No. 89-452
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
GENE AND LESLIE MICHELETTO,
Plaintiffs and Appellants,
-TI-
SEP 1 4 1990
STATE OF MONTANA,
Defendant and Respondent.
&A s 2
:
2 .
4
CLERK OF SUPREt:'IE COYFIT
STATE OF lil - . ;'i ',, \.
,
APPEAL FROM: District Court of the Seventh Judicial District,
In and for the County of Dawson,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Steven J. Harman, Anderson, Brown, Cebull, Fulton,
Harmon & Ross, Billings, Montana
Theodore R. Dunn, Goetz, Madden & Dunn, Bozeman,
Montana
For Respondent:
K. Kent Koolen; Moulton, Bellingham, Longo & Mather;
Billings, Montana
Submitted on Briefs: March 16, 1990
~ecided: September 1 4 , 1 9 9 0
Filed: 8
Justice Fred J. Weber delivered the Opinion of the Court.
The plaintiffs appeal the grant of summary judgment to the
State of Montana, acting through the Department of Highways, herein
referred to as the State. Mountain States Telephone Company
(Telephone Company) entered into a subcontract with the State.
Gene Micheletto was seriously injured in the course of his
employment by the Telephone Company and received workers'
compensation benefits for that injury. Gene Micheletto and Leslie,
his wife, then sought recovery in tort from the State in its
capacity as general contractor. The plaintiffs now appeal the
summary judgment for the State. We affirm.
The plaintiffs raise the following issues:
(1) Was it error for the District Court to conclude that the
State as general contractor did not have a non-delegable
contractual duty to supervise the safety of the trenching
operations by the Telephone Company?
(2) Was it error for the District Court to conclude that
trenching is not an inherently dangerous activity under the facts
of this case?
(3) Were there disputed issues of material fact demonstrating
control on the part of the State which prohibited summary judgment
for the State?
In 1985 the State widened State Highway 200 between Sidney and
Fairview as part of a federal aid road project. Such widening
required the Telephone Company to relocate some of its cables which
were buried adjacent to the existing roadway. The State and the
2
Telephone Company entered into a Utilities Agreement.
Gene Micheletto was employed as a lineman by the Telephone
Company and assisted in the relocation of the buried telephone
cable. The Telephone Company work crew dug a trench in connection
with the cable relocation. On the afternoon of July 18, 1985,
Micheletto entered the trench with the aim of digging under a
culvert to assist in the cable relocation. While he was in the
trench, a large portion of the trench caved in upon him, resulting
in severe injury and disability.
Deposition witnesses testified that prior to the cave in, the
trench was between six and seven feet deep and no shoring, sloping,
or other support was used. Additional testimony established it had
rained the previous day and a cave-in occurred earlier that day at
a different location. The testimony established that an inspector
employed by the State had observed the earlier cave-in after it had
occurred.
Gene Micheletto received workers' compensation benefits from
the Telephone Company. The plaintiffs brought suit against the
State on several tort theories. The State moved for summary
judgment on several grounds. In granting summary judgment for the
State, the District Court made the following findings and
conclusions:
(2) Under the subcontract, The Telephone Company
became a subcontractor and assumed the status of an
independent contractor.
(3) As a general rule, the State of Montana, as a
general contractor, would not be liable for injuries
suffered by an employee of the subcontractor.
(4) A nondelegatable [sic] duty, based on contract,
does not apply in this case.
(5) The State of Montana, as a general contractor,
had no nondelegatable [sic] duty under the inherent
danger or peculiar risk exception to nonliability rule.
(6) Plaintiff failed to establish vicarious
liability based on breach of duty based on control.
(7) The duty of the State's project engineer did not
include safety and did not run to the Plaintiff who was
The Telephone Companygs employee.
The plaintiffs appeal the granting of summary judgment to the State
based upon the foregoing.
There is no dispute that the Telephone Company was a
subcontractor of the State, that the Telephone Company was an
independent contractor, and that the State was the general
contractor.
The parties also agree that the general rule was properly
stated by the District Court. In Kemp v. Bechtel Constr. Co.
(1986), 221 Mont. 519, 720 P.2d 270, we stated the general rule as
follows:
Montana follows the general rule that "absent some form
of control over the subcontractorlsmethod of operation,
the general contractor and owner of the construction
project are not liable for injuries to the
subcontractorgs employees." Shannon v. Howard S. Wright
Construction Co. (1979), 181 Mont. 269, 275, 593 P.2d
438, 441.
