No. 92-303
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
EDWARD NICHOLS, JR., JULIA A BRUMMEL,
. *
NICHOLE A BRUMMEL, a Minor Child, and
.
JULIA A. BRUMMEL, as Mother and Natural
Guardian of NICHOLE A. BRUMMEL,
Plaintiffs and Appellants, 2
i.
J
-v-
DAVID CORNTASSEL and DAVID BALLOU,
Defendants and Respondents.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Arthur D. Agnellino, Missoula, Montana
For Respondent:
Dan Spoon, Missoula, Montana, for David Ballou; Paul
Meismer, Missoula, Montana for David Corntassel
Submitted: March 4, 1993
Decided: May 6 , 1993
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Plaintiffs appeal the summary judgment order of the District
Court ofthe Fourth Judicial District, Missoula County, which ruled
in favor of defendant David Ballou based on the "accepted work"
doctrine of contractor nonliability. We reverse and remand to the
District Court for reconsideration.
The sole issue for review is whether the District Court erred
in granting summary judgment to defendant Ballou.
Appellants Edward Nichols, Jr., Julia A. Brummel and Nichole
A. Brummel, by Julia A. Brummel as her Mother and Natural Guardian
(plaintiffs) filed complaints alleging that they suffered carbon
monoxide poisoning while residing in a rental property located in
Missoula, Montana. The amended complaint alleged numerous claims
against several defendants. Plaintiffs have settled their claims
with and stipulated to dismiss defendants John Schubert, Cole
MacPherson, Don Beaver Heating and Air Conditioning and Thomas
Plumbing and Heating. Claims against two defendants remain.
Plaintiffs' claim against defendant David Corntassel is rooted in
the Montana Residential Landlord and Tenant Act and is not a part
of this appeal. This appeal relates solely to the District Court's
summary judgment dismissal of plaintiffs8 claim against defendant
David Ballou (Ballou), a Missoula heating and air conditioning
contractor and owner of Ballou Heating and Air Conditioning.
In their Second Amended Complaint, plaintiffs alleged the
following: In 1988, plaintiffs rented a residence located at 2120
South 14th Street in Missoula owned by David Corntassel.
2
Corntassel had purchased the residence in 1986 from John Schubert.
To meet FHA financing requirements, Schubert raised the foundation
of the house approximately two feet. When this was done, the vent
pipes from the furnace had to be modified accordingly. Schubert
contracted with Ballou to perform the modifications to the furnace
exhaust system. Ballou performed the work in July or August of
1986. In April 1988, shortly after plaintiffs moved into the
house, the exhaust vent pipe leading from the furnace to the
chimney separated because the vent had never been securely fastened
by Ballou.
Plaintiffs alleged that when the vent pipe separated, carbon
monoxide gas escaped, causing them to suffer carbon monoxide
poisoning. They further alleged that Ballou negligently
reconnected the furnace exhaust vent in the residence.
In his Answer, Ballou denied plaintiffs allegations except as
follows: He admitted that Schubert was the owner of the premises
at the time that Ballou Heating and Air Conditioning performed the
work. He admitted that he was in the business of installing and
repairing heating and air conditioning systems. He also admitted
that there are city and county codes relating to the installation
of furnaces.
Did the District Court err in granting summary judgment in
favor of Ballou?
The District Court determined that sufficient facts were
presented to grant summary judgment to Ballou on the basis of the
"accepted workw doctrine as an affirmative defense. The "accepted
workttdoctrine is a rule of contractor nonliability most recently
approved by this Court in Harrington v. LaBellef of Colo. Inc.
s
(1988), 235 Mont. 80, 765 P.2d 732. - - Olson v. Kayser
See also
(l973), 161 Mont. 241, 505 P.2d 394; Hannifin v. Cahill-Mooney
Constr. Co. (1972), 159 Mont. 413, 498 P.2d 1214; and Ulman v.
Schwieger (1932), 92 Mont. 331, 12 P.2d 856.
Under the "accepted work" doctrine, the contractor owes no
duty to a third party who is subsequently injured on the premises.
The property owner (contractee) is substituted for the contractor
as the responsible party when the work is accepted. Harrinaton,
765 P.2d at 734. The primary rationale is that the injured person
is not in privity of contract with the contractor. Under the
doctrine, Schubert, as the owner who employed Ballou, would become
the responsible party after he accepted the work done by Ballou to
reconnect the exhaust vent, if all five elements of the "accepted
work" doctrine were met.
