34 (Wyo.), reh'g denied, 16 Wyo. 1, 92 P. 622, 1907 Wyo. LEXIS 35 (Wyo. 1907).

Sufficiency of affidavit. —

An affidavit by a third person, who seeks to be substituted as plaintiff in ejectment, which states that during pendency of the action the original plaintiff transferred, by warranty deed, all her interest in the premises to the applicant, and then died, and that the applicant is now the owner of the property, does not state with sufficient clearness a case entitling applicant to substitution, since deed, while absolute in terms, may be in effect only a mortgage, a mere colorable conveyance, void for want of consideration, or procured by duress or fraud. Smith v. Harrington, 3 Wyo. 503, 27 P. 803, 1891 Wyo. LEXIS 12 (Wyo. 1891); Smith v. City of Cheyenne, 3 Wyo. 513, 27 P. 807, 1891 Wyo. LEXIS 13 (1891).

Upon forfeiture of charter of corporation, pending action against it was not abated, but could proceed in the corporate name, as general laws governing revivor of actions are not controlling. Lusk Lumber Co. v. Independent Producers Consol., 43 Wyo. 191, 299 P. 1044, 1931 Wyo. LEXIS 17 (Wyo. 1931).

Applied in

Parsley v. Wyoming Automotive Co., 395 P.2d 291, 1964 Wyo. LEXIS 121 (Wyo. 1964).

Am. Jur. 2d, ALR and C.J.S. references. —

Medical malpractice action as abating upon death of either party, 50 ALR2d 1445.

Abatement or survival of action for attorney's malpractice or negligence upon death of either party, 65 ALR2d 1211.

Recovery, in action for benefit of decedent's estate in jurisdiction which has both wrongful death and survival statutes, of value of earnings decedent would have made after death, 76 ALR3d 125.

Validity of exception for specific kind of tort action in survival statute, 77 ALR3d 1349.

Libel by newspaper headline, 95 ALR3d 660.

Bells, carillons and the like as nuisance, 95 ALR3d 1268.

Effect of death of beneficiary upon right of action under death statute, 13 ALR4th 1060.

Defamation action as surviving plaintiff's death, under statute not specifically covering action, 42 ALR4th 272.

Abatement of state criminal case by accused's death pending appeal of conviction — modern cases, 80 ALR4th 189.

§ 1-5-101. Actions to be brought where real property situated; exceptions.

1. Actions for the following causes shall  be brought in the county in which the subject of the action is situate,  except as provided in W.S. 1-5-102 and 1-5-103 :
   1. For the recovery of real property, or  of an estate or interest therein;
   2. For the partition of real property;
   3. For the sale of real property under a  mortgage, lien or other encumbrance or charge.

History. Laws 1886, ch. 60, § 75; R.S. 1887, § 2411; R.S. 1899, § 3496; C.S. 1910, § 4340; C.S. 1920, § 5609; R.S. 1931, § 89-701; C.S. 1945, § 3-801; W.S. 1957, § 1-30; Laws 1977, ch. 188, § 1.

Cross references. —

For another provision concerning venue of proceedings to partition land, see § 1-32-102 .

As to venue of proceedings to determine heirship to land, see § 2-9-201 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Locus of injury to land. —

The district court of Wyoming had jurisdiction to restrain another from diverting the water of the stream by means of a ditch constructed in Montana, and by it carrying the water to his land in Wyoming, the locus of the injury to the owners being in Wyoming, where their ditch and lands were situated. Willey v. Decker, 11 Wyo. 496, 73 P. 210, 1903 Wyo. LEXIS 22 (Wyo. 1903).

Locus of ditch and headgate. —

Where owners of lands in Montana have acquired, by prior appropriation, the right to use for irrigating their lands the water of a stream by means of a ditch and headgate located in Wyoming, the district court of Wyoming had jurisdiction to restrain others from diverting the water by means of ditches located in Wyoming or in Montana for the irrigation of land in Wyoming. Willey v. Decker, 11 Wyo. 496, 73 P. 210, 1903 Wyo. LEXIS 22 (Wyo. 1903).

Foreclosure against nonresident. —

Foreclosure of city lien against realty for street improvements where correct address of nonresident owner was on file and where city omitted filing affidavit to establish defendant's residence was unknown and could not “with reasonable diligence be ascertained” was void. Elstermeyer v. Cheyenne, 57 Wyo. 256, 116 P.2d 231, 1941 Wyo. LEXIS 29 (Wyo. 1941), reh'g denied, 57 Wyo. 421, 120 P.2d 599, 1942 Wyo. LEXIS 1 (Wyo. 1942).

Action on mortgage after foreclosure and redemption. —

Since a mortgage foreclosed upon did not survive the foreclosure sale and redemption, there was no real property at issue, and an action to collect the debt after the defendants failed to pay the deficiency was improperly venued in the county where the property was located. First Southwestern Fin. Servs. v. Laird, 882 P.2d 1211, 1994 Wyo. LEXIS 106 (Wyo. 1994).

Quoted in

Spear v. Nicholson, 882 P.2d 1237, 1994 Wyo. LEXIS 124 (Wyo. 1994).

Stated in

Zweifel v. State ex rel. Brimmer, 517 P.2d 493, 1974 Wyo. LEXIS 172 (Wyo. 1974).

Law reviews. —

See comment, “Procedural Considerations in the Judicial Determination of Water Disputes,” 8 Land & Water L. Rev. 513 (1974).

Am. Jur. 2d, ALR and C.J.S. references. —

Lien as estate or interest in land within venue statute, 2 ALR2d 1261.

Venue of action to set aside as fraudulent conveyance of real property, 37 ALR2d 568.

§ 1-5-102. Property situate in more than a single county.

When the property is situate in more than one (1) county, the action may be brought in either, but in actions to recover real property, this can only be done when the property is an entire tract.

History. Laws 1886, ch. 60, § 76; R.S. 1887, § 2412; R.S. 1899, § 3497; C.S. 1910, § 4341; C.S. 1920, § 5610; R.S. 1931, § 89-702; C.S. 1945, § 3-802; W.S. 1957, § 1-31; Laws 1977, ch. 188, § 1.

County where personal service on defendants possible. —

Where action to foreclose a mortgage on two parcels of land some distance apart and lying in two counties was brought in one county, statutory language authorized action to be brought “in Sheridan County, where personal service could be had on both defendants.” Bank of Commerce v. Williams, 52 Wyo. 1, 69 P.2d 525, 1937 Wyo. LEXIS 38 (Wyo. 1937).

§ 1-5-103. Specific performance of sale contract for realty.

An action to compel the specific performance of a contract of sale of real estate may be brought in the county where any of the defendants reside.

History. Laws 1886, ch. 60, § 77; R.S. 1887, § 2413; R.S. 1899, § 3498; C.S. 1910, § 4342; C.S. 1920, § 5611; R.S. 1931, § 89-703; C.S. 1945, § 3-803; W.S. 1957, § 1-32; Laws 1977, ch. 188, § 1.

Enforcement of lease not specific performance. —

It is doubtful if an action primarily to enforce a contract for a lease containing a number of reciprocal stipulations is an action for specific performance of a sale of real estate. Otis Oil & Gas Corp. v. Maier, 74 Wyo. 137, 284 P.2d 653, 1955 Wyo. LEXIS 22 (Wyo. 1955).

Where action is brought in county of vendor's residence, though land is located in another county in another judicial district, decree requiring vendor's specific performance of real estate contract operates as conveyance when vendor fails to obey it within statutory time. Cantou v. Walker, 61 Wyo. 56, 154 P.2d 530, 1945 Wyo. LEXIS 2 (Wyo. 1945).

A decree for specific performance of real estate contract operates as deed without actual execution of conveyance if defendant fails to obey it within time faced by statute, and decree may be recorded in county where land lies. Cantou v. Walker, 61 Wyo. 56, 154 P.2d 530, 1945 Wyo. LEXIS 2 (Wyo. 1945).

Stated in

In re Estate of Frederick, 599 P.2d 550, 1979 Wyo. LEXIS 442 (Wyo. 1979).

Am. Jur. 2d, ALR and C.J.S. references. —

Venue of action for specific performance of contract pertaining to real property, 63 ALR2d 456.

§ 1-5-104. Actions to be brought where cause of action arose.

1. Actions for the following causes shall be brought in the county where the cause or some part thereof arose:
   1. For the recovery of a fine, forfeiture or penalty imposed by a statute. When it is imposed for an offense committed on a river or other water course or a road which is the boundary of the state or of two (2) or more counties, the action may be brought in any county bordering on the river, water course or road, and opposite to the place where the offense was committed;
   2. Against a public officer for an act done by virtue or under color of his office, or for a neglect of his official duty;
   3. On the official bond or undertaking of a public officer.
2. Actions for small claims proceedings under W.S. 1-21-201 through 1-21-205 may be brought in the county where the cause of action or some part thereof arose.

History. Laws 1886, ch. 60, § 78; R.S. 1887, § 2414; R.S. 1899, § 3499; C.S. 1910, § 4343; C.S. 1920, § 5612; R.S. 1931, § 89-704; C.S. 1945, § 3-804; W.S. 1957, § 1-33; Laws 1977, ch. 188, § 1; 2021 ch. 67, § 1, effective July 1, 2021.

The 2021 amendment , effective July 1, 2021, added (b).

Cited in

State ex rel. Wyo. Farm Loan Bd. v. Herschler, 622 P.2d 1378, 1981 Wyo. LEXIS 285 (Wyo. 1981).

Am. Jur. 2d, ALR and C.J.S. references. —

Venue as to suit for avoidance of release or satisfaction of judgment, 9 ALR2d 553.

Venue of actions or proceedings against public officers, 48 ALR2d 423.

Venue in action for malicious prosecution, 12 ALR4th 1278.

What is the judicial district “in which the claim arose” for venue purposes under 28 USC § 1391(a) and (b), 59 ALR Fed 320.

§ 1-5-105. Actions against domestic corporations.

An action, other than those mentioned in W.S. 1-5-101 through 1-5-103 , against a corporation created under the laws of this state may be brought in the county in which the corporation is situate or has its principal office or place of business. If the corporation is an insurance company the action may be brought in the county wherein the cause of action or some part thereof arose.

History. Laws 1886, ch. 60, § 79; R.S. 1887, § 2415; R.S. 1899, § 3500; C.S. 1910, § 4344; C.S. 1920, § 5613; R.S. 1931, § 89-705; C.S. 1945, § 3-805; W.S. 1957, § 1-34; Laws 1977, ch. 188, § 1.

Action against individual and corporation. —

Under this section, it was held that an action against an individual residing in one county and a domestic corporation having its principal office in another county, for damages in consequence of their joint negligence in conducting log drives on a river, was properly brought in the county of the residence of the individual. Harrison v. Carbon Timber Co., 14 Wyo. 246, 83 P. 215, 1905 Wyo. LEXIS 40 (Wyo. 1905).

Change of venue. —

Defendant by going to trial waived fact that original pleadings were not sent to Crook County on change of venue from Weston County, since such defect did not deprive court of jurisdiction. J.J. Mayou Mfg. Co. v. Consumers Oil & Ref. Co., 60 Wyo. 75, 146 P.2d 738, 1944 Wyo. LEXIS 3 , 151 A.L.R. 1243 (1940). See Rule 12, W.R.C.P.

Cited in

Cameron v. Lockhart, 79 Wyo. 187, 332 P.2d 65, 1958 Wyo. LEXIS 41 (1958).

Am. Jur. 2d, ALR and C.J.S. references. —

Place where corporation is doing business for purposes of state venue statute, 42 ALR5th 221.

§ 1-5-106. Actions against public carriers and railroad companies.

An action for an injury to person or property upon a liability as a public carrier, or an action against a railroad company, may be brought in any county through or into which the carrier or railroad line passes.

History. Laws 1886, ch. 60, § 80; R.S. 1887, § 2416; R.S. 1899, § 3501; C.S. 1910, § 4345; C.S. 1920, § 5614; R.S. 1931, § 89-706; C.S. 1945, § 3-806; W.S. 1957, § 1-35; Laws 1977, ch. 188, § 1.

Cited in

Harrison v. Carbon Timber Co., 14 Wyo. 246, 83 P. 215, 1905 Wyo. LEXIS 40 (1905).

Am. Jur. 2d, ALR and C.J.S. references. —

Federal Motor Carrier Act requiring designation of process agent as affecting venue, 8 ALR2d 814.

Proper forum and right to maintain action for accident causing death over or in high seas, 66 ALR2d 1002.

§ 1-5-107. Actions against nonresidents and foreign corporations.

An action, other than one (1) of those mentioned in W.S. 1-5-101 through 1-5-104 , against a nonresident of this state or a foreign corporation, whether or not codefendants reside in Wyoming, may be brought in any county where the cause of action arose or where the plaintiff resides.

History. Laws 1886, ch. 60, § 83; R.S. 1887, § 2419; R.S. 1899, § 3504; C.S. 1910, § 4348; C.S. 1920, § 5617; R.S. 1931, § 89-707; Laws 1945, ch. 56, § 1; C.S. 1945, § 3-807; W.S. 1957, § 1-36; Laws 1977, ch. 188, § 1; 1983, ch. 157, § 1.

Cross references. —

As to service of process on nonresident motorist, see § 1-6-301 .

As to foreign corporations generally, see §§ 17-16-1501 to 17-16-1534.

As to jurisdiction and venue over nonresident manufacturers and dealers under Mobile Home Warranty Act, see § 35-18-110 .

Purpose of section. —

In passing this section and § 26-3-121 , the legislature was interested in the furnishing of a local forum for residents of this state and for nonresidents when the cause of action arises in this state. Lohman v. Jefferson Standard Life Ins. Co., 525 P.2d 1, 1974 Wyo. LEXIS 224 (Wyo. 1974).

Where there is nonresident plaintiff and cause of action arises and all contracts have been outside state, this section and § 26-3-121 , absent unjustified judicial enlargement, provide for no jurisdiction in Wyoming courts over nonresidents of the state. Lohman v. Jefferson Standard Life Ins. Co., 525 P.2d 1, 1974 Wyo. LEXIS 224 (Wyo. 1974).

No jurisdiction of property or person. —

Where goods have been seized on attachment, a judgment rendered and sale ordered, a writ of prohibition to prevent such sale will not issue, though the court had no jurisdiction either of the property or of the person, as the office of the writ is to arrest judicial, and not ministerial, proceedings. Dobson v. Westheimer, 5 Wyo. 34, 36 P. 626, 1894 Wyo. LEXIS 13 (Wyo. 1894).

Where tortious acts were committed. —

The exercise of undue influence upon a decedent by the widow and her son causing him to execute documents concerning property, constituted tortious acts, and venue properly existed where the tort was committed and where the cause of action arose. Spear v. Nicholson, 882 P.2d 1237, 1994 Wyo. LEXIS 124 (Wyo. 1994).

Venue of general action by state attorney general to enforce the laws of the state may properly be filed in the county where he has his office. Zweifel v. State, 517 P.2d 493, 1974 Wyo. LEXIS 172 (Wyo. 1974).

Cited in

Harrison v. Carbon Timber Co., 14 Wyo. 246, 83 P. 215, 1905 Wyo. LEXIS 40 (1905); Pease Bros. v. American Pipe & Supply Co., 522 P.2d 996, 1974 Wyo. LEXIS 208 (Wyo. 1974).

Law reviews. —

See comment, “Procedural Considerations in the Judicial Determination of Water Disputes,” 8 Land & Water L. Rev. 513 (1974).

Am. Jur. 2d, ALR and C.J.S. references. —

Venue of action against nonresident motorist served constructively under statute, 38 ALR2d 1198.

Forum non conveniens doctrine in state court as affected by availability of alternative forum, 57 ALR4th 973.

Place where corporation is doing business for purposes of state venue statute, 42 ALR5th 221.

Effect of American citizenship or residency of libelant who has alternate forum abroad on applicability of doctrine of forum non conveniens in admiralty action brought in United States district court, 70 ALR Fed 875.

§ 1-5-108. Actions not otherwise provided for; exception.

Every action not otherwise provided for in this chapter shall be brought in the county in which a defendant resides or may be summoned, except actions against an executor, administrator, guardian or trustee, which may be brought in the county where he was appointed or resides. If the action involves two (2) or more defendants, the action may be brought against all defendants in any county in which one (1) of the defendants resides or may be summoned.

History. Laws 1886, ch. 60, § 84; R.S. 1887, § 2420; R.S. 1899, § 3505; C.S. 1910, § 4349; C.S. 1920, § 5618; R.S. 1931, § 89-708; C.S. 1945, § 3-808; W.S. 1957, § 1-37; Laws 1977, ch. 188, § 1; 1983, ch. 157, § 1; 1985, ch. 180, § 2.

Legal malpractice.—

It was an abuse of discretion to deny a motion to dismiss a legal malpractice action for improper venue because (1) suit was not filed in the county in which a law firm and attorneys resided, had their principal place of business, and were summoned, and (2) the statute could not be read so broadly as to authorize the filing of suit in another county without the attorneys and firm being summoned in that county. Aron v. Willey, 2019 WY 122, 453 P.3d 1031, 2019 Wyo. LEXIS 122 (Wyo. 2019).

Action against individual and corporation. —

In an action against an individual residing in one county and a corporation having its office in another county, the action was properly brought in the county where the individual resided. Harrison v. Carbon Timber Co., 14 Wyo. 246, 83 P. 215, 1905 Wyo. LEXIS 40 (Wyo. 1905).

Replevin not local action. —

Under this section, replevin is not a local action, and need not be brought where the goods are detained and the petition need not allege the venue of the detention. 16 Wyo. 161, 92 P. 624.

Applied in

First S.W. Fin. Servs. v. Laird, 882 P.2d 1211, 1994 Wyo. LEXIS 106 (Wyo. 1994).

Cited in

Willey v. Decker, 11 Wyo. 496, 73 P. 210, 1903 Wyo. LEXIS 22 (1903); Harrison v. Carbon Timber Co., 14 Wyo. 246, 83 P. 215, 1905 Wyo. LEXIS 40 (1905); Cameron v. Lockhart, 79 Wyo. 187, 332 P.2d 65, 1958 Wyo. LEXIS 41 (1958); Nicholaus v. Nicholaus, 756 P.2d 1338, 1988 Wyo. LEXIS 95 (Wyo. 1988).

Am. Jur. 2d, ALR and C.J.S. references. —

Place of personal representative's appointment as venue of action against him in his official capacity, 93 ALR2d 1199.

Venue for currency reporting offense under Currency and Foreign Transactions Reporting Act (CFTRA) (31 USC § 5311 et seq.), 113 ALR Fed 639.

§ 1-5-109. Actions for personal injuries or wrongful death.

An action for personal injuries or wrongful death may be brought in the county in which the cause of action arose or in the county in which the defendant resides or may be summoned.

History. Laws 1985, ch. 180, § 1.

§ 1-6-101. Endorsement by sheriff required.

The sheriff shall endorse upon every writ or order, the day and hour it was received by him.

History. Laws 1886, ch. 60, § 20; R.S. 1887, § 2356; R.S. 1899, § 3439; C.S. 1910, § 4282; C.S. 1920, § 5551; R.S. 1931, § 89-211; C.S. 1945, § 3-902; W.S. 1957, § 1-39; Laws 1977, ch. 188, § 1.

§ 1-6-102. Service of process when sheriff is an interested party.

When the sheriff is a party or is interested in an action, process shall be directed to and executed by a person over the age of eighteen (18) years, not a party to the action, appointed for that purpose by the court.

History. Laws 1886, ch. 60, § 21; R.S. 1887, § 2367; R.S. 1899, § 3440; C.S. 1910, § 4283; C.S. 1920, § 5552; R.S. 1931, § 89-212; C.S. 1945, § 3-903; W.S. 1957, § 1-40; Laws 1977, ch. 188, § 1; 1985, ch. 212, § 3; 1993, ch. 1, § 1.

Service by coroner may be quashed if sheriff is not party. —

Where the sheriff is a party to the case, the duty of serving process devolves upon the coroner, though the court may quash such service if it finds that the sheriff was not a party within the meaning of this section. Clause v. Columbia Sav. & Loan Ass'n, 16 Wyo. 450, 95 P. 54, 1908 Wyo. LEXIS 34 (Wyo. 1908) (decided under former § 7-4-103 ).

Cited in

Hurlbut v. Scarbrough, 957 P.2d 839, 1998 Wyo. LEXIS 68 (Wyo. 1998); Merrill v. Jansma, 2004 WY 26, 86 P.3d 270, 2004 Wyo. LEXIS 32 (2004).

§ 1-6-103. Appointment to serve particular process or order.

For good cause the court may appoint a person to serve a particular process or order, who has the same power as the sheriff to execute it. The person may be appointed on the motion of the party who obtains the process or order, and the return must be verified by affidavit. He is entitled to the fees allowed the sheriff for similar services.

History. Laws 1886, ch. 60, § 22; R.S. 1887, § 2358; R.S. 1899, § 3441; C.S. 1910, § 4284; C.S. 1920, § 5553; R.S. 1931, § 89-213; C.S. 1945, § 3-904; W.S. 1957, § 1-41; Laws 1977, ch. 188, § 1.

§ 1-6-104. Duties of sheriff.

The sheriff shall execute every summons, order or other process, return the same as required by law, and exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law.

History. Laws 1886, ch. 60, § 23; R.S. 1887, § 2359; R.S. 1899, § 3442; C.S. 1910, § 4285; C.S. 1920, § 5554; R.S. 1931, § 89-214; C.S. 1945, § 3-905; W.S. 1957, § 1-42; Laws 1977, ch. 188, § 1.

§ 1-6-105. Proceedings when defendants not all served.

1. When service has been made on one (1)  or more defendants, but not on all, the plaintiff may proceed as follows:
   1. If the action is against defendants jointly  indebted upon contract, he may proceed against the defendants served,  unless the court otherwise directs; or
   2. If the action is against defendants severally  liable, he may without prejudice to his rights against those not served,  proceed against the defendants served.

History. Laws 1886, ch. 60, § 105; R.S. 1887, § 2441; R.S. 1899, § 3527; C.S. 1910, § 4373; C.S. 1920, § 5643; R.S. 1931, § 89-824; C.S. 1945, § 3-906; W.S. 1957, § 1-43; Laws 1977, ch. 188, § 1.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

§ 1-6-106. Lis pendens; generally.

When a summons has been served or publication made, the action is pending so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject matter thereof as against the plaintiff’s title.

History. Laws 1886, ch. 60, § 106; R.S. 1887, § 2442; R.S. 1899, § 3528; C.S. 1910, § 4374; C.S. 1920, § 5644; R.S. 1931, § 89-825; C.S. 1945, § 3-907; W.S. 1957, § 1-44; Laws 1977, ch. 188, § 1.

Cross references. —

For provision that filing of petition for organization of power district constitutes lis pendens as to lands described therein, see § 37-7-107 .

As to filing of petition for organization of irrigation districts as a lis pendens against all lands described therein from and after the filing thereof, see § 41-7-209 .

Territorial scope of lis pendens. —

The doctrine of lis pendens has no efficacy outside the territorial jurisdiction of the court in which the action is pending. Ludvik v. James S. Jackson Co., 635 P.2d 1135, 1981 Wyo. LEXIS 381 (Wyo. 1981).

Admissions by defendants in answer to former action by plaintiffs to cancel oil and gas lease that it was void was binding on defendants therein and, under this section, were binding on corporation which contracted to develop lands. Hall Oil Co. v. Barquin, 33 Wyo. 92, 237 P. 255, 1925 Wyo. LEXIS 34 (Wyo. 1925).

Pendency of administration proceedings is not notice to one dealing with the administratrix in regard to land to which she holds the legal title that the estate has an interest in the land. Seibel v. Bath, 5 Wyo. 409, 40 P. 756, 1895 Wyo. LEXIS 33 (Wyo. 1895).

Priorities. —

Under this section, where mortgage was delivered and recorded pending a suit to enforce an agreement to give a mortgage, the mortgage decreed in favor of plaintiff held to have priority over the mortgage so delivered and recorded. Walter v. Kressman, 25 Wyo. 292, 169 P. 3, 1917 Wyo. LEXIS 28 (Wyo. 1917).

Property held by receiver. —

A creditor cannot interfere with the rights of property placed by the court into the hands of a receiver and taken possession of by the latter, and this rule applies even though a claimant's lien is paramount to the right of the receiver. When property has passed into the hands of a receiver, it is not subject to execution. Tibbals v. Graham, 50 Wyo. 277, 61 P.2d 279, 1936 Wyo. LEXIS 21 (Wyo. 1936), overruled, Texas W. Oil & Gas Corp. v. First Interstate Bank, 743 P.2d 857, 1987 Wyo. LEXIS 514 (Wyo. 1987).

Quoted in

Olson v. Leith, 71 Wyo. 316, 257 P.2d 342, 1953 Wyo. LEXIS 19 (1953).

Cited in

State ex rel. Spriggs v. District Court, 76 Wyo. 128, 301 P.2d 550, 1956 Wyo. LEXIS 36 (1956); Wyo. Bank & Trust v. Haught, 2003 WY 111, 76 P.3d 301, 2003 Wyo. LEXIS 137 (Wyo. 2003); Grommet v. Newman, 2009 WY 150, 220 P.3d 795, 2009 Wyo. LEXIS 168 (Dec. 10, 2009).

Am. Jur. 2d, ALR and C.J.S. references. —

Duration of operation of lis pendens as dependent upon diligent prosecution of suit, 8 ALR2d 986.

New or successive notice of lis pendens in same or new action after loss or cancellation of original notice, 52 ALR2d 1308.

Notice by judicial proceedings of adverse possession between cotenants, 82 ALR2d 5.

Propriety of filing of lis pendens in action affecting leasehold interest, 67 ALR3d 747.

Lis pendens in suit to compel stock transfer, 48 ALR4th 731.

Lis pendens: grounds for cancellation prior to termination of underlying action, absent claim of delay, 49 ALR4th 242.

Library References.

American Law of Mining, 2nd Edition § 92.03 (Matthew Bender).

§ 1-6-107. Lis pendens; recordation when real property situate in other counties; constructive notice.

After filing an action in a court of competent jurisdiction the subject matter of which is the title to real property located in one (1) or more counties in this state, the plaintiff may file a certified copy of the complaint or a sworn notice of the pendency of the action in the office of the county clerk in the county or counties in which the real property is located. The notice shall contain the names of the parties, the object of the action and a description of the property before it shall operate as constructive notice to third parties in such counties. Notice shall be effective in the county where the action is filed without filing a document with the county clerk of that county. Constructive notice shall be effective as to property in the county in which the complaint is filed as of the date the complaint is filed and shall be effective as to property in any other county as of the date on which the notice is filed in the clerk’s office of that county.

History. Laws 1886, ch. 60, § 107; R.S. 1887, § 2443; R.S. 1899, § 3529; C.S. 1910, § 4375; C.S. 1920, § 5645; R.S. 1931, § 89-826; C.S. 1945, § 3-908; W.S. 1957, § 1-45; Laws 1977, ch. 188, § 1; 1995, ch. 109, § 1.

§ 1-6-108. Lis pendens; notice of pendency of action affecting real property or action between husband and wife.

In an action in a state court or in a United States district court affecting the title or right of possession of real property, or in an action between husband and wife, the plaintiff at the time of filing the complaint and the defendant at the time of filing his pleading when affirmative relief is claimed or at any time afterward, may file in the office of the county clerk in which the property is situate a notice of pendency of the action containing the names of the parties, the object of the action or defense and a description of the property in that county affected thereby as provided by W.S. 1-6-107 . From the time of filing the notice a subsequent purchaser or encumbrancer of the property shall have constructive notice of the pendency of the action.

History. Laws 1923, ch. 31, § 1; R.S. 1931, § 97-301; C.S. 1945, § 3-909; W.S. 1957, § 1-46; Laws 1965, ch. 125, § 1; 1977, ch. 188, § 1; 1995, ch. 109, § 1.

Territorial scope of lis pendens. —

The doctrine of lis pendens has no efficacy outside the territorial jurisdiction of the court in which the action is pending. Ludvik v. James S. Jackson Co., 635 P.2d 1135, 1981 Wyo. LEXIS 381 (Wyo. 1981).

Effect on subsequent conveyances. —

From filing of lis pendens in suit to establish a trust in land in compliance with Wyoming statutes, the land was subjected to result of the suit, and all conveyances thereafter made were dominated by such result. Clarke v. Boysen, 264 F. 492, 1920 U.S. App. LEXIS 1278 (8th Cir. Wyo.), modified, Clarke v. Asmus Boysen Mining Co., 268 F. 535, 1920 U.S. App. LEXIS 2347 (8th Cir. Wyo. 1920).

Am. Jur. 2d, ALR and C.J.S. references. —

Lis pendens as applicable to suit for separation or dissolution of marriage, 65 ALR4th 522.

§ 1-6-109. Lis pendens; record of notice.

The county clerk upon the filing of such notice shall record the notice in accordance with W.S. 18-3-402(a)(vi).

History. Laws 1923, ch. 31, § 2; R.S. 1931, § 97-302; C.S. 1945, § 3-910; W.S. 1957, § 1-47; Laws 1977, ch. 188, § 1; 2019 ch. 3, § 1, effective July 1, 2019.

The 2019 amendment, effective July 1, 2019, substituted “notice” for “same” and substituted “accordance with W.S. 18-3-402(a)(vi)” for “a book kept for that purpose”.

Cited in

Grommet v. Newman, 2009 WY 150, 220 P.3d 795, 2009 Wyo. LEXIS 168 (Dec. 10, 2009).

§ 1-6-110. Transmission of process by telecommunications.

Any summons, writ or order in any civil proceeding, and all other papers requiring service may be transmitted by any form of telecommunication for service in any place, and the copy of such writ, order or paper so transmitted may be served or executed by the officer or person to whom it is sent for that purpose and returned by him, if any return be requisite, in the same manner and with the same force and effect as the original thereof might be if delivered to him. The officer or person serving or executing the same has the same authority and is subject to the same liabilities as if the copy were the original. The original, when a writ or order, must also be filed in the court from which it was issued and a certified copy thereof shall be preserved in the telecommunication office from which it is sent. In sending it, either the original or certified copy may be used by the operator for that purpose. Whenever any document to be sent by telecommunication bears a seal, either private or official, it is not necessary for the operator to communicate a description of the seal or any words or device thereon, but the same may be expressed in the telecommunication by the letters “L. S.” or by the word “Seal”.

History. Laws 1901, ch. 25, § 1; C.S. 1910, § 4360; C.S. 1920, § 5629; R.S. 1931, § 89-810; C.S. 1945, § 3-1010; W.S. 1957, § 1-48; Laws 1977, ch. 188, § 1.

§ 1-6-111. Substitution of certified mail for registered mail.

Wherever required by statute, rule of court or otherwise that service be made or notice given by registered mail, such requirement may be satisfied by use of certified mail and proof of mailing.

History. Laws 1959, ch. 73, § 1; W.S. 1957, § 1-48.1; Laws 1977, ch. 188, § 1.

Request for return receipt not eliminated. —

There is nothing in this section which eliminates the requirement for requesting a return receipt signed by addressee only. Oedekoven v. Oedekoven, 475 P.2d 307, 1970 Wyo. LEXIS 197 (Wyo. 1970).

§ 1-6-201. Manner of publishing generally.

All notices by law directed, authorized or permitted to be made by publication may be published once each week during the period of time for which the notice is required by law to be published. All such weekly publications made in a newspaper issued more than once each week shall be published in the same issue in each succeeding week for the required publication period.

History. Laws 1909, ch. 30, § 1; C.S. 1910, § 4431; C.S. 1920, § 5701; R.S. 1931, § 89-1057; C.S. 1945, § 4-101; W.S. 1957, § 1-49; Laws 1977, ch. 188, § 1.

Cross references. —

For provision that party against whom judgment or order was rendered based on service by publication may have the judgment or order opened and be allowed to defend within six months following date of entry, see § 1-16-402 .

As to publication of notice of hearing in connection with probate of wills, see § 2-4-206 .

As to publication of notice of merger of banks, see § 13-4-107 .

As to publication of notice to creditors in connection with liquidation of banks, see § 13-4-402 .

As to publication of ordinance, see § 15-1-116 .

As to publication of legal notices in newspapers by county commissioners, see § 18-3-519 .

As to publication of change in precinct boundaries, see § 22-7-102 .

As to publication of notice of bond elections, see § 22-21-104 .

As to publication of notice to bidders concerning contracts for road and bridge construction, see § 24-2-108 .

For provision requiring publication or posting of notice of location of roads or alterations, see § 24-3-110 .