The issues framed by the plaintiffs correspond directly to the
three exceptions to the foregoing general rule of non-liability on
the part of the general contractor: (1) the non-delegable duty
based on a contract exception; (2) the gginherently intrinsically
or
dangerous activityg1exception; and (3) the negligent exercise of
control reserved over a subcontractorgs work exception. For
further discussion of these exceptions, See Shannon v. Howard S.
Wright Constr. Co. (1979), 181 Mont. 269, 593 P.2d 438; Storrusten
v. Harrison (1976), 169 Mont. 525, 533, 549 P.2d 464, 469; Wells
v. Thill, (1969), 153 Mont. 28, 452 P.2d 1015; Kemp v. Bechtel
Constr. Co. ; and generally, Prosser, Law of Torts ed.
1984); Restatement (Second) of Torts 8 5 410-429 (1965).
I
Was it error for the District Court to conclude that the State
as general contractor did not establish a non-delegable contractual
duty to supervise the safety of the trenching operations by the
Telephone Company?
Plaintiffs contend that the contract between the parties
raised a non-delegable duty with regard to safety in the trenching
operations as to the State. This contention is primarily based on
Paragraph 15 of the Utilities Agreement which provides in part:
15. Work done on Highway right-of-way with respect
to the location of the facilities and in the manner which
the facilities are installed or attached within the
right-of-way must be approved by the District Engineer
to insure that installation of the facilities will meet
the "Standard Specifications for Road and Bridge
Constru~tion~~ adopted by the Department.
as
Plaintiffs contend that this language created a duty on the part
of the State to supervise the trenching operation and ensure his
safety. As a part of this argument, the plaintiffs refer to the
Standard Specifications for Road and Bridge Construction adopted
by the State and which were in effect at the time. Such Standard
Specifications contain the following with regard to excavations:
52.03 CONSTRUCTION REQUIREMENTS:
All excavated material piled adjacent to the excavation
or in a roadway or public thoroughfare shall be piled
and maintained so that the toe of the slope or the pile
is at least 2 feet from the edge of the excavation. ..
The walls and faces of all excavations in which employees
are exposed to danger from moving ground shall be guarded
by a shoring system, sloping of the ground, or some other
equivalent means consistent with the type of excavation.
Standard Specifications For Road and Bridqe Construction. 1981 ed.
(adopted bv the Montana Department of Hiqhwavs and the Montana
Hiqhwav Commission, March 1, 1981.1 In addition, the Standard
Specifications require that all excavations conform to the
requirements of the U.S. Department of Labor, Occupational Safety
and Health Administration [OSHA], and Safety and Health Regulations
for Construction. The OSHA regulations include provisions
regarding safety during excavation operations. See 29 C.F.R. 5
1926.651 (i)(1) (1986). The regulations require that trenches more
than five feet deep shall be shored or sloped or otherwise
supported to prevent cave-ins. 29 C.F.R. 51926.652 (1986). Like
the Standard Specifications OSHA also requires that nspoilslt(the
material that is excavated from the trench) are stored at least two
feet from the edge of the excavation.
The plaintiffs argue that Stepanek v. Kober Constr. Co.
(1981), 191 Mont. 430, 434, 625 P.2d 51, 53, establishes the theory
for non-delegable duty under the contract in this case. In this
Court Is analysis of Stepanek in Kemp v. Bechtel Constr. Co. , the
Court stated:
In Stepanek, the non-delegable duty which subjected the
general contractor to liability to an employee of a
subcontractor was created by a provision in the general
contract between the general contractor and Yellowstone
County. Specifically, that provision required the
general contractor to be I1responsible for initiating,
maintaining, and supervising all safety precautions and
programsvvconnected with construction. We held that this
provision resulted in a duty that could not be delegated
to the subcontractor. . .
There is no similar provision
in the general contract between MPC and Bechtel in the
instant case. . . .
Kemp v. Bechtel Constr. Co., 720 P.2d at 274. Our present case
does not contain a similar contractual provision establishing non-
delegable duty.
In K e m ~ v. Bechtel Constr. Co., the employee of a
subcontractor who had been injured in a trench cave-in sought
recovery from the general contractor claiming that the general
contractor had contractually assumed safety duties. In Kemp v.
