Porter v. Galarneau

NO. 94-552
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

LORRAINE A. PORTER, individually, and as
Personal Representative of the Estate of
Robert Porter, and JEFF R. PORTER and
KIRK A. PORTER,
Plaintiffs and Appellants,
v.
GORDON GALARNEAU, Fk3 ? 4 l99ij
Defendant and Respondent.

APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable G. Todd Baugh, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
James P. Molloy (argued), Attorney at Law
Helena, Montana
Thomas E. Boland, Attorney at Law,
Great Falls, Montana
For Respondent:
Maureen H. Lennon (argued), and E. Craig Daue,
Garlington, Lohn & Robinson, Missoula, Montana
Lee A. Henderson, Hessian, McKasy & Soderberg,
Minneapolis, Minnesota

Submitted: November 16, 1995
Decided: February 14, 1996
Filed:
Justice Charles E. Erdmann delivered the opinion of the Court.

This is an appeal from orders issued by the Thirteenth
Judicial District Court, Yellowstone County, granting the

defendant's motions for summary judgment. We affirm in part and

reverse in part.

We restate the issues on appeal as follows:

1. Did the District Court err in determining that Montana's

Scaffolding Act did not apply?

2. Does House Bill 158, which amended Montana's Scaffolding

Act, apply retroactively to this case?
3. Did the District Court err in determining that Gordon

Galarneau did not have a duty to provide Robert Porter with a safe

work place?

4. Did the District Court err in determining that Gordon

Galarneau did not breach any common law duty as a landowner?

5. Did the District Court err in not allowing Lorraine

Porter to fully amend the complaint?

FACTS

Robert and Lorraine Porter operated Personal Touch Services,

a business in Billings that provided cleaning and maintenance

services to commercial and residential customers. Gordon Galarneau

is a Minnesota businessman who owns a business and residence in

Billings. In 1986, Gordon engaged the Porters to perform various

services for himself and Rinda Penrod, his wife. In 1988, Gordon

sold his Billings residence but then repurchased the home in

2
May 1992, at which time the Porters were again hired to perform

miscellaneous jobs at the residence. Robert and Lorraine did a
variety of work for Gordon and Rinda, including cleaning, grounds

maintenance, repairs, and painting. The Porters were responsible
for opening the house for contractors and delivery men, as well as

leaving vehicles at the Billings airport when Gordon and Rinda

arrived in town.

In late November 1992, the parties agreed that Robert would

paint an interior wall of the Billings house which was

approximately twenty-two feet high. The floor of the room to be

painted was tile. Lorraine testified that on the morning of
November 30, 1992, Gordon told her that scaffolding was not

necessary and that Robert should use a ladder for the job. Gordon

denies this conversation ever took place. On December 3, 1992,

Robert borrowed a ladder from his landlord and while preparing the

wall for painting, fell from the ladder and was fatally injured.

He died later that day at a Billings hospital. When Robert fell

from the ladder Gordon was at his office in Minnesota and Rinda was

in an upstairs bathroom of the Billings residence. Lorraine was

working at another location and Kirk Porter, Robert's son, was on

his way to help his father paint the wall. No one witnessed

Robert's fall. Following Robert's death, Gordon terminated the

working relationship with Lorraine and Kirk.
On April 26, 1993, Lorraine and her sons, Jeff and Kirk,

brought this action to recover damages for Robert's wrongful death

3
and for Lorraine's and Kirk's wrongful termination of employment.

Kirk subsequently abandoned his wrongful termination claim. The
wrongful death claims alleged liability theories of negligence,

violation of Montana's Scaffolding Act, and failure to provide a

safe place to work. In a memorandum and order dated April 22,

1994, the District Court granted Gordon's motion for summary

judgment on the wrongful death claims and denied summary judgment

on Lorraine's wrongful termination claim.

