I concur in affirming the summary judgment dismissal of the claim of appellant, Ms. Petersen, on her negligence allegation involving snow removal as under the time constraints andcircumstances shown by the affidavit evidence. I do not broaden the scope of decision to deny that such a duty cannot exist or may not be created when the property owner was presented an adequate opportunity to cure a demonstrably dangerous public egress condition.
In this concurrence, there is agreement with reversal on the hand rail inquiry, but I would differ and consequently dissent in affirming dismissal of appellant's claims against the property owner that:
"b. It failed to provide roughened, skid-resistant covering or paint on the steps although it had a duty to do so; and
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"d. It failed to provide adequate maintenance and repair of the steps, although it had a duty to do so."
Assuming the accuracy of the unrefuted allegations of the complaint of either improper construction or impropermaintenance, there is to be found within the minimal record no sufficient evidence to sustain summary judgment that the fall was not, at least in part, a result proximately of the nature of the stairs as then effected by the inevitability in Wyoming of falling snow in the winter time. There is insufficient factual development for this summary judgment disposition to empirically determine, as a matter of law, that the construction and maintenance condition of the stairs did not constitute a causative factor in the patient's fall. One could not consider snow and ice to be an unexpected and totally unrelated intervening cause in Gillette, Wyoming during the winter time. Proximate cause is normally a jury question. England v.Simmons, Wyo., 728 P.2d 1137 (1986), majority and dissent. See summary judgment standard, Cordova v. Gosar, Wyo., 719 P.2d 625 (1986) and O'Donnell v. City of Casper, Wyo., 696 P.2d 1278 (1985).
Consequently, I partially concur in disposition of two appeal issues, but respectfully dissent as to the affirmation of summary judgment for a claim which embraces improper construction and inadequate maintenance of a public building entrance.
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