No. 93-537
IN THE SUPREME COURT OF THE STATE OF MONTANA
DOUGLAS E. STEINER,
Plantiff and Appellant,
-v-
DEPARTMENT OF HIGHWAYS of the
STATE OF MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Nineteenth Judicial District,
In and for the County of Lincoln,
The Honorable Robert S. Keller, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roger M. Sullivan and Allan M. McGarvey, McGarvey,
Heberling, Sullivan & McGarvey, Kalispell, Montana
For Respondent:
Dana L. Christensen and Debra D. Parker, Murphy,
Robinson, Heckathorn & Phillips, Kalispell, Montana
Submitted on Briefs: October 27, 1994
Decided: December 23, 1994
Filed:
Justice Fred J. Weber delivered the opinion of the Court.
This is an appeal from the District Court of the Nineteenth
Judicial District, Lincoln County, which granted judgment for the
defendant, Montana Department of Highways, following a nonjury
trial. Plaintiff appeals the District Courtls Findings of Fact,
Conclusions of Law, and Judgment and also the denial of his Motion
for Summary Judgment, both concluding that defendant did not owe a
duty to plaintiff. We reverse and remand.
The following issues are presented for review:
I. Did the contract between the Federal Highway
Administration and the Montana Department of Highways create a
nondelegable duty on the part of the Montana Department of Highways
to assure that safe scaffolding was used on the Fisher River Bridge
Project?
11. Does failure to assure compliance with contractually-
imposed safety standards and the Montana Scaffolding Act constitute
a breach of duty as a matter of law?
Douglas E. Steiner (Steiner) worked as a laborer on the Fisher
River Bridge highway reconstruction project on U.S. Highway 2
between Kalispell and Libby, Montana. He was employed by Frontier
West, Inc., a contractor doing bridge construction on the project.
On May 15, 1987, Steiner injured his back when he fell from a
scaffold structure which was attached to the outside of the bridge
being constructed.
The scaffold structure consisted of a series of metal overhang
brackets upon which a working "deckM was constructed. The surface
of the deck was used to anchor forms for the concrete parapet
(retainer wall); it also functioned as a work surface and walkway.
In particular it was used as follows: (1) by the laborers in
constructing and removing the forms for pouring the concrete
retainer wall; ( 2 ) as a walkway and work surface during the pouring
of the concrete deck; (3) as a work surface to enable the laborers
to perform concrete finishing work and repairs to the outside
surface of the concrete retaining wall; and (4) as a work surface
by both laborers and supervisory personnel from the Montana
Department of Highways (MDOH).
The deck extended between 17% to 24 inches outward from the
edge of the parapet and ran for the entire length of the bridge.
It was over nine feet above ground for most of its length. There
was no guardrail at the outer edge of this narrow deck overhang at
any time during the construction project. Steiner fell backwards
to the ground from the deck overhang while he was attempting to go
around another worker to get a hose. The other worker was kneeling
on the working surface outside the parapet wall with his upper body
parallel to the parapet and his head near its base as he smoothed
out the newly poured concrete retaining wall--a process called
"sacking. Steiner claims that he reached for a 2 x 4 piece of
wood which he believed to be part of the deck overhang structure,
but instead was a loose piece of wood which was not anchored to the
structure. He lost his balance and fell backwards to the ground
approximately nine feet below the overhang.
The Fisher River Bridge was part of a federally funded highway
construction project, governed by an agreement between MDOH and the
Federal Highway Administration (FHWA). It was designated as a
"Certification Acceptance" project, a classification which applied
to this project but does not apply to all such construction
projects receiving federal funding. Because it was a Certification
Acceptance project, it had to be performed pursuant to the terms of
the Certification Acceptance Agreement, which is a complex contract
incorporating, among other things, the MDOH Construction Manual and
a document entitled Standard Specifications for Road and Bridse
Construction.