For duty of state treasurer to publish notice of intention to issue and negotiate state highway bonds, see § 24-8-103 .

As to publication of notice of selection of public lands prior to sale or lease thereof, see § 36-3-104 .

As to publication and contents of notice with reference to sale of state lands, see § 36-9-104 .

As to publication of notice for bids in connection with construction work in power districts, see § 37-7-128 .

As to publication of notice with reference to collection of delinquent sales taxes, see § 39-13-108 .

As to publication of notice of proposed changes in boundary of water conservancy district, see §§ 41-3-751 and 41-3-752 .

As to publication of notice in connection with bond elections in water conservancy districts, see § 41-3-755 .

As to publication of notice of elections of district advisory board in underground water districts declared critical areas, see § 41-3-913 .

As to publication of notice of hearing as to adjudication of underground waters in critical areas, see § 41-3-914 .

As to publication of notice of hearing in connection with granting permit for construction of well, see § 41-3-932 .

As to publication of notice of election to change public irrigation and power districts to irrigation districts, see § 41-7-832 .

As to notice of hearings to organize drainage districts, see §§ 41-9-104 and 41-9-105 .

As to publication of notice of hearing on dissolution of drainage district, see § 41-9-605 .

As to service by publication, see Rule 4, W.R.C.P.

Am. Jur. 2d, ALR and C.J.S. references. —

Jurisdiction, upon service by publication upon nonresident, of suit for establishment or enforcement of trust in respect of real property within the state, 15 ALR2d 610.

Sufficiency of affidavit as to due diligence in attempting to learn whereabouts of party to litigation for the purpose of obtaining service by publication, 21 ALR2d 929.

Validity of legislation relating to publication of legal notices, 26 ALR2d 655.

Difference between date of affidavit for service by publication and date of filing or of order for publication as affecting validity of service, 46 ALR2d 1364.

Sufficiency of affidavit made by attorney or other person on behalf of plaintiff for the purpose of service by publication, 47 ALR2d 423.

Newspapers within statutes as to publication of notices for resale of repossessed property by conditional vendors, 49 ALR2d 15.

Service on nonresident of notice of proceeding for modification of decree for alimony by publication or other form of constructive service, 62 ALR2d 544.

Service of process by publication in involuntary bankruptcy proceeding, 83 ALR2d 703.

Jurisdiction on service by publication in suit for divorce or alimony to reach property within state, 10 ALR3d 212.

Jurisdiction on constructive or substituted service, in divorce or alimony action, to reach property within state, 10 ALR3d 212.

What constitutes newspaper of “general circulation” within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 ALR4th 822.

§ 1-6-202. Notice for certain number of days.

Whenever the law requires or permits the publication of a notice for a certain number of days prior to any action, unless otherwise provided by law the publication may be made weekly as provided in W.S. 1-6-201 , and as often as such weekly publication can be made during the period of time for which such publication is required by law to be made, the first publication to be made as many days prior to such action as the law requires.

History. Laws 1909, ch. 30, § 2; C.S. 1910, § 4432; C.S. 1920, § 5702; R.S. 1931, § 89-1058; C.S. 1945, § 4-102; W.S. 1957, § 1-50; Laws 1977, ch. 188, § 1.

§ 1-6-203. Notice for specified number of weeks.

In all cases where under the laws a notice is required or permitted to be published for a specified number of weeks, it is sufficient that the publication be made once each week for the number of issues corresponding to the number of weeks for which such publication is required to be made, provided that not more than twenty (20) days shall intervene between the date of the last publication and the time set for the intended action. In no case shall the notice given for a longer time than required by law be held defective for that reason.

History. Laws 1909, ch. 30, §§ 3, 4; C.S. 1910, § 4433; C.S. 1920, § 5703; R.S. 1931, § 89-1059; Laws 1943, ch. 95, § 1; C.S. 1945, § 4-103; W.S. 1957, § 1-51; Laws 1977, ch. 188, § 1.

§ 1-6-204. Publication of real property; descriptions used.

All notices directed, authorized or permitted to be made by publication that require a legal description of real property on the notice shall include the street address for the property used by the United States postal service when available, or the street address used by the county or municipality if available.

History. Laws 1996, ch. 70, § 1.

§ 1-6-301. Secretary of state deemed attorney for service; continuance of action; costs; record of process; jurisdiction; direction of summons.

1. The use and operation of a motor vehicle on any street or highway within Wyoming by any person upon whom service of process cannot be made within Wyoming either personally or by service upon a duly appointed resident agent is deemed an appointment of the secretary of state of Wyoming as the operator’s lawful attorney upon whom may be served all legal processes in any proceeding against him, or his personal representative if he be deceased, due to damage or injury to person or property resulting from the operation of a motor vehicle on the streets or highways within this state. Such operation constitutes the operator’s agreement that any process served in any action against him or his personal representative has the same legal force and validity as if served upon him or his personal representative personally within this state. Service shall be made by serving a copy of the process upon the secretary of state or by filing such copy in his office, together with payment of a fee of ten dollars ($10.00). Within ten (10) days after the date of service, notice of such service and a copy of the process shall be served upon the defendant or his personal representative either personally or by certified mail addressed to the last known address of the defendant or his personal representative. The plaintiff shall file with the clerk of the court in which the action is brought an affidavit that he has complied with such requirement.
2. The court in which the action is pending shall order such continuance as necessary to afford the defendant or his personal representative reasonable opportunity to defend the action. The fee of ten dollars ($10.00) paid by the plaintiff to the secretary of state at the time of service of process shall be taxed as costs in the suit.
3. The secretary of state shall keep a record of all processes served showing the date and hour of service and shall arrange and index the record to make it readily accessible and convenient for inspection. The district court of the county in which the cause of action arose or the district court of the county in which the plaintiff resides shall have jurisdiction over the action. The clerk of the district court in which the action is commenced may issue summons directed to the sheriff of Laramie county, Wyoming for service upon the secretary of state of Wyoming.

History. Laws 1935, ch. 43, § 1; 1945, ch. 11, § 1; C.S. 1945, § 60-1101; Laws 1955, ch. 95, § 1; W.S. 1957, § 1-52; Laws 1963, ch. 20, § 1; 1977, ch. 188, § 1; 1981, ch. 47, § 4; 2021 ch. 51, § 1, effective July 1, 2021.

The 2021 amendment , effective July 1, 2021, substituted "ten dollars ($10.00)" for "three dollars ($3.00)" in (a) and (b).

Construed in pari materia. —

Section 1-39-102 must be read together with § 1-3-116 and this section. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

Absence from state of defendant in wrongful death action did not toll statute of limitations, by reason of the applicability of § 1-3-116 , where the defendant could have been served at any time through substituted service upon the secretary of state. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

Where this section authorizes service on the nonresident motorist or the resident motorist who has concealed himself or who has absconded, the tolling statute serves no purpose. Tarter v. Insco, 550 P.2d 905, 1976 Wyo. LEXIS 197 (Wyo. 1976).

Absence from state in personal injury action. —

Motorist's absence from state did not serve to toll statute of limitations for personal injury action against her, because substituted service of process could have been made upon her within state in accordance with subsection (a) of this section. Ryel v. Anderies, 4 P.3d 193, 2000 Wyo. LEXIS 89 (Wyo. 2000).

Failure to make attempt to locate the driver for service of process. —

Passenger's use of this section and attempted notice of the suit on the driver did not satisfy the statutory requirement, as the passenger had information of a more recent address, failed to make a reasonable attempt to locate the driver, and thus, failed to make an initial determination of whether substituted service was justified Dirks v. Jimenez, 344 P.3d 262 (Mar. 6, 2015).

Section not restricted to use of public highways or streets. —

Where broad language, such as that in this section, does not restrict its application to the use of public highways or streets, the service has been upheld when the cause of action arose out of the use and operation of a motor vehicle over or upon any road or street “within” the state, including private roads and roads within military reservations. Yellowstone National Park. Zacharias v. Ippen, 337 F.2d 445, 1964 U.S. App. LEXIS 4113 (10th Cir. Wyo. 1964).

Thus service may be had on nonresident when accident occurred in Yellowstone National Park. —

Under the broad terms of this section, service may be had on a nonresident when the cause of action arose out of an accident on a road within the Yellowstone National Park. Zacharias v. Ippen, 337 F.2d 445, 1964 U.S. App. LEXIS 4113 (10th Cir. Wyo. 1964).

Applicability to resident defendant.—

Substitute service could be made on a resident motorist who remained in the state but could not be found for personal service; this section reaches “any person” who cannot be personally served within Wyoming. Miller v. Johnson, 639 Fed. Appx. 558, 2016 U.S. App. LEXIS 6069 (10th Cir. Wyo. 2016).

Notice to defendant's insurance company not satisfactory. —

Notice to a defendant motorist's insurance company, standing alone, will not satisfy due diligence. The plaintiff has a duty to exercise due diligence as federal due process requires. The plaintiff cannot expect the insurance company to carry out that duty. Colley v. Dyer, 821 P.2d 565, 1991 Wyo. LEXIS 182 (Wyo. 1991).

Address given to investigating authorities reliable. —

Insofar as the “last known address” requirement of this section is concerned, a party may rely upon the address given to investigating authorities. Colley v. Dyer, 821 P.2d 565, 1991 Wyo. LEXIS 182 (Wyo. 1991).

Action against nonresident in state court. —

Circuit court had subject matter jurisdiction over insurer's suit seeking to recover damages from nonresidents of Wyoming, not exceeding $7,000, arising from alleged negligent operation of a motor vehicle because circuit courts' subject matter jurisdiction was governed by Wyo. Stat. Ann. § 5-9-128 , as the granting in Wyo. Stat. Ann. § 1-6-301(c) of jurisdiction to district court of the county in which a cause of action arose or district court of the county in which plaintiff resided addressed venue rather than subject matter jurisdiction. State Farm Mut. Auto. Ins. Co. v. Kunz, 2008 WY 71, 186 P.3d 378, 2008 Wyo. LEXIS 73 (Wyo. 2008).

Action by nonresident against nonresident in federal district court. —

A resident of Indiana did not consent to suit by a resident of Texas in a federal district court in Wyoming solely because of service under the provisions of this section upon the secretary of state. Weber v. Threlkel, 126 F. Supp. 98, 1954 U.S. Dist. LEXIS 2451 (D. Wyo. 1954).

Quoted in

Midway Oil Corp. v. Guess, 714 P.2d 339, 1986 Wyo. LEXIS 473 (Wyo. 1986).

Stated in

Cook Ford Sales, Inc. v. Benson, 381 P.2d 68, 1963 Wyo. LEXIS 89 (Wyo. 1963).

Cited in

Cook Ford Sales, Inc. v. Benson, 392 P.2d 307, 1964 Wyo. LEXIS 99 (Wyo. 1964).

Law reviews. —

See note, “Venue of Action Against Non-Resident Motorists,” 1 Wyo. L.J. 130.

See “Legislation,” 1 Wyo. L.J. 133.

See “Commission of a Single Tort as Giving Jurisdiction Over a Foreign Corporation,” 6 Wyo. L.J. 313.

See article, “Wyoming Nonresident Motorist Statute,” 18 Wyo. L.J. 231 (1964).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and application of provisions of Federal Motor Carrier Act requiring designation of agent for service of process, 8 ALR2d 814.

Constitutionality and construction of statute authorizing constructive or substituted service of process on foreign representative of deceased nonresident driver of motor vehicle arising out of accident occurring in state, 18 ALR2d 544.

What is “motor vehicle” or the like within statute providing for constructive or substituted service of process on nonresident motorist, 48 ALR2d 1283.

Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorist, 53 ALR2d 1164.

Place or type of motor vehicle accident as affecting applicability of statute providing for constructive or substituted service of process upon nonresident motorist, 73 ALR2d 1351.

Statutory service on nonresident motorists: return receipts, 95 ALR2d 1033.

Validity, construction, and effect of “consent to sue” clauses in uninsured motorist endorsement of automobile insurance policy, 24 ALR4th 1024.

§ 1-7-101. Liability for expenses in civil actions.

When a change of venue is directed in a civil action in the district court, the county from which the change of venue is taken shall be liable to pay to the county to which the change is taken the fees paid to the jury trying the case and any of the regular panel not engaged in the trial but held in waiting as an incident thereto, allowance to bailiffs, and all other jury expenses necessarily incurred by such county because of the change of venue. Such expenses shall be audited and allowed by the court to which the action is changed and the court shall certify such allowance to the county clerk of the county from which the change of venue was first taken. The allowance shall be paid by the county from which the change of venue was first taken.

History. Laws 1907, ch. 29, § 1; C.S. 1910, § 5143; C.S. 1920, § 6420; R.S. 1931, § 89-1103; C.S. 1945, § 3-1903; W.S. 1957, § 1-55; Laws 1977, ch. 188, § 1.

Cross references. —

As to venue generally, see §§ 1-5-101 to 1-5-109 .

As to fees of jurors, see §§ 1-11-301 to 1-11-304 .

As to disqualification of judge in probate matters, see § 2-2-110 .

For duty of judges of district courts to hold court for each other, see § 5-3-106 .

For provision that no change of venue shall be granted in cases arising before police justice under ordinances of cities of the first class, see § 5-6-201 .

As to disqualification of judge in connection with hearings for the establishment of water conservancy districts, see § 41-3-723 .

Cited in

State ex rel. Poston v. District Court, 39 Wyo. 24, 269 P. 35, 1928 Wyo. LEXIS 78 (1928); Cosco v. Lampert, 2010 WY 52, 229 P.3d 962, 2010 Wyo. LEXIS 55 (Apr. 26, 2010).

Am. Jur. 2d, ALR and C.J.S. references. —

Effect of nonsuit, dismissal or discontinuance of action on prior order changing venue, 11 ALR2d 1407.

Binding effect of order on motion for change of venue, where action is terminated otherwise than on merits and reinstituted, 85 ALR2d 993.

Prohibition as appropriate remedy to review ruling on change of venue in civil case, 93 ALR2d 802.

§ 1-7-102. Venue in criminal cases generally.

1. Every criminal case shall be tried in  the county in which the indictment or offense charged is found, except  as otherwise provided by law.
2. When the location of a criminal offense  cannot be established with certainty, venue may be placed in the county  or district where the corpus delicti is found, or in any county or  district in which the victim was transported.

History. Laws 1877, p. 27, § 4; R.S. 1887, § 3403; R.S. 1899, § 4285; C.S. 1910, § 5146; C.S. 1920, § 6422; R.S. 1931, § 89-1105; C.S. 1945, § 3-1905; W.S. 1957, § 1-58; Laws 1977, ch. 58, § 1; ch. 188, § 1.

Venue of prosecution was properly laid

where there was conflicting evidence on where the offense occurred, the location of the offense could not be established with certainty, and therefore the predicate requirement for considering alternative avenues for establishing venue was met. Anderson v. State, 2014 WY 74, 327 P.3d 89, 2014 Wyo. LEXIS 79 (Wyo. 2014).

Generally. —

Venue in criminal cases can be invoked in either the location where the offense is committed or where the corpus delicti is found. Merchant v. State, 4 P.3d 184, 2000 Wyo. LEXIS 70 (Wyo. 2000).

Venue in county where threatening calls received. —

This section and art. 1, § 10, Wyo. Const., granted venue and jurisdiction in the county where the defendant made phone calls, or where the phone calls were received, because the threats took effect in the county where they were received. McCone v. State, 866 P.2d 740, 1993 Wyo. LEXIS 204 (Wyo. 1993), reh'g denied, 1994 Wyo. LEXIS 16 (Wyo. Feb. 2, 1994).

Change in venue due to pretrial publicity was not warranted. —

Trial court properly denied defendant's motion for change of venue due to pretrial publicity about defendant's crimes and a separate investigation in which he was a murder suspect because although there were 12 articles published about defendant none was sensational or inflammatory and the last was published three months before trial, and also because only five of 48 prospective jurors expressed concern about their ability to be impartial in light of the pretrial publicity, none of the five was seated on the jury, and the record did not indicate that it was difficult to seat an impartial jury. Urbigkit v. State, 2003 WY 57, 67 P.3d 1207, 2003 Wyo. LEXIS 70 (Wyo. 2003).

In a murder case, a court properly denied defendant's motion for change of venue where the news articles were generally factual in nature, reporting information obtained from court documents and from a potential witness, and they were not sensational, inflammatory, or prejudicial. Defense counsel and the trial court appropriately and properly examined the jury venire, and there was no indication that the pretrial publicity made jury selection difficult or created such prejudice that a change of venue was necessary. Duke v. State, 2004 WY 120, 99 P.3d 928, 2004 Wyo. LEXIS 157 (Wyo. 2004), cert. denied, 544 U.S. 1062, 125 S. Ct. 2513, 161 L. Ed. 2d 1113, 2005 U.S. LEXIS 4397 (U.S. 2005).

In defendant's felony murder case, change of venue was not warranted, where sixty-five jurors were summoned for the trial, and of those, twelve had heard about the case, and each of those jurors was closely examined, and at the close of voir dire, defendant passed the jury for cause and had no objections to the jury selection process. Lemus v. State, 2007 WY 111, 162 P.3d 497, 2007 Wyo. LEXIS 120 (Wyo. 2007).

Quoted in

Smith v. State, 2009 WY 2, 199 P.3d 1052, 2009 Wyo. LEXIS 2 (Jan. 13, 2009); Poitra v. State, 2012 WY 58, 275 P.3d 478, 2012 Wyo. LEXIS 61 (Apr. 12, 2012).

Cited in

Sides v. State, 963 P.2d 227, 1998 Wyo. LEXIS 109 (Wyo. 1998); Nixon v. State, 994 P.2d 324, 1999 Wyo. LEXIS 198 (Wyo. 1999).

Law reviews. —

For article, “The Wyoming Criminal Code Revisited: Reflections after Fifteen Years,” see XXXIII Land and Water L. Rev. 523 (1998).

Am. Jur. 2d, ALR and C.J.S. references. —

Construction and effect of statutes providing for venue of criminal case in either county, where crime is committed partly in 1 county and partly in another, 30 ALR2d 1265, 73 ALR3d 907.

Venue of criminal charge for child desertion or nonsupport as affected by nonresidence of parent or child, 44 ALR2d 886.

Power or duty of prosecuting attorney to proceed with prosecution after change of venue, 60 ALR2d 864.

Change of venue on ground of disqualification of judge in proceeding to punish contempt against or involving himself or court of which he is a member, 64 ALR2d 600.

Binding effect of order on motion for change of venue, when action is terminated otherwise than on the merits and reinstituted, 85 ALR2d 993.

Venue of criminal prosecution for libel in newspaper, 15 ALR3d 1249.

Pretrial publicity in criminal case as ground for change of venue, 33 ALR3d 17.

Right of accused in misdemeanor prosecution to change of venue on grounds of inability to secure fair trial and the like, 34 ALR3d 804.

Change of venue by state in criminal case, 46 ALR3d 295.

Choice of venue to which transfer is to be had where change is sought because of local prejudice, 50 ALR3d 760.

Power of state trial court in criminal case to change venue on its own motion, 74 ALR4th 1023.

§ 1-8-101. Trial docket.

The clerk shall make a trial docket on which shall appear all cases in which the issues have been joined. The cases shall be set for trial in the order in which they stand on the appearance docket. The clerk shall not place upon the trial docket any case in which nothing remains to be done except to execute an order for the sale of real or personal property, and to distribute the proceeds as directed by the order, but if it becomes necessary, the case may be redocketed upon the application of either party, whereupon it shall stand in all respects as if it had remained on the docket.

History. Laws 1886, ch. 60, § 183; R.S. 1887, § 2519; Laws 1895, ch. 39, § 1; R.S. 1899, § 3606; C.S. 1910, § 4455; C.S. 1920, § 5725; R.S. 1931, § 89-1206; C.S. 1945, § 3-2106; W.S. 1957, § 1-64; Laws 1977, ch. 188, § 1; 2019 ch. 54, § 1, effective July 1, 2019.

Cross references. —

As to docket of justice of peace court, see § 1-21-101 .

As to dockets of probate courts, see §§ 2-2-201 and 2-2-202 .

As to dockets of circuit courts generally, see § 5-9-101 et seq.

The 2019 amendment, effective July 1, 2019, substituted "trial docket on which" for "trial docket on the first day of each term, on which" in the first sentence.

Entry by clerk presumed. —

In the absence of anything in the record to the contrary it will be presumed that a cause properly triable at the term in which it was heard was duly entered on the trial docket by the clerk, such being his duty under this section. Syndicate Improvement Co. v. Bradley, 6 Wyo. 171, 43 P. 79, 1896 Wyo. LEXIS 4 (Wyo. 1896).

Record entry of judgment in the trial court necessary for appeal could not be shown by entries under the trial docket for use of the trial judge under this section, such docket not being the journal entries, required for entry of judgment. Hahn v. Citizens' State Bank, 25 Wyo. 467, 171 P. 889, 172 P. 705, 1918 Wyo. LEXIS 9 (Wyo. 1918).

Am. Jur. 2d, ALR and C.J.S. references. —

Authority of trial judge to impose costs or other sanctions against attorney who fails to appear at, or proceed with, scheduled trial, 29 ALR4th 160.

§ 1-8-102. Order of hearing.

All cases shall be heard in the order in which they stand on the trial docket unless the court otherwise directs. The court may hear a motion at any time and may prescribe by rule the time of hearing motions.

History. Laws 1886, ch. 60, § 185; R.S. 1887, § 2521; R.S. 1899, § 3608; C.S. 1910, § 4457; C.S. 1920, § 5727; R.S. 1931, § 89-1208; C.S. 1945, § 3-2108; W.S. 1957, § 1-65; Laws 1977, ch. 188, § 1.

Cross references. —

For provision that actions for quo warranto shall have precedence over pending civil actions, see § 1-31-130 .

For provision authorizing advancement of case involving validity of Water and Sewer District Law or establishment of water and sewer districts, see § 41-10-146 .

For provision authorizing advancement on calendar of action for declaratory judgment, see Rule 57, W.R.C.P.

Cited in

James v. Lederer-Strauss & Co., 32 Wyo. 377, 233 P. 137, 1925 Wyo. LEXIS 10 (1925).

§ 1-8-103. Copy of docket for bar.

The clerk shall make a copy of the trial docket for the use of the bar.

History. Laws 1886, ch. 60, § 187; R.S. 1887, § 2523; R.S. 1899, § 3614; C.S. 1910, § 4469; C.S. 1920, § 5739; R.S. 1931, § 89-1219; C.S. 1945, § 3-2110; W.S. 1957, § 1-67; Laws 1977, ch. 188, § 1; 2019 ch. 54, § 1, effective July 1, 2019.

The 2019 amendment, effective July 1, 2019, substituted “use of the bar” for “use of the bar before the first day of the term.”

§ 1-9-101. Contents of affidavit showing lack of evidence or absent witness; procedure if evidence admitted.

1. A motion to postpone the trial of a case  because of the lack of evidence shall be supported by affidavit showing:
   1. The materiality of the evidence expected  to be obtained;
   2. That due diligence has been used to obtain  the evidence; and
   3. Where it is expected the evidence may  be found.
2. If the postponement is because of an absent  witness, the affidavit shall also state:
   1. Where the witness resides, if known;
   2. The probability of procuring the testimony  within a reasonable time;
   3. That absence of the witness was not procured  by the act or connivance of the party seeking the postponement, nor  by others at his request or with his knowledge or consent;
   4. The facts the witness is expected to prove  and that affiant believes the facts as stated to be true; and
   5. Such facts cannot be proven by any other  witness whose testimony can be as readily procured.
3. If the adverse party consents that, on  the trial, the facts stated in the affidavit will be taken as true,  if the evidence is written or documentary, or in case of an absent  witness that the witness will testify to the facts stated in the affidavit  as true, the trial shall not be postponed for that cause. The party  against whom the evidence is offered may impeach the evidence of an  absent witness the same as when the witness is present or his deposition  is used.

History. C.L. 1876, ch. 17, § 1; R.S. 1887, § 3397; R.S. 1899, § 4279; C.S. 1910, § 5139; C.S. 1920, § 6416; R.S. 1931, § 89-901; C.S. 1945, § 3-2001; W.S. 1957, § 1-68; Laws 1977, ch. 188, § 1.

Section applies to motions for continuance made before trial. Sims v. State, 530 P.2d 1176, 1975 Wyo. LEXIS 125 (Wyo. 1975).

Granting of continuance is in discretion of trial court. Holly Sugar Corp. v. Perez, 508 P.2d 595, 1973 Wyo. LEXIS 150 (Wyo. 1973).

Refusal of continuance on ground of party's absence was discretionary where it was not shown party did not have notice of trial date or could not return in time. Eldridge v. Rogers, 40 Wyo. 89, 275 P. 101, 1929 Wyo. LEXIS 20 (Wyo. 1929).

As are subsequent continuances. —

Disposition of second or further continuances for absent witnesses or evidence rests in court's discretion; refusal is ordinarily proper. Jegendorf v. Jegendorf, 61 Wyo. 277, 157 P.2d 280, 1945 Wyo. LEXIS 13 (Wyo. 1945).

Issue regarding continuance raised below. —

Counsel's statement, “If we can't continue the matter until such time as he can be here, then we would rest” was sufficient to raise the question of abuse of discretion for the supreme court's consideration, using the standard of review for motions for continuance. Carlson v. BMW Indus. Serv., 744 P.2d 1383, 1987 Wyo. LEXIS 532 (Wyo. 1987).

Basis for judging abuse of discretion on appeal. —

Appellate court must not judge the matter of abuse of discretion in granting a continuance on the basis of showings made on appeal, but on the basis of showings made to the trial court when application for continuance was made. Holly Sugar Corp. v. Perez, 508 P.2d 595, 1973 Wyo. LEXIS 150 (Wyo. 1973).

Court did not abuse discretion in disallowing second continuance to husband in wife's divorce action to permit taking out-of-state deposition for purpose of rebutting medical testimony where satisfactory reasons appeared. Jegendorf v. Jegendorf, 61 Wyo. 277, 157 P.2d 280, 1945 Wyo. LEXIS 13 (Wyo. 1945).

Refusal for lack of diligence. —

Under this section a continuance will be refused for lack of due diligence where a subpoena for the absent witnesses has not been asked for. Kearney Stone Works v. McPherson, 5 Wyo. 178, 38 P. 920, 1895 Wyo. LEXIS 12 (Wyo. 1895).

It was not error to refuse a continuance under this section, applied for on the ground of the absence of a witness residing in another state, where defendant had relied on his promise to attend and made no effort to secure his testimony by deposition or his attendance by legal process. Chapman v. First Nat'l Bank, 26 Wyo. 138, 181 P. 360, 1919 Wyo. LEXIS 8 (Wyo.), reh'g denied, 26 Wyo. 156, 182 P. 91 (Wyo. 1919).

Denying continuance to secure witness is not error where party made no attempt to obtain deposition and presented no affidavit. Hinton v. Saul, 37 Wyo. 78, 259 P. 185, 1927 Wyo. LEXIS 68 (Wyo. 1927).

Reasonable effort to secure witness' presence required. —

Due diligence, in the context of a missing witness, is not satisfied when a party simply secures agreement from the witness that he will attend trial, but a party must make every reasonable effort to insure that his witness will be present. This can include alternate travel plans or schedules and the use of depositions to preserve important testimony. Carlson v. BMW Indus. Serv., 744 P.2d 1383, 1987 Wyo. LEXIS 532 (Wyo. 1987).

In defendant's sexual assault case, the court properly denied his motion for a continuance to allow time to locate a witness because defendant failed to establish that the witness could be located and his testimony procured within a reasonable time, the unavailable testimony lacked materiality, and the potential testimony was simply not compelling. Huckfeldt v. State, 2013 WY 29, 297 P.3d 97, 2013 Wyo. LEXIS 33 (Wyo. 2013).

New matter in an amended petition which did not increase defendant's obligation under the facts alleged in the original does not entitle defendant to a continuance. Pullman Co. v. Finley, 20 Wyo. 456, 125 P. 380, 1912 Wyo. LEXIS 47 (Wyo. 1912).

Right to amend affidavit. —

Under this section, defendant asked for a continuance in order to introduce a witness who would testify that the prosecuting witness had made statements indicating that the prosecution was instituted out of malice and that defendant was not guilty. Defendant's affidavit failed to show the time and place of the statements of the prosecuting witness. Defense had right to amend affidavit in that respect. McNealley v. State, 5 Wyo. 59, 36 P. 824, 1894 Wyo. LEXIS 18 (Wyo. 1894).

Admission as to testimony of absent witnesses. —

Under this section, defendant's motion for continuance was properly overruled where plaintiff made admission as to the testimony of the absent witnesses. Baldwin v. McDonald, 24 Wyo. 108, 156 P. 27, 1916 Wyo. LEXIS 12 (Wyo. 1916).

Denying continuance for absent witnesses held not error where prosecuting attorney admitted that witnesses would testify as claimed, if present. State v. Aragon, 41 Wyo. 308, 285 P. 803, 1930 Wyo. LEXIS 14 (Wyo. 1930).

Absence of attorney not ground. —

The absence of defendant's attorney in an adjoining county, attending court, is no ground for a continuance. Van Horn v. State, 5 Wyo. 501, 40 P. 964, 1895 Wyo. LEXIS 36 (Wyo. 1895).

Continuance should be granted when parties in another case in another state. —

The trial court abused its discretion in refusing to grant a continuance when the defendants were involved in another case in another state and were unable to attend the trial. Even though the defendants were unable to file affidavits in support of their motion, their presence as parties was completely essential to the proper presentation of their case. If the plaintiffs and court personnel were inconvenienced by the delay, assessing costs may have been more appropriate than denying the defendants the right to defend their action in court. Tomash v. Evans, 704 P.2d 1296, 1985 Wyo. LEXIS 530 (Wyo. 1985).

Quoted in

Dreyer v. State, 540 P.2d 541, 1975 Wyo. LEXIS 165 (Wyo. 1975).

Am. Jur. 2d, ALR and C.J.S. references. —

Permissibility of testimony by telephone in state trial, 85 ALR4th 476.

Continuance of case because of illness of expert witness. 18 A.L.R.6th 509.

§ 1-9-102. Continuance for good cause.

Any court, for good cause shown may continue any action at any stage of the proceedings at the cost of the applicant, to be paid as the court shall direct.

History. C.L. 1876, ch. 17, § 2; R.S. 1887, § 3398; R.S. 1899, § 4280; C.S. 1910, § 5140; C.S. 1920, § 6417; R.S. 1931, § 89-902; C.S. 1945, § 3-2002; W.S. 1957, § 1-69; Laws 1977, ch. 188, § 1.

Denial appropriate where moving party is at fault.

District court did not abuse its discretion when it denied a mother’s motions for continuance because the mother’s failure to appear at the hearing she requested was sufficient reason to deny her motion for continuance. Bacus v. Coon, 2020 WY 2, 454 P.3d 945, 2020 Wyo. LEXIS 2 (Wyo. 2020).

District court did not abuse its discretion when it denied a wife’s motion for a continuance of a divorce trial because the need for the continuance was caused by the wife and the court’s decision was not so arbitrary as to deny the wife due process. When the wife asked for a second continuance, the husband had filed pretrial disclosures and subpoenas to witnesses had issued, nearly ten months had passed from the death of the wife’s first attorney; and more than five months had passed from the withdrawal of the wife’s second attorney. Conzelman v. Conzelman, 2019 WY 123, 453 P.3d 773, 2019 Wyo. LEXIS 125 (Wyo. 2019).

Granting or denial of motion for continuance is matter for discretion of the trial court. Hays v. State, 522 P.2d 1004, 1974 Wyo. LEXIS 209 (Wyo. 1974).

The granting or refusing of a request for a continuance of a trial of a case is ordinarily a matter within the sound discretion of the trial court under the circumstances of each case. Glover v. Berger, 72 Wyo. 221, 263 P.2d 498, 1953 Wyo. LEXIS 44 (Wyo. 1953); Armed Forces Coop. Insuring Ass'n v. Department of Ins., 622 P.2d 1318, 1980 Wyo. LEXIS 332 (Wyo. 1980), overruled in part, Torres v. State ex rel. Wyo. Workers' Safety & Comp. Div., 2004 WY 92, 95 P.3d 794, 2004 Wyo. LEXIS 119 (Wyo. 2004).

Abuse of discretion. —

A trial judge who grants a continuance of a case, civil or criminal, set for trial based upon the mere request, whim or convenience of counsel without substantial or legal reason for such continuance is himself guilty of a species of discretionary abuse. Hays v. State, 522 P.2d 1004, 1974 Wyo. LEXIS 209 (Wyo. 1974).

