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Jones v. Schabron6/8/2005
(Wyo. 1990) (failure of proof of defendant's duty); DeWald v. State, 719 P.2d 643 (Wyo. 1986) (cause element was pure speculation); and Fiedler v. Steger, 713 P.2d 773 (Wyo. 1986) (failure to establish cause in a medical malpractice action). See McMackin v. Johnson County Healthcare Center, 2003 WY 91, -9, 73 P.3d 1094, -9 (Wyo. 2003).
Abraham v. Great Western Energy, LLC, 2004 WY 145, , 101 P.3d 446, (Wyo. 2004).
[ ] After a movant has adequately supported the motion for summary judgment, the opposing party must come forward with competent evidence admissible at trial showing there are genuine issues of material fact. Wyo.R.Civ.P. 56(e); Hyatt v. Big Horn Sch. Dist. No. 4, 636 P.2d 525, 528 (Wyo. 1981). The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment, and cannot rely only upon allegations and pleadings. . ., and conclusory statements or mere opinions are insufficient to satisfy the opposing party's burden.
Downen v. Sinclair Oil Corporation, 887 P.2d 515, 519 (Wyo. 1994) (some citations omitted).
[ ] The evidence opposing a prima facie case on a motion for summary judgment "must be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation." Campbell v. Studer, Inc., 970 P.2d 389, 392 (Wyo. 1998) (quoting Estate of Coleman v. Casper Concrete Company, 939 P.2d 233, 236 (Wyo. 1997)). Speculation, conjecture, the suggestion of a possibility, guesses, or even probability are insufficient to establish an issue of material fact. Connely v. McColloch, 2004 WY 5, , 83 P.3d 457, (Wyo. 2004); O'Brien v. Hunt, 464 P.2d 306 (Wyo. 1970); Tower v. Horn, 400 P.2d 146 (Wyo. 1965).
DISCUSSION
[ ] The only issue argued in Jones' brief is whether they presented evidence from which a jury could conclude that Nicholas Schabron failed to maintain a proper lookout or act reasonably to avoid Haskins. Jones did not present any argument or authority on his claims that Nicholas Schabron had a heightened duty of care, that he negligently had too many passengers in his vehicle, that he did not have enough seat belts, or that he failed to require use of seatbelts. Consequently, we will not address those issues.
In countless decisions this court has warned litigants " n the presentation of an appeal to our court, it is inadequate simply to allude to an issue or identify only a potential issue." Kipp v. Brown, 750 P.2d 1338, 1341 (Wyo. 1988). Further, we have reminded litigants:
t is not the function of this court to frame appellant's argument or draw his issues for him.
This court consistently has refused to consider positions which are not supported by cogent argument or pertinent authority. We are not required to consider on appeal grounds which were neither presented to * * * nor passed upon [by the trial court].
Hance v. Straatsma, 721 P.2d 575, 577-78 (Wyo. 1986) (citations omitted).
Saldana v. State, 846 P.2d 604, 622 (Wyo. 1993).
[ ] The trial court properly concluded that, as a matter of law, Nicholas Schabron had a duty to use ordinary care and a duty to maintain a proper lookout when driving. These are duties always imposed upon automobile drivers. Fegler v. Brodie, 574 P.2d 751, 755 (Wyo. 1978). Drivers must:
. exercise a diligence commensurate with hazards disclosed under surrounding circumstances, and the lookout which ... is ... most effective in the light of all present conditions and those reasonably to be anticipated.
Downtown Auto Par
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