IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 13

OCTOBER TERM, A.D. 2016

February 7, 2017

RB, JR., an infant, by and through his next 

friends, ROBBY & CORRINA BROWN,

Appellants

(Plaintiffs),

v.

BIG HORN COUNTY SCHOOL 

DISTRICT NO. 3,

Appellee

(Defendant).

S-16-0142

Appeal from the District Court of Big Horn County

The Honorable Steven R. Cranfill, Judge 

Representing Appellants:

Philip E. Abromats and Letitia C. Abromats of Philip E. Abromats, P.C., Greybull, 

Wyoming. Argument by Ms. Abromats.

Representing Appellee:

Nicholas T. Haderlie and Christopher C. Voigt of Crowley Fleck PLLP, Sheridan, 

Wyoming. Argument by Mr. Haderlie.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be 

made before final publication in the permanent volume.
1

FOX, Justice.

[¶1] RB and his friends were enjoying some of the exhilarating qualities of ice on the 

sidewalk at Greybull Middle School when RB fell and suffered a broken tooth, fractured 

nose, and some facial lacerations. He sued Big Horn County School District No. 3 

(School District), alleging that it was negligent in failing to remove the ice that had 

accumulated on the sidewalk. The district court granted the School District’s motion for 

summary judgment, and RB appeals. We affirm. 

ISSUES

[¶2] 1. Is the failure to file a W.R.C.P. 56.1 statement of undisputed material facts 

fatal to RB’s appeal?

2. Is the question of whether there was a natural accumulation of snow and ice a 

fact issue that should have been submitted to a jury?

3. Does the Greybull snow removal ordinance establish a heightened duty of 

care?

4. Is RB’s comparative negligence a fact issue that must go to a jury?

FACTS1

[¶3] On February 20, 2014, RB and his classmates left the Greybull Middle School 

gymnasium after their P.E. class and were returning to the classroom building next door. 

While they were between buildings, RB and some friends spotted a patch of ice on the 

sidewalk and began running and sliding on it. According to one student, the group was 

having a contest to see who could slide the farthest, and another student testified that they 

were sliding to see who could “do the coolest trick.” RB took his second turn to slide, 

lost his balance, and fell on the ice, breaking a tooth, fracturing his nose, and lacerating 

his face.

[¶4] The ice patch was described as large and of varying thickness. It was obvious and

not hidden from view in any way. RB and other witnesses testified that it did not appear 

as if anyone had done anything to make the accumulation of ice worse than it would have 

been naturally. One witness, however, testified that the students, including RB, had taken 

snow from the grass and sprinkled it onto the ice in order to make it more slippery. Ice 

melt had been applied to the patch by School District maintenance personnel.

 

1

For the reasons discussed infra at ¶¶ 7-8, we rely only on those facts presented to the district court by 

the School District. 
2

[¶5] The Town of Greybull had 0.01 inches of snow on February 20, 2014, the day of 

the accident. There was no snow the previous day. The greatest amount of precipitation

received in Greybull in February was 0.08 inches on February 9. The maintenance 

director for the School District and other witnesses testified that the district’s practice is 

to remove snow and apply ice melt daily when snow or ice is present. There is no 

evidence in the record that it failed to do so on the day of the accident.

STANDARD OF REVIEW

[¶6] We apply the following standard of review to a district court’s grant of summary 

judgment in a negligence case:

We review a summary judgment in the same light as the 

district court, using the same materials and following the 

same standards. Gayhart v. Goody, 2004 WY 112, ¶ 11, 98 

P.3d 164, 168 (Wyo. 2004). Summary judgment is proper 

only when there are no genuine issues of material fact, and 

the prevailing party is entitled to judgment as a matter of law.

Id. . . . .

. . . .

Summary judgments are not favored in negligence actions 

and are subject to exacting scrutiny. Erpelding v. Lisek, 2003 

WY 80, ¶ 10, 71 P.3d 754, 757 (Wyo. 2003). However, even 

in negligence actions, “where the record fails to establish an 

issue of material fact, [and when the movant is entitled to 

judgment as a matter of law], the entry of summary judgment 

is proper.” Allmaras v. Mudge, 820 P.2d 533, 536 (Wyo.

