Dukes v. Sirius Construction, Inc.

No. 01-519

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 152

TRACI L. DUKES, as Personal Representative of the Estate of KEITH
DUKES, and on her own behalf and on behalf of TRACI and KEITH DUKES’
Minor Children, JACOB DUKES and KYLE DUKES; and SANDRA HENRY,
as parent and legal guardian of SKYLER HAUCKE DUKES, a minor,

Plaintiffs and Appellants,

v.

SIRIUS CONSTRUCTION, INC,. a Montana corporation; PARADIGM
ARCHITECTS, P.C., CARL POSEWITZ, THE CITY OF MISSOULA,
THE STATE OF MONTANA, and THE UNIVERSITY OF MONTANA,
and FICTITIOUS DEFENDANTS A-D,

Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DV-00-90,
Honorable John W. Larson, Judge Presiding

COUNSEL OF RECORD:

For Appellants:

Lon J. Dale and James T. Towe, Milodragovich, Dale, Steinbrenner
and Binney, P.C., Missoula, Montana

For Respondents:

William L. Crowley and Dean A. Stensland, Boone & Karlberg,
Missoula, Montana (City of Missoula)

Shelton C. Williams and Susan Moriarity Miltko, Williams & Ranney,
P.C., Missoula (Paradigm & Posewitz)

Robert J. Phillips and Fred Simpson, Jr., Phillips & Bohyer, P.C.,
Missoula, Montana (University of Montana and State of Montana)

Neil Ugrin and J. Michael Young, Great Falls, Montana (Sirius Construction)

Argued and Submitted: February 26, 2002
Decided: June 3, 2003

Filed:
__________________________________________
Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1 Appellants Traci L. Dukes, as personal representative of the Estate of Keith Dukes

and on her own and her minor children’s behalf, and Sandra Henry, on behalf of her minor

child (hereafter referred to as “Dukes”), brought this action against the defendants in the

Fourth Judicial District Court, Missoula County. Defendant City of Missoula (City) moved

the District Court to dismiss Dukes’ complaint, alleging that any inspection or other duties

imposed on it by Montana’s Scaffolding Act in § 50-77-106, MCA (1997),1 were preempted

by the Occupational Safety & Health Act of 1970 (OSH Act) and the regulations

promulgated thereunder by the Occupational Safety and Health Administration (OSHA).

The District Court agreed and dismissed Dukes’ complaint against the City, concluding that

any duties imposed on the City by Montana’s Scaffolding Act were preempted under federal

law. Dukes now appeals the District Court’s dismissal of the complaint against the City.

We reverse and remand.

¶2 We address the following issue on appeal:

¶3 Did the District Court err when it concluded that the duty to inspect under
Montana’s Scaffolding Act, § 50-77-106, MCA, is preempted by the Occupational
Safety & Health Act?

FACTUAL AND PROCEDURAL BACKGROUND

¶4 The facts in this case, as reflected in Dukes’ amended complaint, are as follows: On

February 10, 1998, Keith Dukes, an employee of Sirius Construction, Inc. (Sirius), while in

the course of his employment, was injured and eventually died as a result of his injuries.

1
All citations to Montana Code Annotated herein refer to the 1997 code unless otherwise
indicated.

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Defendant Sirius was involved in performing services under a written contract with the

University of Montana at the time of Keith Dukes’ injuries. When the injury occurred, Keith

Dukes was performing work for Sirius on the University of Montana campus.

¶5 In the amended complaint, Dukes alleged that, pursuant to the Montana Scaffolding

Act, § 50-77-106, MCA, the City had a duty to conduct inspections to ensure that the other

named defendants complied with the provisions of the Act, §§ 50-77-101 through -107,

MCA. The Act required, in part, that employers follow safety practices commonly

recognized in the construction industry as well as applicable state and federal occupational

safety laws. See § 50-77-101(2), MCA.

¶6 Dukes alleged that the City failed to enforce Montana’s Scaffolding Act by failing to

perform the inspections required under § 50-77-106, MCA, and alleged that the City’s failure

to inspect constituted a breach of a legal duty and negligence per se under the Act.

¶7 The City thereafter filed a Rule 12(b)(6), M.R.Civ.P., motion to dismiss, arguing that

Dukes’ amended complaint failed to state a claim for which relief was available. The City

argued that the Montana Scaffolding Act was preempted by the OSH Act and the OSHA

regulations promulgated thereunder. The City argued therefrom that it could not owe a duty

to Dukes under preempted state law, and likewise, that it did not owe a duty to Dukes under

OSHA regulations because the regulations do not impose liability upon a third party who is

not an employer of the worker. Absent an imposed legal duty, the City argued that there

could be no negligence.

¶8 The District Court agreed and granted the City’s motion to dismiss. The court

concluded that Congress intended the OSH Act and OSHA regulations to occupy the field

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of occupational safety and health regulation, thus preempting the safety standards set forth

in the Montana Scaffolding Act as well as any enforcement provisions thereunder, except

where the state has submitted a comprehensive plan pursuant to 29 U.S.C. § 667(b), and

where that plan was approved by the Secretary of Labor. Montana has not done so. The

District Court additionally concluded that the OSH Act savings clause, 29 U.S.C. § 653(4),

while preserving private tort actions, does not save from preemption state occupational

safety and health standards or their enforcement.

¶9 The District Court concluded, therefore, that the Montana Scaffolding Act could not

impose a duty on the City to inspect and that, without a legal duty, the City could not be held

liable for negligence arising under the Montana Scaffolding Act.

¶10 Dukes now appeals the District Court’s dismissal of the claim against the City.