Trial court may not grant continuance based on mere whim, request or the convenience to counsel without a substantial factual or legal reason for doing so. Carlson v. BMW Indus. Serv., 744 P.2d 1383, 1987 Wyo. LEXIS 532 (Wyo. 1987).

Continuance should be granted when parties in another case in another state. —

The trial court abused its discretion in refusing to grant a continuance when the defendants were involved in another case in another state and were unable to attend the trial. Even though the defendants were unable to file affidavits in support of their motion, their presence as parties was completely essential to the proper presentation of their case. If the plaintiffs and court personnel were inconvenienced by the delay, assessing costs may have been more appropriate than denying the defendants the right to defend their action in court. Tomash v. Evans, 704 P.2d 1296, 1985 Wyo. LEXIS 530 (Wyo. 1985).

But not when alleged “new issues” either perfunctorily raised or previously raised. —

The court did not abuse its discretion in denying the husband's motion for a continuance of his divorce action on the alleged grounds that his wife, through her counterclaim filed nine days before trial, injected new issues into the case. The issues raised in the counterclaim — a request for divorce, and a request for alimony and certain property — were either raised perfunctorily or were previously raised in the answer to the complaint. Smith v. Smith, 704 P.2d 1319, 1985 Wyo. LEXIS 545 (Wyo. 1985).

Nor when party waits over a month to obtain counsel. —

There was no error in the trial court's denial of a motion for continuance filed by a party who waited over a month after the trial date was set to obtain counsel. Shanor v. Engineering, Inc., 705 P.2d 858, 1985 Wyo. LEXIS 556 (Wyo. 1985).

Denial appropriate where moving party is at fault. —

Trial court properly denied a husband's request for a continuance because his counsel's late withdrawal was due to the husband's failure to cooperate and his obstruction of an orderly progression of a divorce action. Byrd v. Mahaffey, 2003 WY 137, 78 P.3d 671, 2003 Wyo. LEXIS 167 (Wyo. 2003).

District court did not abuse its discretion in denying a father's motion to continue a divorce proceeding because: (1) the matter had already been pending for quite some time; (2) the conflicts in the case were in large part due to the father keeping his son against court order; and (3) the father had been aware that the court date was upcoming and had been granted at least one continuance due to scheduling conflicts. Dunsmore v. Dunsmore, 2007 WY 202, 173 P.3d 389, 2007 Wyo. LEXIS 216 (Wyo. 2007).

Court reasonably concluded that continuance was not warranted. With respect to the alleged failure of the opposing party to respond to discovery, the requested discovery was specious, unnecessary, untimely and, in effect, a stalling tactic. Regarding the movant's unavailability to attend trial, the movant had voluntarily accepted out-of-state employment, thereby creating the asserted need for a continuance. Inskeep v. Inskeep, 752 P.2d 434, 1988 Wyo. LEXIS 42 (Wyo. 1988).

Costs. —

Under this section providing for continuances and costs thereof, trial court's action in taxing one-half of costs and expenses of party appearing ready for trial to party obtaining continuance when latter could have, but did not, notify former so that appearance need not have been made was not disturbed on appeal. Holbrook v. Continental Oil Co., 73 Wyo. 321, 278 P.2d 798, 1955 Wyo. LEXIS 2 (Wyo. 1955).

Applied in

United States v. Hunt, 513 F.2d 129, 1975 U.S. App. LEXIS 15543 (10th Cir. 1975); Jones v. Jones, 903 P.2d 545, 1995 Wyo. LEXIS 187 (Wyo. 1995).

Cited in

Honan v. Honan, 809 P.2d 783, 1991 Wyo. LEXIS 52 (Wyo. 1991).

Am Jur 2d, ALR and C.J.S. references. —

Continuance of case because of illness of expert witness. 18 A.L.R.6th 509.

§ 1-10-101. Tender of money before action.

In an action on contract for the payment of money, if the defendant answers and proves that he tendered payment of the money due before commencement of the action, and pays to the clerk before trial the money so tendered, the plaintiff shall not have judgment for more than the money so tendered and due, without costs, and shall pay the defendant his costs.

History. Laws 1886, ch. 60, § 188; R.S. 1887, § 2524; R.S. 1899, § 3615; C.S. 1910, § 4470; C.S. 1920, § 5740; R.S. 1931, § 89-1220; C.S. 1945, § 3-2201; W.S. 1957, § 1-71; Laws 1977, ch. 188, § 1.

Right to interest. —

Where holder of savings certificates issued by building and loan association was member of association and had received no legal tender of part payments made to other members, but deposit was made in court after holder sued on certificates, latter was entitled to interest from times of payments to others to times of deposit. Radalj v. Union Sav. & Loan Ass'n, 59 Wyo. 140, 138 P.2d 984, 1943 Wyo. LEXIS 11 (Wyo.), reh'g denied, 59 Wyo. 186, 141 P.2d 856 (Wyo. 1943).

§ 1-10-102. Tender of payment other than money or performance of labor.

If, in an action on a contract for the payment of anything other than money or for the performance of labor, the defendant answers that he did tender payment or performance of the contract at such time and place, and in such things or labor as by the contract he was bound to pay or perform, and the court or jury finds that he did tender as alleged in his pleading, they shall assess the value of the property or labor so tendered, and judgment shall be rendered in favor of the plaintiff for the value found, without interest or costs. If the defendant forthwith performs his contract, or gives to the plaintiff such assurance as the court approves that he will perform within such time as the court directs, judgment shall be rendered for the defendant. If any article so tendered is perishable it shall, from the time of tender, be kept at the risk and expense of the plaintiff, provided the defendant takes reasonable care of the same.

History. Laws 1886, ch. 60, § 189; R.S. 1887, § 2525; R.S. 1899, § 3616; C.S. 1910, § 4471; C.S. 1920, § 5741; R.S. 1931, § 89-1221; C.S. 1945, § 3-2202; W.S. 1957, § 1-72; Laws 1977, ch. 188, § 1.

§ 1-10-103. Offer to confess judgment before action brought.

Before an action for recovery of money is brought against any person, he may go into the court of competent jurisdiction in the county of his residence or the county in which the person having the cause of action resides, and offer to confess judgment in favor of the claimant for a specified sum. If the claimant, having such notice as the court deems reasonable that the offer will be made, its amount, and the time and place of making it fails to attend and accept the confession, or if he attends and refuses to accept it and afterwards commences an action upon the cause and fails to recover more than the amount offered to be confessed, with interest from the date of the offer, he shall pay all the costs of the action.

History. Laws 1886, ch. 60, § 190; R.S. 1887, § 2526; R.S. 1899, § 3617; C.S. 1910, § 4472; C.S. 1920, § 5742; R.S. 1931, § 89-1222; C.S. 1945, § 3-2203; W.S. 1957, § 1-73; Laws 1977, ch. 188, § 1.

Cross references. —

As to legal rate of interest, see § 40-14-106(e).

§ 1-10-104. Offer in court to confess for part of claim or causes.

The defendant in an action for the recovery of money may offer in court to confess judgment for part of the amount claimed, or part of the causes involved in the action. If the plaintiff, being present, refuses to accept such confession of judgment in full satisfaction of his demands in the action, or having had such notice as the court deems reasonable that the offer would be made, its amount, and the time of making it, fails to attend, and, on the trial, does not recover more than was offered to be confessed, with interest from the date of the offer, the plaintiff shall pay all costs of the defendant incurred after the offer was made.

History. Laws 1886, ch. 60, § 192; R.S. 1887, § 2528; R.S. 1899, § 3619; C.S. 1910, § 4474; C.S. 1920, § 5744; R.S. 1931, § 89-1224; C.S. 1945, § 3-2205; W.S. 1957, § 1-74; Laws 1977, ch. 188, § 1.

Cross references. —

As to legal rate of interest, see § 40-14-106(e).

Judgment exceeded matters confessed. —

In an action to establish a permanent easement, judgment entered on a partial confession of judgment in favor of dominant estate owners was void; the judgment went beyond the matters admitted in the servient estate owner's confession of judgment. Huish v. Sulenta, 2002 WY 139, 54 P.3d 748, 2002 Wyo. LEXIS 148 (Wyo. 2002).

§ 1-10-105. Offer to confess not to affect trial.

An offer to confess judgment is not an admission of the cause of action nor of the amount to which the plaintiff is entitled. It is not a cause of continuance of the action, or a postponement of the trial, and may not be offered or admitted in evidence or mentioned at the trial.

History. Laws 1886, ch. 60, § 193; R.S. 1887, § 2529; R.S. 1899, § 3620; C.S. 1910, § 4475; C.S. 1920, § 5745; R.S. 1931, § 89-1225; C.S. 1945, § 3-2206; W.S. 1957, § 1-75; Laws 1977, ch. 188, § 1.

Theory of case not admitted. —

Where plaintiff pleaded that he loaned money to defendant savings and loan association and defendant pleaded that plaintiff was member of defendant association, association's deposit with clerk in partial satisfaction of plaintiff's claim did not admit correctness of plaintiff's theory of case. Radalj v. Union Sav. & Loan Ass'n, 59 Wyo. 140, 138 P.2d 984, 1943 Wyo. LEXIS 11 (Wyo.), reh'g denied, 59 Wyo. 186, 141 P.2d 856 (Wyo. 1943).

§ 1-10-106. Applicability of confession of judgment provisions.

The provisions relating to confessions of judgment shall apply so far as practicable to an offer made by the plaintiff, and in the discretion of the court, may be applied to one (1) or more of several causes of action, counterclaims, cross-claims or setoffs, and the court shall make such order as to costs as it deems proper.

History. Laws 1886, ch. 60, § 194; R.S. 1887, § 2530; R.S. 1899, § 3621; C.S. 1910, § 4476; C.S. 1920, § 5746; R.S. 1931, § 89-1226; C.S. 1945, § 3-2207; W.S. 1957, § 1-76; Laws 1977, ch. 188, § 1.

§ 1-11-101. Qualifications of juror.

1. A person is qualified to act as a juror  if he is:
   1. An adult citizen of the United States  who has been a resident of the state and of the county ninety (90)  days before being selected and returned pursuant to W.S. 1-11-106 ;
   2. In possession of his natural faculties,  of ordinary intelligence and without mental or physical infirmity  preventing satisfactory jury service;
   3. Possessed of sufficient knowledge of the  English language.
2. No citizen shall be excluded from service  as a juror on account of race, color, religion, sex, age, national  origin or economic status.
3. The court shall discharge a person from serving as a juror if the person is not qualified to act as a juror under subsection (a) of this section.

History. Laws 1890, ch. 23, § 1; R.S. 1899, § 3340; Laws 1903, ch. 4, § 1; C.S. 1910, § 978; C.S. 1920, § 1204; R.S. 1931, § 61-201; C.S. 1945, § 12-101; Laws 1949, ch. 61, § 1; W.S. 1957, § 1-77; Laws 1969, ch. 16, § 1; 1973, ch. 213, § 2; ch. 227, § 2; 1977, ch. 188, § 1; 1983, ch. 138, § 2; 2019 ch. 14, § 1, effective July 1, 2019.

Cross references. —

As to equal protection, see art. 1, § 2, Wyo. Const.

The 2019 amendment, effective July 1, 2019, in the introductory language in (a), substituted “qualified” for “competent”; in (a)(i), added “pursuant to W.S. 1-11-106 ”; and added (c).

Mental incompetency of juror not shown. —

Trial court did not err by denying defendant a new trial based on a juror's alleged mental incompetency because it could have concluded that defendant's showing fell short of raising any significant concern under this section. Defendant relied on a few jurors' nonspecific comments to the bailiff indicating that they could not understand the point of some of the juror's statements made during their deliberations, his own statements to the bailiff, and the district judge's observations. Moore v. State, 2013 WY 120, 309 P.3d 1242, 2013 Wyo. LEXIS 125 (Wyo. 2013).

Constitutionality of permitting women to serve as jurors. —

The clause in art. 1, § 9, Wyo. Const., in which the word “men” appeared was not inserted for the purpose of preventing the legislature from changing the statutes in effect in regard to the persons competent for jury service. The legislature was therefore entitled to enact ch. 61, Laws 1949, duly incorporated in this section, which permitted women to serve as petit jurors in criminal and civil cases in the district court. Such act did not violate the constitutional provision. State v. Yazzie, 67 Wyo. 256, 218 P.2d 482, 1950 Wyo. LEXIS 13 (Wyo. 1950).

Exclusion of women from jury on criminal prosecution of man did not deprive the accused of rights, privileges and immunities accorded him by amend. 14, McKinney v. State, 3 Wyo. 719, 30 P. 293, 1892 Wyo. LEXIS 16 (Wyo. 1892).

Residency. —

“Selected and returned,” as used in this section, relates to the preparation of the base jury list, which is the list of qualified jurors; because “selected and returned” is a reference to preparation of the base jury list, the critical date for measuring the duration of a prospective juror's residence in a county is April 1, the date on which the base jury list is certified. In other words, any juror who is a resident of a county for the ninety-day period preceding April 1 meets the residence qualification for service in that county; therefore, even though a juror was no longer a resident of the county, she was still qualified because she was a resident of the county in the 90-day period preceding April 1. Lake v. State, 292 P.3d 174, 2013 Wyo. LEXIS 9 (Wyo. 2013).

Racial discrimination. —

See Lofton v. State, 489 P.2d 1169, 1971 Wyo. LEXIS 260 (Wyo. 1971), cert. denied, 406 U.S. 949, 92 S. Ct. 2049, 32 L. Ed. 2d 337, 1972 U.S. LEXIS 2587 (U.S. 1972).

Showing of prejudice unnecessary where substantial noncompliance with section. —

Where there was substantial noncompliance with provisions of this section in selecting jury list and panel in trial court, defendant was not required to show prejudice before his motions to quash the jury list, to quash the panel of jurors summoned and for a directed verdict were sustained. State v. Dobbs, 70 Wyo. 26, 244 P.2d 280, 1952 Wyo. LEXIS 18 (Wyo. 1952).

Cited in

Gunnell v. State, 21 Wyo. 125, 128 P. 512, 1912 Wyo. LEXIS 12 (1912); Cloud v. State, 2014 WY 113, 2014 Wyo. LEXIS 130 (Sept. 10, 2014).

Law reviews. —

For article, “The Americans with Disabilities Act: An Introduction for Lawyers and Judges,” see XXIX Land & Water L. Rev. 175 (1994).

Am. Jur. 2d, ALR and C.J.S. references. —

Deafness of juror as ground for impeaching verdict, 15 ALR2d 534.

Validity of enactment requiring juror to be an elector or voter or have qualifications thereof, 78 ALR3d 1147.

Religious belief, affiliation or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire, 95 ALR3d 172.

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 ALR4th 1170.

Jury: visual impairment as disqualification, 48 ALR4th 1154.

Prejudical effect of juror's inability to comprehend English, 117 ALR5th 1.

§ 1-11-102. Convicted felon disqualified.

A person who has been convicted of any felony is disqualified to act as a juror unless his conviction is reversed or annulled, he receives a pardon or his rights are restored pursuant to W.S. 7-13-105(a).

History. Laws 1899, ch. 23, § 2; R.S. 1899, § 3341; C.S. 1910, § 979; C.S. 1920, § 1205; R.S. 1931, § 61-202; C.S. 1945, § 12-102; W.S. 1957, § 1-78; Laws 1977, ch. 188, § 1; 1998, ch. 89, § 1; 2003, ch. 132, § 1.

Cross references. —

For provision that religion is no disqualification, see art. 1, § 18, Wyo. Const.

For provision that pardon restores eligibility to be a juror, see § 6-10-106 .

Section does not render convicted felon ipso facto incompetent to serve as a juror. Vivion v. Brittain, 510 P.2d 21, 1973 Wyo. LEXIS 158 (Wyo. 1973).

Objection to qualification of juror waived. —

Where there is nothing in the record to show that any member of the jury was ever asked any question which would elicit from them any answer as to their statutory jury qualifications under this section, any objection to the qualification of a juror because of his previous felony conviction is waived. Vivion v. Brittain, 510 P.2d 21, 1973 Wyo. LEXIS 158 (Wyo. 1973).

Quoted in

Blake v. Rupe, 651 P.2d 1096, 1982 Wyo. LEXIS 383 (Wyo. 1982).

Cited in

Meldrum v. State, 23 Wyo. 12, 146 P. 596, 1915 Wyo. LEXIS 9 (1915).

Am. Jur. 2d, ALR and C.J.S. references. —

Disqualification or exemption of juror for conviction of, or prosecution for, criminal offense, 75 ALR5th 295.

§ 1-11-103. Persons exempt as juror; duty to discharge.

1. A person is exempt from jury service if the person is:
   1. A salaried and active member of an organized fire department or an active member of a police department of a city, town or law enforcement agency of the county or state;
   2. An elected public official;
   3. An active duty member of the Wyoming national guard; or
   4. A person exempt under federal law or regulation, including an active duty member of the armed forces when service on a jury would unreasonably interfere with his performance of military duties or adversely affect the readiness of his unit, command or activity pursuant to 32 C.F.R. Part 144.
2. The court shall discharge a person from serving as a trial juror for the jury term in which he is summoned if it satisfactorily appears that the person is exempt and specifically claims the benefit of the exemption under W.S. 1-11-105 .

History. Laws 1899, ch. 23, § 3; R.S. 1899, § 3342; C.S. 1910, § 980; C.S. 1920, § 1206; R.S. 1931, § 61-203; C.S. 1945, § 12-103; W.S. 1957, § 1-79; Laws 1971, ch. 261, § 79; 1975, ch. 139, § 1; 1977, ch. 188, § 1; 2019 ch. 14, § 1, effective July 1, 2019.

Cross references. —

As to exemption from jury duty of active members of the National Guard, see § 19-9-401 .

The 2019 amendment, effective July 1, 2019, in (a), substituted “jury service” for “liability to act as juror” and deleted “court finds that the provisions of W.S. 1-11-104 apply or for any other compelling reasons or if a”; added (a)(iii) and (a)(iv), and made related changes; and in (b), added “for the jury term in which he is summoned” and “under W.S. 1-11-105 ,” and deleted “not competent or the person is.”

Constitutionality of excluding women. —

See same catchline in notes under § 1-11-104 .

When presented. —

Cause for exemption must be presented and a favorable ruling by the court given before the right accrues. Meldrum v. State, 23 Wyo. 12, 146 P. 596, 1915 Wyo. LEXIS 9 (Wyo. 1915).

Am. Jur. 2d, ALR and C.J.S. references. —

Police officers or other law enforcement officers as jurors in criminal cases, 72 ALR3d 895.

Former law enforcement officers as qualified jurors in criminal cases, 72 ALR3d 958.

Jury: who is lawyer or attorney disqualified or exempt from service, or subject to challenge for cause, 57 ALR4th 1260.

§ 1-11-104. Causes for excusal.

1. A juror may not be excused for a trivial cause or for hardship or inconvenience to his business, but only when material injury or destruction to his property or property entrusted to him is threatened, or when his health or the sickness or death of a member of his family requires his absence. A person who has attained the age of seventy-two (72) years may be excused at his request. A person may be excused from jury duty when the care of that person’s young children requires his absence. Any person who has served on a jury during a jury term shall, upon request, be excused from further jury service in that court for the remainder of that jury term and in the discretion of the court may be excused from jury service for the following jury term.
2. For the purposes of this section:
   1. A person has served on a jury during a jury term when he is summoned to serve and he has been selected as a juror in any court within the judicial district and has taken the oath required under W.S. 1-11-201 ;
   2. A person has not served on a jury during a jury term if he is disqualified for that jury term pursuant to W.S. 1-11-102 or is discharged for that jury term pursuant to W.S. 1-11-103 .

History. Laws 1899, ch. 23, § 4; R.S. 1899, § 3343; C.S. 1910, § 981; C.S. 1920, § 1207; R.S. 1931, § 61-204; C.S. 1945, § 12-104; Laws 1949, ch. 61, § 2; W.S. 1957, § 1-80; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; 1989, ch. 44, § 1; 2019 ch. 14, § 1, effective July 1, 2019; 2020 ch. 64, § 1, effective July 1, 2020.

The 2019 amendment, effective July 1, 2019, designated former undesignated paragraph as present (a); in (a), added “who has attained the age of seventy-two (72) years,” deleted “if he is over seventy-two (72) years of age,” added a period to the end of the second sentence, and added “during a jury term” to the beginning of the fourth sentence; and added (b).

The 2020 amendment, effective July 1, 2020, in (b)(i) substituted “he has been selected as a juror in any court within the judicial district and has taken the oath required under W.S. 1-11-201 ” for “he has complied with the summons.”

Provision of earlier statute. —

Section 2, ch. 47, Laws 1888, read: “Any person may be excused from serving on a jury, when it shall appear to the court that the interests of such juror, or those of the public, will be materially injured by his attendance.”

Constitutionality of excluding women. —

Exclusion of women from jury on criminal prosecution of a man did not deprive the accused of rights, privileges and immunities accorded him by amend. 14, U.S. Const.McKinney v. State, 3 Wyo. 719, 30 P. 293, 1892 Wyo. LEXIS 16 (Wyo. 1892).

Am. Jur. 2d, ALR and C.J.S. references. —

Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case, 1 ALR2d 1291.

Exclusion of women from grand or trial jury or jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction — state cases, 70 ALR5th 587.

§ 1-11-105. Exemption affidavit required; failure to file.

If a person exempt from jury duty is summoned as a juror, he may submit a declaration under penalty of perjury stating his purported grounds for exemption. If the court determines that the declaration sufficiently demonstrates that the person is not required to serve as a juror pursuant to W.S. 1-11-103(a), the court shall discharge the person from serving as a trial juror for the jury term in which he was summoned. A person who is discharged under this section is not required to appear in court. Failure of any person who is exempt to submit a declaration under penalty of perjury is a waiver of his exemption, and he is required to appear upon the day for which the jury is summoned and serve as a juror the same as if he were not entitled to exemption unless otherwise excused by the court.

History. Laws 1899, ch. 23, § 5; R.S. 1899, § 3344; C.S. 1910, § 982; C.S. 1920, § 1208; R.S. 1931, § 61-205; C.S. 1945, § 12-105; W.S. 1957, § 1-81; Laws 1971, ch. 261, § 80; 1977, ch. 188, § 1; 2019 ch. 14, § 1, effective July 1, 2019; 2020 ch. 64, § 1, effective July 1, 2020.

The 2019 amendment, effective July 1, 2019, substituted “If the court determines that the affidavit sufficiently demonstrates that the person is not required to serve as a juror pursuant to W.S. 1-11-103(a), the court shall discharge the person from serving as a trial juror for the jury term in which he was summoned. A person who is discharged under this section is not required to appear in court.” for “The affidavit must be delivered by the clerk to the judge of the court where the person is summoned, and if sufficient in substance, must be received as evidence of his right to exemption and as an excuse for nonattendance in person. The affidavit must then be filed by the clerk.”

The 2020 amendment, effective July 1, 2020, substituted “he may submit a declaration under penalty of perjury” for “he may file his affidavit with the clerk of the court for which he is summoned,” “his purported grounds for exemption” for “his office, occupation or employment,” “declaration sufficiently” for “affidavit sufficiently,” and “submit a declaration under penalty of perjury” for “file the affidavit” and added “unless otherwise excused by the court” at the end.

§ 1-11-106. Jury lists; preparation of base jury lists; selecting jury panel; certificate and summons.

1. The list of persons selected to serve as prospective trial jurors, compiled pursuant to W.S. 1-11-129 , is the base jury list for the district court and the circuit court for the jury term set by each court.
2. The clerk shall prepare a certificate containing the names constituting the base jury list, and summon them to serve as jurors for the jury term for which they have been selected.

History. Laws 1899, ch. 23, § 9; R.S. 1899, § 3348; C.S. 1910, § 987; C.S. 1920, § 1212; R.S. 1931, § 61-209; C.S. 1945, § 12-109; W.S. 1957, § 1-85; Laws 1971, ch. 261, § 81; 1975, ch. 67, § 1; 1977, ch. 188, § 1; 1983, ch. 138, § 2; 1989, ch. 44, § 1; 2000, ch. 24, § 4; 2004, ch. 42, § 1; 2010, ch. 34, § 1; 2014 ch. 53, § 1, effective July 1, 2014; 2019 ch. 14, § 1, effective July 1, 2019.

The 2004 amendment, in (a), deleted “and justice of the peace courts” following “the circuit court,” “or justice of the peace” preceding “for their respective courts”; and made related changes.

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The 2010 amendment, in the first sentence of (a), deleted “certified and delivered to the clerk of the district court in accordance with W.S. 18-3-402 or a list of persons” following “serve as trial jurors,” and deleted “under an alternate procedure” preceding “pursuant to W.S. 1-11-129 .”

Laws 2010, ch. 34 § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 4, 2010.

The 2014 amendment , effective July 1, 2014, in (a), deleted the former second and third sentences, which read: “By order of the district judge or circuit judge, for their respective courts, the base jury list may be expanded by including some other source or sources of names in addition to voter lists. After the list is delivered and supplemented when applicable, suitable ballots shall be prepared and deposited in a box known as and plainly marked “jury box number one”; in the next-to-last sentence, substituted “shall select a panel of prospective trial jurors from the base jury list for the county” for “sheriff and county treasurer shall draw from jury box number one a panel of trial jurors, which shall contain such”; in the last sentence, added “The clerk shall select the,” and substituted “prospective jurors” for “names.”

The 2019 amendment, effective July 1, 2019, in (a), substituted “selected” for “qualified,” added “prospective” and substituted “for the jury term set by each” for “from April 1 of the year in which the list is certified and delivered through March 31 of the following year. Upon order of the court, the clerk of the district court shall select a panel of prospective trial jurors from the base jury list for the county. The clerk shall select the number of prospective jurors as specified by the”; in (b), substituted “base jury list,” for “panel of trial jurors” and substituted “serve as jurors for the jury term for which they have been selected” for “appear in court for a trial whenever ordered by the court.”

Editor's notes. —

Laws 2014, ch. 53, section 3, provides: “Notwithstanding W.S. 8 -1-107, the provisions of this act shall apply to all actions pending on the effective date of this act for which a jury has not been empaneled and all actions filed thereafter.”

Residency. —

“Selected and returned,” as used in this section, relates to the preparation of the base jury list, which is the list of qualified jurors; because “selected and returned” is a reference to preparation of the base jury list, the critical date for measuring the duration of a prospective juror's residence in a county is April 1, the date on which the base jury list is certified. In other words, any juror who is a resident of a county for the ninety-day period preceding April 1 meets the residence qualification for service in that county; therefore, even though a juror was no longer a resident of the county, she was still qualified because she was a resident of the county in the 90-day period preceding April 1. Lake v. State, 292 P.3d 174, 2013 Wyo. LEXIS 9 (Wyo. 2013).

Duty of clerk purely ministerial. —

The duty of the clerk to prepare jury list and place names in the boxes according to this section and § 1-11-109 is purely ministerial, and the clerk should not, on theory that they were disqualified, omit some of the names. Meldrum v. State, 23 Wyo. 12, 146 P. 596, 1915 Wyo. LEXIS 9 (Wyo. 1915).

Applied in

State v. Dobbs, 70 Wyo. 26, 244 P.2d 280, 1952 Wyo. LEXIS 18 (1952); Dorador v. State, 573 P.2d 839, 1978 Wyo. LEXIS 257 (Wyo. 1978).

Cited in

Bloomer v. State, 2009 WY 77, 209 P.3d 574, 2009 Wyo. LEXIS 86 (June 12, 2009).

Am. Jur. 2d, ALR and C.J.S. references. —

Inclusion or exclusion of first and last days in computing time for jury drawing or furnishing of jury list which must take place a certain number of days before a known future date, 98 ALR2d 1331.

Validity of requirement or practice of selecting prospective jurors exclusively from list of registered voters, 80 ALR3d 869.

§ 1-11-107. [Repealed.]

History: Laws 1899, ch. 23, § 10; R.S. 1899, § 3348; C.S. 1910, § 987; C.S. 1920, § 1212; R.S. 1931, § 61-209; C.S. 1945, § 12-110; W.S. 1957, § 1-86; Laws 1977, ch. 188, § 1; repealed by 2014 ch. 53, § 2, effective July 1, 2014.

Editor's notes. —

This section, which derived from Laws 1899, ch. 23, § 10, related to depositing new ballots in jury box.

§ 1-11-108. Jury panel in circuit courts; functions, powers and duties of judges thereof.

1. Repealed by Laws 2014, ch. 53, §  2.
2. In conducting jury trials, judges of the  circuit courts shall exercise and perform the same functions, powers  and duties as are prescribed for both the judge and the clerk of the  district court in W.S. 1-11-101 through 1-11-401 , insofar as practicable.
3. Repealed by Laws 1983, ch. 138, § 3.

History: Laws 1971, ch. 261, § 82; W.S. 1957, § 1-86.1; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 3; 2004, ch. 42, § 1; 2014 ch. 53, § 2, effective July 1, 2014.

The 2004 amendment, in (a), substituted “circuit courts” for “justice of the peace and county courts”; and, in (b), substituted “circuit courts” for “county courts and justice of peace courts.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

The 2014 amendment, effective July 1, 2014, repealed former (a), which read: “The names in jury box number one in the office of the clerk of the district court is the panel of trial jurors in all circuit courts.”

Severability. —

Section 73, ch. 261, Laws 1971, reads: “If any provision or clause of this act or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this act that can be given effect without invalid provision or application, and to this end the provisions of this act are declared severable.”

Repealing clauses. —

Section 76, ch. 261, Laws 1971, reads: “All acts and parts of acts inconsistent with this act are hereby repealed to the extent of such inconsistency.”

§ 1-11-109. Procedure for selecting jury; contents of certificate; summons.

1. The clerk shall choose the prospective jurors from the base jury list using a random method of selection.
2. Repealed by Laws 2014, ch. 53, §  2.
3. If any person selected is not qualified to serve as a trial juror, the name of the person shall be stricken from the base jury list from which summoned. If any person selected is exempt from serving as a trial juror under W.S. 1-11-103(a) and the person has claimed the exemption under W.S. 1-11-105 , then the name of the person shall be stricken from the base jury list for the jury term from which summoned.
4. When the necessary number of jurors has been randomly selected, the clerk shall make and certify a list of the names selected. The certificate shall state:
   1. The date of the court order for the selection;
   2. The date of the selection;
   3. The number of jurors selected;
   4. The names and addresses of the competent  jurors; and
   5. The place where the jurors are required to appear.
5. The jurors on the certified list shall  be summoned to appear.

History. Laws 1899, ch. 23, § 15; R.S. 1899, § 3353; C.S. 1910, § 992; C.S. 1920, § 1217; R.S. 1931, § 61-214; C.S. 1945, § 12-115; W.S. 1957, § 1-91; Laws 1963, ch. 74, § 1; 1977, ch. 188, § 1; 1983, ch. 138, § 2; 2014 ch. 53, §§ 1, 2, effective July 1, 2014; 2019 ch. 14, § 1, effective July 1, 2019.

The 2014 amendment, effective July 1, 2014, rewrote (a); repealed former (b) which read: “The name on each ballot drawn shall be entered in the minutes of the court”; in (c), substituted “If any person selected” for “If the name of any person is drawn who,” deleted “the ballot containing the name shall be destroyed, and such fact shall be entered in the minutes of the court”; and in (d), substituted “has been randomly selected” for “has been drawn,” and “selected” for “drawn” or variations throughout.

The 2019 amendment, effective July 1, 2019, in (c), substituted “qualified” for “competent,” deleted “and the incompetence shall be made to appear to the satisfaction of the court,” and added “base” and “from which summoned” in the first sentence, added the second sentence; and in (d)(v), deleted “time and.”

Residency. —

“Selected and returned,” as used in this section, relates to the preparation of the base jury list, which is the list of qualified jurors; because “selected and returned” is a reference to preparation of the base jury list, the critical date for measuring the duration of a prospective juror's residence in a county is April 1, the date on which the base jury list is certified. In other words, any juror who is a resident of a county for the ninety-day period preceding April 1 meets the residence qualification for service in that county; therefore, even though a juror was no longer a resident of the county, she was still qualified because she was a resident of the county in the 90-day period preceding April 1. Lake v. State, 292 P.3d 174, 2013 Wyo. LEXIS 9 (Wyo. 2013).