Bechtel Constr. Co., the subcontractor had agreed to "comply with
all the applicable laws, regulations, and standards and the project
safety program." The Court concluded that there was no provision
in the contract between MPC and Bechtel which was similar to
Stepanek and that as a result the theory of non-delegable duty
based on contract did not apply.
In our case, under the Utilities Agreement, the Telephone
Company was required to perform the work in accordance with the
various specifications and safety requirements as previously
outlined. Clearly the Telephone Company expressly assumed the
safety responsibilities under the subcontract. The Utilities
Agreement which constitutes the subcontract in the present case
does not contain any provision requiring the State to be
responsible for either initiating, maintaining or supervising
safety programs as was present in Ste~anek. We agree with the
conclusion by the District Court that a non-delegable duty, based
on contract, was not assumed by the State. We hold that the
District Court correctly concluded that the State as general
contractor did not have a non-delegable contractual duty to
supervise the safety of the trenching operations by the Telephone
Company.
Was it error for the District Court to conclude that trenching
is not an inherently dangerous activity under the facts of this
case?
As mentioned, the District Court concluded that the State did
not have a non-delegable duty under the inherent danger or peculiar
risk exception to the non-liability rule. As pointed out in Kemp
v. Bechtel Constr. Co., two sections of the Restatement are
applicable. Section 416 and 427, Restatement 2d of Torts, state:
Section 416. Work Dangerous in Absence of Special
Precautions.
One who employs an independent contractor to do work
which the employer should recognize as likely to create
during its progress a peculiar risk of physical harm to
others unless special precautions are taken, is subject
to liability for physical harm caused to them by the
failure of the contractor to exercise reasonable care to
take such precautions, even though the employer has
provided for such precautions in the contract or
otherwise.
Section 427. Negligence as to danger inherent in the
work.
One who employs an independent contractor to do work
involving a special danger to others which the employer
knows or has reason to know to be inherent in or normal
to the work, or which he contemplates or has reason to
contemplate when making the contract, is subject to
liability for physical harm caused to such others by the
contractor's failure to take reasonable precautions
against such danger.
On this issue the present case is indistinguishable from Kemp v.
Bechtel Constr. Co. In its analysis of the claim of vicarious
liability arising from the collapse of a trench, this Court in Kemp
v. Bechtel Constr. Co., 720 P.2d at 275, stated:
The Supreme Court of North Dakota has interpreted
§ 416 and § 417 with respect to a sewer trench dug to a
depth of six feet in sandy soil. See Peterson v. City
of Golden Valley, North Dakota (N.D. 1981), 308 N.W.2d
550. In Peterson, an employee of a contractor with the
city was killed when the banks of the trench in which he
was working caved in. The trench was not dug according
to Occupational Safety and Health Administration (OSHA)
regulations or standard protective practices which call
for sloping or use of a trench box whenever a trench
exceeds five feet in depth. The court held that 416
and !j 427 did not operate to make the City vicariously
liable for the omission of the contractor, because "this
type of excavation when done with standard precautions,
presents no extraordinary risk of caving in." Peterson,
308 N.W. 2d at 554. Peterson is on point with the instant
case, and we adopt the North Dakota Supreme Court's
analysis.
This Court in Kemp v. Bechtel Constr. Co. then concluded:
In order for 416 to apply the work must present
"a peculiar risk . . . unless special precautions are
taken. Section 427 is only applicable to work
"involving a special danger ... inherent in ... the
work.I1 Here, the type of trenching contemplated in the
subcontract presented no peculiar risk or inherent
danger. Rather, the risk or danger arose out of a failure
to use standard precautions.
In its holding the Kemp Court then referred to OSHA regulations and
other elements which are directly comparable to the present case.
The Court stated:
The OSHA regulations, project safety manual and
deposition of the backhoe operator establish that sloping
or using a trench box during trenching is standard
procedure. Moreover, the subcontract specifically
required the subcontractor to use standard precautions
and follow regulations. The injury occurred after the
diggers failed to use a trench box that they knew was
available. Sections 416 and 427 are thus not applicable.
We hold that the companies had no nondelegable duty under
the inherent danger or peculiar risk exception to the
nonliability rule.
Kemp v. Bechtel Constr. Co., 720 P.2d at 275. As previously
described, in this case the Standard Specifications required that
all excavation be guarded by a shoring system, sloping of the
ground, or some other equivalent means consistent with the type of
excavation; and also required all excavations conform to OSHA. We
conclude that the Kemp v. Bechtel Constr. Co. decision is
controlling on this issue. We hold that trenching is not an
inherently dangerous activity under the facts of this case.