STANDARD OF REVIEW

¶11 This Court’s standard of review of district court rulings on motions to dismiss under

Rule 12(b)(6), M.R.Civ.P., is: A complaint should not be dismissed for failure to state a

claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support

of a claim which would entitle the plaintiff to relief. Reidelbach v. Burlington Northern and

Santa Fe Ry. Co., 2002 MT 289, ¶ 14, 312 Mont. 498, ¶ 14, 60 P.3d 418, ¶ 14. A motion

to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded

allegations in the complaint. In considering the motion, the complaint is construed in the

light most favorable to the plaintiff, and all allegations of fact contained therein are taken as

true. Reidelbach, ¶ 14 (citation omitted). The District Court’s determination that Dukes

failed to state a claim for which relief was available is a conclusion of law. Our standard of

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review of a district court’s conclusion of law is whether its interpretation of the law is

correct. Reidelbach, ¶ 14 (citation omitted).

DISCUSSION

¶12 Did the District Court err when it concluded that the duty to inspect under
Montana’s Scaffolding Act, § 50-77-106, MCA, is preempted by the Occupational Safety
& Health Act?

¶13 In the District Court, the City argued that, by virtue of 29 U.S.C. § 667(b), the OSH

Act preempted all state occupational safety and health standards as well as their enforcement,

and that a state may develop and implement its own occupational safety and health plan only

by submitting and receiving approval of its plan by the Secretary of Labor. Relying on Gade

v. National Solid Wastes Management Association (1992), 505 U.S. 88, 112 S.Ct. 2374, 120

L.Ed.2d 73, and Industrial Truck Ass’n, Inc. v. Henry (9th Cir. 1997), 125 F.3d 1305, the City

argued that any non-approved state regulations are preempted even if they merely

supplement the federal standard.

¶14 The City thus asserted that it could not owe a duty to Dukes for two reasons: first, any

imposition of duty under the Montana Scaffolding Act was preempted; and second, citing

to Russell v. Bartley (6th Cir. 1974), 494 F.2d 334, the OSH Act imposes a duty of care only

on employers to care for employees, but imposes no duty of care on third party non-

employers. Consequently, the City argued, violation of an OSHA regulation could not be

the basis for a negligence cause of action.

¶15 Finally, relying on this Court’s decision in Thornock v. State (1987), 229 Mont. 67,

69, 745 P.2d 324, 325, the City argued that this Court has already held that OSHA preempts

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any duty to inspect where OSHA has promulgated regulations. This Court held in Thornock

that the OSH Act and OSHA regulations impliedly preempted the entire field of regulating

occupational safety and health issues. We thus held that OSHA preempted any duty of

inspection imposed on the state by the Montana Safety Act of 1969. Thornock, 229 Mont.

at 74-75, 745 P.2d at 328-29.

¶16 The District Court agreed with the City and, relying on this Court’s decision in

Thornock, concluded that Congress intended to wholly occupy the field of “assuring worker

safety.” The District Court concluded that, because OSHA preempted the Montana

Scaffolding Act, the Act imposed no duty of care or duty to inspect on the City. The District

Court thus determined that the only duty to inspect or duty to enforce safety standards arose

under OSHA and that the only entity with responsibility for inspection and enforcement of

scaffolding safety standards is the Secretary of Labor. Accordingly, the District Court

dismissed Dukes’ claim against the City, concluding that, without a legal duty, Dukes’ claim

against the City for negligence must fail.

¶17 On appeal, Dukes argues that neither the OSH Act nor OSHA regulations provide for

express preemption, nor do they imply field preemption, and that the District Court thus

erred in concluding that Montana’s Scaffolding Act was preempted. Dukes argues that the

City had distinct duties under the Act, including a duty to inspect and verify compliance with

manufacturer specifications, state law and federal laws, and a duty to enforce compliance.

Finally, Dukes argues that, in light of decisions in subsequent state and federal cases,

Thornock was incorrectly decided.

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¶18 The United States Supreme Court and this Court have repeatedly held that preemption

is not easily favored. See Favel v. American Renovation and Constr. Co., 2002 MT 266,

¶ 39, 312 Mont. 285, ¶ 39, 59 P.3d 412, ¶ 39; also see Medtronic, Inc. v. Lohr (1996), 518

U.S. 470, 485, 116 S.Ct. 2240, 2250, 135 L.Ed.2d 700, 715.

¶19 “Because the States are independent sovereigns in our federal system, we have long

presumed that Congress does not cavalierly pre-empt state-law causes of action. In all pre-

emption cases . . . we start with the assumption that the historic police powers of the States

were not to be superseded by the Federal Act unless that was the clear and manifest purpose

of Congress.” Favel, ¶ 39 (citing Sleath v. West Mont Home Health Services, 2000 MT 381,

¶ 23, 304 Mont. 1, ¶ 23, 16 P.3d 1042, ¶ 23). The presumption against preemption can only

be overcome by evidence of a clear and manifest intent of Congress to preempt state law.

Favel, ¶ 39 (citations omitted).

¶20 There are three ways in which federal law may preempt state law. Favel, ¶ 40. The

first is by express preemption, wherein Congress includes a preemption clause providing that

state law will not apply in the area governed by the federal statute. Absent express

preemption, this Court recognizes two types of implied preemption. The first is “field

preemption,” wherein the scheme of federal regulation is so pervasive or comprehensive that

it is reasonable to infer that Congress intended to “occupy the field” and leave no room for

supplementary state regulation. The second type of implied preemption is “conflict

preemption.” Conflict preemption manifests itself as an inability of state law to comply with

federal law or where state law stands as an obstacle to the accomplishment and execution of

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the full purposes and objectives of Congress. Favel, ¶ 40 (citing Hillsborough County v.

Automated Medical Labs. (1985), 471 U.S. 707, 713, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714,

721).

¶21 Dukes argues that neither express nor implied preemption exists here, and therefore,

the City had a duty under the Montana Scaffolding Act to inspect and enforce state, federal

and manufacturer standards.

¶22 Section 50-77-106, MCA (1997) [now repealed], of the Montana Scaffolding Act

provides:

It is hereby made the duty of the building inspector, his deputy, or other
authorities in any county, city, town, or village in the state, through the county
attorney or any other attorney, in case of failure of such owner, person, or
corporation to comply with this chapter promptly, to take the necessary steps
to enforce the provisions of this chapter.