1991) (alteration in original) (citing MacKrell v. Bell H2S 

Safety, 795 P.2d 776, 779 (Wyo. 1990)).

Amos v. Lincoln Cty. Sch. Dist. No. 2, 2015 WY 115, ¶ 15, 359 P.3d 954, 958-59 (Wyo. 

2015) (some citations omitted).

DISCUSSION

I. Is the failure to file a W.R.C.P. 56.1 statement of undisputed material facts fatal to 

RB’s appeal?

[¶7] The School District filed a motion for summary judgment, an accompanying brief, 

and a Rule 56.1 statement. In response, RB filed a Brief in Opposition to Motion for 

Summary Judgment, which included a statement of facts with citations to the record, but
3

RB did not file a separate Rule 56.1 statement of material facts at that time. One day 

later, on the morning of the hearing on the School District’s motion for summary 

judgment, RB filed his Rule 56.1 statement. At the hearing, the School District moved to 

strike, and the district court granted the motion and struck RB’s Rule 56.1 statement.

[¶8] The School District argues that we should not review the district court’s decision 

striking RB’s Rule 56.1 statement because RB did not raise the issue.2 We agree. 

Because RB did not appeal the issue in his opening brief, we will not decide whether the 

district court abused its discretion in striking the statement. See Ultra Res., Inc. v. 

McMurry Energy Co., 2004 WY 121, ¶ 11, 99 P.3d 959, 963 (Wyo. 2004). The School 

District also contends that RB’s failure to file a Rule 56.1 statement is “fatal to this 

appeal.”

[¶9] Rule 56.1 provides:

Upon any motion for summary judgment pursuant to Rule 

56 of the Rules of Civil Procedure, in addition to the 

materials supporting the motion, there shall be annexed to the 

motion a separate, short and concise statement of the material 

facts as to which the moving party contends there is no 

genuine issue to be tried.

In addition to the materials opposing a motion for 

summary judgment, there shall be annexed a separate, short 

and concise statement of material facts as to which it is 

contended that there exists a genuine issue to be tried.

Such statements shall include pinpoint citations to the 

specific portions of the record and materials relied upon in 

support of the parties’ position.

(Emphasis added.)

[¶10] “[S]tatements of undisputed facts under W.R.C.P. 56.1 do not establish those facts 

standing alone. Rule 56.1 statements are only intended ‘to identify just what facts are 

actually in dispute.’” Herling v. Wyo. Mach. Co., 2013 WY 82, ¶ 62, 304 P.3d 951, 966 

(Wyo. 2013) (internal citation omitted). The purpose underlying rules such as W.R.C.P. 

 

2 Even in his reply brief, RB does not argue that we should reverse the district court’s decision to strike 

his Rule 56.1 statement. Rather, he takes the position that he essentially complied with the rule because 

his brief contained facts with citations to the record and that the district court considered the facts 

presented by him notwithstanding the stricken 56.1 statement (It is not apparent that is what the district 

court did.). In addition, RB contends that even the facts presented by the School District, when viewed in 

the light most favorable to RB, would be sufficient to find in his favor.
4

56.1 is to provide a tool “for district courts, permitting them to efficiently decide 

summary judgment motions by relieving them of the onerous task of hunt[ing] through 

voluminous records without guidance from the parties.” N.Y. State Teamsters 

Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 649 (2d Cir. 

2005) (internal quotation marks and citations omitted). However, district courts may 

decline to rely on such statements and may examine the evidence submitted by the parties

independently. Id. (“[T]he district court declined to rely solely on the parties’ . . . 

statements, and instead ‘scour[ed] . . . the record’ independently.”).

[¶11] In Grynberg v. L & R Exploration Venture, 2011 WY 134, ¶ 21, 261 P.3d 731, 737 

(Wyo. 2011), we stated that “a party’s failure to comply with Rule 56.1 by pointing out to 

the district court the facts creating a genuine issue of material fact may be fatal to an 

appeal.” (Emphasis added.) There, L & R moved for summary judgment but failed to 

file its Rule 56.1 statement. Id. Ms. Grynberg did not object until after the district court 

heard and ruled on the motion, and we affirmed the district court’s ruling that the 

objection was waived. Id.