Contractornonliabilityprinciples initiallyparallelledthose
of product liability. Product liability law, unlike its
counterpart, has changed significantly over the years as
exemplified by the landmark case MacPherson v. Buick Motor Co.
(N.Y. App. 1916), 111 N.E. 1050. MacPherson initiated a shift in
product liability law subjecting manufacturers or suppliers to
liability for negligence. Annotation, Nealiaence of buildins or
construction contractor as around of liability upon his part for
iniurv or damaae to third person occurrina after completion and
acceptance of the work. 58 A. L.R. 2d 865, 869-70. The general rule
of nonliability for contractors did not experience a similar
metamorphosis. However, a gradual trend away from nonliability for
negligence developed around a group of exceptions to the general
rule instead of an outright repudiation of the "accepted workw
doctrine in those jurisdictions which had previously adopted the
doctrine. Strakos v. Gehring (Tex. 1962), 360 S.W.2d 787, 790.
One of the numerous exceptions which evolved is the "latent defect"
exception which plaintiffs urge this Court to adopt.
Authors of the Restatement (Second) of Torts at 5 385
recommended that contractors should be placed on the same footing
as manufacturers for negligence liability. 58 A.L.R.2d at 871. In
Strakos, the court completely overruled its prior ruling which had
approved the "accepted workw doctrine, noting that the effect of
the decision was to bring the defendant within general rules of
tort litigation, restoring logic and simplicity to the law.
Strakos, 360 S.W.2d at 790-91.
A number of courts have expressed dissatisfaction with the
rule, favoring a more direct approach such as that of the Texas
court in Strakos. 13 Am. Jur. 2d Buildina and Construction
Contracts 5 140 (1964). Instead of applyingthe nonliability rule,
these courts have established a rule that a contractor is liable
for injuries to or death of third persons after acceptance by the
contractee where the work is reasonably certain to endanger third
persons if negligently completed. -
Id. This view adopts a
rationale that there are no sufficient grounds to differentiate
between liability of a manufacturer of goods and that of a building
or construction contractor. I.
d The building contractor's
liability under this reasoning is not absolute, but predicated upon
negligence. Thus, a contractor following plans or specifications
given to him will not be liable if a reasonable person would have
followed them, I . See, e.s., Menendez v. Paddock Pool Constr.
d
Co. (Ariz. App, lggl), 836 P.2d 968 (nonliability rule applies only
when contractor has no discretion and is merely following plans and
specifications provided by the employer) ; and Hanna v. Fletcher
(D.C.Cir, 19561, 231 F.2d 469 (the leading case rejecting the
"accepted workw doctrine).
In this appeal, plaintiffs have asked this Court to review the
'*acceptedwork" doctrine and consider whether it is appropriate to
continue to blindly exempt contractors from liability when the
elements of the doctrine are present. They do not argue that this
Court should follow the example of the many jurisdictions which
have completely abandoned the doctrine as this Court has already
done for products liability actions against manufacturers and
others previously exempt from liability. See Brandenburger v.
Toyota Motor Sales, U. S. A., Inc. (1973), 162 Mont. 506, 513 P.2d
268. Instead, they urge us to adopt the Iflatentdefect" exception
to the doctrine and argue that the facts of this case clearly
demonstrate that a latent defect existed when Ballou performed the
work and turned it over to Schubert some twenty months prior to
their injury.
Based on the arguments presented in the briefs, the court
concluded that it was appropriate to consider the lVacceptedworkw
doctrine and the possible application of the "latent defect"
exception to that doctrine. Both parties' briefs before this Court
indicated there were no genuine issues of fact relating to the five
elements of the 'Iaccepted work" doctrine. Argument was presented
on that theory.
This Court has now made a careful review of the entire record
before the District Court. The record, as submitted to this Court,
contains no affidavits of any kind, no depositions, no
interrogatories, and no separate admissions which could be
considered. The Clerk of the District Court verified that its
entire record had been submitted to this Court for the appeal. As
previously pointed out, the defendant Ballou has denied, generally
and specifically, all of the allegations on the part of the
plaintiff in the amended complaint with the exception only of an
admission that Schubert owned the premises at the time when Ballou
performed work, that Ballou was in the business of repairing
heating and air conditioning systems and that there are city and
county codes. As a result, the pleadings themselves fail to
establish any facts pertinent to the issues before this Court.