Defendant failed to show that the jury selection process warranted the granting of his motion to quash the jury panel. —

Defendant's convictions for possession of methamphetamine with intent to deliver were proper because the district court did not err in denying defendant's motion to quash the jury panel; the motion was based upon the district court clerk's policy of selecting jurors from the master list in alphabetical order, rather than in a random selection process. Defendant failed to show that the method used deprived him of a fair cross section of the community or that any distinctive group was systematically excluded from the panel; however, that method was also not to be used in any future cases. Bloomer v. State, 2009 WY 77, 209 P.3d 574, 2009 Wyo. LEXIS 86 (Wyo. 2009).

Cited in

Meldrum v. State, 23 Wyo. 12, 146 P. 596, 1915 Wyo. LEXIS 9 (1915).

Am. Jur. 2d, ALR and C.J.S. references. —

Confusion of name or identity in drawing, summoning, calling or impaneling, juror in civil case, as affecting verdict, 89 ALR2d 1242.

§§ 1-11-110 and 1-11-111. [Repealed.]

Repealed by Laws 1983, ch. 138, § 3.

Editor's notes. —

These sections, which derived from Laws 1899, ch. 23, §§ 17 and 18, related to disposition of ballots after term, and a jury box for jurors residing within five miles, respectively.

§ 1-11-112. Jurors to appear at time specified.

Each grand juror and petit juror summoned shall appear before the court on the day and at the hour specified by the court, and depart only with permission of the court.

History. Laws 1888, ch. 47, § 14; R.S. 1899, § 3355; C.S. 1910, § 994; C.S. 1920, § 1219; R.S. 1931, § 61-216; C.S. 1945, § 12-117; W.S. 1957, § 1-95; Laws 1977, ch. 188, § 1; 2019 ch. 14, § 1, effective July 1, 2019.

The 2019 amendment, effective July 1, 2019, substituted “by the court” for “in the summons.”

§ 1-11-113. Completion of jury panel.

1. The persons summoned by the clerk shall appear in answer to the summons and be examined as to their qualifications. If after all qualified trial jurors have been accepted it appears that there are not enough in attendance, the court shall order the clerk to randomly select the necessary number of names from the base jury list to complete the jury panel, and the clerk shall continue to randomly select names until a sufficient number of jurors are obtained. The persons so selected shall be summoned to appear.
2. Repealed by Laws 1983, ch. 138, § 3.

History: Laws 1899, ch. 23, § 19; R.S. 1899, § 3358; C.S. 1910, § 997; C.S. 1920, § 1222; R.S. 1931, § 61-219; C.S. 1945, § 12-120; W.S. 1957, § 1-96; Laws 1977, ch. 188, § 1; 1983, ch. 138, §§ 2, 3; 2014 ch. 53, § 1, effective July 1, 2014.

The 2014 amendment, in (a), substituted “summoned by the clerk” for “drawn from jury box number one and certified as trial jurors” in the first sentence “randomly select” for “draw from jury box number one” or variant and inserted “from the base jury list” in the second sentence; and substituted “selected” for drawn” in the third sentence.

Constitutionality. —

This section does not violate the provisions of Wyo. Const., art. 1, § 10. State v. Bolln, 10 Wyo. 439, 70 P. 1, 1902 Wyo. LEXIS 22 (Wyo. 1902).

Waiver of irregularity. —

When jury is sworn, accused waives all irregularities in the selection of the panel. Delmont v. State, 15 Wyo. 271, 88 P. 623, 1907 Wyo. LEXIS 7 (Wyo.), reh'g denied, 15 Wyo. 271, 88 P. 623, 1907 Wyo. LEXIS 8 (Wyo. 1907).

Am. Jur. 2d, ALR and C.J.S. references. —

Absence of defendant during taking of steps toward impaneling or selecting jury, 26 ALR2d 762.

Religious belief, affiliation or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire, 95 ALR3d 172.

§ 1-11-114. Service of summons; proof of service.

1. Service of a summons may be made by such  means as the court may order. If service is accomplished through the  sheriff’s office, the sheriff’s costs shall be paid by the county.
2. If necessary the court may require proof  of service.

History. Laws 1899, ch. 23, § 21; R.S. 1899, § 3360; C.S. 1910, § 999; C.S. 1920, § 1224; R.S. 1931, § 61-221; C.S. 1945, § 12-122; W.S. 1957, § 1-98; Laws 1977, ch. 188, § 1; Laws 1983, ch. 138, § 2; 1985, ch. 13, § 1.

Cross references. —

As to proof of service, see Rule 4(m)(2), W.R.C.P.

Motion to quash venire selected by the sheriff on ground of interest of sheriff in the prosecution held properly denied where the affidavit merely avers that the sheriff is interested and would be incompetent to serve as juror on account of his bias and prejudice. Gunnell v. State, 21 Wyo. 125, 128 P. 512, 1912 Wyo. LEXIS 12 (Wyo. 1912).

Cited in

State v. Bolln, 10 Wyo. 439, 70 P. 1, 1902 Wyo. LEXIS 22 (1902).

§ 1-11-115. Failure of juror to attend.

Any juror summoned who willfully and without reasonable excuse fails to attend may be arrested and compelled to attend and is subject to contempt of court.

History. Laws 1899, ch. 23, § 22; R.S. 1899, § 3361; C.S. 1910, § 1000; C.S. 1920, § 1225; R.S. 1931, § 61-222; C.S. 1945, § 12-123; W.S. 1957, § 1-99; Laws 1977, ch. 188, § 1; 1989, ch. 208, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Holding jurors in contempt under state law, 93 ALR5th 493.

§ 1-11-116. Empaneling of jury.

At the opening of court on the day that trial jurors are summoned and notified to appear, the clerk shall call the names of those jurors notified to appear. The court shall hear the jurors who are present, and shall excuse those whom the court finds are exempt, disqualified or have material cause for being excused.

History. Laws 1899, ch. 23, § 23; R.S. 1899, § 3362; C.S. 1910, § 1001; C.S. 1920, § 1226; R.S. 1931, § 61-223; C.S. 1945, § 12-124; W.S. 1957, § 1-100; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; 2014 ch. 53, § 1, effective July 1, 2014; 2019 ch. 14, § 1, effective July 1, 2019.

The 2014 amendment, deleted the former second and third sentences.

The 2019 amendment, effective July 1, 2019, added “and notified” and substituted “jurors notified to appear” for “summoned” in the first sentence and substituted “who are present” for “summoned” in the second sentence.

Cited in

State v. Bolln, 10 Wyo. 439, 70 P. 1, 1902 Wyo. LEXIS 22 (1902).

§ 1-11-117. [Repealed.]

History: Laws 1899, ch. 23, §§ 24, 25; R.S. 1899, §§ 3363, 3364; C.S. 1910, §§ 1002, 1003; C.S. 1920, §§ 1227, 1228; R.S. 1931, §§ 61-224, 61-225; C.S. 1945, §§ 12-125, 12-126; W.S. 1957, §§ 1-101, 1-102; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; repealed by 2014 ch. 53, § 2, effective July 1, 2014.

Editor's notes. —

This section, which derived from Laws 1899, ch. 23, §§ 24, 25, related to drawing trial jury.

§ 1-11-118. Procedure upon exhaustion of prospective jurors during empaneling.

If at any time during the empaneling of a jury all the names selected for the panel are exhausted, the court shall enter an order directing that such additional number of names as necessary be randomly selected from the base jury list. The court may excuse any jurors so selected if it appears that, because of distance, the delay occasioned by notifying the juror and requiring his presence would unduly prolong empaneling the trial jury. The clerk shall notify the persons selected and not excused to appear in court immediately. The process shall continue from time to time when necessary until a jury is obtained.

History. Laws 1899, ch. 23, § 26; R.S. 1899, § 3365; C.S. 1910, § 1004; C.S. 1920, § 1229; R.S. 1931, § 61-226; C.S. 1945, § 12-127; W.S. 1957, § 1-103; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; 2014 ch. 53, § 1, effective July 1, 2014; 2019 ch. 14, § 1, effective July 1, 2019.

The 2014 amendment, substituted “the names selected for the panel” for “the ballots contained in box number two,” inserted “additional” following “that such”, and substituted “be randomly selected from the base jury list” for “be drawn from box number one” in the first sentence; substituted “so selected” for “so drawn” in the second sentence; substituted “shall summon the persons selected and not excused” for “shall forthwith summon the persons drawn” in the third sentence; and deleted the former fourth sentence.

The 2019 amendment, effective July 1, 2019, substituted “notifying” for “summoning” in the second sentence and “notify” for “summon” in the third sentence.

§ 1-11-119. Number of jurors; fees and mileage.

Trial juries in circuit courts shall be composed of six (6) persons. Trial juries in civil cases and all other proceedings in the district courts except criminal cases shall be composed of six (6) jurors unless one (1) of the parties to the action files a written demand for twelve (12) jurors within the time a demand for jury may be filed, in which event the number of jurors shall be twelve (12). Jurors in all courts shall be allowed the same fees and mileage as jurors in district court.

History. Laws 1971, ch. 168, § 1; W.S. 1957, § 1-103.1; Laws 1977, ch. 188, § 1; 2004, ch. 42, § 1.

Cross references. —

As to mileage of jurors in district court, see § 1-11-302 .

As to amount of fees of jurors in district courts, see § 1-11-303 .

As to number of persons on jury, see art. 1, § 9, Wyo. Const.

For provision allowing parties to stipulate a jury of less than 12 members or to agree to accept a majority verdict, see Rule 48, W.R.C.P.

The 2004 amendment substituted “circuit courts” for “justice of the peace and county courts.”

Laws 2004, ch. 42, § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 3, 2004.

Quoted in

Vivion v. Brittain, 510 P.2d 21, 1973 Wyo. LEXIS 158 (Wyo. 1973).

Cited in

KAA v. State, 2001 WY 24, 18 P.3d 1159, 2001 Wyo. LEXIS 27 (Wyo. 2001).

Law reviews. —

See comment, “The Wyoming Juvenile Court Act of 1971,” VIII Land & Water L. Rev. 237 (1973).

Am. Jur. 2d, ALR and C.J.S. references. —

Statute reducing number of jurors as violative of right to trial by jury, 47 ALR3d 895.

Validity of agreement, by stipulation or waiver in state civil case, to accept verdict by number or proportion of jurors less than that constitutionally permitted, 15 ALR4th 213.

Right to jury trial in action under state civil rights law, 12 ALR5th 508.

§ 1-11-120. Persons sworn to constitute jury; generally.

The first six (6) persons, or other number of persons designated for a jury under W.S. 1-11-119 , who appear as their names are randomly selected and are approved as indifferent between the parties and not discharged or excused shall be sworn and constitute the jury to try the issue.

History. Laws 1899, ch. 23, § 27; R.S. 1899, § 3366; C.S. 1910, § 1005; C.S. 1920, § 1230; R.S. 1931, § 61-227; C.S. 1945, § 12-128; W.S. 1957, § 1-104; Laws 1971, ch. 168, § 2; 1977, ch. 188, § 1; 2014 ch. 53, § 1, effective July 1, 2014; 2019 ch. 14, § 1, effective July 1, 2019.

The 2014 amendment, substituted “are randomly selected” for “are drawn.”

The 2019 amendment, effective July 1, 2019, substituted "other number of persons designated for a jury under W.S. 1-11-119 ," for "twelve (12) if demanded".

§ 1-11-121. [Repealed.]

History: Laws 1899, ch. 23, § 28; R.S. 1899, § 3367; C.S. 1910, § 1006; C.S. 1920, § 1231; R.S. 1931, § 61-228; C.S. 1945, § 12-129; W.S. 1957, § 1-105; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; repealed by 2014 ch. 53, § 2, effective July 1, 2014.

Editor's notes. —

This section, which derived from Laws 1899, ch. 23, § 28, related to persons sworn to constitute jury..

§ 1-11-122. Discharge of jurors.

After the jury is discharged the jurors, upon request, shall be excused from jury service for the remainder of the calendar year.

History. Laws 1899, ch. 23, § 29; R.S. 1899, § 3368; Laws 1903, ch. 65, § 1; C.S. 1910, § 1007; C.S. 1920, § 1232; R.S. 1931, § 61-229; C.S. 1945, § 12-130; W.S. 1957, § 1-106; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2.

§ 1-11-123. Discharge of jurors; absent or excused jurors.

The name of a juror who is absent when his name is selected, or is set aside, or excused from serving on that trial shall remain on the base jury list.

History: Laws 1899, ch. 23, § 30; R.S. 1899, § 3369; C.S. 1910, § 1008; C.S. 1920, § 1233; R.S. 1931, § 61-230; C.S. 1945, § 12-131; W.S. 1957, § 1-107; Laws 1977, ch. 188, § 1; 2014 ch. 53, § 1, effective July 1, 2014.

The 2014 amendment, deleted “ballot containing the” preceding “name of”; and substituted “selected” for “drawn” and “remain on the base jury list” for “be returned to the box containing the undrawn ballots as soon as the jury is sworn.”

§ 1-11-124. [Repealed.]

History: Laws 1899, ch. 23, § 31; R.S. 1899, § 3370; C.S. 1910, § 1009; C.S. 1920, § 1234; R.S. 1931, § 61-231; C.S. 1945, § 12-132; W.S. 1957, § 1-108; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; repealed by 2014 ch. 53, § 2, effective July 1, 2014.

Editor's notes. —

This section, which derived from Laws 1899, ch. 23, § 31, related to procedure where additional jury needed.

§ 1-11-125. Procedure when sufficient number of jurors fail to attend.

If a sufficient number of jurors duly selected and notified do not attend to form a jury the court shall direct the clerk to select a sufficient number of names from the base jury list to complete the jury and shall summon the persons selected to attend immediately or at a time fixed by the court. If for any reason a sufficient number of jurors to try the issue is not obtained from the persons notified, the court may make successive orders until a sufficient number is obtained. The court may excuse any juror so selected if it appears that, because of distance, the delay occasioned by summoning the juror and requiring his presence would unduly prolong empaneling the trial jury. Each person so notified, unless excused by the court, shall serve as a juror at the trial. For a neglect or refusal to serve he may be fined in the same manner as a trial juror regularly selected and notified and he is subject to the same exceptions and challenges as any other trial juror.

History: Laws 1899, ch. 23, § 32; R.S. 1899, § 3371; C.S. 1910, § 1010; C.S. 1920, § 1235; R.S. 1931, § 61-232; C.S. 1945, § 12-133; W.S. 1957, § 1-109; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; 2014 ch. 53, § 1, effective July 1, 2014.

Cross references. —

As to exemptions from jury duty, see § 1-11-103 .

As to excuses from jury service, see § 1-11-104 .

As to punishment for failure to attend, see § 1-11-115 .

As to challenges for cause, see § 1-11-203 .

The 2014 amendment, substituted “selected” for “drawn” or a variant throughout and “of names from the base jury list” for “of ballots from box number one” in the first sentence.

§ 1-11-126. No objection that jury not original one returned.

It is not a valid objection to a jury that it contains none of the jurors originally returned to the court or is only partially composed of such jurors or that the base jury list was not supplemented as permitted herein.

History. Laws 1899, ch. 23, § 33; R.S. 1899, § 3372; C.S. 1910, § 1011; C.S. 1920, § 1236; R.S. 1931, § 61-233; C.S. 1945, § 12-134; W.S. 1957, § 1-110; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2.

Cross references. —

As to supplementation of base jury list, see § 1-11-106 .

§ 1-11-127. [Repealed.]

History: Laws 1899, ch. 23, § 38; R.S. 1899, § 3377; C.S. 1910, § 1013; C.S. 1920, § 1238; R.S. 1931, § 61-235; C.S. 1945, § 12-139; Laws 1955, ch. 22, § 1; W.S. 1957, § 1-111; Laws 1977, ch. 188, § 1; 1983, ch. 138, § 2; repealed by 2014 ch. 53, § 2, effective July 1, 2014.

§ 1-11-128. [Repealed.]

History. Laws 1911, ch. 92, §§ 1, 2; C.S. 1920, § 1247; R.S. 1931, § 61-244; C.S. 1945, § 12-144; W.S. 1957, § 1-116; Laws 1977, ch. 188, § 1; 2010, ch. 34, § 1; repealed by 2014 ch. 53, § 2, effective July 1, 2014.

§ 1-11-129. Procedure for maintaining jury lists.

The supreme court shall compile a base jury list for each county. The supreme court shall compile a base jury list for the state as necessary under W.S. 7-5-303 . The base jury lists shall be compiled from voter lists and may also include names from Wyoming driver’s license or Wyoming department of transportation state identification lists. The base jury lists prepared by the supreme court and panels or lists of prospective jurors selected by the clerk of court may be compiled and maintained using any manual, mechanical, electronic or other means calculated to ensure the integrity of the system and a random selection process.

History. Laws 1983, ch. 138, § 1; 2010, ch. 34, § 1; 2014 ch. 53, § 1, effective July 1, 2014; 2019 ch. 14, § 1, effective July 1, 2019; 2020 ch. 87, § 1, effective July 1, 2020.

The 2010 amendment, substituted “set by the court” for “modified by the court.”

Laws 2010, ch. 34 § 3, makes the act effective immediately upon completion of all acts necessary for a bill to become law as provided by art. 4, § 8, Wyo. Const. Approved March 4, 2010.

The 2014 amendment, rewrote the section which formerly read: “The procedures for compiling and maintaining of jury lists, jury ballots and jury boxes, and for drawing jurors, may be set by the court to permit the compilation and maintenance of jury lists and ballots and for the drawing of jurors by any manual, mechanical, electronic or other means calculated to insure the integrity of the system and a random selection process.”

The 2019 amendment, effective July 1, 2019, added “also” and “or Wyoming department of transportation state identification” in the second sentence.

The 2020 amendment, effective July 1, 2020, substituted “ensure the integrity” for “insure the integrity.”

Defendant failed to show that the jury selection process warranted the granting of his motion to quash the jury panel. —

Defendant's convictions for possession of methamphetamine with intent to deliver were proper because the district court did not err in denying defendant's motion to quash the jury panel; the motion was based upon the district court clerk's policy of selecting jurors from the master list in alphabetical order, rather than in a random selection process. Defendant failed to show that the method used deprived him of a fair cross section of the community or that any distinctive group was systematically excluded from the panel; however, that method was also not to be used in any future cases. Bloomer v. State, 2009 WY 77, 209 P.3d 574, 2009 Wyo. LEXIS 86 (Wyo. 2009).

§ 1-11-201. Oath of jurors; jury ordered into custody.

As soon as the jury is selected an oath shall be administered to the jurors that they will truly try the matter in issue between . . . . . , the plaintiff, and . . . . . , the defendant, and render a true verdict according to the evidence. After the oath has been administered and the jury fully empaneled, the court shall order the jury into the custody of the officer selected by the court. The jurors shall not separate from the custody of the officer until they have been duly discharged, unless by the consent of the parties to the action. The officer shall provide for suitable quarters and food for the jury pending the trial.

History. C.L. 1876, ch. 69, § 24; R.S. 1887, § 2552; R.S. 1899, § 3643; C.S. 1910, § 4498; C.S. 1920, § 5768; R.S. 1931, § 89-1305; C.S. 1945, § 3-2402; W.S. 1957, § 1-118; Laws 1977, ch. 188, § 1.

Cross references. —

See also § 1-11-207 concerning custody of jurors during deliberations.

As to oath of jurors in criminal cases, see § 7-11-107 .

Presumption of compliance. —

In the absence of anything to the contrary of which the court on appeal may properly take notice, it will be presumed that the court complied with its duty under this section to order the jury into the custody of an officer when they are not allowed to separate. Wallace v. Skinner, 15 Wyo. 233, 88 P. 221, 1907 Wyo. LEXIS 4 (Wyo. 1907).

Where separation of or opportunity to communicate with jury shown. —

When defendant in capital case has shown separation of jury or opportunity for other parties, especially witnesses, to communicate with them, and it appears defendant was prejudiced or when it does not appear he was not prejudiced, new trial should be granted. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

New trial is properly refused because members of jury which had been ordered to be kept together went home for a short time by permission of a bailiff, it being satisfactorily shown that the separation did not serve as the occasion for the exercise of improper influences and that no one was prejudiced thereby. Cronberg Bros. v. Johnson, 29 Wyo. 11, 208 P. 446, 1922 Wyo. LEXIS 4 (Wyo. 1922).

Juror's affidavits are admissible in capital case showing that no prejudice resulted from their misconduct, and if presumption of prejudice is thereby overcome, new trial should be denied. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Where deputy sheriff commingled with jurors but juror's affidavits showed he did not discuss anything with jurors relating to case, no ground for new trial was shown. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

But not necessarily considered on appeal. —

Juror's affidavits relating to alleged misconduct and to newspaper accounts of case read by them pending trial, which were not seen by district court, nor part of record on appeal and were not agreed to by state, will not be considered by supreme court. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Bailiff's duties. —

While a trial judge erred in allowing an officer who participated in an investigation of defendant to act as bailiff during defendant's trial, the error was harmless because there was absolutely no evidence in the record that the bailiff did anything as bailiff other than the routine, administrative matters the bailiff was charged with performing. Majors v. State, 2011 WY 63, 252 P.3d 435, 2011 Wyo. LEXIS 65 (Wyo. 2011).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of governmental requirement of oath of allegiance or loyalty as applied to jurors, 18 ALR2d 268.

§ 1-11-202. Peremptory challenges allowed.

In the trial of civil cases in the district courts of this state, each side is allowed three (3) peremptory challenges.

History. C.L. 1876, ch. 70, § 1; R.S. 1887, § 2549; C.S. 1945, § 3-2404; W.S. 1957, § 1-120; Laws 1977, ch. 188, § 1.

Cross references. —

As to peremptory challenges in criminal cases, see § 7-11-103 .

Allocation of peremptory challenges in multi-party context.

—

In a termination of parental rights proceeding, it was an abuse of discretion to grant a guardian ad litem (GAL) and a Department of Family Services (Department) separate peremptory challenges because the positions of the GAL and Department were not antagonistic. In re LDB, 2019 WY 127, 454 P.3d 908, 2019 Wyo. LEXIS 12 9 (Wyo. 2019); Swenson v. State, Dep't of Family Servs. (In re: LCH), 2019 WY 13, 434 P.3d 100, 2019 Wyo. LEXIS 12 (Wyo. 2019).

Prior to alloting peremptory challenges under this section, the trial judge should consider all the relevant circumstances to determine whether a good faith controversy exists among multi-party defendants regarding an issue of fact which the jury will decide. Wardell v. McMillan, 844 P.2d 1052, 1992 Wyo. LEXIS 206 (Wyo. 1992).

Objection to allocation of peremptory challenges waived.—

Parent could not attack the jury verdict on the basis of an improper allocation of peremptory challenges because the record failed to reveal which jurors the parent desired to empanel, that the state agency or guardian ad litem excluded. The record also failed to disclose which jurors, if any, the parent would have challenged had the parent been allotted additional peremptory challenges because at no point did the parent’s counsel object to the allocation of peremptory challenges, as counsel instead stated that counsel had no such objections. Harmon v. Dep't of Family Servs. (In re DKS), 2020 WY 12, 456 P.3d 918, 2020 Wyo. LEXIS 12 (Wyo. 2020).

Standard of review applicable to allocation of peremptory challenges among multiple parties is an abuse of discretion standard. Cargill v. Mountain Cement Co., 891 P.2d 57, 1995 Wyo. LEXIS 31 (Wyo. 1995).

A jury verdict will not be reversed, due to improper allocation of peremptory challenges, unless the challenging party can point to some convincing indication in the record that if a further peremptory challenge had been allowed, the party meant to challenge one or more jurors. Cargill v. Mountain Cement Co., 891 P.2d 57, 1995 Wyo. LEXIS 31 (Wyo. 1995).

Objection to number of peremptory challenges waived. —

Where two defendants in a civil action were awarded a total of six peremptory challenges and plaintiffs were awarded four, plaintiffs' objection on appeal was not preserved, as plaintiffs did not complain that plaintiffs were given insufficient peremptory challenges at trial and did not make this point at the time the jury was empaneled or take any action at all to put the trial court on notice of plaintiffs' dissatisfaction. Smyth v. Kaufman, 2003 WY 52, 67 P.3d 1161, 2003 Wyo. LEXIS 64 (Wyo. 2003).

Law reviews. —

For case note, “Constitutional Law — The United States Supreme Court on Gender-Based Peremptory Jury Challenges — Constitutionally Correct But Out of Touch With Reality: Litigants Beware! J.E.B. v. Alabama ex rel. T. B., 144 S. Ct. 1419 (1994),” see XXXI Land & Water L. Rev. 195 (1996).

Am. Jur. 2d, ALR and C.J.S. references. —

Peremptory challenge after acceptance of juror, 3 ALR2d 499.

Use of peremptory challenge to exclude from jury persons belonging to specific race or class, 4 ALR2d 1200.

Waiver of peremptory challenge or challenges in civil cases other than by acceptance of juror, 56 ALR2d 742.

Effect of allowing excessive number of peremptory challenges, 95 ALR2d 957.

Number of peremptory challenges allowable where there are 2 or more parties on same side, 32 ALR3d 747.

Use of peremptory challenge to exclude from jury persons belonging to a class or race, 79 ALR3d 14.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 ALR3d 15.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury-post-Batson state cases, 47 ALR5th 259.

Use of peremptory challenges to exclude persons from criminal jury based on religious affiliation — post-Batson state cases, 63 ALR5th 375.

§ 1-11-203. Challenges for cause; grounds.

1. Challenges for cause may be taken on one  (1) or more of the following grounds:
   1. A lack of any of the qualifications prescribed  by statute which render a person competent as a juror;
   2. Relationship by consanguinity or affinity  within the third degree to either party;
   3. Standing in the relation of debtor or  creditor, guardian or ward, master or servant, or principal or agent  to either party, or being a partner united in business with either  party, or being security on any bond or obligation for either party;
   4. Having served as a juror or a witness  in a previous trial between the same parties for the same cause of  action, or being then a witness therein;
   5. Interest on the part of the juror in the  event or question involved in the action, but not an interest of the  juror as a member or citizen of a municipal corporation;
   6. Having formed or expressed an unqualified  opinion or belief as to the merits or the main question of the action.  The reading of newspaper accounts of the subject matter before the  court shall not disqualify the juror either for bias or opinion;
   7. The existence of a state of mind in the  juror evincing enmity or bias for either party.

History. C.L. 1876, ch. 69, § 26; R.S. 1887, § 2550; R.S. 1899, § 3641; C.S. 1910, § 4496; C.S. 1920, § 5766; R.S. 1931, § 89-1303; C.S. 1945, § 3-2405; W.S. 1957, § 1-121; Laws 1977, ch. 188, § 1.

Cross references. —

As to qualifications of jurors, see § 1-11-101 .

As to challenges for cause in criminal cases, see §§ 7-11-104 and 7-11-105 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Involvement in personal injury litigation. —

While it is not a statutory ground for challenge in a personal injury action for cause that a juror or his family has been involved in personal injury litigation, such information may lead to further questions to determine if such involvement has caused the juror to form such an attitude or opinion so as not to be fair and impartial. Vivion v. Brittain, 510 P.2d 21, 1973 Wyo. LEXIS 158 (Wyo. 1973).

Effect of relationship not specified as disqualification. —

Where there was a relationship of attorney and client between a prospective juror's father, whose business was managed by the juror, and the law firm of an attorney representing the defendant, held under this section, which does not specify such a relationship as a disqualification of a prospective juror, that any bias or prejudice which might be said to result from such a relationship was, at the most, only a rebuttable presumption and that the fairness and impartiality of the juror is a matter of fact to be determined by the trial court in the exercise of its sound discretion. Krahn v. Pierce, 485 P.2d 1021, 1971 Wyo. LEXIS 223 (Wyo. 1971).

Speculative bias will not result in successful challenge if the trial court determines that the prospective juror is able to decide the case solely on the evidence presented and according to the trial court's instructions on the law. Schwenke v. State, 768 P.2d 1031, 1989 Wyo. LEXIS 32 (Wyo. 1989).

Review. —

Where plaintiffs' attorney passed jury panel for cause, plaintiffs could not establish reversible error from court's denial of their challenges of three veniremen for cause. McGhee v. Rork, 978 P.2d 577, 1999 Wyo. LEXIS 41 (Wyo. 1999).

Quoted in

Lopez v. State, 544 P.2d 855, 1976 Wyo. LEXIS 159 (Wyo. 1976); Hopkinson v. State, 632 P.2d 79, 1981 Wyo. LEXIS 357 (Wyo. 1981); Jahnke v. State, 682 P.2d 991, 1984 Wyo. LEXIS 292 (Wyo. 1984); Summers v. State, 725 P.2d 1033, 1986 Wyo. LEXIS 614 (Wyo. 1986); Russell v. State, 851 P.2d 1274, 1993 Wyo. LEXIS 86 (Wyo. 1993); Smith v. State, 2008 WY 98, 190 P.3d 522, 2008 Wyo. LEXIS 101 (Aug. 19, 2008); Smith v. State, 2009 WY 2, 199 P.3d 1052, 2009 Wyo. LEXIS 2 (Jan. 13, 2009).

Cited in

Redwine v. Fitzhugh, 78 Wyo. 407, 329 P.2d 257, 1958 Wyo. LEXIS 24 , 72 A.L.R.2d 664 (1958); Wardell v. McMillan, 844 P.2d 1052, 1992 Wyo. LEXIS 206 (Wyo. 1992); Ormsby v. Dana Kepner Co. of Wyo., 997 P.2d 465, 2000 Wyo. LEXIS 26 (Wyo. 2000).

Law reviews. —

For case note, “Constitutional Law — The United States Supreme Court on Gender-Based Peremptory Jury Challenges — Constitutionally Correct But Out of Touch With Reality: Litigants Beware! J.E.B. v. Alabama ex rel. T. B., 144 S. Ct. 1419 (1994),” see XXXI Land & Water L. Rev. 195 (1996).

Am. Jur. 2d, ALR and C.J.S. references. —

Questions to jury in personal injury or death action as to interest in or connection with indemnity insurance company, 4 ALR2d 761.

Effect of juror's false or erroneous answer on voir dire in personal injury or death action as to previous claims or actions for damages by himself or his family, 38 ALR2d 624.

Effect of false or erroneous answer on voir dire as to previous claims or actions against himself or his family, 63 ALR2d 1061.

Professional or business relations between proposed juror and attorney as ground of challenge for cause, 72 ALR2d 673.

Previous knowledge of facts of civil case by juror as disqualification, 73 ALR2d 1312.

Relationship (consanguinity or affinity) of juror to witness in civil case as ground of disqualification, 85 ALR2d 851.

Effect of social or business relationship between proposed juror and nonparty witness on qualification of juror, 11 ALR3d 859.

Claustrophobia or other neurosis of juror as subject of inquiry on voir dire or of disqualification of juror, 20 ALR3d 1420.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 ALR3d 15.

Religious belief, affiliation or prejudice of prospective juror as proper subject of inquiry or ground for challenge on voir dire, 95 ALR3d 172.

Professional or business relations between proposed juror and attorney as ground for challenge for cause, 52 ALR4th 964.

Effect of juror's false or erroneous answer on voir dire regarding previous claims or actions against himself or his family, 66 ALR4th 509.

Prospective juror's connection with insurance company as ground for challenge for cause, 9 ALR5th 102.

Propriety of inquiry on voir dire as to juror's attitude toward, or acquaintance with literature dealing with, amount of damage awards, 63 ALR5th 285.

Examination and challenge of federal case jurors on basis of attitudes toward homosexuality, 85 ALR Fed 864.

§ 1-11-204. Challenges for cause; trial.

All challenges for cause shall be tried by the court, and the juror challenged, and any other persons may be examined as witnesses upon the trial of the challenge.

History. C.L. 1876, ch. 70, § 3; R.S. 1887, § 2551; R.S. 1899, § 3642; C.S. 1910, § 4497; C.S. 1920, § 5767; R.S. 1931, § 89-1304; C.S. 1945, § 3-2407; W.S. 1957, § 1-123; Laws 1977, ch. 188, § 1.

Cross references. —

As to trial of challenges in criminal cases, see § 7-11-104 .

§ 1-11-205. Order of trial.

1. When the jury has been sworn, the trial  shall proceed in the following order, unless the court for good cause  otherwise directs:
   1. The party who has the burden of the issues  may briefly state his case and the evidence by which he expects to  sustain it;
   2. The adverse party may then briefly state  his defense and the evidence he expects to offer in support of it;
   3. The party who has the burden of the issues  shall first produce his evidence, the adverse party will then produce  his evidence;
   4. The parties will then be confined to rebutting  evidence unless the court permits them to offer evidence in their  original case;
   5. When the evidence is concluded, and either  party desires special instructions to be given to the jury, the instructions  shall be reduced to writing, numbered and signed by the party or his  attorney asking the same, and delivered to the court;
   6. Before argument of the cause is begun,  the court shall give such instructions of the law to the jury as may  be necessary. The instructions shall be in writing, numbered and signed  by the judge;
   7. Where either party asks special instructions  to be given to the jury, the court shall either give such instructions  as requested, give the instructions with modifications, or refuse  to give them. The court shall mark each instruction offered so that  it shall appear which instructions were given in whole or in part,  and which were refused, so that either party may except to the instructions  as given, refused or modified. All instructions given by the court  together with those refused shall be filed as a part of the record.