For purposes of our review, it is undisputed that there was no
guardrail on the outside of the overhang work surface and that MDOH
did not issue any verbal or written notice, stop-work order, or
take any other action to assure that a guardrail was installed on
the deck overhang.
Issue I
Did the contract between FHWA and MDOH create a nondelegable
duty on the part of MDOH to assure that safe scaffolding was
used on the Fisher River Bridge Project?
Steiner contends that the contract between FHWA and MDOH
imposed a nondelegable duty upon MDOH concerning the Fisher River
Bridge project. This duty on the part of MDOH, according to
Steiner, required MDOH to assure the use of appropriate safety
devices on the project, including safe scaffolding. Steiner
contends that the District Court committed reversible error by not
granting his summary judgment motion recognizing MDOHVs
nondelegable safety duties arising from contract and also by not
recognizing these nondelegable safety duties in its Conclusions of
Law and Judgment.
The contract between FHWA and MDOH, which was applicable to
the Fisher River Bridge construction project, required that the
construction be performed pursuant to the terms of the
Certification Acceptance Agreement. As stated above, the
Certification Acceptance Agreement incorporates by reference the
MDOH Construction Manual and a document entitled Standard
S~ecificationsfor Road and Bridse Construction (1981 ed. adopted
by MDOH) . It also incorporates by reference certain other state
and federal safety regulations. Not all highway contracts are
governed by the Certification Acceptance Agreement; its terms apply
only to highway contracts undertaken pursuant to a process referred
to as "Certification Acceptance. 23 C.F.R. § 640.101-640.117
(1994). As a contract which must be performed pursuant to the
Certification Acceptance Agreement, the contract between FHWA and
MDOH therefore incorporates language from the MDOH Construction
Manual, including the following quote from § 14.03, providing in
pertinent part:
. [The Montana] Department of Highways would be
responsible, as contracting agency, to monitor the
Construction Safetv Act on all ~roiectsin order to assure
that correct requirements are met.
The Department of Highways policy in regard to OSHA monitoring
and violation reporting is as listed:
1. The contractor has direct responsibility for
compliance by law and also as a contractual obligation
under Section VIII of PR 1273 included in all federal aid
contracts.
2. Department of Highways' field personnel have
responsibilitv to monitor the contractor's compliance.
The basic guide for monitoring is the orange booklet
titled NConstruction Industry - OSHA Safety and Health
Regulation Digest." Department field personnel do not
have the authority to enforce, direct the contractor to
perform specific actions, or to report violations
directly to enforcement agencies except in cases of
extreme emergency.
3. Procedures for reporting apparent violations are (a)
Verbal notification to contractor's field supervisor, (b)
Written notification if not corrected within reasonable
time, (c) Notification of higher department authority if
written notice does not produce correction in a
reasonable time. (Emphasis supplied.)
In the Standard Specifications for Road and Bridse Construction,
incorporated by reference as stated above, the project engineer is
given authority to suspend the work wholly or in part if the
contractor fails to correct unsafe conditions.
All Certification Acceptance projects for which the State of
Montana negotiates a contract with a subcontractor must include a
provision specifically permitting MDOH to determine the reasonably
necessary safety devices and protective equipment. Therefore, the
Fisher River Bridge Contract and Bond, the contract between MDOH
and Frontier West, Inc., included the following contract provision:
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 hishwav department
contractins officer may determine, reasonably necessary to
protect the life and health of employees on the iob and the
safety of the public and to protect property in connection
with the performance of the work covered by the contract.
(Emphasis supplied.)
Form PR-1273, FHWA Required Contract Provisions Federal-Aid
Construction Contracts 1 VIII. The guide used by MDOH for
monitoring the contractor's compliance with applicable laws is a
booklet entitled Construction Industry Disest (OSHA 2202 (Revised)
1991), otherwise referred to as the "orange booklet.'I The orange
booklet at § 56 includes the following pertinent safety standards
for scaffolds:
c. Guardrails and toeboards shall be installed on all open
sides and ends of platforms more than 10 feet above the ground
or floor . . . . Scaffolds 4 feet to 10 feet in height, having
a minimum dimension in either direction of less than 45
inches, shall have standard guardrails installed on all open
sides and ends of the platform.