[¶12] Here, however, the School District did raise RB’s noncompliance with Rule 56.1 

in a timely fashion. Nonetheless, the belated filing of RB’s Rule 56.1 statement, and its 

subsequent removal from the record, is not fatal to his appeal. While the Rule 56.1

statement was stricken by the district court and continues to be stricken because RB did 

not appeal that issue, RB’s argument for reversal of the summary judgment order is not 

based on a contention that disputed issues of fact existed; rather, he argues that the 

School District was not entitled to judgment as a matter of law. We accept the School 

District’s statement of undisputed facts, along with RB’s concession that those facts do 

not differ materially from those he attempted to present, and conclude that, under these 

circumstances, his failure to file a Rule 56.1 statement is not fatal to his appeal. The facts 

are adequately presented to allow us to address the issues of law. 

II. Is the question of whether there was a natural accumulation of snow and ice a 

fact issue that should have been submitted to the jury?

[¶13] To establish negligence, a plaintiff must prove that (1) the defendant owed the 

plaintiff a duty to conform to a specified standard of care; (2) the defendant breached the 

duty of care; (3) the breach proximately caused injury to the plaintiff; and (4) the injury is 

compensable by money damages. Valance v. VI-Doug, Inc., 2002 WY 113, ¶ 8, 50 P.3d 

697, 701 (Wyo. 2002). “The application of the natural accumulation rule relates to the 

threshold question of whether a duty exists . . . .” Selby v. Conquistador Apartments, 

Ltd., 990 P.2d 491, 494 (Wyo. 1999). Typically, the question of the existence of a duty is 

a question of law determined by the courts. Id. 

[¶14] In Wyoming, we apply the natural accumulation rule to premises liability claims. 

That rule provides:
5

[A] proprietor is not considered negligent for allowing the 

natural accumulation of ice due to weather conditions where 

he has not created the condition. The conditions created by 

the elements, such as the forming of ice and falling of snow, 

are universally known and there is no liability where the 

danger is obvious or is as well known to the plaintiff as the 

property owner.

Bluejacket v. Carney, 550 P.2d 494, 497 (Wyo. 1976); see also Paulson v. Andicoechea, 

926 P.2d 955, 957 (Wyo. 1996). We adopted the natural accumulation rule in Watts v. 

Holmes, 386 P.2d 718, 719 (Wyo. 1963), where we held that a store owner cannot be 

considered negligent “for allowing the natural accumulation of ice due to weather 

conditions, where he has not created the condition.” 

[¶15] The rationale underlying the rule is that “[t]he plaintiff is in a much better position 

to prevent injuries from ice or snow because the plaintiff can take precautions at the very 

moment the conditions are encountered.” Eiselein v. K-Mart, Inc., 868 P.2d 893, 898 

(Wyo. 1994). When the snow or ice occurs naturally, the defendant is not in any better 

position than the plaintiff to foresee and prevent injuries, and therefore the defendant has 

no duty to remove the hazard. Thus, “the open-and-obvious-danger exception is 

contained within, and is part and parcel of, the natural accumulation rule.” Valance, 2002 

WY 113, ¶ 10, 50 P.3d at 701; see also Paulson, 926 P.2d at 957. 

[¶16] The natural accumulation rule, however, ceases to apply when

the accumulation of ice or snow is not a natural accumulation, 

but rather an artificial condition created by the defendant. If 

the defendant creates the hazard, then it is in within the 

defendant’s control and he is in a better position to foresee 

and prevent injuries resulting from the hazard.

Eiselein, 868 P.2d at 898. Where the accumulation of ice or snow is not “natural,” a 

proprietor has a duty of care to invitees3on the premises. In Eiselein, we held that “an 

unnatural accumulation of ice . . . will be found if the owner or occupier creates an 

accumulation of water in a manner substantially different in volume or course than would 

naturally have occurred.” Id. (emphasis in original). In Pullman v. Outzen, 924 P.2d 

416, 418 (Wyo. 1996), we modified that test, holding that

 

3 We recognize that Wyoming law no longer distinguishes between invitees and licensees, see Clarke v. 

Beckwith, 858 P.2d 293, 294 (Wyo. 1993) (We “abandon a portion of the common-law rule which 

distinguishes between tort claimants on the basis of whether their status is licensee or invitee.”), and use 

the term “invitee” only because that is the term used in many of our cases examining the question of 

whether any specific accumulation is “natural.”
6

[t]o prove that an accumulation of snow and ice is unnatural, 

a plaintiff must show that the defendant created or aggravated 

the hazard, that the defendant knew or should have known of 

the hazard, and that the hazardous condition was substantially 

more dangerous than it would have been in its natural state.