Section 50-77-101(2), MCA (1997), of the Act provides:

Employers and employees shall follow safety practices commonly recognized
in the construction industry as well as applicable state and federal occupational
safety laws.

¶23 The City counters that even absent all types of preemption, the Montana Scaffolding

Act is inapplicable to the present case because implicit in the statute is a requirement that the

City receive notice of a violation in order to bring about the statutory duty to inspect. The

City also argues that Dukes did not set forth exactly which provisions of the Act that the City

allegedly failed to enforce. The District Court did not address either of these issues in its

order and those issues are beyond the scope of this Court’s review of a district court’s

granting of a motion to dismiss. We begin our discussion by addressing express preemption.

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A. Express Preemption

¶24 The City contends that 29 U.S.C. § 653(b)(4), expressly preempts Dukes’ claims

against the City. That statute provides:

Nothing in this Chapter shall be construed to supersede or in any manner
affect any workmen’s compensation law or to enlarge or diminish or affect in
any other manner the common law or statutory rights, duties, or liabilities of
employers and employees under any law with respect to injuries, disease, or
death of employees arising out of, or in the course of, employment.

¶25 While the above statute contains no language of express preemption of state safety

regulations, standards, inspections or enforcement, the City argues that the language of the

statute “triggers” express preemption in light of Dukes’ claims. The City references Dukes’

amended complaint and briefs in opposition to summary judgment, which contain explicit

references to OSHA standards related to scaffolding. The City explains, “the safety practices

the City is alleged not to have enforced are OSHA standards. Under Dukes’ claims, OSHA

standards would enlarge or affect common law or statutory rights, duties or liabilities.”

Citing to Garay v. Missouri Pacific Railroad (D.Kan. 1999), 38 F.Supp.2d 892, Canape v.

Petersen (Colo. 1995), 897 P.2d 762, and Hernandez v. Martin Chevrolet, Inc. (Ohio 1995),

649 N.E.2d 1215, the City argues that allowing Dukes’ claims would “enlarge or affect

common law or statutory rights, duties or liabilities” in violation of § 653(b)(4).

¶26 The above three cases do not hold that § 653(b)(4) of the OSH Act expressly preempts

state safety standards, but rather, hold that permitting negligence per se based upon

violations of OSHA regulations would allow employees to circumvent workers’

compensation laws or to forego the elements of a negligence cause of action, thereby

9
enlarging or diminishing duties owed by individuals to those injured in the course of their

employment, contrary to the language and intent of § 653(b)(4). See Garay, 38 F.Supp.2d

at 900-01; Canape, 987 P.2d at 767; Hernandez, 649 N.E.2d at 1216-17. Therefore, none

of the holdings in the cited cases lead this Court to conclude that, absent explicit preemptive

language, § 653(b)(4) somehow “triggered” express preemption.

¶27 Neither are the above cases relevant in the instant case. In Dukes’ amended

complaint, Dukes alleges that the City is negligent per se, not for violating OSHA standards,

but for violation of § 50-77-106, MCA. As this appeal is here upon a motion to dismiss, the

District Court did not consider whether the City may or may not be negligent per se for

violation of § 50-77-106 of the Montana Scaffolding Act, and we decline to make such a

ruling here, as such determination is properly reserved for remand.

¶28 Express preemption, by definition, must be clearly manifested. Ohio Manufacturers’

Association v. City of Akron (6th Cir. 1986), 801 F.2d 824, 831. As no provision of the OSH

Act contains explicit preemptive language, we conclude that 29 U.S.C. § 653(b)(4), contrary

to the City’s argument, does not expressly preempt state occupational safety and health

standards or statutory duties.

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B. Implied Preemption

1. Field Preemption

¶29 The District Court relied on this Court’s decision in Thornock, which concluded that

“state efforts to set and enforce standards have been superseded” and that the Secretary of

Labor has the responsibility for enforcement and inspection. See Thornock, 229 Mont. at 76,

745 P.2d at 329. The City urges this Court to affirm based on Thornock, the United States

Supreme Court’s decision in Gade and the Ninth Circuit’s decision in Industrial Truck

Association, arguing that OSHA regulations are so comprehensive and pervasive as to make

a reasonable inference that Congress left no room for supplementary state regulation, thereby

implying field preemption.

¶30 We first turn to the United States Supreme Court’s decision in Gade. Gade involved

competing state and federal regulations relating to hazardous waste operations. In 1986

Congress enacted the Superfund Amendments and Reauthorization Act under which OSHA

promulgated regulations on “Hazardous Waste Operations and Emergency Response,”

including detailed regulations related to worker training. Gade, 505 U.S. at 91, 112 S.Ct. at

2379, 120 L.Ed.2d at 80.

¶31 Two years later, the Illinois General Assembly enacted the Hazardous Waste Crane

and Hoisting Equipment Operators Licensing Act and the Hazardous Waste Laborers

Licensing Act, both of which also included detailed requirements related to worker training

in relation to hazardous waste operations. Gade, 505 U.S. at 91, 112 S.Ct. at 2379, 120

L.Ed.2d at 80. The plaintiff in Gade, the National Solid Wastes Management Association,

11
brought a declaratory judgment action in the United States District Court against the Illinois

Environmental Protection Agency (IEPA), seeking to enjoin IEPA from enforcing the Illinois

licensing acts, claiming that the acts were preempted by the OSH Act and OSHA regulations.

Gade, 505 U.S. at 94, 112 S.Ct. at 2380-81, 120 L.Ed.2d at 81-82.