Steiner argues that, although contracts governed by the
Certification Acceptance Agreement impose some safety-related
nondelegable duties upon MDOH, the Certification Acceptance
Agreement did not require MDOH to be responsible for all safety-
related activity on the Fisher River Bridge project. Specific
duties imposed by the Certification Acceptance Agreement include
the responsibility to inspect, monitor and take corrective action
to assure the presence of "safeguards, safety devices, and
protective equipment reasonably necessary to protect the life and
health of employees on the job." Thus, although the contractor
must provide safeguards, safety devices and equipment that are
reasonably necessary for employee safety, according to the contract
between MDOH and Frontier West, Inc . , MDOH must monitor the project
and assure the subcontractor's compliance.
Montana law has long recognized that contractual obligations
are nondelegable. See, e.s., Ulmen v. Schwieger (19321, 92 Mont.
321, 345, 12 P.2d 856, 859. Prior to the 1972 Montana Constitution
revisions, however, the benefits of that doctrine applied only to
third persons and did not apply to employees of subcontractors.
Stepanek v. Kober Construction (1981), 191 Mont. 430, 434, 625 P.2d
7
51, 53. See also Nave v. Harlan Jones Drilling (1992), 252 Mont.
199, 827 P.2d 1239. As discussed in Stepanek, 625 P.2d at 54-55,
Art. 11, Section 16 of the Montana Constitution now provides in
pertinant part:
Courts of justice shall be open to every person, and speedy
remedy afforded for every injury of person, property, or
character. No person shall be deprived of this full legal
redress for injury incurred in employment for which another
person may be liable except as to fellow employees and his
immediate employer who hired him if such immediate employer
provided coverage under the Workmen's Compensation Laws of
this state. . . .
Thus, the distinction discussed in Stepanek between third parties
and employees of subcontractors no longer applies in Montana and
employees of subcontractors may sue the general contractor for
injuries received on the job if the general contractor has a
nondelegable duty to the subcontractorlsemployees, notwithstanding
the fact that the employee's exclusive remedies against the
employer are covered under the Workers' Compensation Act. Because
t
the duties imposed on MDOH by its contract with FHWA are
nondelegable, it cannot avoid liability by attempting to shift
responsibility for those duties to someone else. Nave, 827 P.2d at
MDOH contends that it had the duty to monitor safety,
including the requirements of the Montana Scaffolding Act, but the
primary responsibility for assuring safety on the project was with
Steinerls employer as transferred to the employer pursuant to the
contract between MDOH and Frontier West, Inc. The District Court
concluded that the contract between FHWA and MDOH contained no
specific provision which obligated MDOH for initiating, maintaining
and supervising safety precautions and programs. The court further
concluded that absent such a provision, there was no nondelegable
duty assumed by the State to provide Steiner with a safe place to
work, or to assume the safety duties under the Montana Scaffolding
Act and the Safe Place to Work Act. We disagree.
We review the trial court's conclusions of law to determine if
they are correct. Steer, Inc. v. Department of Revenue (1990), 245
Mont. 470, 474-75, 803 P.2d 601, 603. Under the terms of the
Certification Acceptance Agreement signed in 1976 by MDOH and
applicable to the Fisher River Bridge construction project , MDOH
assumed certain nondelegable duties, including the duty to monitor
and to assure compliance with certain state and federal laws.
Although MDOH1s field personnel cannot enforce safety compliance
except in emergency situations, its duty to monitor is not a duty
without a means of enforcement. Procedures for enforcement are
specifically set forth in the Construction Manual. These
procedures do not allow MDOH as general contractor to specify the
manner of compliance, however, except in limited circumstances.