Were there disputed issues of material fact demonstrating
control on the part of the State which prohibited summary judgment
for the State?
Plaintiffs contend that summary judgment is inappropriate
because of genuine issues of material fact as to whether the State
negligently exercised control over the Telephone Company's
trenching operation. See Rule 56(c), M.R.Civ.P. The core of the
plaintiffst contention is that the district engineer of the State
must approve the manner used by the Telephone Company to relocate
the cables, which establishes a reservation of control by the State
over the Telephone Companyts work.
Paragraph 15 of the Utilities Agreement provides:
Work done on Highway right-of-way with respect to
location of the facilities and in the manner which the
facilities are installed or attached within the right-
of-way must be approved by the District Engineer to
insure that installation of the facilities will meet the
nStandard Specifications for Road and Bridge
Constructionm as adopted by the Department.
The legal basis for the plaintiffs' claim is contained in
Restatement (Second) of Torts §
, 414 which provides:
5 414. Negligence in Exercising Control Retained By
Employer
One who entrusts work to an independent contractor,
but who retains the control of any part of the work, is
subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to
exercise his control with reasonable care.
Before we further analyze the contractual provisions and the
facts presented, we think it appropriate to discuss some of the
policy considerations which must be considered and balanced, one
against the other. The facts establish that the Telephone Company
clearly was negligent. However, under our workers' compensation
laws, the employee's recovery against his employer is limited to
workers1 compensation benefits. The plaintiffs' seek to establish
the right to recover amounts above the workers' compensation
benefits from the State on the theory that it was negligent.
Because of the serious injuries to Gene Micheletto, an argument can
be made that we should allow recovery against the State in order
that some additional damages may be paid to this severely injured
worker.
As pointed out in K e m ~v. Bechtel Constr. Co., we have the
Montana Safe Place to Work statute, 5 50-71-201, MCA, which
requires an employer to furnish a safe place to work and which
requires the use of safety devices and safeguards. As a part of
that policy, it is important that general contractors who employ
independent subcontractors require reasonable and specific safety
standards on the part of the subcontractor. Clearly it is in the
best interest of all involved that the State here be required to
insert safety precautions which must be performed by the Telephone
Company, its subcontractor. It would result in a contradiction in
policy if general contractors who employ independent contractors
were encouraged to omit safety regulations upon a theory that a
failure to make such provisions would grant greater protection
against a claim of negligence by the employees of the
subcontractor. Clearly that would not be sound public policy.
In general we conclude that before liability is found on the
basis of control by the general contractor, there must be a
contractual provision which establishes that the general contractor
has assumed the responsibility for initiating, maintaining and
supervising safety precautions as was present in the Stepanek
contract. conclude that the holding in Kemp v. Bechtel Constr.
C . is controlling on this issue.
o,
In Kemp v. Bechtel Constr. Co. the Court quoted Restatement
(Second) of Torts, 5 414, and pointed out that a general contractor
is responsible for his own duty of reasonable care, but is not
vicariously liable for the subcontractor's negligence under this
control exception. The Court then pointed out:
Here, by the subcontract the companies were to establish
a project safety program. However, no control over the
day-to-day implementation of the safety program was
reserved by the companies. The subcontract places the
responsibility for onsight implementation of the safety
program and job safety on the subcontractor, COP. Thus,
the company's duty under 5 414 extended only to the
establishment of the safety program. There is no
evidence that this duty was breached.
Kemp v. Bechtel Constr. Co., 720 P.2d at 275. The Court then
analyzed 5 50-71-201, MCA, the Montana Safe Place to Work statute
and concluded that under the statute the general contractors had
a duty to require the subcontractor to use safe procedures and to
take reasonable steps to ensure those procedures were followed.
The Court emphasized that such a duty does not require a general
contractor to constantly oversee each individual task of the
subcontractor - and that only constant supervision could have
prevented this accident. The Court then reached the following
conclusion:
The record is clear and undisputed that the companies
required COP to use safety precautions and comply with
regulations. The companies utilized daily spot checks
and monitored injury reports to make sure the
construction was proceeding safely. We find the
companies complied with their duty of reasonable care.