History. Laws 1886, ch. 60, § 213; R.S. 1887, § 2553; R.S. 1899, § 3644; C.S. 1910, § 4499; C.S. 1920, § 5769; R.S. 1931, § 89-1306; C.S. 1945, § 3-2408; W.S. 1957, § 1-124; Laws 1977, ch. 188, § 1.

Cross references. —

As to order of trial in criminal cases, see § 7-11-201 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Rebuttal evidence. —

The court has discretion in admitting evidence admissible during a party's case in chief when offered in rebuttal. Davis v. Consolidated Oil & Gas, 802 P.2d 840, 1990 Wyo. LEXIS 145 (Wyo. 1990), reh'g denied, 1991 Wyo. LEXIS 8 (Wyo. Jan. 11, 1991).

Duty of court to instruct. —

It is duty of court, under § 7-11-201 , to instruct jury on essential law of the case and of such matters of law without which defendant will not receive fair trial, or without which jury of laymen would be apt to go wrong. Gardner v. State, 27 Wyo. 316, 196 P. 750, 1921 Wyo. LEXIS 18 (Wyo. 1921).

Jury to receive instructions in court. —

Where after the jury made known its desire to be informed concerning a part of the law arising in the case, the requirement of the statute to “conduct them to the court where information upon the matter of law shall be given” was not followed, nor was the instruction made part of the record as required by subsection (a)(vii) of this section and even though an objection was not made thereto (in fact, there is indication to the contrary, i.e., that it was done with the approval of counsel), there was plain error in the proceedings. Rissler & McMurry v. Snodgrass, 854 P.2d 69, 1993 Wyo. LEXIS 101 (Wyo. 1993), reh'g denied, 1993 Wyo. LEXIS 128 (Wyo. July 20, 1993).

Failure to instruct held not prejudicial. —

In prosecution for murder committed during attempted robbery, where no instruction defining robbery was asked for and no exception taken, held, that failure to give such instruction was not prejudicial, especially where there was no lack of proof of attempt to commit robbery. Harris v. State, 34 Wyo. 175, 242 P. 411, 1926 Wyo. LEXIS 33 (1926). See Rule 30, W.R.Cr.P.

Instructions become part of record. —

Under this section instructions, when offered in writing, numbered, noted and signed by the judge and returned with the original papers, become a part of the record and need not be embodied in a bill of exceptions to be considered on appeal. Stoner v. Mau, 11 Wyo. 366, 72 P. 193, 73 P. 548, 1903 Wyo. LEXIS 14 (Wyo. 1903).

Failure of court to number and sign instructions given in a case, as required by this section, was without prejudice, there being no suggestion that any of the instructions which were given escaped, or that others crept into, the record. Keffer v. State, 12 Wyo. 49, 73 P. 556, 1903 Wyo. LEXIS 26 (Wyo. 1903).

Instruction on contributory negligence. —

In action by employee against employer for personal injuries, with evidence to sustain allegations of the answer that plaintiff knew of the danger, and that it was unnecessary for him to go to the place where it existed and accident occurred, and only instructions on contributory negligence were in regard to plaintiff's going to the place of the accident contrary to the rules of his employer, question of contributory negligence, independent of any rule of the company, should have been submitted to the jury, under proper instructions, though the instruction requested did not state the law accurately. Union Pac. R.R. v. Jarvi, 3 Wyo. 375, 3 Wyo. 376, 23 P. 398, 1890 Wyo. LEXIS 10 (Wyo. 1890).

Preserving exceptions. —

It is not necessary to preserve properly exceptions to an instruction to state the specific grounds thereof in a bill of exceptions, the usual practice being to state such grounds when first objecting to proposed instructions, without incorporating them in the record, a continued reliance upon the record objection being usually indicated by merely announcing that the party excepts to the giving of the instructions at the time it is given, the jury being instructed upon the law of the case in civil actions, before proceeding with the arguments of counsel. Hall Oil Co. v. Barquin, 29 Wyo. 440, 213 P. 941, 1923 Wyo. LEXIS 23 (1923). See Rule 46 and 75, W.R.C.P.

Duty to state issues to jury. —

This section does not, in specific terms, require court to state issues to the jury, but that duty may no doubt be implied, when necessary, to a fair and intelligent consideration of the cause by the jury from the statutory requirement that “before the argument of the case is begun, the court shall give such instructions upon the law to the jury as may be necessary.” Wallace v. Skinner, 15 Wyo. 233, 88 P. 221, 1907 Wyo. LEXIS 4 (Wyo. 1907).

Communications of administrative directives to jury. —

The status of communications between the judge and the jury that do not involve instructions on the law can be characterized as administrative directives, and the harmless error doctrine applies to such communications. Carlson v. Carlson, 888 P.2d 210, 1995 Wyo. LEXIS 1 (Wyo. 1995).

Clarifying communications with jury held proper. —

Where jurors sent the trial court a note asking, “If we cannot find solid proof of trespass, can we award damages?” and it answered “No” without the parties' counsel being present, plaintiffs were not entitled to new trial because (1) answering the question with a definitive “No” left no room for further confusion or undue emphasis on any particular instructions, (2) the jurors had been properly instructed on the burden of proof, and (3) the question did not indicate that the jury was confused about what “preponderance of the evidence” meant. Beck v. Townsend, 2005 WY 84, 116 P.3d 465, 2005 Wyo. LEXIS 98 (Wyo. 2005).

Inconsistent findings. —

Plaintiff was injured while assisting J. and E. in lowering an engine in defendant's shop under the orders of the gang “boss.” The jury found that in consequence of an order given by the “boss,” J. did not assist in removing the last timber from under the engine and that in consequence of his failure so to assist the accident occurred, and to that extent, the “boss” and J. were found negligent. They also found that three men were generally employed to do the work referred to, though two, one being in the pit under the engine, could do the work. Held, that the findings were inconsistent. McBride v. Union Pac. R.R., 3 Wyo. 247, 21 P. 687, 1889 Wyo. LEXIS 1 (Wyo. 1889).

The finding that two men were sufficient and that two were furnished does not warrant a judgment for defendant, it being inconsistent with the finding that the accident occurred in consequence of the third man being ordered away, and to strike out the latter and give effect to the former would be making a new verdict. McBride v. Union Pac. R.R., 3 Wyo. 247, 21 P. 687, 1889 Wyo. LEXIS 1 (Wyo. 1889).

Directed verdicts. —

A verdict cannot be based upon mere guess or conjecture if intelligent minds may not draw therefrom different conclusions upon the question of negligence, and it is the duty of the court to direct a verdict unless the conflict is positive. Galicich v. Oregon Short Line R.R., 54 Wyo. 123, 87 P.2d 27, 1939 Wyo. LEXIS 5 (1939). See Rule 50, W.R.C.P.

Where plaintiff sued for diversion of water from his irrigating ditch and during plaintiff's cross-examination defendant introduced written contract tending to show joint ownership of himself with defendant, and then moved for the direction of a verdict before plaintiff's evidence was all in on the ground that irrigation statute provided a specific remedy to determine the right of joint owners, which was exclusive, it was error to direct the verdict, such action being directly contrary to this section, prescribing the mode of trial, and giving plaintiff the right to introduce evidence in support of his case and also in rebuttal. Mau v. Stoner, 10 Wyo. 125, 67 P. 618, 1902 Wyo. LEXIS 4 (Wyo. 1902).

Cited in

Spriggs v. Cheyenne Newspapers, Inc., 63 Wyo. 416, 182 P.2d 801, 1947 Wyo. LEXIS 16 (1947); Stringer v. Board of County Comm'rs, 347 P.2d 197, 1959 Wyo. LEXIS 5 (Wyo. 1959); Stauffer Chem. Co. v. Curry, 778 P.2d 1083, 1989 Wyo. LEXIS 185 (Wyo. 1989); Natural Gas Processing Co. v. Hull, 886 P.2d 1181, 1994 Wyo. LEXIS 165 (Wyo. 1994); Sutherland v. State, 944 P.2d 1157, 1997 Wyo. LEXIS 122 (Wyo. 1997).

Am. Jur. 2d, ALR and C.J.S. references. —

Prejudicial effect of judge's disclosure to jury, in civil case, of motions or proceedings in chamber, 77 ALR2d 1253.

Suggestion by judge during trial as to advisability of compromise, 6 ALR3d 1457.

Propriety and prejudicial effect of instructions in civil case as affected by the manner in which they are written, 10 ALR3d 501.

Propriety and prejudicial effect of sending written instructions with retiring jury in civil case, 91 ALR3d 336.

Propriety of trial court order limiting time for opening or closing argument in civil case — state cases, 71 ALR4th 130.

Order of closing argument in federal civil trials, 53 ALR Fed 900.

§ 1-11-206. View of property or place by jury.

When the court considers it proper for the jurors to view the property which is the subject of litigation or the place in which any material fact occurred, it may order them to be conducted in a body under the charge of an officer to the place which shall be shown to them by a person appointed by the court for that purpose. While the jurors are absent no person other than the person so appointed shall speak to them on any subject connected with the trial.

History. Laws 1886, ch. 60, § 214; R.S. 1887, § 2554; R.S. 1899, § 3645; C.S. 1910, § 4500; C.S. 1920, § 5770; R.S. 1931, § 89-1307; C.S. 1945, § 3-2409; W.S. 1957, § 1-125; Laws 1977, ch. 188, § 1.

Personal appearance to establish damage. —

When party expects to rely in part on his personal appearance in court for purpose of establishing element of damage, the matter should be brought into the record by some appropriate question. Northwest States Utils. Co. v. Ashton, 51 Wyo. 168, 65 P.2d 235, 1937 Wyo. LEXIS 11 (Wyo.), reh'g denied, 51 Wyo. 166, 69 P.2d 623, 1937 Wyo. LEXIS 55 (Wyo. 1937).

Am. Jur. 2d, ALR and C.J.S. references. —

Prejudicial effect of misconduct by one other than juror during authorized view by jury, 45 ALR2d 1128.

Prejudicial effect of acts of jurors in viewing premises with witnesses, 52 ALR2d 182.

Prejudicial effect of acts of jurors in viewing premises with witnesses, 58 ALR2d 177.

Prejudicial effect of indicating to jury a party's desire for view by jury, 76 ALR2d 766.

Propriety of permitting view by jury, in civil personal injury or death action, as affected by claimed change since accident or incident, 85 ALR2d 512.

Prejudicial effect of unauthorized view by jury of scene of accident or premises in question, 11 ALR3d 918.

§ 1-11-207. Decision or deliberation by jury; duty of officer in charge of jury.

When the case is submitted, the jury may decide in court or retire for deliberation. If the jurors retire, they shall be kept together in some convenient place under the charge of an officer until they agree upon a verdict or are discharged by the court. The court may permit them to separate temporarily at night or at their meals. The officer having them under his charge shall not allow any communication to be made to them nor make any himself except to ask them if they have agreed upon their verdict, unless by order of the court. He shall not communicate to any person the state of their deliberations or the verdict agreed upon before their verdict is rendered.

History. Laws 1886, ch. 60, § 215; R.S. 1887, § 2555; R.S. 1899, § 3646; C.S. 1910, § 4501; C.S. 1920, § 5771; R.S. 1931, § 89-1308; C.S. 1945, § 3-2410; W.S. 1957, § 1-126; Laws 1977, ch. 188, § 1.

Cross references. —

As to duty of officer in charge of jury, see § 1-11-201 .

Where separation of or opportunity to communicate with jury shown. —

When defendant in capital case has shown separation of jury or opportunity for other parties, especially witnesses, to communicate with them, and it appears defendant was prejudiced or when it does not appear he was not prejudiced, new trial should be granted. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Where a witness who mingled with the jury was a police officer and also a principal witness for the prosecution, and therefore a part of the prosecution team, and no inquiry was made of the jury members to determine if communications between the witness and themselves were such as to be not prejudicial to the defendant, the trial court should have granted the defendant's motion for mistrial on the grounds of jury conduct. Romo v. State, 500 P.2d 678, 1972 Wyo. LEXIS 296 (Wyo. 1972).

Juror's affidavits are admissible in capital case showing that no prejudice resulted from their misconduct, and if presumption of prejudice is thereby overcome, new trial should be denied. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Where deputy sheriff commingled with jurors but juror's affidavits showed he did not discuss anything with jurors relating to case, no ground for new trial was shown. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

But not necessarily considered on appeal. —

Juror's affidavits relating to alleged misconduct and to newspaper accounts of case read by them pending trial which were not seen by district court, nor part of record on appeal and where not agreed to by state will not be considered by supreme court. State v. Goettina, 61 Wyo. 420, 158 P.2d 865, 1945 Wyo. LEXIS 20 (Wyo. 1945).

Receipt of mail by juror error. —

In a homicide case it was reversible error to allow a juror to receive mail during the trial. State v. Eldredge, 45 Wyo. 488, 21 P.2d 545, 1933 Wyo. LEXIS 20 (Wyo. 1933).

Bailiff's duties. —

While a trial judge erred in allowing an officer who participated in an investigation of defendant to act as bailiff during defendant's trial, the error was harmless because there was absolutely no evidence in the record that the bailiff did anything as bailiff other than the routine, administrative matters the bailiff was charged with performing. Majors v. State, 2011 WY 63, 252 P.3d 435, 2011 Wyo. LEXIS 65 (Wyo. 2011).

Deadlocked jury.—

Although the bailiffs should not have told the district court judge how the deadlocked jurors had voted, when the judge had not asked the bailiffs for that information, the district court's knowledge of that vote did not render the court's supplemental instruction urging the jury to continue deliberating unduly coercive. Carter v. State, 2016 WY 36, 369 P.3d 220, 2016 Wyo. LEXIS 37 (Wyo. 2016).

Applied in

State v. Hambrick, 65 Wyo. 1, 196 P.2d 661, 1948 Wyo. LEXIS 17 (1948).

Am. Jur. 2d, ALR and C.J.S. references. —

Prejudicial effect of court direction or caution to party witness not to discuss case with anyone including his counsel during recess or the like, 46 ALR2d 517.

Right to have reporter's notes read to jury, 50 ALR2d 176.

Prejudicial effect, in civil case, of communication between witnesses and jurors, 52 ALR2d 182.

Propriety and effect of jury in civil case taking depositions to jury room during deliberations, 57 ALR2d 1011.

Presence of alternate juror in jury room, 84 ALR2d 1288.

Tests or experiments in jury room, 95 ALR2d 351.

Discussion, during jury deliberation, of possible insurance coverage as prejudicial misconduct, 47 ALR3d 1299.

Propriety and prejudicial effect of trial court's inquiry as to numerical division of jury, 77 ALR3d 769.

Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases, 35 ALR4th 626.

Communication between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal — post-Parker cases, 35 ALR4th 890.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors, 31 ALR5th 572.

Prejudicial effect, in civil case, of communications between judges and jurors, 33 ALR5th 205.

Taking and use of trial notes by jury, 36 ALR5th 255.

§ 1-11-208. Admonition to jurors when permitted to separate.

If the jurors are permitted to separate during the trial or after the case is submitted to them, they shall be admonished by the court that it is their duty not to converse with nor allow themselves to be addressed by any person on any subject of the trial, and that they are not to form or express an opinion until the cause is finally submitted to them.

History. Laws 1886, ch. 60, § 216; R.S. 1887, § 2556; R.S. 1899, § 3647; C.S. 1910, § 4502; C.S. 1920, § 5772; R.S. 1931, § 89-1309; C.S. 1945, § 3-2411; W.S. 1957, § 1-127; Laws 1977, ch. 188, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Separation or dispersal of jury after submission of civil case, 77 ALR2d 1086.

§ 1-11-209. Further information after jury's retirement.

After the jurors have retired for deliberation, if there is a disagreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court where information upon the matter of law shall be given. The court may give its recollection as to the testimony on the points in dispute, in the presence of or after notice to the parties or their counsel.

History. Laws 1886, ch. 60, § 217; R.S. 1887, § 2557; R.S. 1899, § 3648; C.S. 1910, § 4503; C.S. 1920, § 5773; R.S. 1931, § 89-1310; C.S. 1945, § 3-2412; W.S. 1957, § 1-128; Laws 1977, ch. 188, § 1.

Non-testimonial exhibits may be permitted.—

District court did not abuse its discretion by allowing the jury to review during deliberations a clip of a video that was an exhibit with the sound muted of defendant and a police officer walking through the bedroom where the alleged sexual abuse of a minor occurred because the jury requested to view again the lighting and layout of the bedroom, defendant did not object when the video was admitted into evidence and did not request a limiting instruction, and the district court did not impermissibly alter the video by removing the sound. Hicks v. State, 2021 WY 2, 478 P.3d 652, 2021 Wyo. LEXIS 1 (Wyo. 2021).

Where exact language in jury note sent to trial judge stated “We cannot reach a verdict …,” those words indicated and expressed disagreement. The court had instructed the jury that its verdict must be unanimous. Apparently, there was not unanimity or there would have been a verdict of guilty or not guilty returned. A deadlock situation was registered. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

Communications of administrative directives to jury. —

The status of communications between the judge and the jury that do not involve instructions on the law can be characterized as administrative directives, and the harmless error doctrine applies to such communications. Carlson v. Carlson, 888 P.2d 210, 1995 Wyo. LEXIS 1 (Wyo. 1995).

Clarifying communications with jury held proper. —

Where jurors sent the trial court a note asking, “If we cannot find solid proof of trespass, can we award damages?” and it answered “No” without the parties' counsel being present, plaintiffs were not entitled to new trial because (1) answering the question with a definitive “No” left no room for further confusion or undue emphasis on any particular instructions, (2) the jurors had been properly instructed on the burden of proof, and (3) the question did not indicate that the jury was confused about what “preponderance of the evidence” meant. Beck v. Townsend, 2005 WY 84, 116 P.3d 465, 2005 Wyo. LEXIS 98 (Wyo. 2005).

Supplemental Instruction Appropriate. —

In a case where defendant was charged with attempted second degree sexual abuse of a minor in Count III of the information, after being questioned by the jury regarding what act defendant was accused of attempting to commit in Count III, the district court did not err in providing a supplemental jury instruction consistent with the information that the act alleged in Count III was the attempted touching of the victim's vaginal area. Brown v. State, 2015 WY 4, 340 P.3d 1020, 2015 Wyo. LEXIS 2 (Wyo. 2015).

Provision for giving jury information as to testimony permissive. —

The part of this section relating to the court giving the jury information as to the testimony in a case is permissive and not mandatory. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (Wyo. 1956).

A judge can refresh the memory of the jurors under this section, but this section is not mandatory. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

And refusal not ground for reversal, save for injustice. —

The court may decline to refresh the collective memory of the jury, and its not doing so is not ground for reversal except in a case where it is clear that an injustice had been done. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

In case of disputes on the part of the jury as to the evidence, it is not error for the judge to allow the recollection of the jury to be refreshed, but he may decline to do so altogether, and his doing so would not be ground for reversing the judgment, except in a case where it was clear that injustice had been done. If he should decline to aid the jury in any way, but leave them to recall the evidence as best they could, this would not be ground for reversing the judgment. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (Wyo. 1956).

Denial by court of request for rereading testimony is subject to review under an abuse of discretion standard. Short v. Spring Creek Ranch, 731 P.2d 1195, 1987 Wyo. LEXIS 391 (Wyo. 1987).

Judicial observation of evidence allowed. —

If the trial judge may refresh the jury's memory, he certainly may make the less nocuous observation that there is evidence. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

Information as to power and authority of parole board denied. —

A request by the jury in a murder case to be advised by the court concerning the law as to the power and authority of the board of pardons and parole (now board of parole) was properly denied by the trial court. State v. Riggle, 76 Wyo. 1, 298 P.2d 349, 1956 Wyo. LEXIS 29 (Wyo. 1956).

Nontestimonial exhibits may be permitted. —

Any decision to permit nontestimonial exhibits to be taken into the jury room is within the sound discretion of the trial court. Stephens v. State, 774 P.2d 60, 1989 Wyo. LEXIS 108 (Wyo. 1989), overruled in part, Large v. State, 2008 WY 22, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Wyo. 2008).

Whether audiotape was testimonial exhibit was threshold determination to be made by the trial court. Stephens v. State, 774 P.2d 60, 1989 Wyo. LEXIS 108 (Wyo. 1989), overruled in part, Large v. State, 2008 WY 22, 177 P.3d 807, 2008 Wyo. LEXIS 23 (Wyo. 2008).

Defendant not prejudiced by absence of counsel. —

Where the state waived any objections to the failure of counsel to object to a supplemental instruction, either before or immediately after it was given, and the trial judge was given an opportunity to rule on the propriety of his instruction, brought to his attention before appeal to the supreme court, so the question was properly raised on appeal, defendant was not prejudiced by the absence of counsel, even if true that defendant was unrepresented at the time the instruction was given to the jury. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

Presence during instruction of jurors. —

Trial judge erred in instructing the jurors in writing without bringing them into open court and defendant was not present; however, the record did not disclose that defendant's presence when the jury was given the supplemental instructions was critical where defendant could exert his psychological influence during all other phases of the trial and the bulk of the evidence was presented by the victim's testimony. Daves v. State, 2011 WY 47, 249 P.3d 250, 2011 Wyo. LEXIS 50 (Wyo. 2011).

Jury's unsupervised viewing of witness' videotape improper. —

The court improperly abdicated its limited statutory discretion when it allowed the jury to view an entire testimonial videotape twice during deliberations, where the court did not ask the jurors why they wanted to view the tape, and it did not know which facts the jurors could not agree upon. Chambers v. State, 726 P.2d 1269, 1986 Wyo. LEXIS 630 (Wyo. 1986).

And conviction reversed due to possible prejudice. —

The conviction of defendant on second degree sexual assault charges supported only by victim's testimony was reversed due to the possible prejudicial impact of allowing the jury to review a videotape of the three-year-old victim's discussion of the alleged crime with police officers, where such review was unsupervised and occurred during jury deliberations without questioning as to why the jurors wished to review the tape. Taylor v. State, 727 P.2d 274, 1986 Wyo. LEXIS 631 (Wyo. 1986).

Abuse of discretion not found. —

The trial court did not abuse its discretion in refusing to allow a total review of the court transcripts where the jurors did not indicate they were in disagreement but merely wanted to review all of the testimony. Marquez v. State, 941 P.2d 22, 1997 Wyo. LEXIS 91 (Wyo. 1997).

Failure to answer question reversible error. —

Reversible error was committed in a second-degree sexual assault case where a trial judge failed to answer a jury's question regarding several incidents; there was confusion due to an improperly drafted information, elements instruction, and verdict form. Heywood v. State, 2007 WY 149, 170 P.3d 1227, 2007 Wyo. LEXIS 168 (Wyo. 2007).

Applied in

Britton v. State, 643 P.2d 935, 1982 Wyo. LEXIS 332 (Wyo. 1982).

Cited in

Jackson v. State, 624 P.2d 751, 1981 Wyo. LEXIS 277 (Wyo. 1981); Natural Gas Processing Co. v. Hull, 886 P.2d 1181, 1994 Wyo. LEXIS 165 (Wyo. 1994).

Am. Jur. 2d, ALR and C.J.S. references. —

Verdict-urging instructions stressing desirability and importance of agreement, 38 ALR3d 1281.

Verdict-urging instructions commenting on weight of majority view or authorizing compromise, 41 ALR3d 845.

Verdict-urging instruction admonishing jurors to refrain from intransigence or reflecting on integrity or intelligence of jurors, 41 ALR3d 1154.

Prejudicial effect of jury's procurement or use of book during deliberations in criminal cases, 35 ALR4th 626.

§ 1-11-210. Discharge of jury without verdict.

The jury may be discharged by the court on account of the sickness of a juror or any accident or calamity requiring its discharge, or by consent of both parties or after the jurors have been kept together until it appears there is no probability of their agreeing.

History. Laws 1886, ch. 60, § 218; R.S. 1887, § 2558; R.S. 1899, § 3649; C.S. 1910, § 4504; C.S. 1920, § 5774; R.S. 1931, § 89-1311; C.S. 1945, § 3-2413; W.S. 1957, § 1-129; Laws 1977, ch. 188, § 1.

Cross references. —

As to discharge of jury before verdict in criminal case, see § 7-11-205 .

Where exact language in jury note sent to trial judge stated “We cannot reach a verdict …,” those words indicated and expressed disagreement. The court had instructed the jury that its verdict must be unanimous. Apparently, there was not unanimity or there would have been a verdict of guilty or not guilty returned. A deadlock situation was registered. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

Judgment of dismissal erroneous. —

After discharge of the jury, the court loses control of the proceedings, except to hold another trial, and judgment of dismissal was erroneous. Jones v. Chicago, B. & Q. R.R., 23 Wyo. 148, 147 P. 508, 1915 Wyo. LEXIS 16 (Wyo. 1915).

Am. Jur. 2d, ALR and C.J.S. references. —

Statute or court rule relating to alternate or additional jurors or substitution of jurors during trial, 84 ALR2d 1288.

Proper procedure upon illness or other disability of civil case juror, 99 ALR2d 684.

§ 1-11-211. Retrial after discharge of jury.

When the jury is discharged after the cause is submitted or during the trial, the cause may be tried again immediately or at a future time as the court directs.

History. Laws 1886, ch. 60, § 219; R.S. 1887, § 2559; R.S. 1899, § 3650; C.S. 1910, § 4505; C.S. 1920, § 5775; R.S. 1931, § 89-1312; C.S. 1945, § 3-2414; W.S. 1957, § 1-130; Laws 1977, ch. 188, § 1.

Section superseded by rule to extent it conflicts. —

This section, insofar as it conflicts with Rule 50(b), W.R.C.P., gives way to the rule. In re Estate of Draper, 374 P.2d 425, 1962 Wyo. LEXIS 103 (Wyo. 1962).

No authority to render judgment. —

Under this section, where jury failed to agree and was discharged, court had no authority, on motion, to render judgment for defendant on the pleadings and evidence. Pike & Richardson v. Sheridan, 22 Wyo. 312, 139 P. 912, 1914 Wyo. LEXIS 14 (Wyo. 1914).

Cited in

Jones v. Chicago B. & Q.R.R., 23 Wyo. 148, 147 P. 508, 1915 Wyo. LEXIS 16 (1915).

§ 1-11-212. Rendition of verdict.

When the jurors agree upon their verdict, it shall be reduced to writing and signed by the foreman. They shall then be conducted into court, their names called by the clerk and the verdict rendered by the foreman. The clerk shall then read the verdict to the jury and inquire whether it is their verdict.

History. Laws 1886, ch. 60, § 220; R.S. 1887, § 2560; R.S. 1899, § 3652; C.S. 1910, § 4507; C.S. 1920, § 5776; R.S. 1931, § 89-1313; C.S. 1945, § 3-2415; W.S. 1957, § 1-131; Laws 1977, ch. 188, § 1.

Cross references. —

As to return of verdict in criminal cases, see § 7-11-501 .

Am. Jur. 2d, ALR and C.J.S. references. —

Receipt of verdict in civil case in absence of trial judge, 20 ALR2d 281.

Haste or shortness of time in which jury reached verdict, 91 ALR2d 1220.

Quotient verdict, 8 ALR3d 335.

§ 1-11-213. Further deliberation; polling jury.

If a jury disagrees, or if when the jury is polled a juror answers in the negative, or if the verdict is defective in substance, the jury shall be sent out again for further deliberation and either party may require the jury to be polled by the clerk or court asking each juror if it is his verdict.

History. Laws 1886, ch. 60, § 221; R.S. 1887, § 2561; R.S. 1899, § 3653; C.S. 1910, § 4508; C.S. 1920, § 5777; R.S. 1931, § 89-1314; C.S. 1945, § 3-2416; W.S. 1957, § 1-132; Laws 1977, ch. 188, § 1.

Purpose of section. —

Procedure under this section is designed for orderly and expeditious conduct of litigation and is particularly directed at minimizing the necessity for additional trials. De Witty v. Decker, 383 P.2d 734, 1963 Wyo. LEXIS 97 (Wyo. 1963).

Verdict “defective in matter of substance” may be corrected by jury itself on further deliberation under this section. De Witty v. Decker, 383 P.2d 734, 1963 Wyo. LEXIS 97 (Wyo. 1963); Energy Transp. Sys. v. Mackey, 650 P.2d 1152, 1982 Wyo. LEXIS 380 (Wyo. 1982).

And court may submit additional instructions. —

If necessary, the court may assist the jury in its further deliberation by submitting additional instructions. De Witty v. Decker, 383 P.2d 734, 1963 Wyo. LEXIS 97 (Wyo. 1963); Energy Transp. Sys. v. Mackey, 650 P.2d 1152, 1982 Wyo. LEXIS 380 (Wyo. 1982).

Jury should continue deliberations following verdict for special damages only. —

Following a jury verdict for special damages only, i.e., medical expenses, and an objection before the jury was discharged, in a motor vehicle accident case, the trial court erred in not returning the jury to continue their deliberations for the purpose of assessing general damages, i.e., pain and suffering. Smith v. Uhrich, 704 P.2d 698, 1985 Wyo. LEXIS 523 (Wyo. 1985).

Effect of failure to object to form of verdict. —

Where no objection was made to the form of verdict given to the jury and no objection seems to have been raised when they returned it, so as to give an opportunity for correction, the objection came too late after the jury was discharged. De Witty v. Decker, 383 P.2d 734, 1963 Wyo. LEXIS 97 (Wyo. 1963); Anderson v. Foothill Indus. Bank, 674 P.2d 232, 1984 Wyo. LEXIS 239 (Wyo. 1984).

When a verdict is not in proper form and the jury is not required to clarify it, any error in the verdict is waived by the party relying thereon who at the time of its rendition failed to make any request that its informality or uncertainty be corrected. De Witty v. Decker, 383 P.2d 734, 1963 Wyo. LEXIS 97 (Wyo. 1963).

Having in mind the plain purpose of this section, to afford a jury the right to correct its own mistakes, it is not harsh or unreasonable to require a litigant, when an opportunity is afforded during the trial, timely, to bring a matter to the attention of the trial court in order that it might be corrected, and failing in this that he shall not be heard to complain, for to hold otherwise would seem unfair to the jury, to the trial court and to the other litigants, to say nothing of the unnecessary loss of time and expense. De Witty v. Decker, 383 P.2d 734, 1963 Wyo. LEXIS 97 (Wyo. 1963).

Despite the demonstrated reluctance of the jury to accept plaintiff's extensive claims at face value, it was incumbent upon her at least to attempt to see that a verdict in proper form was returned by the jury, and not having done so, the supreme court is not at liberty to grant relief. De Witty v. Decker, 383 P.2d 734, 1963 Wyo. LEXIS 97 (Wyo. 1963).

The defendant's failure to seek to correct any substantive defect in the special verdict when it was returned to the trial court was a waiver of his right to do so and he could not be heard to complain on appeal unless the doctrine of plain error would come to his rescue. Goggins v. Harwood, 704 P.2d 1282, 1985 Wyo. LEXIS 526 (Wyo. 1985).

Challenges to irregular or inconsistent verdicts may be waived by the failure to object before the discharge of a jury. Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1983 Wyo. LEXIS 397 (Wyo. 1983).

Although there was no inherent error in telling the jury what the plaintiff's burden of proof was and that it must decide whether the plaintiff's injuries were caused by the alleged assault and battery, and then instructing the jury to assess damages without regard to its findings concerning the fact of the assault and whether or not it proximately caused any injuries, it was impossible to reconcile the jury's findings that there was an assault and battery and that the assault was not a “proximate cause of the injuries” with the testimony of the treating doctors who testified without conflict that the plaintiff in fact received injuries resulting in the necessity to prescribe and purchase medication. Therefore, the verdict of the jury was inconsistent and improper on its face. However, even though the substantial rights of the plaintiff were affected, because of the opportunity to correct the verdict offered by this section, which the plaintiff did not take advantage of, this error was waived. Goggins v. Harwood, 704 P.2d 1282, 1985 Wyo. LEXIS 526 (Wyo. 1985).