Prior to the District Court's order, Lorraine filed a motion

to amend the complaint seeking to allege alternate theories of

liability. In a memorandum and order dated April 28, 1994, the

District Court denied most of Lorraine's proposed amendments but

allowed her to amend the complaint to include a claim that Robert

was a common law employee covered by Montana's Safety Act. Gordon

subsequently renewed his motion for summary judgment on the basis

that Robert was not an employee within the meaning of the Safety

Act. On August 26, 1994, the District Court granted Gordon's

motion for summary judgment, entered final judgment in favor of

Gordon on the wrongful death claims, and stayed further proceedings
on Lorraine's wrongful termination claim. Lorraine appeals the

District Court's orders granting Gordon's motion for summary

judgment on the wrongful death claims.
STANDARD OF REVIEW

Our standard of review in appeals from summary judgment

rulings is de nova. Mead v. M.S.B., Inc. (1994), 264 Mont. 465,

4
470, 872 P.2d 782, 785. Under Rule 56(c), M.R.Civ.P., summary
judgment is proper if the record discloses no genuine issues of

material fact and the moving party is entitled to judgment as a

matter of law. Lutey Const. v. State (1993), 257 Mont. 387, 389,
851 P.Zd 1037, 1038. A party seeking summary judgment has the
burden of establishing a complete absence of any genuine factual

issues. Howard v. Conlin Furniture No. 2, Inc. (Mont. 1995), 901

P.2d 116, 118, 52 St. Rep. 814, 815. Once the moving party has
presented evidence to support its motion, the party opposing

summary judgment must present material and substantial evidence,
rather than conclusory or speculative statements, to raise a
genuine issue of material fact. Howard, 901 P.2d at 119. All

reasonable inferences that might be drawn from the offered evidence

should be drawn in favor of the party opposing summary judgment.

Howard, 901 P.2d at 119.

ISSUE 1

Did the District Court err in determining that Montana's

Scaffolding Act does not apply?

Lorraine alleges that Gordon violated Montana's Scaffolding

Act, §§ 50-77-101 to -107, MCA (1991). The District Court

determined as a matter of law that Gordon did not exercise the

necessary degree of supervision or control to impose liability

under the Scaffolding Act.

Section 50-77-101, MCA (1991), states that:

All scaffolds erected in this state for use in the
erection, repair, alteration, or removal of buildings

5
 shall be well and safely supported, of sufficient width,
and properly secured so as to ensure the safety of
persons working on them or passing under them or by them
and to prevent them from falling or to prevent any
material that may be used, placed, or deposited on them
from falling.
Additionally, § 50-77-102, MCA (1991), states that it is the duty

of "every owner, person, or corporation who shall have the direct

and immediate supervision or control of the construction or

remodeling" to provide safe and adequate scaffolding. We have

defined "scaffolding" to include "any device utilized by workmen to
allow them to work where a fall might result in serious injury."

Steiner v. Dept. of Highways (1994), 269 Mont. 270, 276, 887 P.2d

1228, 1233 (citing Mydlarz v. Palmer/Duncan Const. Co. (1984), 209

Mont. 325, 338, 682 P.2d 695, 702).

Lorraine argues that a ladder clearly falls under our

definition of scaffolding and that control for Scaffolding Act

purposes is automatically established by the employment

relationship which existed between the parties. Lorraine relies on

Pollard v. Todd (19661, 148 Mont. 171, 418 P.2d 869, to assert

that, as an employer, Gordon had a nondelegable duty and

concomitant right of control over Robert's work. In Pollard, the

defendants hired a carpenter to construct a grain storage building

on their property. When a carpenter's helper was injured in a fall

from a ladder and plank scaffold we held that the defendants were

liable under the Scaffolding Act. We concluded the defendants had

actual control of the work because they had discussed the

scaffolding needs of the project with the carpenter who was

6
supervising the job and had not objected to the use of the ladder

scaffold. Pollard, 418 P.2d at 871-72.

Gordon maintains that an employer is not necessarily the

person or entity having the direct and immediate control of the

work involving the scaffolding necessary to create liability under

the Scaffolding Act. Gordon relies on our holding in State ex rel.

Great Falls Nat'1 Bank v. District Court (1969), 154 Mont. 336, 463

P.2d 326, to argue that the purpose of the Scaffolding Act is to
create liability on the "person, firm, or corporation having direct

and immediate control of the work involving the use of the

scaffolding." Great Falls Nat'1 Bank, 463 P.2d at 331.