¶32 Reading the OSH Act as a whole, the United States Supreme Court determined that

the OSHA regulations were “not intended to be all encompassing” in the workplace. Gade,

505 U.S. at 96, 112 S.Ct. at 2382, 120 L.Ed.2d at 83.

First, Congress expressly saved two areas from federal pre-emption. Section
4(b)(4) of the OSH Act states that the Act does not “supersede or in any
manner affect any workmen’s compensation law or . . . enlarge or diminish or
affect in any other manner the common law or statutory rights, duties, or
liabilities of employers and employees under any law with respect to injuries,
diseases, or death of employees arising out of, or in the course of,
employment.” 29 U.S.C. § 653(b)(4).

[Second], section 18(a) provides that the Act does not “prevent any State
agency or court from asserting jurisdiction under State law over any
occupational safety or health issue with respect to which no [federal] standard
is in effect.” 29 U.S.C. § 667(a).

Gade, 505 U.S. at 96-97, 112 S.Ct. at 2382, 120 L.Ed.2d at 83.

¶33 The Supreme Court further noted that Congress not only reserved the above two areas

to state authority, “but it also, in § 18(b) of the Act, gave the States the option of pre-empting

federal regulation entirely.” Gade, 505 U.S. at 97, 112 S.Ct. at 2382, 120 L.Ed.2d at 83.

Said section allows for any state that wishes to assume responsibility for development and

enforcement of occupational safety and health standards where federal standards already

exist, to submit a state plan for the development of such standards to the Secretary of Labor

for approval, thereby preempting existing federal standards. See 29 U.S.C. § 667(b).

12
¶34 The Supreme Court concluded that:

[N]onapproved state regulations of occupational safety and health issues for
which a federal standard is in effect is impliedly pre-empted as in conflict with
the full purposes and objectives of the OSH Act. The design of the statute
persuades us that Congress intended to subject employers and employees to
only one set of regulations, be it federal or state, and that the only way a State
may regulate an OSHA-regulated occupational safety and health issue is
pursuant to an approved state plan that displaces the federal standards.

Gade, 505 U.S. at 98-99, 112 S.Ct. at 2383, 120 L.Ed.2d at 84 (citation omitted).

¶35 The Gade Court ultimately held that “preservation of state authority in the absence

of a federal standard presupposed a background pre-emption of all state occupational safety

and health standards whenever a federal standard governing the same issue is in effect.”

Gade, 505 U.S. at 100, 112 S.Ct. at 2384, 120 L.Ed.2d at 85. Reading the OSH Act as a

whole, this is the only conclusion consistent with a plain reading of 29 U.S.C. § 667(a) and

(b).

¶36 We thus disagree with the City’s argument that Gade holds or implies that the OSH

Act or OSHA regulations were intended by Congress to preempt the entire field of

occupational safety and health regulation absent submission of a state plan and approval of

that plan by the Secretary of Labor pursuant to 29 U.S.C. § 667(b). In Gade, the United

States Supreme Court clearly evinced Congress’ intent in the OSH Act to preserve state

authority to promulgate standards in the absence of OSHA regulations on a specific

occupational safety and health issue, as well as preserving state workers’ compensation law

and common law and statutory rights, duties or liabilities of employers and employees.

Gade, 505 U.S. at 96-100, 112 S.Ct. at 2382-84, 120 L.Ed.2d at 83-85.

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¶37 We conclude that the City’s argument also fails to consider the OSH Act as a whole.

A precondition to the requirement that a state submit a plan for approval to the Secretary of

Labor pursuant to 29 U.S.C. § 667(b), is an attempt by a state to regulate a specific

occupational health and safety issue already regulated by OSHA. As 29 U.S.C. § 667(a),

provides:

Assertion of State standards in absence of applicable Federal standards.
Nothing in this chapter shall prevent any State agency or court from asserting
jurisdiction under State law over any occupational safety or health issue with
respect to which no standard is in effect under section 655 of this title.

As noted by the United States Supreme Court in Gade, it was not the desire of Congress to

impliedly preempt all state regulation of all occupational safety and health issues, but to

preserve state authority to regulate safety and health issues in the absence of OSHA

regulations on a particular issue, thereby subjecting employers and employees only to a

single set of regulations, whether federal or state. Gade, 505 U.S. at 100, 112 S.Ct. at 2384,

120 L.Ed.2d at 85.

¶38 We agree with the City’s interpretation of Gade only to the extent that the City

contends that the OSH Act savings clauses do not save supplemental state regulation. As the

Supreme Court stated, “the natural implication of [the savings clause] is that state laws

regulating the same issue as federal laws are not saved, even if they merely supplement the

federal standard.” Gade, 505 U.S. at 100, 112 S.Ct. at 2384, 120 L.Ed.2d at 85. Gade,

however, was not a field preemption case, and we find the City’s reliance on Gade for the

proposition that the OSH Act has preempted the entire field to be unpersuasive.

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¶39 The City next relies on Industrial Truck Ass’n, Inc. v. Henry (9th Cir. 1997), 125 F.3d

1305, to support its field preemption argument. In light of our above conclusion, we find the

City’s reliance on Industrial to be misguided. The City quotes three passages wherein the

Industrial Court interprets Gade. However, the passages relied on by the City refute its own

argument. For instance, the City quotes from Industrial wherein the Court of Appeals stated:

Thus, under the Occupational Safety and Health Act, as interpreted by Gade,
when OSHA promulgates a federal standard, that standard totally occupies the
field within the “issue” of that regulation and preempts all state occupational
safety and health laws relating to that issue, conflicting or not, unless they are
included in the state [approved] plan.

Industrial, 125 F.3d at 1311 (emphasis supplied). The application of Gade by the Court of

Appeals in Industrial led to its conclusion that “the plurality’s preemption analysis extends

to states with approved plans like California. Gade refers to preemption of state regulation

on an issue-by-issue basis.” Industrial, 125 F.3d at 1311.