As the party moving for summary judgment, Ballou was required
to comply with the provisions of Rule 56(c), M.R.Civ.P., which in
pertinent part provides:
Motion and proceedings thereon. . . .
The judgment
sought shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a
matter of law. ...
Rule 56(c) has been the subject of many cases decided by this
Court. In the great majority of cases, the question raised is
whether or not the party opposing summary judgment has properly
submitted facts to demonstrate an issue of material fact. Parties
continue to argue that facts alleged in the pleadings must be
accepted as correct. In such cases, we have held as follows:
. . . Drug Fair argues that the facts alleged in its
complaint must be accepted as correct. That is not
correct. As pointed out in Mayer Brothers v. Daniel
Richard Jewelers, Inc. (1986), [223 Mont. 3971, 726 P.2d
815, a party opposing a motion for summary judgment may
not rest upon the mere allegations of pleadings, and has
an affirmative duty to respond by affidavits or sworn
testimony with specific facts that show there is genuine
issue of fact for trial. ...
Drug Fair Northwest v. Hooper Enters., Inc. (1987), 226 Mont. 31,
The essential question here, however, is whether or not
defendant Ballou has submitted sufficient facts to trigger the
court's consideration under Rule 56(c), M.R.Civ.P. In describing
the cases where a summary judgment is proper, this Court stated in
Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305,
688 P.2d 283, 286-87, as follows:
Summary judgment is not a substitute for trial. ...
Rule 56 (c), M0nt.R.Civ.P. permits summary judgment to
issue only when there is no genuine issue of material
fact, and the moving party is entitled to the judgment as
a matter of law. ... In Cereck v. Albertson's, Inc.
(1981), 195 Mont. 409, 637 P.2d 509, we stated the test
for granting summary judgment:
"It is well established that a party moving
for summary judgment has the burden of showing
a complete absence of any genuine issue as to
all facts deemed material in light of the
substantive principles that entitle that party
to a judgment as a matter of law. [Citations
omitted.] All reasonable inferences that may
be drawn from the offered proof are to be
drawn in favor of the party opposing summary
judgment. [Citations omitted. ]
The moving party Is initial burden is two-fold. First, it
must show the absence of any genuine issue as to material
fact. Second, that partv must also show that this set of
facts entitles it to the iudcnnent as a matter of law.
This necessarily implies the articulation of cosent lesal
srounds to which the facts apply. (Emphasis supplied.)
(Citations omitted.)
The foregoing is the test which must be applied in the present
case.
As pointed out above in Gamble Robinson, it was the burden of
defendant Ballou here to first show the absence of any genuine
issue of material fact, and second, to show that this set of facts
entitled Ballou to judgment as a matter of law. Both defendant
Ballou and plaintiffs have failedto establish facts which entitled
any of them to judgment as a matter of law. As noted, the
pleadings fail to establish as matters of fact the key facts
regarding the furnace, furnace pipe, separation of the pipe, and
resultant injury. The parties do make reference in their briefs to
various depositions, but none of those depositions are a part of
the record before us. We conclude that defendant Ballou has
completely failed to set forth a set of facts which entitle him to
judgment as a matter of law. We also emphasize that plaintiffs in
turn have failed to set forth facts which entitle them to judgment
as a matter of law. As a result, we hold that defendant Ballou as
the moving party has failed to establish a set of facts which
entitled him to judgment as a matter of law under Rule 56(c),
We, therefore, hold that the District Court erred in granting
summary judgment to defendant Ballou. We remand this case for
further consideration in a manner consistent with this opinion.
Reversed and remanded.
-
We Concur:
Justices
Justice Terry N. Trieweiler concurring in part and dissenting in
part.
I concur with the decision of the majority to reverse the
judgment of the District Court. However, I would do so for reasons
different from those of the majority.
I would reverse the judgment of the District Court because it
was based on the "accepted work doctrinew which I conclude should
no longer be followed in Montana.
I disagree that there is an inadequate record on which to base
a decision whether to follow this antiquated theory, and believe
that it is a disservice to the parties and to the District Court to
require that they jump through further hoops before addressing the
legal issue raised by this appeal.
In Haniizgton v. LaBe~lelsofColorado (1988), 2 3 5 Mont. 80, 765 P.2d
732, this Court held in a five to two decision that it would
continue to follow the accepted work doctrine first adopted in
Montana in m e ? z v. Schwieger (19321, 9 2 Mont. 331, 12 P.2d 856.
However, two members of the five person majority are no longer
members of this Court, and I did not participate in that decision.