Gordon contends that outside of asking Robert to paint the

wall, he (Gordon) had no contact with or control over the work

involving the scaffolding. He argues that Robert did not consult
with him prior to undertaking the project and that Robert alone

obtained the ladder and arranged for Kirk to assist him, which

resulted in Robert assuming complete responsibility for the job.

In urging us to affirm the District Court's grant of summary

judgment, Gordon argues that even if the issue of control is a

question of fact, where reasonable minds could not differ the
district court may determine questions of fact as a matter of law.

Brohman v. State (1988), 230 Mont. 198, 202, 749 P.2d 67, 70.

The District Court, in its April 22, 1994, memorandum and

order, stated "there are material facts which support finding that

the Porters were both independent contractors and employees of
defendant." In its August 26, 1994, memorandum and order, the
District Court stated that "this [clourt will take as true for
purposes of defendant's motion that decedent was a resident or

common law employee at the time he fell to his death . . . .I' For
purposes of this appeal, therefore, we will consider Robert to have

been an employee of Gordon.

We have previously held that under the pre-1995 version of the

Scaffolding Act, a ladder is considered a scaffold. Mvdlarz, 682
P.2d at 702-03. Both parties have assumed employment status for

the purposes of the summary judgment motion. Since under that

assumption Robert was Gordon's employee at the time he fell to his

death, we must therefore recognize the inherent nature of the

employment relationship. As Robert's employer, Gordon was the only

individual who could provide direction and supervision. To accept
Gordon's argument that Robert supervised himself would require us

to ignore the basic element of an employer-employee relationship.
We determine that Gordon had direct and immediate supervision or

control of Robert's work for the purposes of the Scaffolding Act.

We distinguish the present case from our holding in Great

Falls Nat'1 Bank by noting that the bank was simply the owner of

the property and had no direct control over the work performed.

There, an independent contractor had been hired to complete the

project under its own guidance and supervision. The individual who

was injured was an employee of the contractor, not the bank. Here,

Gordon was both the property owner and Robert's employer. Even

8
though Gordon denies having any control over the painting project,

he was responsible for assigning duties and tasks to the Porters.

Robert had no one else to look to for direction and guidance.

We conclude that the District Court erred in determining that

as a matter of law Gordon did not exercise the degree of
supervision or control necessary to impose liability under the

Scaffolding Act, and reverse the District Court on that issue.
ISSUE 2

Does House Bill 158, which amended Montana's Scaffolding Act,

apply retroactively to the facts of this case?
We must now decide whether a recent amendment to the

Scaffolding Act should be applied retroactively to this case. On

April 13, 1995, the Governor signed House Bill 158 which

significantly revised the Scaffolding Act. Among other things,

H.B. 158 specifically excluded an ordinary ladder from the

definition of scaffolding.
Gordon urges us to apply the amendment retroactively which

would remove this case from the scope of the Scaffolding Act since

the accident involved the use of a ladder. Gordon relies on the

canon of statutory construction which states that courts should

apply the law in effect at the time it renders its decision, citing

Haines Pipeline Const., Inc. v. Montana Power Company (1991), 251

Mont. 422, 830 P.2d 1230. He goes on to argue that application of

the amended law would not constitute an impermissible retroactive

application of H.B. 158 since it would not result in manifest

9
injustice, defeat or impair a vested right, or create a new
obligation, impose a new duty, or attach a new disability.
Lorraine urges us not to apply H.B. 158 retroactively to this
case, relying on § l-2-109, MCA, which is a codification of the
canon of statutory construction which states that a statute is not
retroactive unless expressly so declared. Lorraine argues that the
legislature did not expressly declare H.B. 158 to be retroactive
and also contends that the amendment is substantive in nature and
"alters the legal relationship" between the parties.
These two conflicting canons of statutory construction have
caused confusion at both the state and federal levels. Both
parties cite federal cases which discuss these canons, as well as
several Montana cases which cite one canon or the other with no
effort to harmonize the two. We take this opportunity to review
the pertinent cases and clarify the effect of these two canons in
Montana.
As this Court has relied on federal authority in this area, a
discussion of the federal cases is necessary. At the federal
level, the U.S. Supreme Court has reaffirmed the validity of the
traditional judicial canon that "retroactivity is not favored by
the law" and that "congressional enactments and administrative
rules will not be construed to have retroactive effect unless their
language requires this result." Bowen v. Georgetown Univ. Hosp.