The failure to raise a matter before the jury is released results in waiver of the right to complain about inconsistencies or irregularities in the verdict. Moreover, because of the opportunity to correct the verdict, the complaining party will be held to have waived the error notwithstanding its degree of irregularity or impropriety. Halliburton Co. v. Claypoole, 868 P.2d 252, 1994 Wyo. LEXIS 15 (Wyo. 1994).

Where counsel for defendant is not present when verdict is returned, but has absented himself through choice because of his individual convenience and necessity, receiving verdict in his absence and failing to resubmit the verdict to jury is not error. Pure Gas & Chem. Co. v. Cook, 526 P.2d 986, 1974 Wyo. LEXIS 234 (Wyo. 1974).

Where exact language in jury note sent to trial judge stated “We cannot reach a verdict …,” those words indicated and expressed disagreement. The court had instructed the jury that its verdict must be unanimous. Apparently, there was not unanimity or there would have been a verdict of guilty or not guilty returned. A deadlock situation was registered. Hoskins v. State, 552 P.2d 342, 1976 Wyo. LEXIS 204 (Wyo. 1976), reh'g denied, 553 P.2d 1390, 1976 Wyo. LEXIS 213 (Wyo. 1976), cert. denied, 430 U.S. 956, 97 S. Ct. 1602, 51 L. Ed. 2d 806, 1977 U.S. LEXIS 1392 (U.S. 1977).

Cited in

Big-O Tires, Inc. v. Santini, 838 P.2d 1169, 1992 Wyo. LEXIS 129 (Wyo. 1992).

Applied in

Thunder Hawk v. Union Pac. R.R., 891 P.2d 773, 1995 Wyo. LEXIS 39 (Wyo. 1995).

Am. Jur. 2d, ALR and C.J.S. references. —

Polling jury, 71 ALR2d 640.

Propriety and prejudicial effect of trial court's inquiry as to numerical division of jury, 77 ALR3d 769.

Products liability: inconsistency of verdicts on separate theories of negligence, breach of warranty or strict liability, 41 ALR4th 9.

Propriety of reassembling jury to amend, correct, clarify, or otherwise change verdict after discharge or separation at conclusion of civil case, 19 ALR5th 622.

§ 1-11-214. Discharge of jury; correcting defective verdict.

If no disagreement is expressed and neither party requires the jury to be polled, or on polling each juror answers in the affirmative, the verdict is complete and the jury shall be discharged. If the verdict is defective in form only, it may be corrected by the court with the assent of the jurors before they are discharged.

History. Laws 1886, ch. 60, § 222; R.S. 1887, § 2562; R.S. 1899, § 3654; C.S. 1910, § 4509; C.S. 1920, § 5778; R.S. 1931, § 89-1315; C.S. 1945, § 3-2417; W.S. 1957, § 1-133; Laws 1977, ch. 188, § 1.

Applied in

Big-O Tires, Inc. v. Santini, 838 P.2d 1169, 1992 Wyo. LEXIS 129 (Wyo. 1992).

Am. Jur. 2d, ALR and C.J.S. references. —

Validity of verdict awarding medical expenses to personal injury plaintiff, but failing to award damages for pain and suffering, 55 ALR4th 186.

§ 1-11-301. Fees in district court generally.

All persons summoned as jurors in the district courts of this state shall receive the fees hereinafter provided and none other.

History. Laws 1879, ch. 37, § 1; R.S. 1887, § 1206; R.S. 1899, § 3383; C.S. 1910, § 1018; C.S. 1920, § 1243; R.S. 1931, § 61-240; C.S. 1945, § 12-301; W.S. 1957, § 1-134; Laws 1977, ch. 188, § 1.

Cross references. —

As to fees of jurors upon change of venue or judge, see § 1-7-101 .

§ 1-11-302. Mileage rate.

Jurors shall receive mileage at the rate set in W.S. 9-3-103 when the distance required to be traveled by the juror from the juror’s place of residence to the place of trial exceeds five (5) miles one (1) way.

History. Laws 1879, ch. 37, § 2; R.S. 1887, § 1207; R.S. 1899, § 3384; C.S. 1910, § 1019; C.S. 1920, § 1244; R.S. 1931, § 61-241; C.S. 1945, § 12-302; W.S. 1957, § 1-135; Laws 1965, ch. 71, § 1; 1975, ch. 141, § 1; 1977, ch. 188, § 1; 2019 ch. 14, § 1, effective July 1, 2019.

The 2019 amendment, effective July 1, 2019, substituted "Jurors" for "For each mile actually and necessarily traveled in going to and returning from the place of trial they" and added "required to be", "by the juror from the juror's place of residence to the place of trial" and "one (1) way."

Law reviews. —

See case note, “Constitutional Law — An Indigent's Right to a Free Trial Transcript. Mayer v. City of Chicago, 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410, 1971 U.S. LEXIS 298 (1971),” VII Land & Water L. Rev. 707 (1972).

§ 1-11-303. Amount of fees.

Jurors shall receive thirty dollars ($30.00) for each full or part day of actual attendance. A juror in attendance for more than five (5) consecutive days, exclusive of Saturdays, Sundays and holidays, may, in the discretion of the court, be allowed an additional twenty dollars ($20.00) per day for each day actually in attendance.

History. Laws 1879, ch. 37, § 3; R.S. 1887, § 1208; R.S. 1899, § 3385; C.S. 1910, § 1020; C.S. 1920, § 1245; Laws 1921, ch. 82, § 1; R.S. 1931, § 61-242; Laws 1937, ch. 43, § 1; C.S. 1945, § 12-303; W.S. 1957, § 1-136; Laws 1959, ch. 112, § 1; 1967, ch. 129, § 1; 1977, ch. 188, § 1; 1983, ch. 138, § 2; 2009, ch. 169, § 1.

The 2009 amendment, effective July 1, 2009, deleted “Effective July 1, 1984,” preceding “jurors shall receive” in the first sentence.

Law reviews. —

See case note, “Constitutional Law — An Indigent's Right to a Free Trial Transcript. Mayer v. City of Chicago, 404 U.S. 189, 30 L. Ed. 2d 372, 92 S. Ct. 410, 1971 U.S. LEXIS 298 (1971),” VII Land & Water L. Rev. 707 (1972).

§ 1-11-304. Certificate issued to jurors.

The clerk of the court shall note the time of the discharge of each juror summoned and issue to the juror a certificate under seal of the court for the amount due him for mileage and juror fees.

History. Laws 1879, ch. 37, § 5; R.S. 1887, § 1209; R.S. 1899, § 3386; C.S. 1910, § 1021; C.S. 1920, § 1246; R.S. 1931, § 61-243; C.S. 1945, § 12-304; W.S. 1957, § 1-137; Laws 1977, ch. 188, § 1.

Certificates not order for payment. —

Certificates issued by clerk of the court which tried a criminal case on change of venue, reciting that a person named therein attended as a witness and is entitled to a certain sum payable by the county in which the indictment was found, is not an order upon said latter county for payment of said sum. Stoll v. Board of Comm'rs, 6 Wyo. 231, 44 P. 58, 1896 Wyo. LEXIS 8 (Wyo. 1896).

§ 1-11-401. Protection of jurors' employment.

1. No employer shall discharge, threaten  to discharge, intimidate or coerce any employee by reason of the employee’s  jury service, for the attendance or scheduled attendance in connection  with jury service, in any court in the state of Wyoming.
2. Any employer who violates the provisions  of this section:
   1. May be enjoined from further violations  of this section in order to provide other appropriate relief, including  but not limited to reinstatement; and
   2. Is liable for exemplary damages to the  employee in an amount set by the court, but not to exceed one thousand  dollars ($1,000.00) for each violation as to each employee; and
   3. Is liable for the employee’s reasonable  costs and attorney’s fees, as set by the court, in enforcing his rights  hereunder.
3. Any individual who is reinstated to a  position of employment in accordance with this section shall be considered  as having been on furlough or leave of absence during his period of  jury service, shall be reinstated to his position of employment without  loss of seniority and is entitled to participate in insurance or other  benefits offered by the employer pursuant to established rules and  practices relating to employees on furlough or on leave of absence  in effect with the employer at the time the individual entered upon  jury service.
4. No action by an employee aggrieved hereunder  shall be brought more than six (6) months after the alleged violation.
5. The court may award a prevailing employer  a reasonable attorney’s fee as part of the cost if the court determines  that any action brought by an employee is frivolous, vexatious or  brought in bad faith.

History. Laws 1983, ch. 138, § 1.

Am. Jur. 2d, ALR and C.J.S. references. —

Jurors as within coverage of workers' compensation acts, 13 ALR5th 444.

§ 1-12-101. Privileged communications and acts.

1. The following persons shall not testify  in certain respects:
   1. An attorney or a physician concerning  a communication made to him by his client or patient in that relation,  or his advice to his client or patient. The attorney or physician  may testify by express consent of the client or patient, and if the  client or patient voluntarily testifies the attorney or physician  may be compelled to testify on the same subject;
   2. A clergyman or priest concerning a confession  made to him in his professional character if enjoined by the church  to which he belongs;
   3. Husband or wife, except as provided in W.S. 1-12-104 ;
   4. A person who assigns his claim or interest  concerning any matter in respect to which he would not be permitted  to testify if a party;
   5. A person who, if a party, would be restricted  in his evidence under W.S. 1-12-102 shall, where the property is sold or transferred by an  executor, administrator, guardian, trustee, heir, devisee or legatee,  be restricted in the same manner in any action or proceeding concerning  the property;
   6. A confidential intermediary, as defined  in W.S. 1-22-201(a)(viii), concerning communications made to him or information  obtained by him during the course of an investigation pursuant to W.S. 1-22-203 , when the public interests, in the judgment of the court,  would suffer by the disclosure.

History. Laws 1886, ch. 60, § 249; R.S. 1887, § 2589; R.S. 1899, § 3682; Laws 1909, ch. 145, § 1; C.S. 1910, § 4537; C.S. 1920, § 5806; R.S. 1931, § 89-1703; C.S. 1945, § 3-2602; W.S. 1957, § 1-139; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-102 ; Laws 1991, ch. 125, § 2.

Cross references. —

As to health-care-provider privilege not applying in worker's compensation cases, see § 27-14-610 .

As to privileged communication by a licensed or certified mental health professional, see § 33-38-113 .

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Privilege waived if not claimed. —

The rule is well established that the physician-patient privilege must be claimed and the evidence objected to or the privilege is waived. Frias v. State, 722 P.2d 135, 1986 Wyo. LEXIS 578 (Wyo. 1986).

There is no physician-patient privilege at common law. In re Parental Rights of PP, 648 P.2d 512, 1982 Wyo. LEXIS 355 (Wyo. 1982), overruled, Clark v. Alexander, 953 P.2d 145, 1998 Wyo. LEXIS 20 (Wyo. 1998).

Physician cannot testify to communication made to him by his patient even though the patient is not a party to the action in which a disclosure is sought and is not present to object. Peters v. Campbell, 80 Wyo. 492, 345 P.2d 234, 1959 Wyo. LEXIS 47 (Wyo. 1959).

Confidentiality waiver of patient contested issues. —

This section does not prohibit a treating physician from expressing his expert opinion regarding issues placed into contest by his patient, their confidentiality privilege having been implicitly waived. Wardell v. McMillan, 844 P.2d 1052, 1992 Wyo. LEXIS 206 (Wyo. 1992).

Physician-patient and psychologist-client privileges limited by §§ 14-3-201 through 14-3-215 . —

The privileges created between physician-patient and psychologist-client by this section and § 33-27-123 are limited by the subsequent enactment of §§ 14-3-201 through 14-3-215 , which set forth a procedure for ascertaining and correcting child abuse and neglect. In re Parental Rights of PP, 648 P.2d 512, 1982 Wyo. LEXIS 355 (Wyo. 1982), overruled, Clark v. Alexander, 953 P.2d 145, 1998 Wyo. LEXIS 20 (Wyo. 1998).

Attorney-client privilege in federal court. —

Rule 501 of the Federal Rules of Evidence provides that state law supplies the rule of decision on privilege in diversity cases. Frontier Ref. v. Gorman-Rupp Co., 136 F.3d 695, 1998 U.S. App. LEXIS 2032 (10th Cir. Wyo. 1998).

Attorney's advice to opposing party. —

In an action praying for a judgment declaring that a subdivision's restrictive covenant prohibited the on-site use of a trailer for habitation during construction, allowing a partner in the law firm which was representing the plaintiffs in another case involving the subdivision's covenants to testify did not violate subsection (a)(i), as the attorney did not testify about communications from the plaintiffs to his firm or advice from his firm to the plaintiffs. Instead, he testified about his advice to the defendant concerning the covenant's meaning. Samuel v. Zwerin, 868 P.2d 265, 1994 Wyo. LEXIS 17 (Wyo. 1994).

Testimony of attorney improperly excluded. —

In an action to set aside deeds executed by plaintiff to the defendant where the plaintiff testified that she did not voluntarily execute the deeds and that she did not understand the effect of the deeds, the trial court committed error in excluding the testimony of plaintiff's attorney who offered to testify for defendant, but such error was not reversible error where the excluded testimony was cumulative. Bergren v. Berggren, 77 Wyo. 438, 317 P.2d 1101, 1957 Wyo. LEXIS 32 (Wyo. 1957).

Privilege does not apply when spouse charges crime against the other. —

Defendant's wife, who was an alleged victim spouse, could be compelled by the state to testify against defendant because the marital privilege did not apply when one spouse was charged with a crime against the other. Rogers v. State, 2008 WY 90, 189 P.3d 265, 2008 Wyo. LEXIS 94 (Wyo. 2008).

Harmless error.—

Even assuming that a physician’s testimony and a medical record were protected by the physician-patient privilege and that a district court erred in admitting the evidence in a termination of parental rights trial, the error was harmless because there was no reasonable probability that the verdict would have been more favorable to the parent in the absence of the evidence. The jury’s conclusion was unassailable as the additional evidence at trial was more than ample to show that the parent was unfit to have custody and control of the child. In re L-MHB, 2020 WY 1, 454 P.3d 935, 2020 Wyo. LEXIS 1 (Wyo. 2020).

Privilege waived. —

When it is remembered that the prohibition against testimony respecting confidential communications is generally more strictly guarded than most other privileges, it is safe to conclude that when a defendant, entitled to the privilege of having his wife's testimony against him excluded, makes charges against his wife, testifies she accused him of having carnal knowledge of their daughter, then told him she had made a mistake, and denies the evidence given by his daughter which involved his wife, his privilege not to have her testify against him is waived, at least insofar as to the matters about which he has given testimony. Chamberlain v. State, 348 P.2d 280, 1960 Wyo. LEXIS 46 (Wyo. 1960).

Attorney billing statements may be privileged. —

There is no blanket rule permitting a party to refuse to produce all of its detailed billing statements. In some instances, however, a billing statement may contain communications between the client and the attorney or legal advice given, bringing it under the definition of privilege in Wyo. Stat. Ann. § 1-12-101 (2015). Dishman v. First Interstate Bank, 2015 WY 154, 362 P.3d 360, 2015 Wyo. LEXIS 171 (Wyo. 2015).

Applied in

Engberg v. Meyer, 820 P.2d 70, 1991 Wyo. LEXIS 160 (Wyo. 1991).

Quoted in

Freudenthal v. Cheyenne Newspapers, Inc., 2010 WY 80, 233 P.3d 933, 2010 Wyo. LEXIS 83 (June 22, 2010).

Stated in

Burk v. Burzynski, 672 P.2d 419, 1983 Wyo. LEXIS 385 (Wyo. 1983).

Cited in

Pinther v. Pinther, 888 P.2d 1250, 1995 Wyo. LEXIS 7 (Wyo. 1995); Ortega v. State, 966 P.2d 961, 1998 Wyo. LEXIS 141 (Wyo. 1998); Sheridan Newspapers, Inc. v. Bd. of Trs. of Sheridan Cnty. Sch. Dist. #2, 2015 WY 70, 2015 Wyo. LEXIS 81 (May 14, 2015).

Law reviews. —

See note, “Spouse's Testimony in Criminal Cases,” 19 Wyo. L.J. 35 (1964).

See note, “Are the Records of Mental Hospitals Privileged in Mental Incompetency Adjudications?,” 19 Wyo. L.J. 59 (1964).

For discussion of privileges and the Federal Rules of Evidence, see XII Land & Water L. Rev. 601 (1977).

For case note, “Wyoming's New Missing Witness Rule, Seyle v. State, 584 P.2d 1081, 1978 Wyo. LEXIS 237 (Wyo. 1978),” see XIV Land & Water L. Rev. 569 (1979).

For article, “A Preliminary Review of Wyoming's Revised Civil Commitment Procedures,” see XVII Land & Water L. Rev. 531 (1982).

For article, “The Ungrateful Living: An Estate Planner's Nightmare — The Trial Attorney's Dream,” see XXIV Land & Water L. Rev. 401 (1989).

For case note, “Evidence — Recognition of a Federal Psychotherapist-Patient Privilege. Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 2d 337, 1996 U.S. LEXIS 3879 (1996),” see XXXII Land & Water L. Rev. 873 (1997).

For comment, “Protecting Our Children in Custody Cases: The Wyoming Legislature Should Create an Attorney/Guardian Ad Litem Who Represents the Best Interests of the Child and Can Give the Child the Benefit of Limited Confidentiality,” see XXXIV Land & Water L. Rev. 427 (1999).

For article, “Ethical Considerations When Representing Organizations,” see 3 Wyo. L. Rev. 581 (2003).

Am. Jur. 2d, ALR and C.J.S. references. —

Right of one against whom testimony is offered to invoke privilege of communications between others, 2 ALR2d 645.

Conversation between husband and wife relating to property or business as within rule excluding private communications between them, 4 ALR2d 835.

“Communications” within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by 1 spouse of acts of other spouse, 10 ALR2d 1389.

Discovery, in medical malpractice action, of names and medical records of other patients to whom defendant has given treatment similar to that allegedly injuring plaintiff, 66 ALR5th 591.

Construction and effect of statutory provision as to relaxation, in event of action for personal injuries, of rule in respect of communications between physician and patient, 25 ALR2d 1429.

Admissibility of testimony by an attorney as to unperformed compromise agreement, 26 ALR2d 858.

Admissibility, on issue of child's legitimacy or parentage, of confidential communication between husband and wife, 31 ALR2d 989.

Privilege against disclosure of matters arising out of transactions or relationship between accountant and client or attorney acting as accountant, 38 ALR2d 670.

Privileged nature of hospital record relating to intoxication or sobriety of patient, 38 ALR2d 778, 9 ALR Fed 457.

Proof of due execution of lost will as affected by privilege attaching to attorney-client communications, 41 ALR2d 393.

Privilege of communications by or to nurse or attendant, 47 ALR2d 742.

Party's waiver of privilege as to communications with counsel by taking stand and testifying, 51 ALR2d 521.

Admissibility of sound recordings in evidence as affected by privileged nature of communications, 58 ALR2d 1024, 57 ALR3d 746, 58 ALR3d 598.

Right of physician, notwithstanding physician-patient privilege, to give expert testimony based on hypothetical question, 64 ALR2d 1056.

Privilege as to communications to attorney in connection with drawing of will, 66 ALR2d 1302.

Waiver of attorney-client privilege by personal representative or heir of deceased client or by guardian of incompetent, 67 ALR2d 1268.

Person other than client or attorney affected by or included within privilege attaching to communication between client and attorney, 96 ALR2d 125.

Who may waive privilege of confidential communications to physician by persons since deceased, 97 ALR2d 393.

Corporation's right to assert attorney-client privilege, 98 ALR2d 241.

Testimony as to communications or observations as to mental condition of patient treated for other condition, 100 ALR2d 648.

Applicability of attorney-client privilege to communications with respect to contemplated tortious acts, 2 ALR3d 861.

Waiver of privilege as regards 1 physician as a waiver as to other physicians, 5 ALR3d 1244.

Attorney-client privilege as affected by communications between several attorneys, 9 ALR3d 1420.

Disclosure of name, identity, address, occupation or business of client as violation of attorney-client privilege, 16 ALR3d 1047.

Admissibility of physician's testimony as to patient's statements or declarations, other than res gestae, during medical examination, 37 ALR3d 778.

Privilege arising from relationship between psychiatrist or psychologist and patient, 44 ALR3d 24.

Who is “clergyman” or the like entitled to assert privilege attaching to communications to clergymen or spiritual advisers, 49 ALR3d 1205.

Applicability of attorney-client privilege to communications relating to drafting of nontestamentary documents, 55 ALR3d 1322.

Matters to which the privilege covering communications to clergyman or spiritual advisor extend, 71 ALR3d 794.

Physician-patient privilege as applied to physician's testimony concerning wound required to be reported to public authority, 85 ALR3d 1196.

Effect, on competency to testify against spouse or on marital communication privilege, of separation or other marital instability short of absolute divorce, 98 ALR3d 1285.

Spouse's betrayal or connivance as extending marital communications privilege to testimony of third person, 3 ALR4th 1104.

Communication between unmarried couple living together as privileged, 4 ALR4th 422.

Applicability of attorney-client privilege to evidence or testimony in subsequent action between parties originally represented contemporaneously by same attorney, with reference to communication to or from one party, 4 ALR4th 765.

Testimony before or communications to private professional society's judicial commission, ethics committee, or the like, as privileged, 9 ALR4th 807.

Existence of spousal privilege where marriage was entered into for purpose of barring testimony, 13 ALR4th 1305.

Applicability of attorney-client privilege to communications made in presence of or solely to or by third person, 14 ALR4th 594.

Attorney-client privilege as extending to communications relating to contemplated civil fraud, 31 ALR4th 458.

Privilege as to communications between lay representative in judicial or administrative proceedings and client, 31 ALR4th 1226.

Privileged communications between accountant and client, 33 ALR4th 539.

Presence of child at communication between husband and wife as destroying confidentiality of otherwise privileged communication between them, 39 ALR4th 480.

Assignability of claim for legal malpractice, 40 ALR4th 684.

Validity, construction and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect, 44 ALR4th 649.

Propriety of governmental eavesdropping on communications between accused and his attorney, 44 ALR4th 841.

Physician's tort liability for unauthorized disclosure of confidential information about patient, 48 ALR4th 668.

Discovery: right to ex parte interview with injured party's treating physician, 50 ALR4th 714.

Insured-insurer communications as privileged, 55 ALR4th 336.

Communications between spouses as to joint participation in crime as within privilege of interspousal communications, 62 ALR4th 1134.

Attorney-client privilege: who is “representative of the client” within state statute or rule privileging communications between an attorney and the representative of the client, 66 ALR4th 1227.

Invasion of privacy by a clergyman, church or religious group, 67 ALR4th 1086.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution—modern state cases, 74 ALR4th 223.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction, 74 ALR4th 277.

Involuntary disclosure or surrender of will prior to testator's death, 75 ALR4th 1144.

Determination of whether a communication is from a corporate client for purposes of the attorney-client privilege—modern cases, 26 ALR5th 628.

What corporate communications are entitled to attorney-client privilege—modern cases, 27 ALR5th 76.

What persons or entities may assert or waive corporation's attorney-client privilege — modern cases, 28 ALR5th 1.

Waiver of evidentiary privilege by inadvertent disclosure — state law, 51 ALR5th 603.

Testimonial privilege for confidential communications between relatives other than husband and wife — state cases, 62 ALR5th 629.

What constitutes “confidential source” within Freedom of Information Act exemption permitting nondisclosure of identity of confidential source and, in specified instances, of confidential information furnished only by confidential source (5 USC § 522(b)(7)(D)), 59 ALR Fed 550.

Psychotherapist-patient privilege under federal common law, 72 ALR Fed 395.

Immunity's sufficiency to meet federal grand jury witness' claim of privilege against adverse spousal testimony, 82 ALR Fed 600.

Attorney's disclosure, in federal proceedings, of identity of client as violating attorney-client privilege, 84 ALR Fed 852.

Academic peer review privilege in federal court, 85 ALR Fed 691.

Communications to clergyman as privileged in federal proceedings, 118 ALR Fed 449.

What are matters “related solely to the internal personnel rules and practices of an agency” exempted from disclosure under Freedom of Information Act (5 USCS § 552(b)(2)), 141 ALR Fed 531.

Determination and application of correct legal standard in weighing medical opinion of treating source in Social Security disability cases, 149 ALR Fed 1.

Waiver of evidentiary privilege by inadvertent disclosure-federal law, 159 ALR Fed 153.

Views of United States Supreme Court as to attorney-client privilege, 159 ALR Fed 243.

“Communications” within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse. 23 A.L.R.6th 1.

Application of attorney-client privilege to electronic documents. 26 A.L.R.6th 287.

§ 1-12-102. When party incapable of testifying.

In an action or suit by or against a person who from any cause is incapable of testifying, or by or against a trustee, executor, administrator, heir or other representative of the person incapable of testifying, no judgment or decree founded on uncorroborated testimony shall be rendered in favor of a party whose interests are adverse to the person incapable of testifying or his trustee, executor, administrator, heir or other representative. In any such action or suit, if the adverse party testifies, all entries, memorandum and declarations by the party incapable of testifying made while he was capable, relevant to the matter in issue, may be received in evidence.

History. Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-103 .

This section embodies “dead man's statute.” Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

Rule 601, W.R.E., does not supersede effect of this section. Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

Summary judgment. —

The requirement of corroboration of evidence against a party incapable of testifying under the statute should not come into play at the summary judgment stage; it is the movant's obligation to show that no genuine issue of material fact exists, not to rely on the evidence or lack of evidence of the nonmovant. Drake v. Winkler, 838 P.2d 1177, 1992 Wyo. LEXIS 141 (Wyo. 1992).

Test in this section is one of corroboration rather than one of competency. Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

To be corroborative, as required under this section, the evidence offered must be such that it would support or tend to support, in some degree at least, some of the material issues of the claim which are testified to by the witness whose evidence is sought to be corroborated. Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

Sources of compliance with corroboration requirement. —

Compliance with the corroboration requirement of this section can occur from any competent witness or any other legal sources such as deeds, records or reports. Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

Testimony of adverse claimant alone is not sufficient to satisfy corroboration requirement of this section. Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

But introduction of profit sheets and testimony of record compilers held corroborative. —

The plaintiff's introduction of profit sheets and testimony of persons in charge of compiling company records is enough, under the requirement of this section, to corroborate plaintiff's claim on an oral agreement made with the deceased. Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

Burden of corroboration is on adverse party who is testifying and not on the deceased's representatives. Consolidated Constr. v. Smith, 634 P.2d 902, 1981 Wyo. LEXIS 377 (Wyo. 1981).

Proof of oral contract to make will. —

A party who asserted the existence of an oral contract between two other persons to make a will, and who claimed to be a beneficiary thereunder, had the burden of proving it and, although his testimony may have been admissible under this section, it could not support a judgment without corroboration. Sievers v. Barton, 775 P.2d 489, 1989 Wyo. LEXIS 140 (Wyo. 1989).

Erroneous exclusion of testimony. —

The district court's erroneous conclusion that a personal representative's uncorroborated testimony should be disregarded did not require reversal absent any showing that the court's interpretation of this section prejudiced the personal representative's substantial rights. Estate of Short, 785 P.2d 1167, 1990 Wyo. LEXIS 9 (Wyo. 1990).

Inherent unfairness. —

It would simply be unfair to permit the use of statements made by the principal shareholder and operating officer of the corporation to be used against the entity and then invoke the dead man's statute to prohibit any contrary statements that were made by that corporate officer. Metz Bev. Co. v. Wyo. Bevs. Inc., 2002 WY 21, 39 P.3d 1051, 2002 Wyo. LEXIS 20 (Wyo. 2002).

Applied in

McClellan v. Britain, 826 P.2d 245, 1992 Wyo. LEXIS 21 (Wyo. 1992).

Quoted in

Adkins v. Lawson, 892 P.2d 128, 1995 Wyo. LEXIS 48 (Wyo. 1995).

Cited in

Moncrief v. Williston Basin Interstate Pipeline Co., 880 F. Supp. 1495, 1995 U.S. Dist. LEXIS 3381 (D. Wyo. 1995).

Law reviews. —

For comment, “Article VI of the Wyoming Rules of Evidence: Witnesses,” see XIII Land & Water L. Rev. 909 (1978).

Am. Jur. 2d, ALR and C.J.S. references. —

Application of dead man's statute in proceeding involving account of personal representative, 2 ALR2d 349.

Applicability of dead man's statute to testimony denying transaction or communication between witness and person since deceased, 8 ALR2d 1094.

Statute excluding testimony of person because of death of another as applicable where deceased was coparty with person or persons still living in contract or transaction to which testimony relates, 22 ALR2d 1068.

Introduction of decedent's books of account by his personal representative as rendering the adverse party or interested person a competent witness, 26 ALR2d 1009.

Dead man's statute as applicable to spouse of party disqualified from testifying, 27 ALR2d 538.

Examination and the like of witness incompetent under dead man's statute as waiver of incompetency of other witnesses, 33 ALR2d 1440.

Proof of due execution of lost will by testimony of persons who will benefit from establishment, 41 ALR2d 393.

Propriety of compelling witness to testify, in pretrial proceeding, as to matters which would be prohibited in trial testimony by dead man's statute, 42 ALR2d 578.

What constitutes claim or demand against estate within statute disqualifying witness, 54 ALR2d 1103.

Applicability of dead man's statute to proceedings to determine liability for succession, estate or inheritance tax, 66 ALR2d 714.

Competency of witness in wrongful death action as affected by dead man's statute, 77 ALR2d 676.

Testimony to facts of automobile accident as testimony to a “transaction” or “communication” with a deceased person within dead man's statute, 80 ALR2d 1296.

Competency of interested witness to testify as to handwriting or signature of decedent, 13 ALR3d 404.

Statute excluding testimony of person because of death of another as applied to testimony in respect of lost or destroyed instrument, 18 ALR3d 606.

Taking depositions or serving interrogatories in civil case as waiver of incompetency of witness, 23 ALR3d 389.

Personal representative's loss of rights under dead man's statute by prior institution of discovery proceedings, 35 ALR3d 955.

Applicability to attorneys of statute excluding testimony of party to action or transaction because of death of another, 67 ALR3d 924.

Use of evidence excludible under dead man's statute to defeat or support summary judgment, 67 ALR3d 970.

Dead man's statutes as affected by Rule 601 of the Uniform Rules of Evidence and similar state rules, 50 ALR4th 1238.

§ 1-12-103. Compelling testimony of adverse parties in civil and criminal actions.

A party may compel the adverse party to testify orally or by deposition as any other witness, and no person is disqualified as a witness in any action, civil or criminal, because of his interest in the same as a party or otherwise. Every person is a competent witness except as otherwise provided by law, but his interest in the action may be shown to affect the credibility of the witness. Any party of record in a civil action, or any person for whose immediate benefit the action is prosecuted or defended, or his assignor, officer, agent or employee or if a county or city is a party any officer of the county or city, may be examined upon the trial of any action as if under cross-examination at the instance of the adverse party and may be compelled to testify subject to the same rules for examination as any other witness. The party calling for the examination is not concluded thereby and may rebut the evidence given by counter or impeaching testimony.

History. Laws 1886, ch. 60, § 251; R.S. 1887, § 2591; R.S. 1899, § 3684; C.S. 1910, § 4539; C.S. 1920, § 5808; Laws 1921, ch. 116, § 1; R.S. 1931, § 89-1705; C.S. 1945, § 3-2604; Laws 1955, ch. 24, § 1; W.S. 1957, § 1-141; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-104 .

Cross references. —

As to self-incrimination, see art. 1, § 11, Wyo. Const.

True test of right to cross-examine under this section is whether the party called is in fact adverse to the one calling him as a witness. Husted v. French Creek Ranch, 79 Wyo. 307, 333 P.2d 948, 1959 Wyo. LEXIS 7 (Wyo. 1959).

The test under the provisions of this section as to whether an adverse party may be called for cross-examination is whether the party is actually an adverse party. State Bank v. Bagley Bros., 44 Wyo. 244, 11 P.2d 572, 1932 Wyo. LEXIS 21 (Wyo.), reh'g denied, 44 Wyo. 456, 13 P.2d 564, 1932 Wyo. LEXIS 33 (Wyo. 1932).

The test of the right to call for cross-examination under this section is whether the person so called is adverse in material and relevant sense to the party calling him. Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042, 1933 Wyo. LEXIS 18 (Wyo. 1933).

Whether party so called is friendly is question for discretion of trial judge. Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042, 1933 Wyo. LEXIS 18 (Wyo. 1933).

Necessarily in the administration of the law the trial judge will guide the matter in the exercise of a sound discretion. Husted v. French Creek Ranch, 79 Wyo. 307, 333 P.2d 948, 1959 Wyo. LEXIS 7 (Wyo. 1959).