This decision is generally left to the subcontractor.
Regardless of the duties owed by Frontier West, Inc. or others
to Steiner, however, MDOH retained the duty to provide Steiner with
a safe place to work. We conclude that MDOH had a nondelegable
duty based on its contract with FHWA whereby it assumed
nondelegable safety responsibilities. We further conclude that the
duties assumed by MDOH included both monitoring the construction
project to determine whether the subcontractor complied with safety
laws and also assuring that Frontier West, Inc. complied with such
laws.
We hold the District Court erred in concluding MDOH owed no
nondelegable duty to Steiner to assure that safe scaffolding was
used on the Fisher River Bridge project.
Issue I1
Do the undisputed facts establish a breach of contractually-
imposed duty to monitor and assure safety compliance as a
matter of law?
According to our conclusion in Issue I above, MDOH was
required to monitor the Fisher River Bridge project and assure that
it complied with safety laws. MDOH was thus obligated to inspect
the scaffolding structure, note that it was being used as a work
surface and to determine whether it needed a guardrail in order to
comply with the Montana Scaffolding Act and the Construction Manual
incorporated by reference in the FHWA-MDOH contract, which required
guardrails for all scaffolding less than 45 inches wide and 4 feet
or more above ground. If the scaffolding structure did not comply,
as the undisputed facts demonstrate it did not, MDOH was obligated
to take the procedures as outlined in the Construction Manual to
assure compliance on the part of the subcontractor, Frontier West,
Inc . If Frontier West, Inc. failed to correct the unsafe
condition, then the project engineer had the authority to suspend
the work wholly or in part until Frontier West, Inc. Is scaffolding
met the requirements of the Montana Scaffolding Act and the
Construction Manual incorporated by reference into the
Certification Acceptance Agreement.
The District Court also concluded that the absence of a
guardrail on the outer edge of the scaffolding on the Fisher River
Bridge project did not proximately cause Steiner Is injuries. We
have previously stated that the deck overhang constituting the
scaffolding on the Fisher River Bridge construction project did not
meet the requirements of the Certification Acceptance Agreement,
which incorporated by reference the Construction Manual and state
and federal laws, including the Montana Scaffolding Act. Steiner
contends that this failure to comply with the Montana Scaffolding
Act is reversible error and that the District Court should have
recognized MDOH1s safety duties and awarded summary judgment in his
favor because the Act precludes the affirmative defenses of
comparative negligence and assumption of the risk. We agree.
The term llscaffoldingll
includes any device utilized by workmen
to allow them to work where a fall might result in serious injury.
Mydlarz v. ~almer/Duncan Construction Co. (1984)~
209'Mont. 325,
338, 682 P.2d 695, 702. Clearly, the deck on the outer side of the
parapet in this case constitutes scaffolding according to the
liberal construction to be given that definition as set forth in
Mvdlarz. Thus, the breach of a contractual duty to assure that the
subcontractor has provided appropriate scaffolding invokes the
provisions of the Scaffolding Act.
In Pollard v. Todd (1966), 148 Mont. 171, 179-80, 418 ~ . 2 d
869, 873, this Court held as follows:
We hold that the purpose of [the Scaffolding Act] is to
supplement the protection of the common law by providing
criminal sanctions and imposing an absolute statutory duty
upon the owners of real estate to protect workmen and others
from the extraordinary hazards associated with scaffolds. The
mandatory nature of the statute forecloses the common-law
defenses of assumption of the risk, contributory negligence,
and negligence of a fellow servant. We have not decided that
liability becomes fixed upon the showing of a scaffold-
associated injury. A defendant may escape liability upon
proof that there was no violation of statute or that the
violation was not the proximate cause of the injury.
A breach of the absolute duty to provide proper scaffolding is
negligence per se. Pollard, 4 1 8 P.2d at 873. In this case, the
District Court determined that Steiner was contributorily
negligent, that his negligence was gross negligence and that his
gross negligence was more than 50 percent of the total negligence.
