# Fagan Ex Rel. Fagan v. Summers > Wyoming Supreme Court · July 6, 1972 · 498 P.2d 1227 URL: https://www.frixlaw.com/law-library/cases/9596306 ## Case - **Full name:** George FAGAN, by and Through His Natural Father and Next Friend, Donald Fagan, Appellant, v. Mrs. Lloyd SUMMERS and Park County School District No. I, Appellees - **Court:** Wyoming Supreme Court - **Decided:** July 6, 1972 - **Citations:** 498 P.2d 1227; 1972 Wyo. LEXIS 259 - **Precedential status:** Published - **Opinion:** Dissent by McEWAN - **Judges:** McIntyre, Parker, McEwan, Guthrie - **Cited by:** 25 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9596306 ## Opinion text McEWAN, Justice (dissenting). I agree that the granting of summary judgment as to the playground supervisor, Mrs. Summers, was proper and warranted. I do not, however, believe that under the facts of this case the questions of negligence and foreseeability as to the school district can properly be disposed of on summary judgment. Although the summary judgment was upheld in Forbes Company v. MacNeel, Wyo., 382 P.2d 56 , this court said that issues of negligence are not ordinarily susceptible of summary judgment. Had this matter been tried upon the same evidence as is before us on the motion for summary judgment, and judgment entered for the defendant, I would affirm. My sole question, then, is whether or not *1231 this was a proper matter for disposal on summary judgment. On the intervening cause question the majority opinion cites several cases in support of the holding. Examination of those cases reveals that several of them were not disposed of summarily but were tried. The New Mexico case, Kelly v. Montoya, 81 N.M. 591 , 470 P.2d 563 , was disposed of by summary judgment but was reversed and remanded for trial on appeal, while Ferreira v. Sanchez, 79 N.M. 768 , 449 P.2d 784 , was tried on the merits. As was said in the Kelly case, the party moving for summary judgment has the burden of establishing that there was no material issue of fact to be determined and that movant was entitled to judgment as a matter of law, and the burden is not upon the opposing party to prove a prima facie case. Here the majority opinion seems to place certain requirements upon the plaintiff against whom the summary judgment was granted. In the opinion it is stated: “In other words, did plaintiff make a sufficient showing in this regard to get past the motion for summary judgment ?” In discussing the foreseeability question it was said, “Appellant cites no authority for the proposition that such a result was reasonably foreseeable.” I think these burdens were on the movant and that they were not met. Matters considered by the trial court on the motion for summary judgment and favorable to the plaintiff reveal that the plaintiff was seven years of age at the time of the accident and the playground was occupied by children six and seven years of age in the first and second grades; that due to construction and deterioration the playground was torn up and there were rock piles and loose asphalt on the playground area; and that the school board was aware of this condition, which had existed for approximately two years, and had discussed the matter at school board meetings. The playground supervisor had noticed the rock piles and loose asphalt and had warned the students that, “ * * * it was dangerous and they weren’t to play around there and no throwing rocks of any kind.” She had informed the principal that the playground was torn up and wasn’t in very good condition and he replied that he was aware of the condition. She also said that young children were more apt to throw rocks than adults, and there was some showing that the children had previously engaged in throwing rocks. There were sufficient factual questions raised so as to preclude the granting of the motion for summary judgment as to the defendant school district. The majority opinion cites both Oklahoma and New Mexico cases on the question of foreseeability of an intervening cause. However, as noted in Kelly, supra, 470 P.2d at 566 , the Oklahoma rule and the New Mexico rule are somewhat different. In New Mexico the factual issue of negligence includes the factual issue of foreseeability. According to the Kelly case, the Oklahoma rule is that if there is an independent intervening cause the defendant's negligence is either a remote cause or condition and not the proximate cause. It should also be noted that A.L.I. Restatement of the Law (Second), Torts 2d, § 435 (1966), treats the question of foreseeability differently from either the New Mexico or Oklahoma rule. The result reached may or may not be the same upon the application of the three rules to a given factual situation on summary judgment. I wish to point out these various views taken by different courts only because we seem not to have specifically been called upon to adopt any of these views in Wyoming. Which view we ultimately follow may have some effect upon the disposition of such question on summary judgment. For the reasons set forth I would reverse as to the school district and remand for further proceedings. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9596306. Public record. Not legal advice.