¶40 The State of California had submitted and received approval from the Secretary of

Labor to preempt federal regulation with its own Safe Drinking Water and Toxic

Enforcement Act. A portion of the plan as enacted, however, had not been submitted to the

Secretary of Labor for approval. The narrow holding of the Ninth Circuit Court of Appeals

in Industrial was that those state regulations which were not submitted to OSHA, insofar as

they applied to a health and safety issue wherein OSHA regulations had already been

promulgated, are not saved from preemption. Industrial, 125 F.3d at 1306.

¶41 Based on the foregoing, we find that neither Industrial nor Gade are field preemption

cases, and neither case supports the City’s position that OSHA regulations promulgated

15
under the OSH Act were intended to be so pervasive and comprehensive as to impliedly

preempt all state regulation of occupational health and safety issues not approved by the

Secretary of Labor.

¶42 The City’s remaining authority in its field preemption argument is this Court’s

previous decision in Thornock v. State (1987), 229 Mont. 67, 745 P.2d 324. In granting the

City’s motion to dismiss, the District Court relied on Thornock in determining that Congress

intended to occupy the field of “assuring worker safety.” Relying on Thornock, the District

Court stated that “[s]tate scaffolding safety standards and enforcement of those standards

were pre-empted by the Act, and the Secretary of Labor has [the sole] responsibility for

enforcement and inspection.”

¶43 This Court decided Thornock five years prior to the United States Supreme Court

decision in Gade. In light of the City’s argument and the District Court’s conclusion, we

find it necessary to review our Thornock decision in light of Gade and in light of more recent

cases from other jurisdictions.

¶44 The plaintiff in Thornock, Larry Thornock (Thornock) lost his arm at the elbow in a

sawmill accident and sued the state pursuant to the Montana Safety Act of 1969, alleging that

the state failed to inspect the sawmill as required by the Safety Act, thus allowing the

sawmill to operate in a hazardous condition which led to the accident and the loss of the

plaintiff’s arm. Thornock, 229 Mont. at 69, 745 P.2d at 325. The district court granted

summary judgment in favor of the state and against Thornock, concluding that the OSH Act

and the federal safety standards for sawmills adopted thereunder preempted the statutory

16
duty of the state to inspect hazardous places of employment, and we affirmed its decision on

appeal. Thornock, 229 Mont. at 69, 745 P.2d at 325.

¶45 On appeal, Thornock conceded at the outset that OSHA preempted the promulgation

not only of safety standards relating to sawmill operation, but also conceded that OSHA

preempted the “enforcement of such standards from the State’s purview.” Thornock, 229

Mont. at 70, 745 P.2d at 326. This Court accepted Thornock’s concession without question

or analysis. With this foundational assumption, we dismissed Thornock’s reliance on the

cases of P & Z Co., Inc. v. District of Columbia (D.C. 1979), 408 A.2d 1249, and Berardi

v. Getty Refining & Marketing (N.Y. 1980), 107 Misc.2d 451, 435 N.Y.S.2d 212, both of

which interpreted the savings clauses of the OSH Act consistent with the subsequent United

States Supreme Court decision in Gade.

¶46 The appellants in P & Z received misdemeanor convictions for failing, as employers,

to report employee injuries to the Industrial Safety Board as required under the District of

Columbia Industrial Safety Act, and, on appeal, argued that 29 U.S.C. § 667 operated to

explicitly preempt District of Columbia reporting requirements. P & Z, 408 A.2d at 1249-50.

The Court of Appeals disagreed, stating:

The term “standard” in this context is a word of art. The OSHA preemption
subsections specifically apply only to standards promulgated by rule under §
655. In this regulatory scheme . . . the function [of information gathering and
reporting] is not covered by the preemption provision since it is not considered
a standard. The authority for OSHA to implement reporting requirements is
set forth in separate OSHA provisions §§ 657(c) and 673, thereby removing
the regulations from the preemption provision.

P & Z, 408 A.2d at 1250-51.

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¶47 The P & Z Court thus determined that, although information gathering and reporting

requirements were addressed by the OSH Act in §§ 657 and 673, states “may continue

reporting efforts regardless of whether a state plan is in effect, since they may assert

authority over any issue not covered by a § 655 standard.” P & Z, 408 A.2d at 1251.

¶48 To the extent that this Court in Thornock addressed the decision in Berardi, we noted

that “while OSHA was meant to be exclusive in the promulgation and enforcement of

standards, a state may take jurisdiction over any safety issue on which there is no federal

standard.” Thornock, 229 Mont. at 71, 745 P.2d at 327. However, this Court applied neither

the holding in Berardi nor the holding in P & Z, but dismissed Thornock’s reliance thereon

because the allegations in his complaint–that the state failed to enforce OSHA

standards–were contrary to his concession in the district court and on appeal that all state

enforcement was preempted. “Whereas P & Z Co. holds that a state or other local

jurisdiction can exercise duties not preempted by OSHA, Thornock specifically incorporates

into his complaint a duty preempted by OSHA–the right to enforce standards.” Thornock,

229 Mont. at 71, 745 P.2d at 327. This Court, therefore, did not address the merits of P &

Z or Berardi.

¶49 Besides failing to directly address the OSH Act’s savings clause under 29 U.S.C. §

667(a), this Court also made overly broad statements based upon misinterpretations of

existing case law. For example, citing to New Jersey State Chamber of Commerce v. Hughey

(3rd Cir. 1985), 774 F.2d 587, 592, we stated that “[s]tate laws dealing with workers safety

are preempted once OSHA enacts similar standards.” Thornock, 229 Mont. at 72, 745 P.2d

18
at 327. Hughey does not stand for such an overly broad statement of general preemption, nor

does a plain reading of the OSH Act savings clauses or the subsequent holding in Gade allow

for it.

¶50 The Hughey Court addressed the question of whether the OSH Act preempted New

Jersey’s Worker and Community Right to Know Act, which required disclosure of

substances that may pose environmental hazards. Hughey, 774 F.2d at 590. The Third

Circuit Court of Appeals rejected the plaintiffs’ contention that the OSH Act expressly

preempted all provisions of New Jersey’s Right to Know Act, holding that state laws are

expressly preempted only to the extent that a federal standard regulating the same issue is

already in effect. Hughey, 774 F.2d at 593.

