Vicarious Liability of Government Entities for Agent’s Negligent Acts Under the WGCA: Limits on Damages Apportionment

Introduction

Susan Elsner, as Personal Representative of the Estate of Margaret Wilkey, sued Campbell County Hospital District (d/b/a Campbell County Health and The Legacy Living and Rehabilitation Center) after her mother, a long-term nursing home resident, was physically abused by a temporary certified nursing assistant (“CNA”). Elsner asserted both direct negligence claims against the facility (failure to train, supervise, investigate and prevent abuse and falls) and vicarious liability for the CNA’s misconduct. The Legacy denied vicarious liability, claiming the temporary CNA was an independent contractor outside the scope of the Wyoming Governmental Claims Act’s (WGCA’s) waiver of immunity. After a jury trial the district court reduced the damage award by the percentage of fault it attributed to the CNA. Elsner appealed the reduction; The Legacy cross-appealed multiple evidentiary rulings and the denial of post-trial judgment as a matter of law.

Summary of the Judgment

The Supreme Court of Wyoming affirmed the district court’s denial of The Legacy’s W.R.C.P. 50 motion. There was sufficient evidence to go to the jury on (a) The Legacy’s vicarious liability for negligent acts by ordinary Legacy staff and the CNA and (b) The Legacy’s direct corporate negligence (training, supervision, fall‐prevention policies).
Jury instructions and the verdict form were upheld. The case law permits simultaneous direct and vicarious claims when direct negligence arises from independent acts of the principal. Any minor imprecision in using “agent” rather than “servant” was deemed non-prejudicial.
The district court properly denied The Legacy’s motion in limine to exclude evidence about resident falls. The Legacy had failed to timely assert the WGCA notice‐of-claim defense, waiving it.
The court reversed the post-trial judgment reducing damages. Under the WGCA, when a public entity’s servant (the CNA) negligently injures a resident within the scope of duties, the entity is vicariously liable for the full amount. Apportioning part of the award to the CNA conflicted with the jury’s finding that the CNA was an agent/servant and acted negligently within her agency.
The case is remanded with instructions to enter a judgment in favor of Wilkey’s estate for the full jury award of $660,000.

Analysis

1. Precedents Cited

WGCA Framework: Wyoming Statutes §§ 1-39-105 to 1-39-112 define limited waivers of immunity for “public employees”’ negligence in hospital operation (§ 1-39-109) and medical malpractice (§ 1-39-110). “Peace officer” intentional torts are the only intentional‐act waiver (§ 1-39-112).
Pfeifle (2014 WY 3) & Menapace (2017 WY 131) Confirmed the WGCA’s narrow exception bars apparent/ostensible‐agent theories; only actual public employees create liability.
Bassett (2000 WY 103; 8 P.3d 1079) Held jury may compare negligent conduct to willful misconduct of non-parties for apportionment, but only where non-party acts must be compared.
Beavis (2001 WY 32; 20 P.3d 508) Discussed bifurcation of direct corporate‐negligence claims when vicarious liability is admitted.
Bogdanski (2018 WY 7; 408 P.3d 1156) Adopted the McHaffie rule: if vicarious liability rests wholly on employee negligence and the principal admits it, direct claims become duplicative.
JTL Group v. Gray-Dockham (2022 WY 67; 510 P.3d 1060) Clarified Bogdanski does not bar all direct negligence claims against principals—corporate acts independent of agent acts remain viable.
Merit Energy v. Horr (2016 WY 3; 366 P.3d 489) Reaffirmed that an employer is strictly liable for negligence of a servant or employee, even if mischaracterized as an independent contractor.
Loya v. Wyoming Partners of Jackson Hole (2004 WY 123; 99 P.3d 972) Jury verdicts in special interrogatories must be harmonized and judgments must conform to jury findings.
Harmon v. Star Valley Med. Ctr. (2014 WY 90; 331 P.3d 1174) Failure to comply with WGCA notice requirements is an affirmative defense subject to waiver if not promptly raised.

2. Legal Reasoning

Agent vs. Independent Contractor: The jury was properly instructed to decide whether the CNA was an independent contractor or an agent/servant. Control over assignments, supervision, facility policies, tools and scheduling supported a finding of agency. Under the Restatement (Second) of Agency § 1 and § 243, and W.C.P.J.I. 8.02, this determination is a factual matter for the jury.

Scope of Duties: Even if termed an “agent,” the CNA’s negligent acts within her assigned time, place and purpose fell squarely into the WGCA’s waiver for public-employee negligence (§ 1-39-109). Vicarious liability attaches in full to the facility when a servant commits negligent harm. The court recognized that intentional abuse on July 1, 2019, fell outside the waiver but events on June 28, 2019, and systemic failures (falls, reporting lapses) could be negligent.

Direct vs. Vicarious Claims: Elsner pled direct corporate negligence (inadequate policies, training, supervision, fall prevention, abuse investigations) independent of the CNA’s acts. JTL Group held such non-delegable duties justify simultaneous direct and vicarious claims. The court rejected The Legacy’s argument for bifurcation or dismissal of direct claims.

Post-Trial Apportionment Error: The verdict form asked the jury to find negligence by The Legacy and/or its agents and to apportion fault between The Legacy and the CNA. The jury found: (1) the CNA was an agent/servant, (2) both The Legacy and CNA were negligent causes, and (3) allocated 25% to The Legacy, 75% to the CNA. Under Merit Energy and the WGCA, The Legacy is vicariously liable for the CNA’s entire negligent share. Reducing the award by 75% conflicted with the jury’s express findings and Wyoming law. The Supreme Court reversed that portion of the judgment.

3. Impact on Future Cases

Clarifies that in WGCA cases a public entity’s servants’ negligent acts within scope automatically bind the entity for full liability—percentages of fault for servants are irrelevant for reduction.
Reinforces that apparent/ostensible‐agent theories remain unavailable against governmental entities under the WGCA.
Affirms the viability of concurrent direct corporate negligence claims when based on wholly independent institutional failures.
Underscores the importance of timely raising WGCA notice-of-claim defenses or risk waiver.
Demonstrates the necessity of aligning post-trial judgments with special verdict findings to avoid reversals.

Complex Concepts Simplified

Vicarious Liability: A legal principle that holds an employer or principal responsible for the negligent acts of its employees or agents when those acts occur within the scope of employment or agency.
Independent Contractor vs. Agent/Servant: • Independent Contractor: Works by own methods; principal controls only the result.
• Agent/Servant: Principal controls methods, details and result; servant’s negligent acts bind the principal.
WGCA Notice of Claim: A condition precedent for suing a state or local government entity. Failure to give proper notice can be waived if the governmental defendant does not promptly assert it.
Special Verdict Form: A set of jury questions requiring specific factual findings. Courts must harmonize answers and enter judgments that reflect those findings.
Rule 50 Motion (Judgment as a Matter of Law): A request to end a case before the jury decides because no reasonable jury could find for the opponent on a given issue. Courts view all evidence in the non-movant’s favor and draw all reasonable inferences for denial unless only one outcome is possible.

Conclusion

This decision confirms that under the Wyoming Governmental Claims Act, a public hospital’s waiver of immunity for “public-employee negligence” includes negligent acts of agents or servants within the scope of their duties. Percentages of fault assigned to such servants do not reduce the governmental entity’s liability. It also reinforces the viability of parallel direct corporate negligence claims for institutional failures independent of any single employee’s conduct. Finally, it reminds litigants of the critical need to raise WGCA defenses promptly and to ensure that post-trial judgments track the jury’s special verdict findings.