Kemp v. Bechtel Constr. Co., 720 P.2d at 276. In our case, in
addition to Paragraph 15 of the Utilities Agreement, the
subcontract included the Standard Specifications which required
shoring systems, sloping of the ground, or some equivalent means
in connection with trenching, and also incorporated the OSHA
requirements which in substance require that trenches more than
five feet deep shall be shored or sloped or otherwise supported to
prevent cave-ins. We conclude that the State here had properly
provided appropriate safety precautions in its contract with the
Telephone Company in a manner directly comparable to the contract
provisions in K e m ~v. Bechtel Constr. Co. Notwithstanding that
comparison, the plaintiffs contend that Paragraph 15 of the
Utilities Agreement established control. We will restate Paragraph
15 to emphasize only the key aspects which are applicable to this
contention:
Work done .
. .
with res~ect to the location of
facilities and in the manner in which the facilities are
installed or attached within the right-of-way must be
approved by the district engineer to ensure that
installation . . will meet the "standard
specificationsn . . .
as adopted by the Department
[State]. (Emphasis added.)
In substance, the plaintiffs argue that the requirement of approval
by the district engineer of the manner in which the facilities are
installed establishes that the State retained control under 5 414.
We do not agree with that contention.
It is true that Paragraph 15 provides that the manner in which
facilities are installed must be approved by the district engineer.
It is also true the location of the facilities must be approved by
the district engineer. Last, it is important to note that the
requirements of both location and manner of installation are
followed by the provision that this is done to ensure that
installation will meet the standard specifications. We conclude
that the requirements of Paragraph 15 could be met by a review on
the part of the State district engineer of the detailed plans
submitted by a subcontractor, without any review of the actual
construction site. In addition, we emphasize that there is no
specific provision in the subcontract which obligates the State of
Montana to be responsible in any manner for initiating,
maintaining, or supervising safety precautions and programs as
described in KemD v. Bechtel Constr. Co. and as was contained in
the Ste~anekcontract. As we examine Paragraph 15 we do not find
provisions which clearly establish additional safety obligations
on the part of the State. We conclude that the State here complied
with its duty of reasonable care with regard to safety procedures.
We further conclude that the making of spot checks by the State
with regard to construction, including the presence of an inspector
for the district engineer, do not establish any additional duty on
the part of the State.
The dissent concluded that the State retained control over
methods of work and operative detail, and as a result the Telephone
Company was not entirely free to perform the work in its own way.
We do not agree with that conclusion. The essence of Paragraph 15
is that the district engineer (the State) was required to approve
the facilities to ensure that the installation met standard
specifications. As a result, the Telephone Company was limited in
its installation to the extent that it was required to comply with
the standard specifications issued by the State. We do not
conclude that such a limitation qualifies as a control limitation
under the Restatement.
As quoted by the dissent, comment (c) to 5 414 of the
Restatement states that before the employer has retained control,
there must be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own way.
While the requirement that the Telephone Company comply with the
standard specifications did mean that the Company was not entirely
free to do the work in its own way, we do not believe that the
Restatement intended to suggest that requiring a subcontractor to
comply with specifications or written plans constitutes a
sufficient limitation so that control has been retained by the
employer. In addition, as previously stated, we conclude that
before liability is found on the basis of control by the general
contractor, there must be a contractual provision which
establishes that the general contractor has assumed the
responsibility for initiating, maintaining and supervising safety
precautions. We conclude that none of these tests were established
by Paragraph 15.
We hold that the State complied with all contractual duties
of reasonable care required under the contract and statutes, and
that the State did not negligently exercise control over the
trenching operation of the Telephone Company.
Affirmed.
We Concur:
.
Gulbrandson, Retired
sitting in place of
Justice John C. Sheehy
Justice R. C. McDonough dissenting. Summary judgment is
inappropriate in this case because genuine issues of material fact
exist concerning whether the Department of Highways of the
defendant (Department) negligently exercised control over the
Telephone Company's operations. See Rule 56(c), M.R.Civ.P.
According to the wording of paragraph 15 of the Utility
Agreement, the Department district engineer must approve the manner
used by the Telephone Company to lay or relocate the cables.
Paragraph 15 is as follows:
Work done on Highway right-of-way with respect to the
location of the facilities and in the manner which the
facilities are installed or attached within the right-
of-way must be approved by the District Ensineer to
insure that installation of the facilities will meet the
"Standard Specifications for Road and Bridse
Construction" as adopted by the Department. (Emphasis
added. )
Under 5 414 of the Restatement (Second) of Torts, this
language could be construed as a reservation of control over the
subcontractors which would give rise to a duty on the part of the
Department:
5 414. Negligence in Exercising Control Retained
by Employer.
