specially concurring.
I am in full accord that the summary judgment entered by the district court in this case must be affirmed. I am, however, troubled by the justification for that result found in the majority opinion which does not account for the difference in Wyoming law from law in the jurisdictions from which persuasive authorities are drawn. It seems to me that the majority opinion also fails to address the dual bases for potential liability upon which the plaintiff relied in the district court and with respect to which the district court granted the summary judgment.
I also am troubled by an apparent vacillation in the majority opinion with respect to the statutory posture in Wyoming. In the latter portion of the opinion dealing with the public-duty rule, the majority indicates an abolition of sovereign immunity in the specific context. Earlier, however, the majority opinion at least acknowledges that in Wyoming the legislature adopted a statutory scheme which preserves sovereign immunity save for specific exceptions. I note that this does differentiate the situation in Wyoming from the statutory posture in all the jurisdictions from which authorities are cited save for New Mexico.
My specific concern with respect to the majority opinion is that the cases from other jurisdictions upon which the majority opinion relies appear to me to deal with the potential liability arising from the exception created in § 1-39-105, W.S.1977 (Cum. Supp.1984), in which an exception to sovereign immunity is created for negligence in the operation of motor vehicles. I am not certain that the majority opinion really addresses the exception from sovereign immunity found in § 1-39-112, W.S.1977 (Cum.Supp.1984), relating to tortious conduct of law enforcement officers while acting within the scope of their duties, upon which the plaintiff relied in this action.
In its judgment in this case the district court articulated the proposition that it would conclude as a matter of law that except for the qualified immunity available to these law enforcement officers it would have held that the law enforcement officers in the State of Wyoming and the State Highway Commission owed specific duties to the decedent. It is clear to me that in those comments, the district court signaled that it would not have granted a summary judgment in this case but would have permitted the case to be tried to a jury except for the qualified immunity available to the law enforcement officers. That qualified immunity flows from Kimbley v. City of Green River, Wyo., 663 P.2d 871 (1983) and Blake v. Rupe, Wyo., 651 P.2d 1096 (1982), cert. denied, 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 442 (1983). It follows that the district court would not have concluded that there was no proximate cause relating the conduct of the law enforcement officers to the death of plaintiff’s decedent, at least as a matter of law. I understand the majority opinion to take issue with this position of the district court, but I think the disposition made in the majority opinion logically is limited to that exception to sovereign immunity found in § 1-39-105, W.S. 1977 (Cum.Supp.1984). On this issue I might well prefer the approach by the district court, because issues of proximate cause ordinarily are determined by a jury as issues of fact. McClellan v. Tottenhoff Wyo., 666 P.2d 408 (1983). That in fact was the posture of several of the cases upon which the majority premises the disposition of this appeal.
I would affirm the district court on the premise of qualified immunity available to the law enforcement officers. In my judgment the qualified immunity available to law enforcement officers properly was found to be present in this instance by the *655district court. The qualified immunity which is identified in Kimbley v. City of Green River, supra, attaches to the officers individually and is separate and apart from any sovereign or governmental immunity. Simply put, those actions by law enforcement officers which are determined to be reasonable and accomplished in good faith are not tortious. This ground for disposing of the plaintiff’s claim reaches not only the claimed exception in § 1-39-105, W.S.1977 (Cum.Supp.1984), but also the exception found in § 1-39-112, W.S. 1977 (Cum.Supp.1984). Effectuating the concept of immunity for those actions determined to be reasonable and accomplished in good faith disposes of all bases of claimed liability against the defendants in this case. If the conduct of the law enforcement officers is not tortious under the common-law doctrine of qualified immunity, then of course no vicarious liability exists on the part of the State of Wyoming.