Danculovich v. Brown

ROSE, Justice,

specially concurring.

I fully agree with the majority’s conclusion that there was sufficient evidence for a jury to determine, under proper instructions, that the defendant’s acts constituted willful and wanton misconduct. Having said this, I fail to understand how the majority can proceed to justify its abrogation of the last-clear-chance doctrine, given the facts of this case. Nor am I comfortable with the necessity to discuss the efforts of our comparative-negligence statute in a case involving evidence of willful and wanton misconduct.

*197This court has historically subscribed to the appellate-review doctrine holding that we will affirm a trial court decision on any legal ground appearing in the record. See, Board of Trustees, etc. v. Holso, Wyo., 584 P.2d 1009 (1978); and Peterson v. Johnson, 46 Wyo. 473, 28 P.2d 487 (1933). We also have subscribed to the view that it is unnecessary — and I would add improper — to discuss questions, although they may be of academic interest or potentially determinative in certain instances, which are not requisite to a determination of the case at hand. Wallace v. Casper Adjustment Service, Wyo., 500 P.2d 72 (1972); and Druley v. Houdescheldt, 75 Wyo. 155, 294 P.2d 351, reh. den. 75 Wyo. 155, 296 P.2d 251 (1956). An exception to this rule exists to some extent where there are questions which are likely to arise at a new trial resulting from this court’s reversal of a trial court decision. Kwallek v. State, Wyo., 591 P.2d 895 (1979). The proper application of these rules is critical to the achievement of the judicial self-control that is an inherent part of our function as a reviewing court. Otherwise, an appellate court wallows in unpredictability and misdirection.

In the present case, the majority eliminates the doctrine of last-clear-chance in Wyoming without even a whisper as to how the doctrine applies to the facts of this case. If the doctrine has no application, thereby presenting no likelihood that it will be a question at the new trial herein, what justification is there to discuss the continued viability of last-clear-chance — especially when there is an admitted divergency among the courts that have had this question properly before them? Some would argue that we do a disservice to litigants and to the trial Bar and Bench by not disposing of every conceivable issue which might come to our minds, even though not raised by the litigants or dispositive of the questions properly before us. But lawyers and judges must remember that once an appellate court adopts such a policy, the power of the court becomes rampant and unbridled — and frightening. Such an appellate policy requires that lawyers and trial judges must anticipate that litigation will be resolved here on issues which were neither tried nor argued below — issues, if you will, with respect to which lawyers have not had an opportunity to represent their clients, and issues which trial judges have not had an opportunity to resolve. It is said that our failure to dispose of all possible issues whether properly raised or not results in a waste of time and money. But, do we not do a greater disservice, and thereby create an atmosphere of judicial expediency and unpredictability, when we bypass the traditional requirements of insisting that the trial court first address the issues before we accept them for decision, and of demanding that trial attorneys adequately frame the questions to be resolved? Ours is a two-pronged responsibility, one of which is to dispose of the cases before us, and the other is to establish sound principles of law for use in future cases. When initial trial court determination of the applicable law is absent, and when the clash between opposing parties is wanting, this court — in deciding an issue — places itself in the position of handing down law based solely on visceral reaction and preference. In so acting, we abandon our traditional purposes as a reviewing court.

My position in this regard is not unlike my abhorrence of the court’s discussion and application of the doctrine of judicial estop-pel in cases where it has not been contemplated by the trial court or the parties. See, Snell v. Ruppert, Wyo., 582 P.2d 916, 918-919 (1978) (Rose, J., specially concurring); and Allen v. Allen, Wyo., 550 P.2d 1137, 1152-1154 (Rose, J., dissenting). Suffice it to say that, in this case, I see no possible application of the last-clear-chance doctrine and, therefore, see no justification for abrogation of the doctrine at this time.

With respect to the majority’s discussion of the effect of comparative negligence in a willful-and-wanton-misconduct case, it needs to be pointed out that there was no discussion in the trial court of this point as a ground for refusing the misconduct in*198struction or the verdict form that addressed exemplary damages. In fact, the contemplated verdict form is not even a part of the record on appeal. Furthermore, neither of the parties to this appeal address this ground or suggest that it would be a basis justifying an affirmance of the trial court’s refusal to instruct on willful and wanton misconduct and exemplary damages. The only mention of the ground was a comment in the appellants’ brief to the effect that the refusal to instruct on these matters was prejudicial because the defense of comparative negligence is not available in such cases. Nevertheless, the majority lifts the comment out of context and uses it as a justification to “make some law.” Again, I cannot subscribe to such an approach. The majority’s discussion is premised entirely on a “straw-man” issue, set up so that the majority can knock it down and thereby establish binding principles for the future.

I would have required input from the Bench and Bar before deciding these important questions.