¶51 In addressing implied, conflict preemption, the Court of Appeals in Hughey did not

conclude that all “state laws dealing with workers safety are preempted once OSHA enacts

similar standards,” but rather, examined each of the approximately 30 sections of New

Jersey’s Right to Know Act to determine which individual sections conflicted with OSHA

regulations. The Court of Appeals then severed from the surviving sections of the statute

those sections found to conflict with federal law. Hughey, 774 F.2d at 594-98.

¶52 In another example, this Court relied on the case of Ohio Manufacturers’ Association

v. City of Akron (6th Cir. 1986), 801 F.2d 824, when making the overly broad conclusion that

“OSHA was intended to establish a national standard . . . . To that degree, the court held that

state workers’ safety laws were preempted expressly.” Thornock, 229 Mont. at 73, 745 P.2d

at 328.

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¶53 In Ohio Manufacturers’ Association, the Sixth Circuit Court of Appeals addressed

whether the City of Akron’s “Right to Know” ordinance, regulating hazardous and toxic

substances in the workplace, was preempted by the OSHA Hazard Communication Standard

set forth in 29 C.F.R. § 1910. Consistent with the savings clause in 29 U.S.C. § 667(a), the

Court of Appeals held that the city ordinance was preempted, but only “to the extent” that

the ordinance attempted to regulate the presence of hazardous and toxic substances in the

workplace. Ohio Manufacturers’ Association, 801 F.2d at 834.

¶54 The Court of Appeals did not, as stated by this Court in Thornock, find express

preemption of the city’s workers’ safety laws. To the contrary, the Court of Appeals

concluded that “we cannot accept plaintiffs’ contention that Congress expressly preempted

local regulation by these provisions establishing a national standard. Furthermore, we agree

with the trial court to the extent that express preemption, by definition, must be clearly

manifested, especially when local health and safety provisions are endangered.” Ohio

Manufacturers’ Association, 801 F.2d at 831.

¶55 Finally, this Court stated in Thornock that, “Thornock must persuade this Court that

federal powers granted in OSHA do not relieve the State of its burden to inspect dangerous

work sites.” Thornock, 229 Mont. at 73, 745 P.2d at 328. This is completely wrong. The

imposition of such a burden of proof is contrary to this Court’s presumption that preemption

is not easily favored and contrary to the assumption that the historic police powers of the

states are not to be superseded by a federal act unless that was the clear and manifest purpose

of Congress. Favel, ¶ 39; Sleath, ¶ 23. Furthermore, we have repeatedly held that the

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presumption against preemption can only be overcome by evidence of a clear and manifest

intent of Congress to preempt state law. Favel, ¶ 39. It was error for this Court to place the

burden on Thornock to prove that duties under the Montana Safety Act were not preempted.

¶56 Based upon compound errors, this Court concluded in Thornock:

It is plain from reading the Occupational Safety and Health Act that Congress
intended to occupy the field of assuring worker safety. Congress
accomplished this by setting minimum federal standards that all employers
must meet. Thornock’s argument that Congress did not occupy the field
because it expressly included provisions in OSHA by which the various states
could resume workers safety programs is not persuasive. In order to retain the
right to set and enforce work safety rules, a state must submit to the Secretary
of Labor a plan that is “at least as effective in providing safe and healthful
employment and places of employment as the standards promulgated under
section 655 . . .” 29 U.S.C. § 667(c)(2). So while states may choose to
exercise work safety programs, they may do so only on the federal
government’s terms. This field has been occupied by federal law.

Thornock, 229 Mont. at 73-74, 745 P.2d at 328.

¶57 Given this conclusion, it is understandable that the City relied on Thornock as an

implied field preemption case. However, from our analysis and review of the case law thus

far, it is clear that Congress did not intend for the OSH Act to expressly or impliedly preempt

state law regulating occupational safety and health issues except where OSHA has

promulgated standards on a particular issue. To the extent that Thornock held that the OSH

Act expressly or impliedly preempted states from regulating any issue of occupational safety

and health issues, Thornock is overruled.

¶58 Additionally, to the extent that this Court in Thornock dealt in any detail with the

OSH Act savings clause in 29 U.S.C. § 653(b)(4), this Court merely stated: “It can be clearly

determined from the language of this section that Congress did not mean to interfere with the

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various states’ workers’ compensation schemes. Beyond that, Congress’ intention is

obscure.” Thornock, 229 Mont. at 76, 745 P.2d at 330. Such conclusion is also incorrect.

¶59 Section 653(b)(4) not only provides that the OSH Act shall not be construed to

supersede or affect workers’ compensation law, but also that the OSH Act shall not enlarge

or diminish or affect a state’s common law or statutory rights, duties, or liabilities imposed

on employers or employees with respect to injuries, disease or death of employees arising

out of or in the course of employment. Thus, besides clear language that Congress did not

mean to interfere with the various states’ workers’ compensation schemes, “[t]here is a solid

consensus that section [653(b)(4)] operates to save state tort rules from preemption.”

Pedraza v. Shell Oil Co. (1st Cir. 1991), 942 F.2d 48, 53 (citing National Solid Wastes

Management Ass’n v. Killian (7th Cir. 1990), 918 F.2d 671, 680, n. 9 (collecting cases); Atlas

Roofing Co. v. Occupational Safety Comm’n (1976), 430 U.S. 442, 445, 97 S.Ct. 1261, 1264,

51 L.Ed.2d 464 (noting that OSHA establishes a new statutory duty on the part of employers

and creates new remedies and stating: “Each remedy exists whether or not an employee is

actually injured or killed as a result of the [unsafe or unhealthful] condition, and existing

state statutory and common-law remedies for actual injury and death remain unaffected.”);

People v. Chicago Magnet Wire Corp. (Ill. 1989), 534 N.E.2d 962, 968 (“Congress expressly

stated that OSHA was not intended to preempt two bases of liability that, like criminal law,

operate to regulate workplace conduct and implicitly set safety standards–State worker’s

compensation and tort law.”)) (further citations omitted); also see York v. Union Carbide

Corp. (Ind. App. 3 Dist. 1992), 586 N.E.2d 861, 866.