Id.; see also Pinnacle Bank v. Villa, 2004 WY 150, ¶ 6, 100 P.3d 1287, 1290 (Wyo. 

2004); Selby, 990 P.2d at 494; Paulson, 926 P.3d at 957. We have also held that “no duty 

exists which requires either the removal of an obvious danger or a warning of its 

existence.” Pinnacle Bank, 2004 WY 150, ¶ 6, 100 P.3d at 1290.

[¶17] The district court concluded that the accumulation of ice in this case was both 

obvious and natural, and granted summary judgment to the School District on the 

question of whether there was a duty. On appeal, RB contends that there is a fact issue 

whether the ice on the sidewalk was a natural accumulation or whether its condition was 

aggravated by the School District when it applied ice melt, creating an unnatural 

accumulation. In addition, RB argues that a jury could conclude that the School District 

was negligent in applying an insufficient amount of ice melt. The School District argues 

that the hazard was natural and presented an obvious danger.

[¶18] Our previous applications of the natural accumulation rule have arisen in a variety 

of scenarios from which it is not always easy to discern a clear rule.4 In Pullman, the 

appellant fell on snow and ice that had accumulated on steps and been packed by 

pedestrian traffic. 924 P.2d at 417-18. We concluded that “pedestrian packed snow and 

ice is not substantially more dangerous than snow and ice in its natural state,” and we 

held that it “is a natural accumulation” such that the owner of the premises was not liable 

for injuries sustained as a result of a slip and fall on that accumulation. Id. at 418.

[¶19] Similarly, in Paulson, we held that packed and frozen snow in a parking lot is a 

natural accumulation. 926 P.2d at 958. Although the record established that “it had 

snowed on the parking lot, that ice had built up, and that Cody Motel did not undertake to 

remove the snow and ice,” we explained that Paulson could not establish the motel’s 

liability because she had failed to establish that the snow and ice was “in a substantially 

more dangerous state than its natural state.” Id. We also noted that “Paulson was aware, 

or should have been aware, of the open and obvious danger the snow and ice posed in the 

parking lot.” Id.

 

4 The natural accumulation rule has been criticized as a rule with numerous shortcomings that has 

produced “irreconcilable decisions in Wyoming.” Valence, 2002 WY 113, ¶¶ 19-28, 50 P.3d at 704-05 

(Spangler, D.J., retired, dissenting) (calling for the abrogation of the natural accumulation rule); see also

Eiselein, 868 P.2d at 899-900 (Macy, C.J., specially concurring) (criticizing the natural accumulation rule 

as “incompatible” with Wyoming’s comparative-negligence statute).
7

[¶20] By contrast, in Eiselein, the appellant had fallen on a patch of black ice in the

K-Mart parking lot. She claimed that K-Mart was negligent in failing to inspect the lot, 

warn its customers of the icy condition, and place salt or sand on the icy spots. Eiselein, 

868 P.2d at 894. We reversed summary judgment and remanded, directing the district 

court to determine whether there was a question of fact concerning whether the 

accumulation was natural or unnatural. Id. at 898. In Selby, Mrs. Selby, a resident of the 

Conquistador apartment complex, fell on a patch of ice next to a dumpster and broke her 

leg. 990 P.2d at 493. The dumpster was located in the parking lot of the complex and the 

evidence revealed that the manager usually plowed and applied ice melt to the area 

around the dumpster, except when a car was parked close to the dumpster, preventing 

plow access. Id. On the day of Mrs. Selby’s injury, the weather was dry and much of the 

snow in the parking lot had melted; however, the area between the dumpster and a parked 

vehicle was shaded by the vehicle and a patch of black ice had formed. Id. Mrs. Shelby 

alleged that Conquistador was negligent in its maintenance of the parking lot and the 

district court granted Conquistador summary judgment. Id. On appeal, we concluded 

that there were material facts at issue regarding whether Conquistador aggravated the 

accumulation of ice around the dumpster by locating the dumpster in such a position that 

resulted in the accumulation of ice between the parked car and the dumpster. Id. at 495-

96.

