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Peterson v. Wyoming Game and Fish Commission11/5/1999
97-182.pdf from 97-182
Appeal from the District Court of Laramie County The Honorable Edward L. Grant, Judge
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Second. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors in order that corrections may be made before final publication in the permanent volume.
The sole issue in this appeal evolves out of the contention that a Wyoming Game and Fish warden, serving as a Bear Management Officer, was a peace officer so as to invoke the waiver provision found in Wyo. Stat. Ann. ' 1-39-112 (Lexis 1999) of the Wyoming Governmental Claims Act pertaining to peace officers. Clayton E. Peterson, Jr. and Tanya Peterson (the Petersons) seek to recover for Mr. Peterson=s injuries when he was mauled by a bear that was the subject of bear management activities of the Wyoming Game and Fish Commission (Game and Fish), which the Petersons contend were negligently performed. The Petersons seek to have Wyo. Stat. Ann. ' 7-2-101(a)(iv) (Michie Repl. 1995) construed broadly to include a warden=s activities as the Bear Management Officer within the functions of a peace officer. We agree with the district court that the statute should not be construed so broadly, and we affirm the Order Granting Defendant=s Motion for Summary Judgment.
In the Brief of Appellants, filed by the Petersons, the articulated issue is:
Whether Section 7-2-101(a)(iv)(C) is meant to be read in the conjunctive or in the disjunctive, that is, does the comma between the word Afelony@ and the word Aduring@ mean Aor@ or Aand@.
This Statement of the Issues is found in the Brief of Appellees, filed on behalf of the Game and Fish:
I. As a matter of statutory construction, whether the comma between the words Afelony@ and Aduring@ stated in the definition of Apeace officer,@ pursuant to Wyo. Stat. ' 7-2- 101(a)(iv)(C), should be interpreted to mean an Aor@ or Aand.@
II. Whether the particular duty of managing bears as a Game and Fish bear management officer falls within the traditional definition of Apeace officer@ and whether this activity under the particular facts of this case falls within the intent of the legislature in adopting Wyo. Stat. ' 1-39- 112.
III. Whether injury by a grizzly bear is an inherent risk assumed by appellant when hunting in grizzly bear country, thereby barring appellant from recovery pursuant to the Recreational Safety Act, Wyo. Stat. ' 1-1-121, et seq.
On July 3, 1978, the federal government captured a grizzly bear and placed a radio collar on it so that it could be used as a research bear in the Yellowstone ecosystem. The animal was designated as Bear 34. Some time later, Bear 34 became a research bear in the Livestock Interaction Study of the Game and Fish. On May 17, 1991, Bear 34 was recaptured by Game and Fish personnel in order to inspect it. They discovered that Bear 34 had a cut on its neck associated with the previous placement of the radio collar, and the wound was infected. The Game and Fish personnel treated the wound with antiseptic and released Bear 34.
Bear 34 was captured and released by Game and Fish personnel three times between July 1994 and September 1994 for the purpose of monitoring the bear. During that period of time, the Game and Fish personnel became aware that Bear 34 had been killing livestock on nearby ranches, and they learned that Bear 34 was deaf. Despite this information, the Game and Fish personnel never classified Bear 34 as a nuisance bear, nor was it removed from the habit
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