(1988), 488 U.S. 204, 109 S. Ct. 468, 102 L. Ed. 2d 493. The
seemingly contradictory canon is that "a court is to apply the law

10
in effect at the time it renders its decision . . . .(I Bradley v.
Richmond Sch. Bd. (1974), 416 U.S. 696, 711, 94 S. ct. 2006, 2016
40 L. Ed. 2d 476, 488; Thorpe v. Housing Auth. of Durham (1969),
393 U.S. 268, 281, 89 S. Ct. 518, 526, 21 L. Ed. 2d 474, 484.
We will first address the canon which is codified in Montana
at § l-2-109, MCA, which provides that a statute is not retroactive
unless expressly so declared. A statute does not operate
"retroactively" merely because it is applied in a case arising from
conduct antedating the statute's enactment. Landgraf v. US1 Film
Prods. (19941, 114 S. Ct. 1483, 128 L. Ed. 2d 229. This Court has
defined a "retroactive law" to be "one which takes away or impairs
vested rights acquired under existing laws or creates a new
obligation, imposes a new duty, or attaches a new disability in
respect to transactions already passed." Continental Oil Co. v.
Montana Concrete Co. (1922), 63 Mont. 223, 207 P.116; Wallace v.
Dept. of Fish, Wildlife and Parks (1995), 269 Mont. 364, 889 P.2d
817. In St. Vincent Hospital v. Blue Cross (1993), 261 Mont. 56,
862 P.2d 6, we stated that a "retroactive law" was one which gave
a "transaction a different legal effect from that which it had
under the law when it occurred." St. Vincent Hosp., 862 P.2d at 9.
In this case, we need go no further than that portion of
H.B. 158 which excludes an ordinary ladder from the definition of
scaffold. At the time of the accident, the pre-1995 Scaffolding
Act applied to this factual situation (see discussion, Issue 1).
If we applied H.B. 158 (which excludes ladders from the definition

11
of a scaffold) to the accident in this case, the Scaffolding Act
would not apply. This would result in a different legal effect
from that which the accident had under the law when it occurred.
St. Vincent Hosu., 862 P.2d at 9. House Bill 158 is therefore a
"retroactive law" and cannot be applied in this case.
We now address the seemingly contradictory canon relied on by
Gordon which was cited by this Court in West-Mont Community Care v.
Board of Health (1985), 217 Mont 178, 703 P.2d 850; Lee v. Flathead
County (1985), 217 Mont. 370, 704 P.2d 1060; Haines Pipeline;
McNeil v. Currie (1992), 253 Mont. 9, 830 P.2d 1241; and Day v.
Child Support Enforcement Div. (Mont 1995), 900 P.2d 296, 52
St. Rep. 680. In these cases, this Court relied on Thorpe for the
general rule that "an appellate court must apply the law in effect
at the time it renders its decision." This general rule in Thorpe
has recently been both criticized and clarified by the U.S. Supreme
Court. & Landcrraf; Kaiser Aluminum & Chemical Corp. v. Bonjorno
(19901, 494 U.S. 827, 110 S. Ct. 1570, 108 L. Ed. 2d 842.
In Boniorno, Justice Scalia, in a concurring opinion,
chronicles the prior Supreme Court retroactivity cases and makes a
persuasive argument that the Court in Thorpe simply adopted an
erroneous rule by misinterpreting the Court's decision in United
States v. Schooner Peggy (1801), 5 U.S. (1 Cranch) 103, 2 L. Ed.
49. Thorpe, for the first time, extended the rule that a court
will apply the law in effect at the time of its decision to
statutory changes. The canon created by the Thorpe case is

12
therefore of relatively recent vintage. Justice Scalia noted that
the initial confusion created by Thorpe was expanded by the Court's

subsequent decision in Bradley. Justice Scalia's analysis of

Thoroe and Bradlev indicates that the authority relied on by the

U.S. Supreme Court in both cases involved the retroactive
application of judicial decisions, rather than statutes. Boniorno,
494 U.S. at 849.'