One who entrusts work to an independent contractor,
but who retains the control of any part of the work, is
subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to
exercise his control with reasonable care. (Emphasis
added. )
Under this section the Department or general contractor
(employer) is not vicariously liable for the subcontractor's
negligence, rather the general contractor has a separate duty of
reasonable care in exercising control. Kemp v. Bechtel Constr. Co.
(1986), 221 Mont. 519, 526, 720 P.2d 270, 275. That is, regardless
of whether the general contractor has assumed safety duties
contractually, if the general contractor retains control over anv
part of an independent contractor's work the general contractor has
a duty of reasonable care to third parties in exercising such
control. Thus, a general contractor who attempts to delegate
safety duties to a subcontractor contractually may still be
directly liable for his own negligence if he retains the requisite
amount of control over operations and exercises such control
negligently. This is as it should be. We have here a claim of
negligence brought by an employee of a subcontractor, which is a
constitutional right of such employee under Section 16 of Article
I1 of the 1972 Montana Constitution. It is important to note that
this duty owed by the general contractor also applies to protect
other persons not employees and the traveling public from
negligence by the Department. See e.s. Ulmen v. Schweiger (1932),
92 Mont. 331, 12 P.2d 856. Public policy is not served by the
narrow construction of the majority opinion.
I will now examine the scope of such a duty. In Storrutsen
v. Harrison (1976), 169 Mont. 525, 534, 549 P.2d 464, 469, this
Court recognized the rationale of comment (c) to 5 414 which states
the type of control that must be retained for the exception to be
applicable:
In order for the rule stated in this Section to apply,
the employer must have retained at least some degree of
control over the manner in which the work is done. It
is not enough that he has merely a general right to order
the work stopped or resumed, to inspect its progress or
to receive reports, to make suggestions or
recommendations which need not necessarily be followed,
or to prescribe alterations and deviations. Such a
general right is usually reserved to employers, but it
does not mean that the contractor is controlled as to his
methods of work, or as to operative detail. There must
be such a retention of a risht of supervision that the
contractor is not entirely free to do the work in his own
m. (Emphasis added. )
Here, it can be argued that the telephone company was not entirely
free to perform the work or install the cable in its own way;
rather, paragraph 15 could be construed as a retention of control
by the Department over methods of work and operative detail by
expressly requiring approval by the distinct engineer. Such an
interpretation involves a specific reservation of control over a
portion of the construction work, to-wit: the installation. Note
that the manner in which the work was done was not merely subject
to the inspection, tests and approval of the Department, rather,
the use of the word wmusttl
seems to make approval of the methods
of work mandatory. Thus, the contract is somewhat ambiguous
regarding whether and how much control was actually reserved by the
Department. It is permissible to look to extrinsic evidence, such
as the conduct of the parties under the contract to resolve the
ambiguity. Souders v. Montana Power Co. (1983), 203 Mont. 483,
486, 662 P.2d 289, 290; Section 28-2-905(2), MCA. Where ambiguity
exists on the face of the contract, question of parties intent as
to language involved should be submitted to the trier of fact. S-
W Co. v. Schwenk (1977), 176 Mont. 546, 550, 568 P.2d 145, 147.
Here, the evidence suggests that the Department may have been
exercising control through its inspectors who were present at the
job site. Thus, there are factual issues to be resolved regarding
the purpose and duties of these inspectors that would clarify the
question of whether the Department was in fact exercising retained
control over the operations and how much control it exercised. If
there is an exercise of retained control in this case involving
operative detail, then it does not matter who expressly assumed
safety duties under the contract, as the general contractor has a
separate and distinct duty of reasonable care to third persons
under 5 414 of the Restatement in such cases.
It is contended that our holding in Kemp regarding the issue
of control is dispositive of the issue raised here. However, the
present case is distinguishable from Kemp. In Kemp the companies
by contract were to establish a safety program. We held that the
general contractor had a duty to require the subcontractor to take
reasonable steps to ensure safety procedures were followed. Kemp,
720 P.2d at 276. Moreover, we held that such a duty does not
require constant supervision of each individual task of the
subcontractor. a. It was sufficient in Kemp that the general
contractor used daily spot checks and inspected injury reports to
monitor project safety. In the instant case, like in Kemp, spot
checks were employed by the Department. But here the Department's
duty may have involved more than merely monitoring safety
procedures; the Department could be interpreted to have
specifically retained control over the manner in which the
installation was done, giving rise to a duty of reasonable care to
others under the Restatement. Whether the Department exercised
this control with reasonable care in compliance with the
requirements of paragraph 15, the Restatement, and a review of the
detailed plans is a question of fact.