Spencer was a codefendant with appellant and the testimony he gave, if at all damaging, was as hurtful to him as it was to the appellant, and it will not be assumed he was unfriendly to himself. Furthermore, the admitted matter pleaded was also testified to by other witnesses and the same is true of all, or practically all, of Spencer's testimony. Even if there remained any doubt about this, the appellant seems to have lost its right to now complain because appellant failed to follow up its objection on that score. Appellant elected to call Spencer on its own account for similar cross-examination, and so had ample opportunity to impeach or discredit him had that been possible. Spencer also testified on direct examination in his own behalf, thus giving appellant further opportunity to subject him to additional searching cross-inquiry. The brief cross-examination attempted by appellant, however, failed to alter Spencer's testimony. The supreme court was not disposed to say in this instance that the trial court's discretion was abused. Husted v. French Creek Ranch, 79 Wyo. 307, 333 P.2d 948, 1959 Wyo. LEXIS 7 (Wyo. 1959).

When it appears that a party called for cross-examination is friendly in fact to the party calling him the cross-examination should not be permitted. Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042, 1933 Wyo. LEXIS 18 (Wyo. 1933).

Surviving codefendant. —

A codefendant who admits all the claims of the plaintiff in an action to foreclose a mortgage on deceased partner's homestead, held not an adverse party which the plaintiff might call under this section. State Bank v. Bagley Bros., 44 Wyo. 244, 11 P.2d 572, 1932 Wyo. LEXIS 21 (Wyo.), reh'g denied, 44 Wyo. 456, 13 P.2d 564, 1932 Wyo. LEXIS 33 (Wyo. 1932).

Adverse and surviving party, when compelled to testify by an executor or administrator, cannot reasonably complain, for, although a party, he can then be examined fully in his own behalf on the subject of his examination in chief. Hay v. Peterson, 6 Wyo. 419, 45 P. 1073, 1896 Wyo. LEXIS 23 (Wyo. 1896).

Section permits impeachment as to character of only such witnesses as are hostile in fact. Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042, 1933 Wyo. LEXIS 18 (Wyo. 1933).

Where defendants were not allowed to call a witness for cross-examination under this section and were limited in cross-examining him when called by plaintiff to clarify his testimony, and they thereafter called him as their own witness, they were not allowed to impeach his testimony. Huber v. Thomas, 45 Wyo. 440, 19 P.2d 1042, 1933 Wyo. LEXIS 18 (Wyo. 1933).

Applied in

Hawkey v. Williams, 72 Wyo. 20, 261 P.2d 48, 1953 Wyo. LEXIS 35 (1953); Hawkey v. Williams, 73 Wyo. 463, 281 P.2d 447, 1955 Wyo. LEXIS 10 (1955).

Quoted in

Johnston v. Vukelic, 67 Wyo. 1, 213 P.2d 925, 1950 Wyo. LEXIS 2 (1950).

Cited in

Megown v. Fuller, 38 Wyo. 211, 266 P. 124, 1928 Wyo. LEXIS 41 (1928); Puterman v. Puterman, 66 Wyo. 89, 205 P.2d 815, 1949 Wyo. LEXIS 7 (1949); Rogers v. State, 2008 WY 90, 189 P.3d 265, 2008 Wyo. LEXIS 94 (July 31, 2008).

Law reviews. —

For comment, “Article VI of the Wyoming Rules of Evidence: Witnesses,” see XIII Land & Water L. Rev. 909 (1978).

Am. Jur. 2d, ALR and C.J.S. references. —

Attorney as witness for client in civil proceedings — modern state cases, 35 ALR4th 810.

§ 1-12-104. Husband and wife as witnesses in civil and criminal cases.

No husband or wife shall be a witness against the other except in criminal proceedings for a crime committed by one against the other, or in a civil action or proceeding by one against the other. They may in all civil and criminal cases be witnesses for each other the same as though the marital relation did not exist.

History. Laws 1897, ch. 2, § 1; 1899, ch. 81, § 1; R.S. 1899, § 3681; C.S. 1910, § 4536; C.S. 1920, § 5805; R.S. 1931, § 89-1702; C.S. 1945, § 3-2605; W.S. 1957, § 1-142; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-105 .

Cross references. —

For abrogation of any privilege between husband and wife in child abuse cases, see § 14-3-210 .

For provision making privilege of husband and wife inapplicable in an action for desertion of wife or children, see § 20-3-104 .

For provision making husband and wife privilege inapplicable in action under Uniform Interstate Family Support Act, see § 20-4-166 .

Repealing clauses. —

Section 2, ch. 2, Laws 1897, repealed all laws and parts of laws in conflict with that act.

Origin of section. —

This section was originally a part of § 1-12-101 , relating to privileged communications. Stephens v. Short, 41 Wyo. 324, 285 P. 797, 1930 Wyo. LEXIS 13 (Wyo. 1930).

Purpose. —

This statute is a codification of a common law privilege and the court looks to the common law history of the privilege in determining its purpose. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

The primary purpose of the confidential marital communication privilege is to foster marital relationships by encouraging confidential communication between spouses and this is the primary purpose the Wyoming legislature intended to further when it enacted this statute. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

The legislature codified the confidential marital communication privilege in this statute and intended to make the confidential marital communication privilege available to either spouse. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

The confidential marital communication privilege is the privilege that ensures that private marital communications will remain private. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Witness spouse might directly invoke privilege against testifying if called to testify against a party spouse in a criminal case. Engberg v. Meyer, 820 P.2d 70, 1991 Wyo. LEXIS 160 (Wyo. 1991).

But wife refusing to testify against husband not made “unavailable witness.” —

A wife's refusal to testify against her husband-defendant when called as a witness by the state in a criminal case did not make her an “unavailable witness” which would have, under Rule 804, W.R.E., justified the admission of the proffered hearsay testimony of another witness, who would have testified as to an earlier statement by the wife. Nothing in the statutes extends a privilege to the spouse when called by the defendant in a criminal case. In order for the defendant to have demonstrated “unavailability” to him, he would have had to call his wife as a witness and, if she then had continued to refuse to testify, the court could have found that she was unavailable and the hearsay testimony possibly would have been admissible. Engberg v. Meyer, 820 P.2d 70, 1991 Wyo. LEXIS 160 (Wyo. 1991).

Privilege does not apply to acts that are in no way communicative. —

It is generally accepted that the confidential marital communication privilege extends to communications and not to acts that are in no way communicative. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Privilege does not apply when spouse charges crime against the other. —

Defendant's wife, who was an alleged victim spouse, could be compelled by the state to testify against defendant because the marital privilege did not apply when one spouse was charged with a crime against the other. Rogers v. State, 2008 WY 90, 189 P.3d 265, 2008 Wyo. LEXIS 94 (Wyo. 2008).

Privilege not applicable where spouse not witness against spouse. —

Where the evidence in question at trial is not presented by one spouse as a witness against the other, but rather is the product of the defendant himself, then the extension of the privilege to such circumstances clearly exceeds the limits of this doctrine. Nisonger v. State, 581 P.2d 1094, 1978 Wyo. LEXIS 204 (Wyo. 1978).

Or where child of wife wronged. —

Cases in which there is a wrong against the child of the wife fall within this section's exception applicable to “criminal proceedings for a crime committed by one [spouse] against the other,” because the wrong affecting the wife is different from that suffered by the public in general, and it is not the policy of this state to encourage defendants to silence their spouses in child abuse or child homicide cases. Seyle v. State, 584 P.2d 1081, 1978 Wyo. LEXIS 237 (Wyo. 1978).

Circumstances of utterance factor in confidentiality. —

Whether a particular statement is a privileged confidential marital communication depends on the nature and character of the communication as well as the circumstances surrounding the utterance. The communication must be delivered during marriage and in confidence. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Confidentiality of no consequence. —

Under this section and § 1-12-101 , one spouse is rendered incompetent to testify against the other irrespective of such testimony being related to confidential communications. Fox v. Fox, 75 Wyo. 390, 296 P.2d 252, 1956 Wyo. LEXIS 19 (Wyo. 1956).

But bar against matters not confidential does not survive termination of marriage. —

The bar against matters not confidential, unlike that against confidential communications, does not continue after the termination of the marriage relationship. Fox v. Fox, 75 Wyo. 390, 296 P.2d 252, 1956 Wyo. LEXIS 19 (Wyo. 1956).

Confidential communications between spouses should be protected after the death of either one of the spouses, as well as after termination of the marriage from other cause. But, unless precluded by the express terms of a statute or for some other reason, adverse testimony may be given by a former spouse against the other or against the estate of the other, except as to confidential communications received during coverture. Fox v. Fox, 75 Wyo. 390, 296 P.2d 252, 1956 Wyo. LEXIS 19 (Wyo. 1956).

Communications held not confidential. —

A widow could not claim immunity under this section from testifying as to messages relayed by her from plaintiff to her husband, and from her husband to plaintiff, during a phone conversation between her and plaintiff, since such communications could not be considered confidential. Fox v. Fox, 75 Wyo. 390, 296 P.2d 252, 1956 Wyo. LEXIS 19 (Wyo. 1956).

Defendant's statement to his wife is robbed of any confidential aspect because it was made in the presence and hearing of a child and the child testified to it. Chamberlain v. State, 348 P.2d 280, 1960 Wyo. LEXIS 46 (Wyo. 1960).

The privilege does not attach when the confidentiality of the communication is destroyed by revealing it in the presence of a third party. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Privilege not applicable when obvious marital status should no longer endure. —

While the preservation of the marital relation is a matter of primary importance as a matter of public and social policy, when it becomes obvious that the marriage should no longer endure, the injury to the marital status which results from permitting the wife to testify against her husband cannot be greater than is the benefit to society by its insuring that justice be done. Chamberlain v. State, 348 P.2d 280, 1960 Wyo. LEXIS 46 (Wyo. 1960).

Privilege survives death. —

The confidential marital communications privilege survives the death of either spouse. To rule otherwise would thwart the very purpose of the confidential marital communication privilege. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Exception broader than “cases involving corporal violence.” —

That the legislature intended something more than to declare the common law exception of “cases involving corporal violence,” by this section is made plain by its use of the broader phrase “crimes against the other,” which means nothing more nor less than a “wrong” against the other. Chamberlain v. State, 348 P.2d 280, 1960 Wyo. LEXIS 46 (Wyo. 1960).

“Crime” against other means “wrong” against other. —

Legalistically speaking, a crime is never “committed by one against the other” but rather, against the state, so offenses against an individual are civil wrongs. A “crime” against the other, as used in this section, means nothing more nor less than a “wrong” against the other. Chamberlain v. State, 348 P.2d 280, 1960 Wyo. LEXIS 46 (Wyo. 1960).

Hence, wife permitted to testify when she has suffered a special, particular and personal wrong. —

It is within the purview of this section that the wife be considered a competent witness and be permitted to testify against her husband because she has suffered a special, particular and personal wrong through his rapacious assault upon her child. Chamberlain v. State, 348 P.2d 280, 1960 Wyo. LEXIS 46 (Wyo. 1960).

Invoking the privilege. —

The privilege of spousal immunity may be invoked by the spouse who does not wish to be the instrumentality of condemnation directed at his or her partner. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

When a wife testifies for her husband, she is subject to contradiction and impeachment. Strand v. State, 36 Wyo. 78, 252 P. 1030, 1927 Wyo. LEXIS 11 (Wyo. 1927).

Test for determining whether communication protected by privilege. —

The supreme court finds the rationale underlying the “intentions test” persuasive and adopts it as the rule in Wyoming. This test treats assertive conduct that is intended to communicate a confidential message from one spouse to another as a confidential marital communication. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

The “intentions test” is a flexible analytical tool that allows a court to avoid erecting barriers to the truth while still protecting conduct that is intended to convey confidential messages between spouses. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Expectation of confidentiality may not determine protection under privilege. —

Conduct that is undertaken in reliance on the confidence of the marital relationship, i.e., with an expectation of confidentiality, is not necessarily considered a confidential marital communication. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Prosecution may comment on defendant's failure to call wife as witness. —

Since, under this section, the wife of a defendant is a competent witness for him but not for the prosecution, it is proper for the prosecuting attorney to comment upon defendant's failure to produce her as a witness. State v. Spears, 76 Wyo. 82, 300 P.2d 551, 1956 Wyo. LEXIS 32 (Wyo. 1956).

Generally, where a witness is equally available to both parties, the failure to call the witness is not the proper subject of comment; however, where the witness is the defendant's spouse and can assert the marital privilege because she is then available to the defendant but not to the government, reference to the defendant's failure to call her is not error. Fortner v. State, 835 P.2d 1155, 1992 Wyo. LEXIS 102 (Wyo. 1992).

Waiver of objection. —

Defendant executrix waived objection to testimony of plaintiff's husband where she subjected the husband to cross-examination as to matters not gone into upon his direct examination. Fox v. Fox, 75 Wyo. 390, 296 P.2d 252, 1956 Wyo. LEXIS 19 (Wyo. 1956); Chamberlain v. State, 348 P.2d 280, 1960 Wyo. LEXIS 46 (Wyo. 1960).

Having chosen to have his wife testify as a witness, defendant is in no position to argue about his “forced” election between waiving the defendant's right to not have his wife testify against him or have the transcript of her previous testimony introduced. Simms v. State, 492 P.2d 516, 1972 Wyo. LEXIS 213 (Wyo.), cert. denied, 409 U.S. 886, 93 S. Ct. 104, 34 L. Ed. 2d 142, 1972 U.S. LEXIS 1757 (U.S. 1972).

Only the party spouse may waive privilege. —

Only the party spouse can waive the confidential marital communication privilege with respect to information communicated in confidence to the other spouse. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

The spouse against whom confidential marital communications are offered must waive the confidential marital communication privilege before the witness spouse can testify regarding those confidential marital communications. Once the party spouse has waived the confidential marital communication privilege, the non-party spouse may then elect to invoke or waive the privilege of spousal immunity. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

If the party spouse refuses to waive the confidential marital communication privilege, the witness spouse cannot testify even if he or she waives the spousal immunity privilege. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Privilege may be waived by signing of consent form authorizing censorship of mail during booking procedure. Nisonger v. State, 581 P.2d 1094, 1978 Wyo. LEXIS 204 (Wyo. 1978).

The party spouse may voluntarily waive the confidential marital communication privilege. To waive the confidential marital communication privilege, the party spouse must, in some way, destroy the confidentiality of the communication. Curran v. Pasek, 886 P.2d 272, 1994 Wyo. LEXIS 160 (Wyo. 1994).

Testimony of spouse over objection not prejudicial error per se. —

No authority exists for the proposition that the mere testifying over objection by the spouse is prejudicial error per se. Pike v. State, 495 P.2d 1188, 1972 Wyo. LEXIS 244 (Wyo. 1972).

Where testimony of defendant's wife on direct examination was most meager and added nothing to the evidence before the court, including the admissions of defendant, there was no prejudicial error in receiving her testimony. Pike v. State, 495 P.2d 1188, 1972 Wyo. LEXIS 244 (Wyo. 1972).

Testimony harmless where corroborates other witnesses. —

In a civil proceeding by a mother and father against each other, the current wife, who was not a party, should not have been permitted to testify, even though the father and current wife were separated; nevertheless, since the current wife's testimony merely corroborated the testimony of other witnesses, including the father and his son, the admission of the testimony was harmless. Pinther v. Pinther, 888 P.2d 1250, 1995 Wyo. LEXIS 7 (Wyo. 1995).

In a joint trial of a husband and wife for aggravated robbery, it was not error to permit the wife to testify as follows: (1) she denied having a gun during the encounter with the victim or that she or her husband were engaged in any wrongdoing; and (2) she placed her husband at the scene of the crime, but did so for purposes of showing that her husband rescued her from the victim. Amin v. State, 695 P.2d 1021, 1985 Wyo. LEXIS 449 (Wyo. 1985).

Law reviews. —

See note, “Spouse's Testimony in Criminal Cases,” 19 Wyo. L.J. 35 (1964).

For discussion of husband-wife testimonial privilege and the Federal Rules of Evidence, see XII Land & Water L. Rev. 601 (1977).

For case note, “Wyoming's New Missing Witness Rule, Seyle v. State, 584 P.2d 1081, 1978 Wyo. LEXIS 237 (Wyo. 1978),” see XIV Land & Water L. Rev. 569 (1979).

Am. Jur. 2d, ALR and C.J.S. references. —

Conversations between husband and wife relating to property or business as within rule excluding private communications between them, 4 ALR2d 835.

“Communications” within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observations by one spouse of acts of other, 10 ALR2d 1389.

Crimes against spouse within exception permitting testimony by one spouse against another in criminal prosecution, 11 ALR2d 646.

Effect of divorce or annulment on competency of one former spouse as witness against other in criminal prosecution, 38 ALR2d 570.

Calling or offering accused's spouse as witness for prosecution as prejudicial misconduct, 76 ALR2d 920.

Spouse as competent witness for or against cooffender with other spouse, 90 ALR2d 648.

Crime directed against spouse but taking effect against third person as within exception to rule of incompetency of husband or wife, 36 ALR3d 820.

Competency of husband or wife to testify to nonaccess, 49 ALR3d 212.

Competency of one spouse to testify against other in prosecution for offense against child of both or either, 93 ALR3d 1018.

Effect, on competency to testify against spouse or on marital communication privilege, of separation or other marital instability short of absolute divorce, 98 ALR3d 1285.

Existence of spousal privilege where marriage was entered into for purpose of barring testimony, 13 ALR4th 1305.

Propriety and prejudicial effect of prosecutor's argument commenting on failure of defendant's spouse to testify, 26 ALR4th 9.

Communications between spouses as to joint participation in crime as within privilege of interspousal communications, 62 ALR4th 1134.

Crimes against spouse within exception permitting testimony by one spouse against other in criminal prosecution—modern state cases, 74 ALR4th 223.

Competency of one spouse to testify against other in prosecution for offense against third party as affected by fact that offense against spouse was involved in same transaction, 74 ALR4th 277.

Competency of one spouse to testify against other in prosecution for offense against child of both or either or neither, 119 ALR 5th 275.

Immunity's sufficiency to meet federal grand jury witness' claim of privilege against adverse spousal testimony, 82 ALR Fed 600.

“Communications” within testimonial privilege of confidential communications between husband and wife as including knowledge derived from observation by one spouse of acts of other spouse. 23 A.L.R.6th 1.

§ 1-12-105. Right of witness to demand fees; failure to pay; payments noted.

After the case is called for trial and before a witness is sworn, he may demand his traveling fees and fees for one (1) day’s attendance. If the fees are not paid he is not obliged to testify. At the commencement of the trial each day after the first day he may demand his fees for that day’s attendance and if the fees are not paid he shall not be compelled to remain. The clerk shall note the payment of fees in the witness book.

History. Laws 1886, ch. 60, § 259; R.S. 1887, § 2599; R.S. 1899, § 3693; C.S. 1910, § 4548; C.S. 1920, § 5817; R.S. 1931, § 89-1714; C.S. 1945, § 3-2612; W.S. 1957, § 1-144; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-107 .

Cross references. —

As to fees of witnesses subpoenaed by county assessor, see § 18-3-204 .

As to fees for witnesses appearing before public service commission, see § 37-2-208 .

As to witness fees in causes relating to water rights, see § 41-3-328 .

Am. Jur. 2d, ALR and C.J.S. references. —

Right to summon witnesses at public expense under Uniform Act to Secure Attendance of Witnesses from Without State in Criminal Proceedings, 44 ALR2d 732.

Right of witness detained in custody for future appearance to fees for such detention, 50 ALR2d 1439.

Allowance, as taxable costs, of witness fees and mileage of stockholders, directors, officers and employees of corporate litigant, 57 ALR2d 1243.

Allowance of mileage or witness fees with respect to witnesses who were not called to testify or not permitted to do so when called, 22 ALR3d 675.

§ 1-12-106. Contempt of court by witness.

Disobedience of a subpoena, refusal to be sworn except for refusal to pay fees on demand, or refusal to answer as a witness or to subscribe a deposition when lawfully ordered, may be punished as a contempt of the court or officer who required the attendance or testimony of the witness.

History. Laws 1886, ch. 60, § 260; R.S. 1887, § 2600; R.S. 1899, § 3694; C.S. 1910, § 4549; C.S. 1920, § 5818; R.S. 1931, § 89-1715; C.S. 1945, § 3-2613; W.S. 1957, § 1-145; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-108 .

Cross references. —

As to refusal of witness to answer questions in connection with discovery, see Rule 37, W.R.C.P.

Cited in

State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301, 1931 Wyo. LEXIS 40 (1931).

Am. Jur. 2d, ALR and C.J.S. references. —

Refusal to give self-incriminating evidence before grand jury as contempt, 38 ALR2d 225.

Perjury or false swearing by witness as contempt, 89 ALR2d 1258.

Right, and remedy for enforcement of right, of defendant in criminal case to interview or confer with prospective witness in custody of public institution, 14 ALR3d 652.

Intoxication of witness or attorney as contempt of court, 46 ALR4th 238.

§ 1-12-107. Attachment of witness who disobeys subpoena.

When a witness fails to attend in obedience to a subpoena, the court or officer before whom his attendance is required may issue an attachment to the sheriff of the county commanding him to arrest and bring the person named before the court at a time and place fixed in the attachment, to give his testimony and answer for the contempt. If the attachment is not for immediately bringing the witness before the court or officer, a sum may be fixed in which the witness may give bond with surety for his appearance. The sum shall be endorsed on the back of the attachment. If no sum is fixed and endorsed, it shall be one hundred dollars ($100.00). If the witness was not personally served, the court may order him to show cause why an attachment should not issue against him.

History. Laws 1886, ch. 60, § 261; R.S. 1887, § 2601; R.S. 1899, § 3695; C.S. 1910, § 4550; C.S. 1920, § 5819; R.S. 1931, § 89-1716; C.S. 1945, § 3-2614; W.S. 1957, § 1-146; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-109 .

Cross references. —

As to attachment of the person generally, see §§ 1-15-201 to 1-15-212 .

As to attachment for contempt in case of failure of witness to appear or testify before court commissioner in probate matters, see § 2-2-108 .

As to disobeying subpoena, see § 6-5-306 .

Applied in

Caton v. State, 709 P.2d 1260, 1985 Wyo. LEXIS 621 (Wyo. 1985).

Cited in

State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301, 1931 Wyo. LEXIS 40 (1931).

Am. Jur. 2d, ALR and C.J.S. references. —

Power to compel expert to testify, 77 ALR2d 1182.

§ 1-12-108. Punishment for contempt by witness.

1. Punishment for the contempt mentioned  in W.S. 1-12-106 is as follows:
   1. When the witness fails to attend in obedience  to a subpoena, the court or officer may fine him not more than fifty  dollars ($50.00);
   2. In other cases the court or officer may  fine the witness not more than fifty dollars ($50.00) nor less than  five dollars ($5.00), or may imprison him in the county jail until  he submits to be sworn, testifies or gives his deposition.
2. The fine imposed shall be paid into the  county treasury.
3. The witness is also liable to the party  injured for any damages occasioned by his failure to attend, his refusal  to be sworn, to testify or give his deposition.

History. Laws 1886, ch. 60, § 262; R.S. 1887, § 2602; R.S. 1899, § 3696; C.S. 1910, § 4551; C.S. 1920, § 5820; R.S. 1931, § 89-1717; C.S. 1945, § 3-2615; W.S. 1957, § 1-147; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-110 .

Where order to show cause in contempt proceedings was not styled in name of state, pursuant to art. 5, § 15, Wyo. Const., does not render the commitment void, where defendant voluntarily submitted to the order of the court to show cause, which was personally served on him, and appeared in person and by counsel without questioning the jurisdiction. Ex parte Bergman, 3 Wyo. 396, 26 P. 914, 1890 Wyo. LEXIS 13 (Wyo. 1890).

Cited in

State ex rel. Romsa v. Grace, 43 Wyo. 454, 5 P.2d 301, 1931 Wyo. LEXIS 40 (1931).

Am. Jur. 2d, ALR and C.J.S. references. —

Tort or statutory liability for failure or refusal of witness to give testimony, 61 ALR3d 1297.

§ 1-12-109. Discharge of imprisoned witness.

Upon application of a witness imprisoned by an officer, a judge of the supreme court or district court may discharge him if it appears that his imprisonment is illegal.

History. Laws 1886, ch. 60, § 263; R.S. 1887, § 2603; R.S. 1899, § 3697; C.S. 1910, § 4552; C.S. 1920, § 5821; R.S. 1931, § 89-1718; C.S. 1945, § 3-2616; W.S. 1957, § 1-148; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-111 .

§ 1-12-110. Attachment for arrest or order of commitment; execution.

Every attachment for the arrest or order of commitment to prison of a witness by a court or officer must be under the seal of the court or officer, if the officer has an official seal, and must specify particularly the cause of the arrest or commitment. If the commitment is for a refusal to answer a question, the question must be stated in the order and the order of commitment directed to the sheriff of the county where the witness resides or may be found at that time. It shall be executed by committing the witness to the jail of the county and delivering a copy of the order to the jailer.

History. Laws 1886, ch. 60, § 264; R.S. 1887, § 2604; R.S. 1899, § 3698; C.S. 1910, § 4553; C.S. 1920, § 5822; R.S. 1931, § 89-1719; C.S. 1945, § 3-2617; W.S. 1957, § 1-149; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-112 .

§ 1-12-111. Procuring testimony of imprisoned witness.

When it is necessary to procure testimony of a person confined in the state penitentiary or any jail or reformatory, in the trial of any issue in an indictment or information, or in any hearing before a grand jury, the court may order a subpoena issued, directed to the warden of the state penitentiary or the superintendent of the jail or reformatory commanding him to bring the witness named in the subpoena before the court. The warden, superintendent or sheriff shall take the witness before the court at the time and place named in the subpoena and hold him until he is discharged by the court. When discharged he shall be returned by the officer to the place of imprisonment from which he was taken. The officer may command such assistance as he deems proper for the safe transportation of the witness. When the witness is in attendance of any court he may be placed for safekeeping in the jail of the county. The county in which the offense was alleged to have been committed shall pay the actual and necessary expenses of producing, keeping and returning the witness.

History. Laws 1886, ch. 60, § 265; R.S. 1887, § 2605; R.S. 1899, § 3699; Laws 1905, ch. 6, § 1; C.S. 1910, § 4554; C.S. 1920, § 5823; R.S. 1931, § 89-1720; C.S. 1945, § 3-2618; W.S. 1957, § 1-150; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-113 .

In general. —

Sentence for one felony does not bar prosecution for another, and a convict is not exempt from trial and sentence for another crime committed before or during imprisonment. State v. Keefe, 17 Wyo. 227, 98 P. 122, 1908 Wyo. LEXIS 16 (Wyo. 1908).

Am. Jur. 2d, ALR and C.J.S. references. —

Issuance by federal court, pursuant to 28 USC § 2241(c)(5), of writ of habeas corpus ad testificandum requiring presence of prisoner to testify at civil or criminal trial, 65 ALR Fed 321.

§ 1-12-112. Taking of prisoner's deposition.

While a prisoner’s deposition is being taken he shall remain in the custody of the officer having charge of him. The officer shall afford reasonable facilities for the taking of the deposition.

History. Laws 1886, ch. 60, § 266; R.S. 1887, § 2606; R.S. 1899, § 3700; C.S. 1910, § 4555; C.S. 1920, § 5824; R.S. 1931, § 89-1721; C.S. 1945, § 3-2619; W.S. 1957, § 1-151; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-114 .

§ 1-12-113. Immunity of witness obeying subpoena.

A witness may not be served with a summons or sued in a county in which he does not reside while going, returning or attending in obedience to a subpoena.

History. Laws 1886, ch. 60, § 267; R.S. 1887, § 2607; R.S. 1899, § 3701; C.S. 1910, § 4556; C.S. 1920, § 5825; R.S. 1931, § 89-1722; C.S. 1945, § 3-2620; W.S. 1957, § 1-152; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-115 .

§ 1-12-114. Oath of witness.

Before testifying the witness shall be sworn to testify the truth, the whole truth and nothing but the truth.

History. Laws 1886, ch. 60, § 268; R.S. 1887, § 2608; R.S. 1899, § 3702; C.S. 1910, § 4557; C.S. 1920, § 5826; R.S. 1931, § 89-1723; C.S. 1945, § 3-2621; W.S. 1957, § 1-153; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-116 .

Cross references. —

As to form of oath, see § 1-2-101 .

As to officers authorized to administer oaths, see § 1-2-102 .

As to affirmation rather than oath, see § 1-2-103 .

§ 1-12-115. Testimony for use in foreign jurisdiction.

Whenever any mandate, writ or commission is issued from any court of record in any foreign jurisdiction, or whenever upon notice or agreement it is required to take the testimony of a witness in this state, the witness may be compelled to appear and testify in the same manner and by the same process as employed for taking testimony in matters pending in the courts of this state.

History. Laws 1927, ch. 47, § 1; R.S. 1931, § 89-1901; C.S. 1945, § 3-2928; W.S. 1957, § 1-158; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-117.

Repealing clauses. —

Section 4, ch. 47, Laws 1927, repealed all laws and parts of laws in conflict with that act.

Am. Jur. 2d, ALR and C.J.S. references. —

Use, in federal criminal prosecution, of deposition of absent witness taken in foreign country, as affected by Federal Rule of Criminal Procedure 15(b) and (d), requiring presence of accused and that deposition be taken in manner provided in civil actions, 105 ALR Fed 537.

§ 1-12-116. Confidential communications between family violence and sexual assault advocate and victim.

1. As used in this section:
   1. “Advocate” or “family violence or sexual  assault advocate” means a person who is employed by or volunteers  services to any family violence and sexual assault program, who is  certified by the program as having undergone at least forty (40) hours  of crisis advocacy training and whose work is directed and supervised  under a family violence and sexual assault program;
   2. “Confidential communication” means information  transmitted in confidence between a victim and an advocate in the  course of that relationship and includes all information received  by, and any report, working paper or document prepared by the advocate  in the course of that relationship;
   3. “Crisis services to victims of family  violence and sexual assault” means emergency and follow-up intervention,  information, referral services and medical, legal and social services  advocacy;
   4. “Family violence and sexual assault program”  means a program whose primary purpose is to offer shelter and crisis  services to victims of family violence and sexual assault through  any community facility or center;
   5. “Shelter” means a place of temporary refuge,  offered on a twenty-four (24) hour, seven (7) day per week basis to  victims and their children;
   6. “Victim” means a person who has been subjected  to sexual assault as defined by W.S. 6-2-301(a)(v), incest as defined by W.S. 6-4-402 or domestic abuse as defined by W.S. 35-21-102(a)(iii).
2. Except as provided by W.S. 14-3-210 , a person exempted from testifying under the provisions  of W.S. 1-12-116 shall not be examined as a witness in any civil, criminal,  legislative or administrative proceeding concerning the following  communications and information:
   1. An advocate shall not testify concerning  a confidential communication made by a victim in the course of that  relationship, except the advocate:
      1. May testify:
         1. With the express consent of the victim;  or
         2. If the victim voluntarily testifies, provided  the advocate’s testimony shall be limited to the same subject matter.
      2. May be compelled to testify if the victim  is unable to testify due to death or incompetence.
   2. Any employee of a family violence and  sexual assault program who has access to confidential communication  shall not testify except in those circumstances where the advocate  may testify.

History. Laws 1985, ch. 127, § 1.

Cross references. —

As to privileged communication by a licensed or certified mental health professional, see § 33-38-113 .

Law reviews. —

For case note, “Evidence — Recognition of a Federal Psychotherapist-Patient Privilege. Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 2d 337, 1996 U.S. LEXIS 3879 (1996),” see XXXII Land & Water L. Rev. 873 (1997).

Am. Jur. 2d, ALR and C.J.S. references. —

Constitutionality, with respect to accused's rights to information or confrontation, of statute according confidentiality to sex crime victim's communications to sexual counselor, 43 ALR4th 395.

Validity, construction and application of statute limiting physician-patient privilege in judicial proceedings relating to child abuse or neglect, 44 ALR4th 649.

§ 1-12-201. Copies of documents filed with interstate commerce or public service commissions.

Printed copies of schedules, classifications and tariffs of rates, fares, charges, rules and regulations and supplements thereto, filed with the interstate commerce commission or the public service commission, which show respectively an interstate commerce commission number and an effective date or a public service commission number and an effective date, may be received in evidence without certification and shall be presumed to be correct copies of the originals on file with the interstate commerce commission or on file with the public service commission.

History. Laws 1955, ch. 211, § 1; W.S. 1957, § 1-164; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-204.