In Landsraf, the U.S. Supreme Court attempted to reconcile the
two conflicting lines of authority regarding retroactivity. The
majority opinion clarified that Thorpe and Bradlev were not
intended to alter the well-settled presumption against the
application of statutes that have a genuine retroactive effect.

Landsraf, 114 S. Ct. at 1503. The Court noted that the authorities

it relied on in Bradlev
lend further support to the conclusion that we did not
intend to displace the traditional presumption against
applying statutes affecting substantive rights,
liabilities, or duties to conduct arising before their
enactment.

Landcrraf, 114 S. Ct. at 1504.

While Landqraf modified the Thorpe and Bradley rule, it

continues the existence of two conflicting rules of statutory

construction involving retroactivity and does little to remove the

'In Landuraf, Justice Scalia stated: "AS I have demonstrated
elsewhere and need not repeat here, Bradlev and Thorpe v. Housing
Authority of Durham, 393 U.S. 268, 89 S. Ct. 518, 21 L. Ed. 2d. 474
(1969), simply misreads our precedents and invented an utterly new
and erroneous rule. See generally Boniorno, 494 U.S. at 840, 110 S.
ct. at 1578-79 (SCALIA, J. concurring).'l Landqraf, 114 S. Ct. at
1523.
13
confusion caused by the conflicting canons. We believe that
Justice Scalia's analysis in Bonjorno and Landqraf where he found
that Thorpe and Bradley simply misapplied the retroactivity rule is
the better analysis. The application of the Thorpe and Bradlev
rule has needlessly confused the area of retroactivity at both the
state and federal levels. We therefore limit the application of
the rule set forth in Thorpe and Bradley to those cases involving
the retroactive application of judicial decisions.
In West-Mont, &, and Haines Pipeline this Court specifically
relied on Thorpe to retroactively apply changes in state
administrative rules or statutes and to the extent these cases are
inconsistent with this opinion, they are overruled.* In Day we
correctly applied Thorpe in its federal context to a federal
statute. In McNeil, this Court relied on Thorpe to retroactively
apply a judicial decision which is consistent with our ruling in
this case.
The Thorpe holding is therefore inapplicable to situations
involving the retroactive application of a state statute, ordinance
or regulation. We will continue to give retroactive effect to
judicial decisions, which is in accord with the U.S. Supreme

2While the following cases do not expressly rely on Thorpe,
they rely on the Thorue rule as set forth in Haines Pipeline, West-
Mont and/or &. To the extent these cases are inconsistent with
this opinion, they are overruled as well: Ihler v. Chisholm
(1993), 259 Mont. 240, 855 P.Zd 1009; Brockie v. Omo Const., Inc.
(1994), 268 Mont. 519, 887 P.2d 167; In re Marriage of Elser
(1995), 271 Mont. 265, 895 P.2d 619; AgAmerica, FCB v. Robson
(Mont. 1995), 901 P.2d 100, 52 St. Rep. 800.
14
Court's holding in Harper v. Virginia Dept. of Taxation (1993), 113
S. Ct. 2510, 125 L. Ed. 2d 74.

In summary, the canon of statutory construction found at

5 l-2-109, MCA, requires that a statute will not be given
"retroactive effect" unless the legislature expressly declares the

statute to be retroactive. A "retroactive law" is one which takes

away or impairs vested rights acquired under existing laws or

creates a new obligation, imposes a new duty, attaches a new
disability in respect to transactions already passed, or gives a

transaction a different legal effect from that which it had when it

occurred. Continental Oil Co., 207 P. at 118; St. Vincent Hoso.,

862 P.2d at 9. The adoption of H.B. 158, enacted in 1995, would

produce a different legal result and therefore constitutes a

"retroactive law," and cannot be applied to the 1992 accident

involving Robert Porter.

ISSUE 3
Did the District Court err in determining that Gordon

Galarneau did not have a duty to provide Robert Porter with a safe

work place?