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¶60 The Pedraza Court further stated: “We are aware of no case which holds that OSHA

preempts state tort law. Rather, most courts have been concerned with how OSHA affects

tort actions, not with whether it preempts state tort law. Thus, every court faced with this

issue has held that OSHA creates no private right of action.” Pedraza, 942 F.2d at 52

(citations omitted). “It is noteworthy as well that OSHA provides no replacement remedy

for workplace injuries, disease or death caused to employees by suppliers of products used

in the workplace. As the Supreme Court has noted, ‘[i]t is difficult to believe that Congress

would, without comment, remove all means of judicial recourse for those injured by illegal

conduct.’” Pedraza, 942 F.2d at n. 7 (citation omitted); also see Wickham v. American

Tokyo Kasei, Inc. (N.D. Ill. 1996), 927 F.Supp. 293, where the plaintiff brought a products

liability action under state law for injuries suffered at work, allegedly the result of the

defendant employer failing to place warning labels on containers with dangerous chemicals

in violation of OSHA regulations. Wickham, 927 F.Supp. at 293-94. The Court in Wickham

found no preemption and allowed the plaintiff to proceed under state tort law for the

employer’s violation of an OSHA regulation, noting that the plaintiff’s suit, “if successful,

would not have the effect of creating any state imposed modification of OSHA standards

and, thus, would not amount to state regulation. Therefore, even if OSHA preempted state

regulation of chemical labels and warnings, it would not preempt this particular cause of

action.” Wickham, 927 F.Supp. at 295. The Wickham Court concluded:

OSHA is a purely regulatory provision that creates no private right of action.
Instead, it is enforced by fines or criminal prosecution. Criminal prosecution
or a fine payable to the federal government would not compensate the plaintiff
for his alleged injuries. If § 1910.1200(a)(2) did preempt a cause of action like

23
 plaintiff’s based on a failure to warn, an employee would be without a remedy
even when a defendant failed to comply with OSHA. It is obvious to this
Court that Congress, in enacting a statute designed specifically to protect
employees and others from such potential hazards, did not intend such a result.

Wickham, 927 F.Supp. at 295 (citations omitted).

¶61 In his concurrence in the Third Circuit Court of Appeals decision in Ries, III v.

National Railroad Passenger Corp. (3rd Cir. 1992), 960 F.2d 1156, Judge Nygarrd reached

a similar conclusion. “Section 653(b)(4) makes clear that OSHA was not intended to

redefine or affect an employer’s common law or statutory duties. OSHA’s overriding

purpose is to prevent workplace injuries. It is enforceable by administrative civil and

criminal penalties. It, however, does not provide remedies to injured employees.” Ries, 960

F.2d at 1168.

¶62 Based upon the foregoing, we reach a number of conclusions. First, Congress did not

intend that state regulation of occupational safety and health issues be impliedly field

preempted. Pursuant to 29 U.S.C. § 667(a), states can promulgate occupational safety and

health standards and enforce them in the absence of OSHA standards regulating the same

safety and health issue. Second, pursuant to 29 U.S.C. § 653(b)(4), Congress did not intend

that the OSH Act affect state workers’ compensation laws, nor that the Act enlarge or

diminish state common law or tort law remedies available to injured workers. And third,

Congress did not intend that the OSH Act create a right of action for injured workers, but to

allow injured workers to pursue rights of action given by state law.

¶63 Having reached the conclusion that there is no field preemption of occupational safety

and health issues by the OSH Act, it remains necessary to determine whether the duty of the

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City to inspect under the Montana Scaffolding Act directly conflicts with the OSH Act and

OSHA regulation of scaffolding standards and is preempted accordingly.

2. Conflict Preemption

¶64 As noted above, Congress intended that the OSH Act preserve state authority to

regulate occupational safety and health issues in the absence of federal standard governing

the same issue. Gade, 505 U.S. at 100, 112 S.Ct. at 2384, 120 L.Ed.2d at 85; Hughey, 774

F.2d at 593; Ohio Manufacturers’ Association, 801 F.2d at 834. Where OSHA has

promulgated regulations on a particular occupational safety and health issue, any state

regulation of the same issue is preempted as in conflict with OSHA regulations, even if the

state regulation merely supplements the federal regulation. Gade, 505 U.S. at 100, 112 S.Ct.

at 2384, 120 L.Ed.2d at 85. As also noted, the intention of Congress was to subject

employers and employees only to a single set of regulations, whether federal or state. Gade,

505 U.S. at 100-02, 112 S.Ct. at 2384-85, 120 L.Ed.2d at 85-86; see also Wickham, 927

F.Supp. at 295 (noting that state tort law claims are preempted only insofar as those claims

are based upon the theory that a defendant should have complied with requirements that are

in addition to OSHA standards) (citations omitted). Thus, any state safety or health standard

related to scaffolding will be preempted if in direct conflict with OSHA scaffolding standards

or even if merely supplemental to OSHA scaffolding standards. Gade, 505 U.S. at 100, 112

S.Ct. at 2384, 120 L.Ed.2d at 85.

