concurring in part and dissenting in part, with whom THOMAS, Chief Justice, joins.
I concur with that part of the majority opinion which affirms the summary judgment against the Wyoming department of agriculture and appellee John Orton and that part of such opinion which recognizes that appellees Fetzner and Krogman are not law enforcement officers so as to be within the § 1-39-112, W.S.1977, 1985 Cum.Supp.,1 exception to the grant of immunity to them while acting in the scope of their duties.2 I dissent from that part of the majority opinion which reverses the summary judgment in favor of appellees Fetzner and Krogman.
I agree with the majority opinion in that we review the propriety of a trial court’s action on a summary judgment from the same standpoint as did the trial court. Rompf v. John Q. Hammons Hotels, Inc., Wyo., 685 P.2d 25 (1984); Schepps v. Howe, Wyo., 665 P.2d 504 (1983); Lane Company ex rel. Lane v. Busch Development, Inc., Wyo., 662 P.2d 419 (1983). In doing so, I do not agree with the majority opinion that the affidavits before the trial court failed to reflect appellees were acting solely within their official duties when they dealt with appellant.
It seems strange to hold that the action is barred against appellees for actions taken by them in their official capacities and then hold that they are liable individually because there is no averment that they
were acting in their official capacities. Part of the lawsuit is a claim against appel-lees for action in their official capacities. As recognized in the majority opinion, “A person acting in an official capacity is, by definition, acting within the scope of his duties.” The majority opinion acknowledges the official duty status of appellees in upholding the summary judgment against appellees insofar as the action is against them in their official capacities. The appellant recognizes the same in his complaint, and the same is inherent in ap-pellees’ affidavits wherein they contend their actions to have been clothed with immunity since they were not within the exception to such as law enforcement officers.
District judges should not be expected to close their eyes to reason. The district judge did not do so in this instance.
Upon return of this case to the district court, the new motion for a summary judgment will contain the averment of action within the scope of their official duties, and the summary judgment will follow. Such is a waste of judicial time and expense.
I believe the fact that the action was within the scope of appellees’ duties was adequately expressed in that before the trial court when it acted on the motion for summary judgment. That required in Rule 56(c), W.R.C.P.,3 was sufficiently before the trial court for the granting of the motion.
I would affirm in all respects.
. Section 1-39-112, W.S.1977, 1985 Cum.Supp., provides:
"A governmental entity is liable for damages resulting from tortious conduct of law enforcement officers while acting within the scope of their duties."
. Section l-39-104(a), W.S.1977, 1985 Cum. Supp., provides in pertinent part:
"A governmental entity and its public employees while acting within the scope of duties are granted immunity from liability for any tort except as provided by W.S. 1-39-105 through 1-39-112. * * *”
.Rule 56(c), W.R.C.P., provides in pertinent part:
" * * * The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. * * * "