Lorraine alleges that Gordon had both a common law duty and,

pursuant to Montana's Safety Act, §§ 50-71-101to -334, MCA (1991),

a statutory duty to provide a safe work place. Lorraine relies on

Reynolds v. Burlington Northern, Inc. (1980), 190 Mont. 383, 621

P.2d 1028, and Pollard to argue that the duty to provide a safe

work place originates at common law. Lorraine further relies on

15
Cain v. Stevenson (1985), 218 Mont. 101, 706 P.2d 128, to argue

that the Safety Act imposes a duty to provide a safe work place.

The District Court determined that even though Robert was a

resident or common law employee for purposes of the summary
judgment motion, he was "not one hired in defendant's regular

business." The District Court also determined that as a "casual,"

"household," or "domestic" employee Robert was not covered under

the provisions of the Safety Act."

In urging us to affirm the District Court, Gordon maintains

that Robert had unfettered access to safe tools and equipment and
that it was Robert who selected the ladder and supplies for the

painting job. Gordon claims it was Robert's error in judgment and

not his (Gordon's) breach of a common law duty to provide a safe

work place that led to the unfortunate accident. Gordon also

argues that the Safety Act excludes from its definition of

"employee" individuals who perform household or domestic service as

well as, under certain circumstances, "casual employees."

We have stated that "[ilt is an elementary principle that an

employer must provide its employees with a safe place to work."

Revnolds, 621 P.2d at 1037. We have also stated that "['cl his Court

has consistently held that the master has a duty to use reasonable

care to provide a reasonably safe place for his servants to work

3Section 50-71-102(4), MCA, in the Safety Act incorporates the
definition of "employee" found in the Montana Workers' Compensation
Act in § 39-71-118, MCA. Under that definition, "household and
domestic" employees are excluded as are "casual" employees under
certain circumstances.
16
and to provide reasonably safe tools and appliances with which to
perform the tasks assigned." Pollard, 418 P.2d at 872. In - I
Cain
we held that a general contractor had a duty under the Safety Act
to provide a subcontractor with a safe work place and noted that
"[slection 50-71-202, MCA, makes no mention of 'employees,' but
simply requires employers to provide a safe place of employment."

-t 706 P.2d at 131.
Cain
Both the District Court and this Court have considered Robert
an employee for purposes of Gordon's motion for summary judgment.
We therefore conclude that Gordon had a common law duty to provide
a safe place to work. We also conclude that a duty under the
Safety Act potentially exists. We have stated that the "emphasis
in § 50-71-201, MCA, is on the 'place of employment' rather than
the status of the worker." Cain
-r 706 P.2d at 131. However,
household and domestic service employees, and under certain
circumstances casual employees, are exempt by statute from
protection under the Safety Act.
We therefore conclude that the nature and definition of
Robert's employment status is key to determining if a duty under
the Safety Act exists. We further determine this to be a question
of fact which must be submitted to the jury. The District Court
erred in granting summary judgment on the issue of whether Gordon
had a duty under common law or the Safety Act to provide a safe
work place and we reverse the District Court on this issue. We
hold that Gordon did have a common law duty to provide a safe place

17
to work and we remand the issue of whether Robert was covered under

the Safety Act for a jury determination.

ISSUE 4

Did the District Court err in determining that Gordon

Galarneau did not breach any common law duty as a landowner?

All property owners have a duty to use ordinary care in

maintaining their premises in a reasonably safe condition and to

warn of any hidden or lurking dangers. Davis v. Church of Jesus

Christ of Latter Day Saints (1990), 244 Mont. 61, 67, 796 P.2d 181,

184. The District Court determined there was no evidence Gordon
had breached his common law duty of care as a property owner.

Lorraine argues that the District Court's analysis is

incomplete and contends that property owners have a duty to protect

business/invitee workers from open and obvious dangers. Lorraine

maintains that Gordon and Rinda created a hazardous condition

because they were anxious to get the painting completed before

guests arrived for the holiday season, and therefore, Robert was

rushed into completing the job. Gordon counters he did not violate

his common law duty as a landowner and that any hazardous condition

that may have been created was due to Robert's own acts or

omissions.