Furthermore, in K e m ~there was no evidence of a negligent
exercise of control by the employer's acts as there is in this
case. In K e m ~ ,we concluded that 't[o]nly constant supervision
could have prevented ... [the] accident.I' Kemp, 720 P.2d at 276.
Here, the evidence suggests that the Department was in fact
supervising the manner of installation when the accident occurred.
The district engineer's inspector, Larry Wolf, although not
inspecting or observing the work taking place in the trench at the
time of the cave-in, was actually present at the job site when the
cave-in occurred. He testified in his deposition that he was the
principal inspector on the cable relocation project, although he
maintained that he was not a safety inspector. He also testified
that while at the job site that morning another portion of the
trench had caved in. Wolf had examined the earlier cave-in. His
deposition also indicates that he may have been aware that it would
be necessary for someone to enter the trench to dig beneath a
culvert in order to run the cable below the culvert. His notes
regarding the accident indicate that he was aware of the absence
of a shoring device in the trench. Also, Mr. Victor R. Scheuffle,
the Department's district utility agent, testified in his
deposition that on an earlier date he suggested to the telephone
company that they use a trenching box or cage to alleviate cave-
in problems associated with saturated ground conditions. In light
of the language in paragraph 15 of the utility agreement and the
deposition testimony, there are genuine issues of material fact
regarding how much control the Department reserved over the
telephone company's relocation and whether the Department
negligently exercised that control and proximately caused
Micheletto's injuries. Without resolving factual issues, one
cannot simply conclude that paragraph 15 does not constitute a
reservation of control as a matter of law nor can one conclude that
the Department complied with its duty of reasonable care.
Therefore, under Rule 56(c), M.R.Civ.P., the District Court's grant
of summary judgment was improper. I would reverse and remand on
this issue.
~ u s t i e eDiane G. E a r z cor~cufsin thz foregoing dissent.
Justice William E. Hunt, Sr., dissenting:
I concur in the dissent of Mr. Justice McDonough. In
addition, for the reasons stated in my dissent in Kemp v. Bechtel
Constr. Co., 221 Mont. 519, 528-34, 720 P.2d 270, 276-80 (1986),
I must dissent from the Majority's conclusion that trenching is not
an inherently dangerous activity.
Trenching is precisely the type of inherently dangerous
activity envisioned by the Restatement (Second) of Torts 5 5 416
.
and 427 (1977) By its very nature, trenching is Itlikelyto create
during its progress a peculiar risk of physical harm to others
unless special precautions are taken ... .Iv Restatement 5 416.
Further, trenching involves I1a special danger to others which the
employer knows or has reason to know to be inherent in or normal
to the work . .. .'I Restatement 5 427. The danger inherent in
or normal to trenching is exactly the type that appears in the
present case--the risk that an excavation might collapse upon and
injure an individual inside the trench.
The Majority apparently believes that trenching is not
inherently dangerous because "standard" precautions, rather than
llspecial"precautions, can be taken to prevent or lessen the perils
of excavating. However, as I noted in my dissent in Kemp, 221
Mont. at 530-31, 720 P.2d at 278, the special precautions
contemplated by the Restatement are precautions specially designed
to counter the peculiar risks inherent in the activity, not
extraordinary precautions. Indeed, the safeguards that may be
taken to prevent the dangers inherent in trenching are "ordinary
in the sense that a reasonably cautious contractor would take
them." Kemp, 221 Mont. at 531, 720 P.2d at 278. What makes the
precautions "special" in trenching is that they are needed to
lessen the dangers inherent in or normal to the activity.
The Majority confuses the idea of "standardI1precautions with
the idea of "standard1' activity, i.e., activity that is not
inherently dangerous. The fact that "~tandard'~ rather than
extraordinary safeguards may counter the risks inherent in
trenching does not mean that trenching itself is "standard"
activity.
With or without precautions, the basic character of trenching
remains inherently dangerous. Therefore, the activity gives rise
to a nondelegable duty on the part of the contractor to provide for
the safety of the subcontractorts employe~s.