According to this Court's decision in Pollard, the contributory
negligence defense is not available to MDOH. We conclude that
failure to comply with the provisions of the Montana Scaffolding
Act was negligence per se on the part of MDOH.
However, liability does not become fixed upon a showing of
negligence per se; there must be a determination of whether the
violation was the proximate cause of Steiner's injuries. The
District Court concluded that the acts or omissions of MDOH were
not the proximate cause of Steiner's injuries, based on the
following findings and conclusions:
[Finding of Fact No.] 20. The Plaintiff could have gone off
the bridge and down the bank to get the pump; all witnesses
who were asked testified that William Phelan, the Frontier-
West superintendent on the Fisher River Bridge project, would
not tolerate delay, and as Carranza put it, if Plaintiff had
gone down to the river, . . . by the time he got back up to
the top of the bridge, he would have been fired.
Nevertheless, once Plaintiff saw where the hose was, he could
have easily climbed back over the parapet to the bridge, gone
down below his brother and Carranza, climbed back over the
parapet to the overhang and gotten the hose; as it was, he
could not have attempted to perform a relatively simp1 [el task
in a more complicated or dangerous manner than he did.
[Finding of Fact No.] 22. The overhang extended the entire
length of the bridge, on both sides, so there were places
where the overhang may have been higher than ten feet above
the ground; all who testified were comfortable with the
height, and the Court finds that at no point did the height
present any peculiar risk or unusual danger.
[Finding of Fact No.I 25. There was no evidence that a
guardrail would have made any difference in this instance;
there was no evidence that the lack of a guardrail was a
proximate cause of the Plaintiff's injury.
[Conclusion of Law No.I 1. . . . [A] nondelegable duty based
on contract was not assumed by the State, to provide the
Plaintiff with a safe place to work, or to assume the safety
duties under the Montana Scaffolding Act. Such a contractual
provision is also a prerequisite to finding liability on the
basis of control by the general contractor. . . .
[Conclusion of Law No.I 2. There was nothing inherently or
intrinsically dangerous about getting the pump and hose,
certainly not by walking around, and not even if he had leaned
over the overhang to get the hose. Attempting to walk around
Gus Steiner and Leo Carranza, unnecessarily, was negligence,
and the manner in which Plaintiff got around Leo Carranza was
gross negligence; and going off that overhang backwards in the
manner that Plaintiff did would constitute a "dangerous
activity," but not one that gives him an exception with
respect to the Defendant.
[Conclusion of Law No.] 3. There was a guardrail there, the
parapet. If a guardrail had been erected at the edge of the
overhang, as Plaintiff suggests, Carranza would have filled
the space, causing Plaintiff to go around.
[Conclusion of Law No.] 4. That disposes of the Scaffolding
Act, the Safe Place to Work Act and the Non-delegable Duties.
Plaintiff also sued on the basis of negligence. Apart from a
lack of duty, the negligence of Plaintiff was more than 50% of
any other negligence.
The guardrail referred to by the District Court in Conclusion
No. 3 is not a guardrail at the outside of the overhang, as
contemplated and required by the documents incorporated into the
Certification Acceptance Agreement between FHWA and MDOH. The
overhang, which was less than 45 inches wide, was located on the
outer side of the parapet and did not have a guardrail to protect
workers from falling off the edge of the deck. To assure safety
compliance, the only time it is not necessary to erect a guardrail
is when the overhang is 45 inches or more wide or the drop to the
surface below is less than four feet.
We conclude that a guardrail was required on the deck overhang
under the Montana Scaffolding Act. We further conclude that a
review of the District Court findings and conclusions establishes
the presence of proximate cause.
We hold the District Court erred in concluding there was no
breach of duty and that MDOH1s acts or omissions did not constitute
proximate cause.
Reversed and remanded to the District Court for a
determination of damages.
We Concur: 7