We conclude that Gordon had no common law duty beyond that of

maintaining his premises in a reasonably safe condition and to warn

of hidden or lurking dangers. The record reveals no evidence to

support a finding that Gordon breached his duty of ordinary care as
a landowner. We therefore affirm the District Court's grant of
summary judgment on this issue.
ISSUE 5

Did the District Court err in not allowing Lorraine Porter to

fully amend the complaint?

Under Rule 15(a), M.R.Civ.P., "leave shall be freely given

when justice so requires" to allow a party to amend a complaint.

A court is justified in denying a motion to amend if the proposed

amendment is futile. Lindey's v. Professional Consultants (I990),

244 Mont. 238, 242, 797 P.2d 920, 923. The standard of review

employed by this Court when reviewing a district court's denial of
a motion to amend the pleadings is whether the district court

abused its discretion. United Methodist Church v. D.A. Davidson

(1987), 228 Mont. 288, 292, 741 P.2d 794, 797.
Approximately one month before trial Lorraine filed a motion

to amend the complaint. As discussed in Issue 3 above, the

District Court granted the motion with respect to alleging a

violation of the Montana Safety Act. However, the District Court

denied Lorraine the opportunity to claim Robert was an independent

contractor. Lorraine sought to plead and attempt to prove

alternative theories of liability based on Robert's status as

either an employee or an independent contractor. See Rule 8(a)

and (e), M.R.Civ.P. The District Court determined it would be

futile to amend the complaint. Without determining whether or not

the District Court abused its discretion in denying Lorraine's

19
motion to amend the complaint, we conclude in light of our remand
of this case that Lorraine should be allowed to amend the complaint

to allege alternate theories of liability based on Robert's status

as an employee or independent contractor. Since the District Court
will set a new trial schedule and new discovery deadlines, the

parties will not be prejudiced by such action. We therefore
reverse the District Court on this issue.
We remand this case to the District Court for further
proceedings consistent with this opinion.

aa
Justice

Court Judq-
sitting in place oFJustice William E. Hunt, Sr.
.i~

20
Justice Karla M. Gray, specially concurring.

I join in the Court's opinion on all issues. I write
separately in order to state that my concurrence in issue one of
that opinion, relating to the applicability of the Scaffolding Act,
is specifically limited to resolution of the issue as raised and
argued by the parties.
I am not convinced that either the plain language of, or the
legislative intent underlying, the Scaffolding Act renders it
applicable to the facts of the present case. The Act appears in
the Montana Code Annotated as Chapter 77, entitled "Construction
Site Health and Safety," of Title 50. Sections 50-77-101 and 50-
77-102, MCA, are at issue in this case. Section 50-77-101, MCA,
specifically encompasses "[al11 scaffolds erected in this state for
use in the erection, repair, alteration, or removal of buildings.
. 11 Section 50-77-102, MCA, imposes the statutory duty on the
person or entity having direct and immediate supervision or control
"of the construction or remodeling of any building having more than
three framed floors. . .'I
It is not at all clear to me that painting a wall in a
residence constitutes the "erection, repair, alteration, or
removalt' of a building under § 50-77-101, MCA. It is, at best,
equally unclear that the wall-painting project constitutes the
"construction or remodeling of [al building having more than three
framed floors" under § 50-77-102, MCA. Moreover, our cases
addressing the Scaffolding Act involve factual scenarios such as
the construction of an automobile dealership building, the
construction of a multi-purpose recreational facility, and the

21
exterior renovation of a bank building. See
-I e.q., Mydlarz v.
Palmer/Duncan Const. Co. (1984), 209 Mont. 325, 682 P.2d 695;
Stepanek v. Kober Const. (1981), 191 Mont. 430, 625 P.2d 51; State
ex rel. Great Falls Nat. Bank v. District Court (1969), 154 Mont.
336, 463 P.2d 326.
This threshold issue relating to the applicability of the
Scaffolding Act was not raised in the District Court and is not
before us on appeal; thus, we may not properly address it. Nor do
my statements here express a view that the Act does not apply to
these facts. I raise the issue only to indicate that my agreement
with both the analysis and the result of the Court's opinion on the
issue raised regarding applicability of the Act is tempered by
discomfort that the threshold--and, at least, potentially
dispositive--issue cannot be addressed here.

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