Cross references. —

For provision that all certificates issued by the secretary of state and all copies of documents filed in his office in accordance with the provisions of the Wyoming Business Corporation Act shall be prima facie evidence of the facts contained, see § 17-16-127.

As to copies of county instruments and transcripts of records as evidence, see § 18-3-104 .

As to certificate or record of marriage or a certified copy thereof as presumptive evidence of the fact of marriage, see § 20-1-107 .

As to use of copies of records of state highway commission as evidence, see § 24-2-101 .

As to use of certified copy of surveys constructed by mining companies and filed with secretary of state as evidence, see § 30-1-128 .

As to use of abstract of motor vehicle operating record as evidence in action for damages or criminal proceedings arising out of motor vehicle accidents, see § 31-9-104 .

As to use of report of accident required to be filed under the Motor Vehicle Safety-Responsibility Act as evidence, see § 31-9-209 .

As to force and effect as evidence of conveyances executed prior to 1882, see § 34-1-122 .

As to admissibility of conveyance or the certified record thereof as evidence, see § 34-1-123 .

As to use of federal land office instruments as evidence, see § 34-1-125 .

As to effect of unsealed writings in evidence, see § 34-2-126 .

As to instruments under Comprehensive Curative Act as evidence after validation, see § 34-8-105 .

As to public service commission, see § 37-2-101 .

§ 1-12-301. Proof of laws of foreign jurisdictions.

Printed copies of written law enacted by any other state, territory or foreign government purporting or proved to have been published by the authority thereof, or proved to be commonly admitted as evidence of the existing law in the courts or tribunals of the state, territory or government shall be admitted by the courts and officers of this state on all occasions as prima facie evidence of the law. The unwritten or common law of any other state, territory or foreign government may be proved by parol evidence and the books of reports of cases adjudicated in their courts may also be admitted as prima facie evidence of the law.

History. Laws 1886, ch. 60, § 252; R.S. 1887, § 2592; R.S. 1899, § 3686; C.S. 1910, § 4541; C.S. 1920, § 5810; R.S. 1931, § 89-1707; C.S. 1945, § 3-3108; W.S. 1957, § 1-179; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-601 .

Failure to comply with requirements to take judicial notice of foreign law. —

In a custody dispute, a father's claim that the father should have been granted custody or visitation in France, based on a claim that the children were or could become French citizens, failed because (1) the claim was properly considered in the context of the statutory best interest factors, (2) the father did not comply with Wyo. Stat. Ann. §§ 1-12-301 through 1-12-306 so as to allow the court to take judicial notice of French law, and (3) the father filed no transcript of the trial court's proceedings. Harignordoquy v. Barlow, 2013 WY 149, 313 P.3d 1265, 2013 Wyo. LEXIS 156 (Wyo. 2013), cert. denied, 574 U.S. 817, 135 S. Ct. 66, 190 L. Ed. 2d 33, 2014 U.S. LEXIS 5136 (U.S. 2014).

Applied in

Roberts v. Locke, 2013 WY 73, 304 P.3d 116, 2013 Wyo. LEXIS 78 (Jun 17, 2013); Roberts v. Locke, 2013 WY 73, 304 P.3d 116, 2013 Wyo. LEXIS 78 (Jun 17, 2013).

§ 1-12-302. Judicial notice required.

Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.

History. Laws 1941, ch. 78, § 1; C.S. 1945, § 3-3109; W.S. 1957, § 1-180; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-602.

Notice that law operative in foreign jurisdiction. —

Under this act courts of Wyoming take judicial notice of common law and statutes of other states, and supreme court judicially notices that Colorado statutes from which it made verbatim excerpts are operative in Colorado. Trepanier v. Standard Mining & Milling Co., 58 Wyo. 29, 123 P.2d 378, 1942 Wyo. LEXIS 13 (1942).

But not occurrences in federal bureaus. —

This section does not permit courts to take judicial notice of the occurrences in federal bureaus. Torgeson v. Connelly, 348 P.2d 63, 1959 Wyo. LEXIS 3 (Wyo. 1959).

Scope more limited than in California. —

A comparison of this section with provisions in California disclosed that the scope of judicial notice as to public records is much more limited in Wyoming than in California. Dame v. Mileski, 80 Wyo. 156, 340 P.2d 205, 1959 Wyo. LEXIS 33 (Wyo. 1959).

Applied in

Ohio Oil Co. v. Wyoming Agency, 63 Wyo. 187, 179 P.2d 773, 1947 Wyo. LEXIS 9 (1947).

Quoted in

Bowers v. Getter Trucking Co., 514 P.2d 837, 1973 Wyo. LEXIS 183 (Wyo. 1973); Duke v. Housen, 589 P.2d 334, 1979 Wyo. LEXIS 343 (Wyo. 1979).

§ 1-12-303. Manner of obtaining information.

The court may inform itself of foreign laws in such manner as it deems proper, and the court may call upon counsel to aid in obtaining such information.

History. Laws 1941, ch. 78, § 2; C.S. 1945, § 3-3110; W.S. 1957, § 1-181; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-603.

Applied in

Logan v. Pacific Intermountain Express Co., 400 P.2d 488, 1965 Wyo. LEXIS 130 (Wyo. 1965).

Quoted in

Duke v. Housen, 589 P.2d 334, 1979 Wyo. LEXIS 343 (Wyo. 1979).

§ 1-12-304. Determination of foreign law; reviewability.

The determination of foreign laws shall be made by the court and not by the jury, and is reviewable.

History. Laws 1941, ch. 78, § 3; C.S. 1945, § 3-3111; W.S. 1957, § 1-182; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-604.

Applied in

Logan v. Pacific Intermountain Express Co., 400 P.2d 488, 1965 Wyo. LEXIS 130 (Wyo. 1965).

Am. Jur. 2d, ALR and C.J.S. references. —

Raising and determining issue of foreign law under Rule 44.1 of Federal Rules of Civil Procedure, 62 ALR Fed 521.

§ 1-12-305. Reasonable notice to be given adverse party.

Any party may present to the trial court any admissible evidence of foreign laws, but to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties in the pleadings or otherwise.

History. Laws 1941, ch. 78, § 4; C.S. 1945, § 3-3112; W.S. 1957, § 1-183; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-605.

§ 1-12-306. Laws of jurisdictions outside United States.

The law of a jurisdiction other than a state, territory or jurisdiction of the United States, is an issue for the court but is not subject to the foregoing provisions concerning judicial notice.

History. Laws 1941, ch. 78, § 5; C.S. 1945, § 3-3113; W.S. 1957, § 1-184; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-606.

Repealing clauses. —

Section 8, ch. 78, Laws 1941, repealed all laws and parts of laws in conflict with that act.

Law of Nicaragua not judicially noticed. —

This article seems to make it clear Wyoming courts do not take judicial notice of the law of Nicaragua. In re Estate of Sowerwine, 413 P.2d 48, 1966 Wyo. LEXIS 141 (Wyo. 1966).

§ 1-12-401. Written finding of presumed death admissible as evidence.

A written finding of presumed death made by an officer or employee of the United States authorized to make such finding, pursuant to the Federal Missing Persons Act, 37 U.S.C. § 551 et seq., as now or hereafter amended, or a certified copy of the finding, shall be received in any court, office or other place in this state as evidence of the death of the person found to be dead and the date, circumstances and place of his disappearance.

History. Laws 1947, ch. 96, § 1; W.S. 1957, § 1-186; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-701; 2006, ch. 114, § 1.

The 2006 amendment substituted “ 37 U.S.C. § 551 et seq.” for “56 Stat. 143, 1092, and 58 Stat. 679; 50 U.S.C. App. Supp. 1001-107.”

Laws 2006, ch. 114, § 5, makes this act effective immediately upon completion of all acts necessary for a bill to become law as provided by Art. 4, § 8, Wyo. Constitution. Approved March 24, 2006.

Federal Missing Persons Act. —

The Federal Missing Persons Act, referred to in this section, was repealed in 1966. For present provisions, see 37 U.S.C. 551 et seq.

Conflicting legislation. —

Laws 2006, ch. 114, § 3, provides: “Any other act adopted by the Wyoming legislature during the same session in which this act is adopted shall be given precedence and shall prevail over the amendments in this act to the extent that such acts are in conflict with this act.”

§ 1-12-402. Official report that person is missing or captured as evidence of person's condition.

An official written report, record or certified copy thereof that a person is missing, missing in action, interned in a neutral country, beleaguered, besieged, captured by an enemy or is dead or alive, made by any officer or employee of the United States authorized by any law of the United States to make the report or copy, shall be received in any court, office or other place in this state as evidence of the condition of that person.

History. Laws 1947, ch. 96, § 2; W.S. 1957, § 1-187; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-702.

§ 1-12-403. Findings and reports and records deemed prima facie valid.

For the purposes of W.S. 1-12-401 and 1-12-402 , any finding, report, record or certified copy purporting to have been signed by an officer or employee of the United States shall be deemed prima facie to have been signed and issued by the officer or employee pursuant to law, and the person signing shall be deemed prima facie to have acted within the scope of his authority. If a copy purports to have been certified by a person authorized by law to certify the same, such certified copy shall be prima facie evidence of his authority.

History. Laws 1947, ch. 96, § 3; W.S. 1957, § 1-188; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-703.

Severability. —

Section 4, ch. 96, Laws 1947, reads: “If any provision of this act or the application thereof to any person or circumstance be held invalid, such invalidity shall not affect any other provision or application of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.”

§ 1-12-501. Survivorship upon simultaneous death.

1. When two (2) persons perish in the same  calamity and it is not shown who died first and there are no particular  circumstances from which it can be inferred, survivorship is presumed  from the probabilities resulting from the strength, age and sex, according  to the following rules:
   1. If both of those who have perished were  under the age of fifteen (15) years, the older is presumed to have  survived;
   2. If both were of the age of sixty (60)  years or older, the younger is presumed to have survived;
   3. If one is under fifteen (15) years of  age and the other is sixty (60) years of age or older, the former  is presumed to have survived;
   4. If both are fifteen (15) years of age  or older and under sixty (60) years of age, and the sexes are different,  the male is presumed to have survived. If the sexes are the same,  the older will be presumed to have survived;
   5. If one is under the age of fifteen (15)  years or is sixty (60) years of age or older, and the other is between  those ages, the latter is presumed to have survived.

History. Laws 1897, ch. 3, § 1; R.S. 1899, § 4865; C.S. 1910, § 5734; C.S. 1920, § 7009; R.S. 1931, § 88-4008; C.S. 1945, § 6-2510; W.S. 1957, § 1-189; Laws 1977, ch. 188, § 1; W.S. 1977, § 1-12-801.

Cross references. —

For Uniform Simultaneous Death Act, see chapter 13 of title 2.

Editor's notes. —

There is no subsection (b) in this section as it appears in the printed acts.

Law reviews. —

See “Legislation,” 1 Wyo. L.J. 126.

Am. Jur. 2d, ALR and C.J.S. references. —

Uniform Simultaneous Death Act generally, 39 ALR3d 1332.

Construction of provision as to which of 2 or more parties shall be deemed the survivor in case of death simultaneously, in a common disaster or within a specified period of time, 40 ALR3d 359.

§ 1-12-502. [Renumbered.]

Renumbered by Laws 1979, ch. 142, § 3.

Cross references. —

For present provisions, see § 2-7-101 .

§ 1-12-601. Injury by health care providers; burden of proof.

1. In an action for injury alleging negligence  by a health care provider the plaintiff shall have the burden of proving:
   1. If the defendant is certified by a national  certificating board or association, that the defendant failed to act  in accordance with the standard of care adhered to by that national  board or association; or
   2. If the defendant is not so certified,  that the defendant failed to act in accordance with the standard of  care adhered to by health care providers in good standing performing  similar health care services.
2. In either paragraph (a)(i) or (ii) of  this section, variations in theory of medical practice or localized  circumstances regarding availability of equipment, facilities or supplies  may be shown to contravene proof offered on the applicable standard  of care.

History. Laws 1986, ch. 45, § 1.

Expert testimony. —

In a medical malpractice case, it was an abuse of discretion for the district court to preclude plaintiff's expert's standard of care testimony because the defendant's doctor's infectious disease expert was allowed to give standard of care testimony while plaintiff's was not. Armstrong v. Hrabal, 2004 WY 39, 87 P.3d 1226, 2004 Wyo. LEXIS 47 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 66 (Wyo. May 11, 2004).

In a medical malpractice case, a court did not err by sustaining defendant doctor's objection to testimony from plaintiff's retained emergency medicine expert where plaintiff's counsel made no offer of proof, counsel did not explain to the district court his plan to pursue the standard of care in six sub-categories nor did he make an offer of proof to alert the court to how the proposed testimony would differ from earlier testimony. Further, the record did not suggest that such a plan of attack was apparent from the previous questions. Armstrong v. Hrabal, 2004 WY 39, 87 P.3d 1226, 2004 Wyo. LEXIS 47 (Wyo. 2004), reh'g denied, 2004 Wyo. LEXIS 66 (Wyo. May 11, 2004).

Unpublished decision: In a medical malpractice action arising from a physician's treatment of a patient's abdominal pain, the district court properly allowed the testimony of a general surgeon under Fed. R. Evid. 702 as to the standard of care; the general surgeon did not stray from his area of expertise, and Wyo. Stat. Ann. § 1-12-601 did not suggest a per se rule that only a board-certified specialist such as a gastroenterologist could provide testimony against another board-certified specialist. Poche v. Joubran, 389 Fed. Appx. 768, 2010 U.S. App. LEXIS 15482 (10th Cir. Wyo. 2010).

In a medical malpractice case, an expert's testimony regarding the standard of care was proper because the studies cited by the expert were relevant to rebut plaintiff's claim that the doctor deviated from the standard of care; the testimony was not that the doctor followed the alternative guidelines, but rather that his exercise of clinical judgment was consistent with the guidelines. Miller v. Beyer, 2014 WY 84, 329 P.3d 956, 2014 Wyo. LEXIS 92 (Wyo. 2014).

Interpretation. —

This section is clearly not intended to immunize board certified doctors from all liability. Pina v. Christensen, 2009 WY 64, 206 P.3d 1298, 2009 Wyo. LEXIS 61 (Wyo. 2009).

Instructions to jury. —

In a medical malpractice action, the court correctly gave a standard of care instruction which stated that proper technique for administering an injection is the same for doctors, nurses, and other health care professionals and that the defendant medical assistant's actions were to be measured by such standard. Beavis v. Campbell County Mem. Hosp., 2001 WY 32, 20 P.3d 508, 2001 Wyo. LEXIS 42 (Wyo. 2001), reh'g denied, 2001 Wyo. LEXIS 48 (Wyo. Apr. 17, 2001).

In a medical malpractice suit filed against a board-certified urologist, the trial court did not err by instructing the jury that in order for it to find that the doctor was negligent, it had to find by a preponderance of the evidence that he failed to act in accordance with the standard of care adhered to by the American Board of Urology; the instruction was a correct statement of the law as set forth in this section. Pina v. Christensen, 2009 WY 64, 206 P.3d 1298, 2009 Wyo. LEXIS 61 (Wyo. 2009).

Applied in

May v. Southeast Wyo. Mental Health Ctr., 866 P.2d 732, 1993 Wyo. LEXIS 203 (Wyo. 1993).

Quoted in

Nalder v. West Park Hosp., 254 F.3d 1168, 2001 U.S. App. LEXIS 12399 (10th Cir. 2001); Garnett v. Coyle, 2001 WY 94, 33 P.3d 114, 2001 Wyo. LEXIS 114 (Wyo. 2001).

Law reviews. —

For comments, “Wyoming Tort Reform and the Medical Malpractice Insurance Crisis: A Second Opinion,” see XXVIII Land & Water L. Rev. 593 (1993).

Am. Jur. 2d, ALR and C.J.S. references. —

Medical malpractice: hospital's liability for injury allegedly caused by failure to have properly qualified staff, 62 ALR4th 692.

Medical practitioner's liability for treatment given child without parent's consent, 67 ALR4th 511.

Malpractice involving hysterectomies and oophorectomies, 86 ALR4th 18.

Gynecological malpractice not involving hysterectomies or oophorectomies, 86 ALR4th 125.

Malpractice: physician's duty, under informed consent doctrine, to obtain patient's consent to treatment in pregnancy or childbirth cases, 89 ALR4th 799.

Liability of physician, nurse, or hospital for failure to contact physician or to keep physician sufficiently informed concerning status of mother during pregnancy, labor and childbirth, 3 ALR5th 123.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by inadequate attendance or monitoring of patient during and after pregnancy, labor, and delivery, 3 ALR5th 146.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper choice between, or timing of, vaginal or cesarean delivery, 4 ALR5th 148.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper procedures during vaginal delivery, 4 ALR5th 210.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper treatment during labor, 6 ALR5th 490.

Liability of hospital, physician, or other medical personnel for death or injury to mother caused by improper postdelivery diagnosis, care, and representations, 6 ALR5th 534.

Liability of hospital, physician, or other medical personnel for death or injury to mother or child caused by improper diagnosis and treatment of mother relating to and during pregnancy, 7 ALR5th 1.

Medical malpractice: physician's admission of negligence as establishing standard of care and breach of that standard, 42 ALR5th 1.

Medical malpractice in connection with diagnosis, care, or treatment of diabetes, 43 ALR5th 87.

Malpractice in diagnosis and treatment of male urinary tract and related organs, 48 ALR5th 575.

Liability of health maintenance organizations (HMOs) for negligence of member physicians, 51 ALR5th 271.

Malpractice in diagnosis or treatment of meningitis, 51 ALR5th 301.

§ 1-13-101. Constitutional questions; generally.

When an important and difficult constitutional question arises in a proceeding pending before the district court on motion of either party or upon his own motion the judge of the district court may cause the question to be reserved and sent to the supreme court for its decision.

History. Laws 1888, ch. 66, § 1; R.S. 1899, § 4276; Laws 1903, ch. 72, § 1; C.S. 1910, § 5136; C.S. 1920, § 6398; Laws 1931, ch. 73, § 110; R.S. 1931, § 89-5001; C.S. 1945, § 3-5501; W.S. 1957, § 1-191; Laws 1977, ch. 188, § 1.

Section constitutional. —

This section, authorizing district court to reserve important and difficult questions arising in a cause for decision of the supreme court, is constitutional. State v. Crocker, 5 Wyo. 385, 40 P. 681, 1895 Wyo. LEXIS 32 (Wyo. 1895).

Rule 52, W.R.C.P., implements this section. Wheatland Irrigation Dist. v. Prosser, 501 P.2d 1, 1972 Wyo. LEXIS 301 (Wyo. 1972).

Not mandatory that district judge reserve questions. —

There is nothing in this section or in Rule 52, W.R.C.P., which indicates a mandatory direction to a district judge to reserve important and difficult constitutional questions to the supreme court each time he is requested to do so. Wheatland Irrigation Dist. v. Prosser, 501 P.2d 1, 1972 Wyo. LEXIS 301 (Wyo. 1972).

Rather, district court must exercise its sound discretion in determining when a constitutional question is so important and difficult that it ought to be reserved to the supreme court. Wheatland Irrigation Dist. v. Prosser, 501 P.2d 1, 1972 Wyo. LEXIS 301 (Wyo. 1972).

Supreme court's jurisdiction to decide questions reserved for its determination is limited to important, difficult constitutional questions arising in actions pending in the district court. State v. Smart, 18 Wyo. 436, 110 P. 715, 1910 Wyo. LEXIS 16 (Wyo. 1910).

Only pending constitutional questions may be reserved. —

No question except a constitutional question is authorized to be reserved to the supreme court. White v. Board of County Comm'rs, 77 Wyo. 246, 313 P.2d 484, 1957 Wyo. LEXIS 22 (Wyo. 1957).

Under this section, only pending constitutional question can be reserved to the supreme court upon order of a district court. State v. Keefe, 17 Wyo. 227, 98 P. 122, 1908 Wyo. LEXIS 16 (Wyo. 1908).

Matter referable. —

Under this section, question as to validity of $55,000 worth of Crook county bonds, bearing date May 1, 1891, was sufficiently important and difficult, to authorize its reference to the supreme court. Board of County Comm'rs v. Rollins Inv. Co., 3 Wyo. 470, 27 P. 683, 1891 Wyo. LEXIS 10 (Wyo. 1891).

And matter not referable. —

This section does not authorize district court to submit question whether plaintiff's petition, to which a general demurrer (now motion to dismiss) is interposed, states facts sufficient to constitute a cause of action. Jenkins v. City of Cheyenne, 12 Wyo. 79, 73 P. 758, 1903 Wyo. LEXIS 28 (1903). See Rule 7, W.R.C.P.

Statute must appear unconstitutional as to person attacking it. —

It is not sufficient for a party to say that a statute is unconstitutional as to other persons or classes of persons, but it must appear that it is unconstitutional as to person attacking it. Public Serv. Comm'n v. Grimshaw, 49 Wyo. 158, 53 P.2d 1, 1935 Wyo. LEXIS 15 (Wyo. 1935).

And specific constitutional provision violated must be pointed out. —

The supreme court will not answer any reserved constitutional questions unless the specific constitutional provision claimed to be violated has been pointed out. White v. Board of County Comm'rs, 77 Wyo. 246, 313 P.2d 484, 1957 Wyo. LEXIS 22 (Wyo. 1957).

Unless questions specify the constitutional provision alleged to be violated, supreme court is not required to answer said questions. State ex rel. Voiles v. Johnson County High Sch., 43 Wyo. 494, 5 P.2d 255, 1931 Wyo. LEXIS 31 (Wyo. 1931).

Supreme court is not required to answer reserved questions from district court involving constitutionality of a statute where specific constitutional provision asserted to be violated by it has not been designated. Taxpayers' League of Carbon County v. McPherson, 49 Wyo. 251, 54 P.2d 897, 1936 Wyo. LEXIS 48 (Wyo. 1936).

Insufficient orders. —

Order of district court certifying that there is a question reviewable under this section, but not stating what such question is, brings up nothing for determination. Corey v. Corey, 3 Wyo. 210, 19 P. 443, 1888 Wyo. LEXIS 11 (Wyo. 1888).

An order, made prior to amendatory act, finding that difficult and new questions had arisen in a suit, and ordering that clerk prepare and certify record and questions involved to the supreme court, but failing to state what questions were, was insufficient to bring the case within the proviso of the amendatory act. Smith v. Healy, 12 Wyo. 218, 75 P. 430, 1904 Wyo. LEXIS 1 (Wyo. 1904).

Question sufficiently presented. —

Though questions reserved for supreme court should be specifically stated by trial court, yet, where question sought to be reserved was clearly stated in stipulation of counsel, this was sufficient to present question for review. Board of Comm'rs v. Rollins, 9 Wyo. 281, 62 P. 351, 1900 Wyo. LEXIS 19 (Wyo. 1900).

Question must first be presented to district court. —

The supreme court will limit its answers to submitted constitutional questions to questions which have been specifically and fully argued. Public Serv. Comm'n v. Grimshaw, 49 Wyo. 158, 53 P.2d 1, 1935 Wyo. LEXIS 15 (Wyo. 1935).

Answers to constitutional questions will be limited to those which have been specifically phrased and fully argued. Miller v. Board of County Comm'rs, 79 Wyo. 502, 337 P.2d 262, 1959 Wyo. LEXIS 18 (Wyo. 1959).

And that court must dispose of all preliminary matters before supreme court asked to determine constitutional problems. —

Constitutional questions submitted to the supreme court must be of such a nature and so vital that there will be nothing more for the district court to determine in order to dispose of the case; in other words, that court must dispose of all preliminary matters, such as questions of statutory construction and factual questions, before the supreme court should be asked to determine constitutional problems in the case. State ex rel. Fawcett v. Board of County Comm'rs, 73 Wyo. 69, 273 P.2d 188, 1954 Wyo. LEXIS 13 (Wyo. 1954).

Supreme court is without jurisdiction to consider submitted constitutional questions until all necessary and controlling questions of fact in case are disposed of by trial court. State ex rel. Keefe v. Jones, 62 Wyo. 61, 161 P.2d 135, 1945 Wyo. LEXIS 27 (Wyo. 1945).

Under rulings of supreme court, said court has no jurisdiction to decide any alleged constitutional questions until all other questions are disposed of in the pending litigation. Roberts v. Rock Springs, 52 Wyo. 89, 68 P.2d 891, 1937 Wyo. LEXIS 37 (Wyo. 1937).

The supreme court will not consider a reserved constitutional question until there is nothing left for the trial court to do but apply the supreme court's answer to the question or questions and enter judgment consistent with the answer or answers. In re Certified Question from United States Dist. Court, 549 P.2d 1310, 1976 Wyo. LEXIS 193 (Wyo. 1976).

When the supreme court decides a constitutional question reserved to it, there should be nothing left for the trial court to do but apply it and, depending upon the answer, either proceed at once to sentence and enter a judgment of conviction and sentence, or dismiss the charges. State v. Rosachi, 549 P.2d 318, 1976 Wyo. LEXIS 188 (Wyo. 1976).

Where information was demurred to (now objected to by motion), first, because facts alleged did not constitute an offense and, second, because statute was unconstitutional, supreme court had no jurisdiction to determine constitutional question on a case reserved in advance of determination of first ground of demurrer (now motion), since, if that ground should be sustained, other would become immaterial. State v. Kelley, 17 Wyo. 335, 98 P. 886, 1909 Wyo. LEXIS 4 (1909). See Rule 16, W.R.Cr.P.

The supreme court should not address, and resolve, the constitutional issue in those instances in which the trial court has not disposed of all of the necessary, and controlling, questions of fact and has not set forth its conclusions of law with respect to all questions other than the constitutional question. Rodabaugh v. Ross, 807 P.2d 380, 1991 Wyo. LEXIS 32 (Wyo. 1991).

Thus trial court must decide meaning and effect of statutes in question. —

The supreme court has no jurisdiction to pass upon a reserved constitutional question until after the trial court has disposed of, and has decided, the meaning and effect of the statutes in question necessarily arising in a case. White v. Board of County Comm'rs, 77 Wyo. 246, 313 P.2d 484, 1957 Wyo. LEXIS 22 (Wyo. 1957).

Questions of statutory construction and those arising because of incompatibility of statutes, or in course of interpreting effect of their language, raise no constitutional question which may be reserved for supreme court. State ex rel. Lee v. Continental Oil Co., 48 Wyo. 152, 43 P.2d 686, 1935 Wyo. LEXIS 25 (Wyo. 1935).

In a suit challenging the legality of a bond issue, the petition presented two distinct questions, namely, (1) whether the statute under which the bonds in question were purportedly issued on its face authorized the issuance of the bonds, and (2) if the statute did authorize the issuance of the bonds, then whether the statute was unconstitutional. Where it appeared that the trial court had not decided question (1), the supreme court declined to pass upon question (2), which was reserved to it under this section. White v. Board of County Comm'rs, 77 Wyo. 246, 313 P.2d 484, 1957 Wyo. LEXIS 22 (Wyo. 1957) (wherein the court stated that the statutory provisions permitting the submission of reserved constitutional questions merely hinders and delays the speedy disposition of cases and should be repealed).

Trial court's certificate is not controlling in determining whether case to resolve reserved constitutional question should be returned to trial court with submitted question unanswered. State ex rel. Keefe v. Jones, 62 Wyo. 61, 161 P.2d 135, 1945 Wyo. LEXIS 27 (Wyo. 1945).

Examination by supreme court. —

On reserved case, supreme court will examine original papers to determine whether reserved constitutional questions arise in the action and whether determination is necessary to dispose of the case. State ex rel. Keefe v. Jones, 62 Wyo. 61, 161 P.2d 135, 1945 Wyo. LEXIS 27 (Wyo. 1945).

Supreme court cannot make any order in case in which constitutional questions have been reserved for its consideration. State v. Berry, 36 Wyo. 257, 254 P. 488, 1927 Wyo. LEXIS 33 (Wyo. 1927).

On reservation of constitutional questions, supreme court cannot order district court to vacate order reserving questions or dismissal of action against defendant. State v. Berry, 36 Wyo. 257, 254 P. 488, 1927 Wyo. LEXIS 33 (Wyo. 1927).

Tax held unconstitutional. —

In a cause reviewed or determined under this chapter, it was held that a tax to aid a fair association was unconstitutional and void. Board of County Comm'rs v. Union Pac. R.R., 25 Wyo. 463, 171 P. 668, 1918 Wyo. LEXIS 8 (Wyo. 1918).

Applied in

Bulova Watch Co. v. Zale Jewelry Co., 371 P.2d 409, 1962 Wyo. LEXIS 85 (Wyo. 1962); Galesburg Construction Co. v. Board of Trustees, 641 P.2d 745, 1982 Wyo. LEXIS 308 (Wyo. 1982).

Quoted in

State ex rel. Wyo. Farm Loan Bd. v. Herschler, 622 P.2d 1378, 1981 Wyo. LEXIS 285 (Wyo. 1981).

Stated in

Powell v. Daily, 712 P.2d 356, 1986 Wyo. LEXIS 448 (Wyo. 1986).

Cited in

State v. Crocker, 5 Wyo. 385, 40 P. 681, 1895 Wyo. LEXIS 32 (1895); State v. Peterson, 27 Wyo. 185, 194 P. 342, 1920 Wyo. LEXIS 33 , 13 A.L.R. 1284 (1920); Simpkin v. Rock Springs, 33 Wyo. 166, 237 P. 245, 1925 Wyo. LEXIS 32 (1925); Hanson v. Town of Greybull, 63 Wyo. 467, 183 P.2d 393, 1947 Wyo. LEXIS 21 (1947); State v. Yazzie, 67 Wyo. 256, 218 P.2d 482, 1950 Wyo. LEXIS 13 (1950); State ex rel. Fire Fighters Local v. Kingham, 420 P.2d 254, 1966 Wyo. LEXIS 179 (Wyo. 1966); State ex rel. Fire Fighters Local 946 v. Laramie, 437 P.2d 295, 1968 Wyo. LEXIS 157 (Wyo. 1968); Harding v. State, 478 P.2d 64, 1970 Wyo. LEXIS 212 (Wyo. 1970); County Court Judges Ass'n v. Sidi, 752 P.2d 960 (Wyo. 1988); Allhusen v. State ex rel. Wyo. Mental Health Professions Licensing Bd., 898 P.2d 878, 1995 Wyo. LEXIS 106 (Wyo. 1995), (decided prior to 2001 amendments to the Mental Health Professions Practice Act); RM v. Washakie County Sch. Dist. No. One, 2004 WY 162, 102 P.3d 868, 2004 Wyo. LEXIS 208 (2004).

Law reviews. —

For case note, “Constitutional Law — Equal Protection Analysis. Awarding Public Works Contracts: Granting Preference to Resident Bidders. Galesburg Construction Co. v. Board of Trustees, 641 P.2d 745, 1982 Wyo. LEXIS 308 (Wyo. 1982),” see XVIII Land & Water L. Rev. 393 (1983).

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).

§ 1-13-102. Constitutional questions; clerk's duties; rules.

When a question is reserved to the supreme court, the clerk of the district court shall transmit the original papers in the case involving the question to the clerk of the supreme court, who shall place the papers on file. The matter shall then stand for hearing by the supreme court, and the supreme court may make rules of procedure as it deems proper for the speedy hearing of the proceeding.

History. Laws 1888, ch. 66, § 2; R.S. 1899, § 4277; C.S. 1910, § 5137; C.S. 1920, § 6399; R.S. 1931, § 89-5002; C.S. 1945, § 3-5502; W.S. 1957, § 1-192; Laws 1977, ch. 188, § 1.

Stated in

State v. Rosachi, 549 P.2d 318, 1976 Wyo. LEXIS 188 (Wyo. 1976).

Cited in

State v. Kelley, 17 Wyo. 335, 98 P. 886, 1909 Wyo. LEXIS 4 (1909); Board of County Comm'rs v. Union Pac. R.R., 25 Wyo. 463, 171 P. 668, 1918 Wyo. LEXIS 8 (1918); State v. Peterson, 27 Wyo. 185, 194 P. 342, 1920 Wyo. LEXIS 33 , 13 A.L.R. 1284 (1920); Simpkin v. Rock Springs, 33 Wyo. 166, 237 P. 245, 1925 Wyo. LEXIS 32 (1925); State v. Berry, 36 Wyo. 257, 254 P. 488, 1927 Wyo. LEXIS 33 (1927).

Law reviews. —

For article, “Supreme Court Jurisdiction and the Wyoming Constitution: Justice v. Judicial Restraint,” see XX Land & Water L. Rev. 159 (1985).