[¶21] In Valance, we again concluded that there was a question of fact regarding 

whether the defendant had created a hazardous condition. 2002 WY 113, ¶ 16, 50 P.3d at 

704. That case concerned the wind, which we recognized was a naturally occurring 

force, like snow and ice, and we applied the same test to determine whether a duty 

existed. Id., ¶ 12, 50 P.3d at 702-03. On an especially windy day, Mrs. Miles and her 

grandson decided to dine at the Village Inn Restaurant. Id., ¶ 5, 50 P.3d at 700. A sign 

on the door instructed patrons to “Please Hold Door Tight Due to Wind,” id., ¶ 13, 50 

P.3d at 703, and Mrs. Miles testified that she followed the sign’s directions, and as she 

opened the door, a strong gust of wind caught it, causing her to fall to the ground and 

break her hip. Id., ¶ 5, 50 P.3d at 700. The district court concluded that the wind was 

naturally occurring and granted summary judgment to the owner of the restaurant. Id. 

¶ 6, 50 P.3d at 700. On appeal, we affirmed in part, reversed in part, and remanded, 

holding that there remained questions of fact as to whether the restaurant:

(1) created a hazardous situation by directing patrons to take 

specific action; (2) knew or should have known the directions 

given could create a hazard to patrons; and, finally, (3) by 

giving directions, created a hazardous condition substantially 

more dangerous than it would have been in the absence of the 

directions. 

Id., ¶ 16, 50 P.3d at 704.
8

[¶22] The undisputed facts distinguish this case from all of our precedent. The School 

District placed ice melt on the patch of ice where RB fell, and thus, the ice was altered. 

However, to prove that the ice was in an unnatural state for the purposes of establishing 

premises liability, RB was required to show (1) that the School District created or 

aggravated the hazard, (2) that the School District knew or should have known of the 

hazard, and (3) that the hazardous condition was substantially more dangerous than it 

would have been in its natural state. Pullman, 924 P.2d at 418. There is no evidence 

indicating a fact dispute as to whether the School District created or aggravated the ice, or 

whether the condition was more dangerous than it would have been in its natural state.

Deposition testimony confirmed that the School District undertook to remove snow and 

ice from the premises on a daily basis, and did not do anything to make the hazard more 

dangerous than it was naturally.

[¶23] RB argues that the ice melt created “rotten ice” which caused RB’s sliding motion 

to be impeded, aggravating the slippery condition of the ice. Other jurisdictions have 

examined whether the application of salt or ice melt changes the condition of snow or ice

for purposes of the natural accumulation rule. For example, in Harkins v. System 

Parking, Inc., 542 N.E.2d 921, 924 (Ill. App. Ct. 1989), the plaintiff had argued that ice 

in a parking lot was not in a natural condition because the defendant had salted the area. 

The appellate court rejected that argument, holding that “[t]he mere sprinkling of salt, 

causing the ice to melt, although it may later refreeze, does not aggravate a natural 

condition so as to form a basis for liability on the part of the property owner.” Id. 

(citations omitted). See also Barber v. G.J. Partners, Inc., 974 N.E.2d 452, 457 (Ill. App. 

Ct. 2012) (finding no liability where the defendant plowed the parking lot and placed salt 

on metal plates); Lehman v. Cracker Barrel Old Country, No. 2004-CV-0048, 2005 WL 

267658, ¶ 30, at *4 (Ohio Ct. App. 2005) (“[T]he mere fact that Cracker [B]arrel salted 

the sidewalk and then allowed the sidewalk to freeze again does not turn a natural 

accumulation of snow and ice into an accumulation that is unnatural.”); Zielinski v. 

