No. 90-589
IN THE SUPREME COURT OF THE STATE OF MONTANA
DEBRA NAVE, Personal Representative
of the Estate of Larry E. Nave, Jr.,
Deceased; and DEBRA NAVE, Surviving
Spouse; and BEAU D. NAVE, Surviving Son,
through DEBRA NAVE, Conservator,
Plaintiffs and Appellants,
-vs-
HARLAN JONES DRILLING and COP
CONSTRUCTION CO., a Montana Corporation,
Defendants and Respondents.
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Powder River,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Lloyd E. Hartford, Attorney at Law,
Billings, Montana.
For Respondents:
Michael Heringer, Anderson, Brown, Gerbase,
Cebull, Fulton, Harman & Ross, Billings, Montana.
Submitted on Briefs: June 7, 1991
Decided: February 20, 1992
Filed:
t
Clerk
~usticeTerry N. Trieweiler delivered the opinion of the Court.
Larry Nave, Jr. , a construction worker, was employed on a
highway construction project near Broadus, Montana. He was injured
when the crank of a water pump struck him in the face. Nave sued
the supplier of the pump (Harlan Jones Drilling) and the general
contractor on the construction project (COP construction Co.). In
1989, Nave committed suicide. His wife and son were substituted as
plaintiffs.
Before trial, the District Court for the Sixteenth Judicial
~istrict,Powder River County, granted COP Construction's motion
for summary judgment on the basis that the general contractor had
no duty to ensure the safety of the workplace for the employee of
a subcontractor. The Naves have appealed from the summary
judgment. We reverse.
The issue presented in this appeal is whether under the terms
of its contract COP Construction had a nondelegable duty, extending
to the employee of a subcontractor, to maintain a safe workplace on
its construction project.
Respondent COP Construction was the general contractor for a
federal aid highway and bridge construction project on Highway 212
near Broadus, Montana. The State of Montana contracted with COP
construction to complete most of the project in the spring and
summer of 1985. COP Construction, in turn, subcontracted a major
portion of the contract to Byron Construction. Byron Construction
contracted to move the earth and build the roads to the new bridge
crossing the Powder River.
Larry Nave, Jr., was an employee of Byron Construction. Nave
was hired to drive a water wagon on the project. Water was needed
on the job site for dust control and compaction of the foundation
of the road. This water was pumped from the Powder River. Harlan
Jones Drilling supplied the water pump to Byron Construction.
On the morning of July 15, 1985, Nave suffered facial and head
injuries. Apparently he was attempting to start the engine on the
water pump with a hand crank starter. The pump "kicked back1' and
the hand crank struck him in the face.
In 1988, Nave filed a complaint against Harlan Jones Drilling
and COP Construction seeking damages for his medical expenses, lost
earnings, and pain and suffering. Nave claimed accrued medical
expenses, as of July 1988, of $9134.
In August 1989, Nave committed suicide. Debra Nave, his
surviving spouse, and Beau Nave, his son, were substituted as
plaintiffs. The Naves filed an amended complaint which included a
cause of action for wrongful death. They alleged that Larry Nave
suffered back and neck pain from his injuries which continued to
increase in severity up to the time of his death, that he suffered
from blackout spells caused by his injuries, and that he became
depressed and abused alcohol in attempting to deal with his
physical ailments. They alleged that these problems were partly
responsible for Navels death by suicide.
In August 1990, COP Construction filed a motion for summary
judgment. COP Construction argued, among other things, that it had
no duty to inspect the subcontractorls equipment and no duty to
ensure safety in the workplace for the subcontractorlsemployees.
On October 31, 1990, the District Court granted COP
Constructionls motion for summary judgment. The District Court
concluded that COP Construction did not have the duty to ensure a
safe workplace for the subcontractorlsemployees, and therefore was
not liable for the injuries Nave suffered.
The Naves have appealed from this decision.
Did COP Construction have a nondelegable duty, extending to
the employee of a subcontractor, to maintain the safety of the
workplace on its construction project?
The Naves contend that COP Construction had a nondelegable
duty, extending to the employee of a subcontractor, to maintain the
safety of the workplace on its construction project. We agree.
The outcome in this case is controlled by our decision in
Stepanek v. Kober C n t u t o
osrcin (1981), 191 Mont. 430, 625 P.2d 51.
Pursuant to that decision, COP Construction had a contractual duty
to provide for the safety of all employees at the work site, and it
cannot delegate that duty to its subcontractor, Byron construction.
In Stepanek, the County of Yellowstone contracted with Kober
construction to build a recreational facility in Billings. Kober
construction subcontracted with Albert D. Wardell Masonry for the
completion of the masonry work on the project. Stepanek, employed
by the subcontractor, was injured when he fell from the
subcontractorls scaffolding. After Stepanek filed an action
against Kober Construction, the district court granted summary
judgment in favor of the general contractor.
On appeal, this Court noted that I1[t]he primary contract
between the general contractor and Yellowstone County required the
general contractor to be 'responsible for initiating, maintaining,
and supervising all safety precautions and programs***on the
construction project. Stepanek, 625 P.2d at 52. This Court further
noted that it had previously held that similar contractual
arrangements resulted in the creation of a nondelegable duty.
Stepanek, 625 P.2d at 53 (citing Ulmen v Schwieger (1932), 92 Mont. 331,
.