However, 3 agree with the dissenting opinion in that case which was
authored by Mr. Justice Weber and concurred in by Mr. Justice Hunt.
The issue of whether the accepted work doctrine bars recovery
by the plaintiff against the defendant Ballou has been squarely
framed by the pleadings in this case, by the testimony of the
parties, and by the stipulations of the parties, as presented in
their appellate briefs. It makes no sense to consume further time
and expense of the parties and waste valuable time and resources of
the District Court to add unnecessary information to the record
before indicating how the seventh member of this Court would vote
on the issue of retaining the "accepted work doctrine."
While it is correct that the record is inadequate for purposes
of determining whether this is an appropriate case in which to
apply a "latent defectw exception to the doctrine, it is
unnecessary to consider the latent defect exception if this Court
decides to no longer follow the accepted work doctrine.
I agree with the Circuit Court of Appeals for the District of
Columbia when it held in Haizna v. Fletcher (D.C. Cir. 1956), 231 F, 2d
469, that the antiquated reasons for the accepted work doctrine
based on lack of privity have no place in modern theories of
liability, as set forth in MacPherson v. BuickMotorCompany (1916), 2 1 7
N.Y. 382, 111 N.E. 1050.
I agree with the Supreme Court for the State of Texas when it
held in Strakos v. Gehring (Tex. 1962), 360 S.W.2d 787, 791, that
elimination of the accepted work doctrine would restore logic and
simplicity to the law of liability.
The accepted work doctrine can only accomplish one of two
undesirable results. It either shifts liability from the negligent
party to an innocent property owner who, in most cases, has
insufficient expertise with which to discover defects, or
eliminates liability on the part af anyone. In that event, it
shifts the burden of a negligent party's conduct to the innocent
victim. Neither of these results are desirable in light of modern
theories of liability, and this Court should say so.
The majority avoids discussing the legal issues raised in this
appeal by concluding that both plaintiffs and defendant Ballou have
failed to provide this Court with facts which would entitle them to
judgment as a matter of law. However, I disagree. The parties
have stipulated to an adequate factual record on which to review
the issue of whether this Court will. continue to follow the
accepted work doctrine.
In Harnhgton, we indicated that five factors were critical in
our application of the accepted work doctrine in that case. They
were:
1. That the work had been turned over to the owner;
2. That the owner had accepted the work;
3. That upon completion the owner paid the contractor;
4. That the contractor completely removed itself from the
premises prior to the accident; and
5. That there was no follow-up work or any complaints about
the contractor's work.
In his appellate brief, Ballou points out that there was
deposition testimony from the defendant and from John Schubert, the
former owner of the premises, establishing each of these five
elements. He includes references to the pages in those depositions
at which point those elements were established. While it is true
that the depositions have not been filed with this Court on appeal,
13
their absence is insignificant because in their reply brief,
plaintiffs concede that all five elements have been established.
They specifically state that:
Appellants do not dispute criteria 1 through 4,
however, addressing separately criteria 5, Appellants
state that although there was not follow up work
performed by Respondent Ballou, there was no other person
in the 20-month period from the time Respondent completed
his work until the Appellants1 injuries occurred, who
worked on the unit.
In other words, the parties stipulate that all five criteria
which were found necessary in Harriqtan for the application of the
accepted work doctrine are present in this case.
To remand this case to the District Court for further factual
development and to supplement the record without indicating to the
parties and to the ~istrictCourt how the seventh member of this
Court would vote on the issue of retaining the I1accepted work
doctrinetv a complete waste of everyone's time and money.
is It is
because of unnecessary academic exercises like this that people
become frustrated with the judicial process. For these r e a s o n s , I
dissent from that part of t h e majority opinion which suggests that
further factual development is necessary before we can address the
dispositive issue in this case. I would decline to follow the
accepted work doctrine, and therefore, I would reverse the ~istrict
Court's summary judgment on that basis.
~usticeWilliam E. Hunt, Sr., joins in the foregoing
concurrence and dissent.
May 6, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
Arthur D. Agnellino
Attorney at Law
200 East Pine
Missoula, MT 59802
Dan L. Spoon
Reep, Spoon & Gordon
P.O. Box 9019
Missoula, MT 59807-9019
Paul C. Meismer
Garlington, Lohn & Robinson
P.O. Box 7909
Missoula, MT 59807
ED SMITH
CLERK OF THE SUPREME COURT
STAW OF MONTANA