Szokola, 423 N.W.2d 289, 293-94 (Mich. Ct. App. 1988) (overruled on other grounds by 

Robinson v. City of Detroit, 586 N.W.2d 116 (Mich. Ct. App. 1998) (holding that ice that 

had been salted was a natural accumulation because “Salting does not create a hazard, 

instead it only alleviates, albeit temporarily, a hazard that already existed.”); Riccitelli v. 

Sternfeld, 115 N.E.2d 288, 290 (1953) (finding no liability where the defendant shoveled, 

an alternate thaw and freeze caused snow to melt, run onto sidewalk and freeze, and the 

defendant applied rock salt to the ice). We agree with the reasoning of these cases and

find that, while application of ice melt may have altered the condition of the ice, there is 

no evidence to suggest that it made the condition of the ice more dangerous. There are no 

facts in dispute that could lead to a conclusion that the School District had any duty 

arising from the presence of ice on the school’s sidewalk.

[¶24] This conclusion is supported by important policy considerations. We reside in a 

climate where there are frequent snowstorms and sudden changes of temperature. 

Shoveling and plowing snow-covered walks, driveways and parking lots, and applying 
9

ice melt to ice-covered areas, are behaviors which should be encouraged. See Barber, 

974 N.E.2d at 457. “[S]alting, shoveling, or applying deicer to a natural ice accumulation 

does not transform it into an unnatural one. To find otherwise would punish business 

owners who, as a courtesy to invitees, attempt to make their premises safe.” Scott & 

White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 419 (Tex. 2010). 

[¶25] There is no dispute that the danger was obvious -- that is the reason RB and his 

friends chose that spot to run and slide. The district court properly concluded that there 

was no issue of fact regarding whether the accumulation of ice was natural, and we affirm 

its grant of summary judgment on that issue. 

III. Does the Greybull snow removal ordinance establish a heightened duty of care?

[¶26] The district court concluded that “the violation of an ordinance cannot be used to 

establish a landowner’s negligence per se” and granted summary judgment on RB’s claim 

that the School District’s alleged violation of the Greybull snow removal ordinance 

constituted negligence per se. RB argues that the School District’s duty of care was 

established by the Greybull snow removal ordinance. In other words, notwithstanding 

the absence of a common-law duty to remove natural accumulations of snow and ice, a 

municipal ordinance requiring snow removal imposes an additional duty on a defendant. 

In the alternative, RB contends that a violation of the ordinance is, at a minimum, 

evidence of negligence. In response, the School District argues that the ordinance has no 

bearing on the facts of this case, as it does not apply and was not violated.

[¶27] In Pinnacle Bank, we considered the impact of a snow removal ordinance on the 

common-law duty to remove unnatural accumulations of snow and ice. There, we 

explained that the violation of a snow removal ordinance “might be used as evidence of 

the landowner’s negligence, but it would not establish the landowner’s negligence per 

se[,]”and we commented that “when a conglomeration of circumstances are relied on in 

order to find the statutory or regulatory violation, use of the negligence per se doctrine is 

not desirable.” Pinnacle Bank, 2004 WY 150, ¶ 8, 100 P.3d at 1290-91. We then 

articulated the proper role an ordinance might play in a negligence action. We 

recognized that Worland’s snow removal ordinance5evidenced the city’s “clear intent” to 

 

5 The City of Worland’s ordinance specified 

that it is the affirmative duty of an occupant, owner, or agent of property 

within the city limits of Worland, Wyoming to keep the sidewalks in 

front of and adjoining the premises safe and clear for pedestrians and to 

repair the same from time to time. This duty explicitly includes the 

responsibility to remove snow, ice, slush, mud, or other impediment 

with all reasonable dispatch to assure safe and convenient foot travel.

Id., 2004 WY 150, ¶ 10, 100 P.3d at 1291 (emphasis added).
10

establish a “heightened standard of care,” id., ¶ 10, 100 P.3d at 1291, and held that the 

city’s “ordinance creates an affirmative duty for an owner, occupant, or agent of property 

within the city limits to remove snow, ice, slush, or other impediment with all reasonable 

dispatch.” Id., ¶ 13, 100 P.3d at 1292. With the application of a heightened standard of 

care, there was no need to determine whether the accumulation in that case was natural or 

unnatural. Id.