12 P.2d 856). This Court reviewed the important public policy
concerns involved, including preventing accidents in the workplace
and protecting against the economic costs of injuries. We
concluded that the general contractor had a nondelegable duty to
provide a safe working environment for the employees of
subcontractors. Stepanek, 625 P.2d at 55. We also determined that
the duties of the general contractor (llemployerlt)
mandated by the
Montana Safe Place Statute, 5 50-71-201, MCA, are owed to the
employees of a subcontractor if there is a nondelegable duty
arising from the contract. Stepanek, 625 P.2d at 55 (citing Shannotz
v. HowardS. W i h C n t . Co. (1979), 181 Mont. 269, 593 P.2d 438).
rgt osr
The District Court granted COP ~onstruction's motion for
summary judgment based on its determination that there was no
provision in the primary contract expressly requiring COP
Construction to "initiate, maintain, or supervise safety programs."
The District Court therefore concluded that a nondelegable duty,
based on the contract, had not been created. We note, however,
that COP Construction's contract with the State of Montana imposed
the following nondelegable duty on the general contractor:
VIII. SAFETY; ACCIDENT PREVENTION.
In the performance of this contract, the contractor
shall comply with all applicable Federal, State and local
laws governing safety, health and sanitation. The
contractor shall provide all safequards, safety devices
and protective equipment and take any other needed
actions, on his own responsibility, or as the State
hiqhwav department contractins officer may determine,
reasonably necessary to protect the life and health of
employees on the job and the safety of the public and to
protect property in connection with the performance of
the work covered by the contract.
It is a condition of this contract, and shall be
made a condition of each subcontract entered into
pursuant to this contract, that the contractor and any
subcontractor shall not require any laborer or mechanic
employed in performance of the contract to work in
surroundings or under working conditions which are
unsanitary, hazardous, or dangerous to his health or
safety, as determined under construction safety and
health standards (Title 29, Code of Federal Regulations,
Part 1926, formerly Part 1518, as revised from time to
time), promulgated by the united States Secretary of
Labor, in accordance with Section 107 of the Contract
Work Hours and Safety Standards Act (83 Stat. 96).
[Emphasis added.]
While the language is not identical to the language
interpreted and applied in Stepanek, the obligation imposed by the
language in this contract is identical to the obligation found to
exist in Stepanek. Because the duty imposed on COP Construction b y
its contract was nondelegable, COP Construction cannot avoid
liability by attempting to shift the responsibility to someone
else. Regardless of the obligations of Byron Construction or
others, COP Construction retained the responsibility to provide
Larry Nave with a safe place to work.
M c e e t v. S a e (1990), 244 Mont. 483, 798 P.2d 989, cited by
ihlto tt
COP Construction, is inapposite. In Micheletto, the contract between
the State of Montana as general contractor and the Telephone
Company as subcontractor did not contain language which established
a nondelegable duty requiring the general contractor to supervise
the safety of the construction operations. See Micheletto, 798 P. 2d
at 991-93. The language of COP Construction's contract with the
State of Montana is in marked contrast with the contract language
in M c e e t
ihlto .
We conclude that the District Court erred in granting summary
judgment to COP ~onstruction. We reverse the District Court's
decision and we remand this matter to the District Court for
further proceedings consistent with this opinion.
We concur:
chief Justice
Justices
Justice Fred J. Weber specially Concurs as follows:
I agree with the majority opinion which points out that under
Ste~anek,the primary contract between the general contractor and
Yellowstone County specifically required the general contractor to
be responsible for initiating, maintaining, and supervising all
safety precautions and programs on the project. As pointed out in
the majority opinion, the key part of the COP Construction's
contract with the State of Montana imposed the following duty:
VIII. SAFETY; ACCIDENT PREVENTION.
. . . The contractor shall provide all
safeguards,
safety devices and protective equipment and take any
other needed actions on his own responsibility, or as the
State Highway Department contracting officer may
determine, reasonably necessary to protect the life and
health of the employees on the job ...
I agree that the above contract requirement is equivalent to the
obligation found to exist in the Ste~anekcontract. Although it is
difficult to understand how COP Construction could be found to have
failed to take any action necessary to reasonably protect Mr. Nave
from the injury he received, I do concur in the majority opinion.
I find it important to suggest some of the contradictions
which are present in this result. As stated in Micheletto v. State
(1990), 244 Mont. 483, 798 P.2d 989, and in earlier Montana cases,
Montana follows the general rule that absent some form of control
over the subcontractor~s method of operation, the general
contractor is not liable for injuries to the subcontractor~s
employees. While there is no indication in this case that COP
Construction retained any control over the subcontractor with
regard to work performed by Mr. Nave on the job, COP Construction
may be held responsible. The result is that a general contractor
under this specific form of contract could be held responsible for
any injury suffered by an employee of a subcontractor. In order to
protect himself, this suggests that a general contractor would be
required to take all the steps necessary to protect an employee of
a subcontractor from injury. This further suggests that a general
contractor would be required to supervise every portion of the work
performed by an employee of a subcontractor. Such supervision on
the part of the general contractor appears to make it totally
impractical to use subcontractors.
Our holding in this case clearly demands consideration of this
problem by those who draft and participate in such construction
contracts.
Chief Justice J. A. Turnage joins in the foregoing special
concurrence.