¶65 Section 50-77-106, MCA, does not enumerate specific safety or health standards

related to scaffolding. Rather, this provision provides that the building inspector or other

25
authorized person has a duty to inspect and enforce the provisions of the Montana

Scaffolding Act through the county attorney, or other attorney, in the case of failure of the

owner, person or corporation to comply with any part of the chapter. Because § 50-77-

101(2), MCA, only requires employers and employees to follow “applicable” state and

federal occupational safety laws as well as “safety practices commonly recognized in the

construction industry,” the enforcement provision, § 50-77-106, MCA, would not require the

enforcement of state scaffolding standards or safety practices commonly recognized in the

construction industry, as a preempted state standard or common safety practices could no

longer be considered “applicable.” Thus, the enforcement mechanism of § 50-77-106, MCA,

could only be employed to enforce applicable federal standards, and therefore, the statute

does not conflict with those federal standards by virtue of its reference to enforcement of the

now preempted state standards and common safety practices.

¶66 The City maintains, however, that a state law requiring inspection and enforcement

of federal standards “interferes with the methods by which the federal statute is designed to

reach its goal” and that, pursuant to Gade, OSHA does not permit a state to assume an

enforcement role without prior approval by the Secretary of Labor of the state’s plan.

However, the Gade Court did not so conclude. Rather, the Gade Court stated:

The principle indication that Congress intended to pre-empt state law is §
18(b)’s statement that a State “shall” submit a plan if it wishes to “assume
responsibility” for “development and enforcement . . . of occupational safety
and health standards relating to any occupational safety and health issue with
respect to which a Federal standard has been promulgated.” The unavoidable
implication of this provision is that a State may not enforce its own
occupational safety and health standards without obtaining the Secretary’s
approval . . . .

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Gade, 505 U.S. at 99, 112 S.Ct. at 2383, 120 L.Ed.2d at 85 (emphasis supplied). The Gade

Court did not hold that state “enforcement” is generally preempted, but that enforcement of

its own occupational safety and health standards is preempted. If the state wishes to impose

an additional duty upon a non-employer to inspect for compliance by the contractor,

subcontractor or builder with “applicable” federal regulations and to ensure enforcement of

those standards, the imposition of such duty does not subject the employer to duplicative or

supplemental occupational safety and health standards, and thus, does not stand as an

obstacle to the accomplishment and execution of the full purposes or objectives of the OSH

Act–namely, “to assure so far as possible every working man and woman in the Nation safe

and healthful working conditions and to preserve our human resources.” 29 U.S.C. § 651(b).

¶67 Further, the “duty to inspect” is not a standard. An “occupational safety and health

standard” is defined as “a standard which requires conditions, or the adoption or use of one

or more practices, means, methods, operations, or processes, reasonably necessary or

appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C.

§ 652(8). As stated by the Court of Appeals in Traudt v. Potomac Electric Power Co. (D.C.

1997), 692 A.2d 1326:

Courts must apply preemption analysis “narrow[ly]” with regard both to
“whether Congress intended any pre-emption at all, . . . [and] to questions
concerning the scope of its intended invalidation of state law . . . .” We
explained in P & Z Co. v. District of Columbia, 408 A.2d 1249, 1250 (D.C.
1979), that “the OSHA preemption subsections specifically apply only to
[federal] standards promulgated by § 655” of OSHA. Such a “standard” is a
“requirement that directly, substantially, and specifically regulates
occupational safety and health.” Gade v. National Solid Wastes Management
Ass’n, 505 U.S. 88, 107, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992). While
OSHA standards specifically addressing employee safety in regard to work

27
 with and around electrical circuits . . . were in effect at the time of Traudt’s
accident, no regulation adopted at the time or since then suggests
Congressional intent to preempt the general duty of care imposed by D.C.Code
§ 36-228(a). Indeed, OSHA itself contains a “general duty” section
comparable to § 36-228(a), see 29 U.S.C. § 654(a)(1)-(2), which plainly is not
a “standard” promulgated under § 655.

Traudt, 692 A.2d at 1332 (emphasis in original) (citations omitted).

¶68 We find the Court’s holding in Traudt to be persuasive and consistent with a plain

reading of 29 U.S.C. §§ 653(b)(4) and 667(a), the former preserving a right of action under

state law to an injured or killed employee, and the latter preserving the authority of the state

to enact occupational safety and health standards other than where OSHA has promulgated

standards under 29 U.S.C. § 655. Also see Gade, 505 U.S. at 96-100, 112 S.Ct. at 2382-84,

120 L.Ed.2d at 83-85, and P & Z, 408 A.2d at 1250-51. We thus disagree with the City’s

argument that the duties to inspect and enforce under the Montana Scaffolding Act are

preempted by 29 U.S.C. § 657, which authorizes the Secretary of Labor to enter, inspect and

investigate places of employment in order to carry out the purposes of the OSH Act. P & Z,

408 A.2d at 1250-51. There is no language in the Act itself that contemplates that inspection

and enforcement of applicable standards, even if only federal standards, are the sole

responsibility of the Secretary of Labor, and inspection and enforcement of federal safety and

health standards by a state official will be preempted only if such inspection and enforcement

is in conflict with the OSH Act by frustrating its purpose and objectives. As noted by the

Traudt Court, the OSH Act contemplates that occupational safety and health standards

promulgated under 29 U.S.C. § 655 will preempt state standards on the same occupational

safety and health issue. The duty to inspect and enforce applicable regulations is not a

28
standard as contemplated under the OSH Act, and the imposition of such duty does not

subject employers or employees to duplicative regulation. Gade, 505 U.S. at 100, 112 S.Ct.

at 2384, 120 L.Ed.2d at 85.

¶69 Therefore, the building inspector’s duty to inspect and enforce compliance with

applicable regulations, which, in this case, are OSHA scaffolding standards, survives conflict

preemption. Based on that conclusion, we hold that the District Court erred in concluding

that the entirety of the Montana Scaffolding Act is impliedly field preempted by the OSH Act

and OSHA regulations, thereby preempting Dukes’ negligence claim for the City’s alleged

failure to inspect and enforce applicable federal occupational safety and health standards.

The District Court thus erred in dismissing Dukes’ claim against the City.

¶70 Reversed and remanded.

/S/ JIM RICE

We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM REGNIER
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART

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