[¶28] In Paulson, we also considered the impact of local ordinances on the common law 

duty to remove natural accumulations of snow and ice. Paulson relied upon two Rock 

Springs ordinances to argue that the Cody Motel had a heightened duty to remove snow 

and ice from its parking lot. Paulson, 926 P.2d at 958. The first ordinance required 

owners or occupiers of premises within the city to keep sidewalks free of snow and ice. 

Id. We held that because Paulson had fallen in a parking lot, not on a sidewalk, that 

ordinance was irrelevant. Id. The second ordinance prohibited “causing or permitting a 

pool of water to form, stand or flow upon any street, sidewalk, alley or other public 

ground.” Id. We concluded that because there was no evidence in the record that the 

motel had caused or permitted a pool of water to form, that ordinance could not support 

Paulson’s claim that it created a duty applicable to her. Id. at 958-59.

Here, Greybull’s Municipal Ordinance 12.12.020 provides:

Within 24 hours after any accumulation of snow 

greater than one-half inch, all persons and places of business 

shall cause the snow to be removed from the sidewalks 

in front of and adjacent to the premises occupied or owned by 

them.

Greybull, Wyo., Code § 12.12.020 (2009, Supp. Oct. 25, 2016).

[¶29] The School District argues that this ordinance does not apply because it only 

applies to snow and because there was not a half-inch accumulation of snow in Greybull 

during the month of February 2014. It is undisputed that RB fell while sliding on a patch 

of ice, not snow, and the ordinance requires “snow to be removed,” not ice. Thus, it 

would appear that the School District’s position is correct. 

[¶30] RB counters, however, that the ice may have been formed by foot traffic on snow 

that had not been removed. He asserts, “It could very easily be that, being on a heavily 

traveled route between the gym and the middle-school classrooms, the snow had been 

packed down and turned to ice.” The problem with this assertion is that it is speculative. 

“Speculation, conjecture, the suggestion of a possibility, guesses, or even probability are 

insufficient to establish an issue of material fact.” Jones v. Schabron, 2005 WY 65, ¶ 11, 

113 P.3d 34, 38 (Wyo. 2005); see also Knight ex rel. Knight v. Estate of McCoy, 2015 

WY 9, ¶ 24, 341 P.3d 412, 418 (Wyo. 2015). There is nothing in the record to indicate 
11

that foot traffic packed the snow to create the ice. There is no evidence or testimony 

regarding how the ice patch formed, nor is there any evidence suggesting that snow had 

remained on the sidewalk and had been trampled down. In fact, the undisputed evidence 

is that, as a matter of course, the School District removed snow every morning when 

there was an accumulation, and there is no evidence that it failed to do so. The snow 

removal ordinance is irrelevant to these facts. It does not create a separate or heightened 

duty of care, nor is it evidence of negligence.

IV. Is RB’s comparative negligence a fact issue that must go to a jury?

[¶31] In its decision letter, the district court remarked that “[t]he Plaintiff testified in his 

own deposition that he would not have fallen if he had not run and slid on the ice.” RB 

contends that any consideration of his decision to slide on the ice pertains to the issue of 

comparative negligence, and thus the district court erred when it alluded to this choice to 

rule on the School District’s summary judgment motion. In making this argument, RB 

relies upon Pinnacle Bank, in which we stated that once a heightened duty is found based 

upon the existence of an ordinance, the open-and-obvious-danger rule would apply for 

comparative negligence purposes. 2004 WY 150, ¶ 12, 100 P.3d at 1291-92. 

[¶32] Here, however, we have determined that there was no duty -- the accumulation 

was natural and obvious and there was no other duty based upon Greybull’s ordinance 

because it did not apply to the facts of this case. Therefore, RB has failed to establish a 

prima facie case of negligence. As a result, we need not address the question of his 

comparative negligence. See Wyo. Stat. Ann. 1-1-109 (LexisNexis 2015).

CONCLUSION

[¶33] RB’s late filed Rule 56.1 statement, and its subsequent removal from the record, is 

not fatal to his appeal. There are no genuine issues of material fact; the School District 

had no duty either under the natural accumulation rule or based on Greybull’s snow 

removal ordinance. As a result, RB cannot establish a prima facie case of negligence. 

Consequently, we do not reach the question of comparative negligence. Affirmed.