Wilson v. Vukasin

No. 96-053
IN THE SUPREMECOURT OF THE STATE OF MONTANA
1996

v.
ROBERT VUICASIN,
Defendant, Respondent
and Cross-Appellant.

APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Michael W. Cotter; Cotter & Cotter,
Great Falls, Montana
For Respondent:
Brian Lilletvedt, Keith A. Maristuen;
Bosch, Kuhr, Duydale, Martin & Kaze
Havre, Montana

Submitted on Briefs: June 20, 1996
Decided: August 27, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

John Wilson (Wilson) appeals, and Robert Vukasin (Vukasin)
cross-appeals from the Findings of Fact and Conclusions of Law of
the Twelfth Judicial District Court, Hill County, concluding that
the Montana Scaffolding Act § 50-77-101 to -107, MCA (1991), is not
applicable to the facts of this case. We reverse the District
Court's conclusion that the Montana Scaffolding Act does not apply
and, therefore, do not consider the cross-appeal.
Wilson raises the following issue on appeal:
Did the District Court err in concluding that the Montana
Scaffolding Act did not apply to the facts of this case?
On September 2, 1992, Wilson, an independent insurance
adjustor, went to Vukasin's residence to inspect the premises for
hail damage. Vukasin's ladder was used to gain access to the roof
of the garage. Both men climbed onto the roof and Wilson performed
his inspection. After the inspection was completed, Wilson began
descending the ladder while Vukasin remained on the roof. While
Wilson was climbing down the ladder, it l'walkedU' out from under him
and he fell to the concrete slab below injuring his right heel.
In its Findings of Fact and Conclusions of Law, the District
Court determined that the ladder was placed at too small of an
angle and that the ladder was generally inadequate for the task.
The court noted that the ladder's base was too narrow, that its
legs were rounded where they met the concrete slab, and that it was
"old, weathered and flexed too much, allowing it to slip more
easily."
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 The District Court concluded that the Montana Scaffolding Act
(the Act) did not apply because the ladder was not a scaffold nor
was the ladder used as a working place. Because the court
concluded that the Act did not apply, the court invoked the
doctrine of comparative negligence. The court reduced Wilson's
damage award by 50 percent because it found that he had failed to
use ordinary care in selecting and using the ladder.
On appeal, Wilson argues that the District Court erred in
failing to apply the Act. According to Wilson, had the District
Court properly applied the Act, the comparative negligence statute,
§ 27-l-702, MCA, would not have been applicable because once it is
shown that a violation of the Act was the proximate cause of the
injury, liability becomes fixed. Steiner v. Department of Highways

(1994), 269 Mont. 270, 278, 887 P.2d 1228, 1233.
The District Court recognized that the question of whether the
ladder was a scaffold was a "close call" and ultimately concluded
that it was not a scaffold. We review the District Court's
conclusion of law--that the Act did not apply--to determine whether
the court's interpretation of the law was correct. Stratemeyer v.
Lincoln County (Mont. 1996), 915 P.2d 175, 177, 53 St.Rep. 245, 246
(citing Carbon County v. Union Reserve Coal Co. (19951, 271 Mont.
459, 469, 898 P.2d 680, 686); Loney v. Milodragovich, Dale & Dye,
P.C. (1995), 273 Mont. 506, 510, 905 P.2d 158, 160.
Wilson's fall occurred in 1992. We have previously determined
that the 1995 amendments to the Act cannot be applied
retroactively. Porter v. Galarneau (Mont. 1996), 911 P.2d 1143,

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1150, 53 St.Rep. 99, 103. Thus, we must apply the version of the
Act applicable at the time of the accident. As of 1992, § 50-77-
101, MCA (1991), provided that:
All scaffolds erected in this state for use in the
erection, repair, alteration, or removal of buildings
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.
We have defined "scaffolding" to include "any device utilized
by workmen to allow them to work where a fall might result in
serious injury." Porter, 911 P.2d at 1147 (citing Steiner, 887
P.2d at 1233). This Court has previously held that, under the pre-
1995 version of the Act, a ladder is considered a scaffold.
Porter, 911 P.2d at 1147 (citing Mydlarz v. Palmer/Duncan Constr.
Co. (19841, 209 Mont. 325, 338, 682 P.2d 695, 702). Thus, the
ladder used by Wilson was a scaffold for purposes of the pre-1995
Act.
Further, this Court has determined that where the Act applies,
"the mandatory nature of the statute forecloses the common-law
defenses of assumption of the risk, contributory negligence, and
negligence of a fellow servant." Steiner, 887 P.2d at 1233
(citation omitted).
The Act provides that all scaffolding "shall be well and
safely supported, of sufficient width, and properly secured."
Failure to comply with the Act constitutes negligence per se.
Steiner, 887 P.2d at 1233. The District Court found that the
ladder was too narrow, too flexible, not placed at the proper
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angle, and not properly secured because of the rounded legs. Thus,
the District Court concluded that the inadequacy of the ladder was
a proximate cause of Wilson's injuries; however, the court also
determined that the Act did not apply. As we held in Steiner, the
defense of contributory negligence is not available under the Act.
Thus, the District Court erred in applying contributory negligence
and in reducing Wilson's damage award pursuant to § 27-l-702, MCA.
In addition, the District Court determined that the ladder was
not "used as a working place" and, therefore, that the Act did not

apply. Section 50-77-101, MCA (1991), provides that the Act
applies where a scaffolding is used in "the erection, repair,
alteration, or removal of buildings." Apparently, the court
reasoned that, as an insurance adjustor, Wilson was not erecting,
repairing, altering or removing a building at the time of his
injuries. Wilson argues that the District Court interpreted the
Act too narrowly. We agree. At the time of the accident, Wilson
was inspecting Vukasin's roof for hail damage. This inspection was
integral to the repair of the roof as the cost of the damage had to
be determined for Vukasin's insurance claim. Wilson was on the
roof to make this determination and facilitate the repair.
In Mvdlarz, this Court cited Quinn v. LBC, Inc. (Ill. Ct. App.
1981), 418 N.E.2d 1011, in discussing the purposes of the Act and
in deciding that the term "scaffolding" includes a ladder. We find
Quinn to be instructive in determining whether Wilson was using the
ladder as a "working place." Quinn was an inspector for the City
of Chicago Building Department and was injured while inspecting a

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building following a fire. The Illinois Court of Appeals concluded
that Quinn was covered by Illinois' scaffolding act, stating that:
Plaintiff, in his role as an inspector, played a vital
part in the construction process. He entered the site
for the purpose of evaluating the fire's effect on the
building's structural integrity. Performance of this
task necessitated his presence within and upon the
building. . A liberal interpretation of the Act . .
. requires that plaintiff be included within the class of
persons the Act is intended to protect.
Quinn, 418 N.E.2d at 1013. Similarly, Wilson utilized the ladder
to access the roof to inspect the damage, and ultimately, to
facilitate the repair of Vukasin's roof. As the Illinois Court of
Appeals recognized in m, an inspector, such as Wilson, is
within the ambit of the Act's coverage.
We determine that District Court erred in concluding that the
Act did not apply. Accordingly, we hold that the District Court
erred by invoking the doctrine of comparative negligence and in
reducing Wilson's award by 50 percent. Because the Act applies, it
is unnecessary for this Court to consider Vukasin's cross-appeal.
Reversed with direction to enter judgment in Wilson's favor
for the full amount of his damages

We concur:

Chief Justice
Justices
Justice Charles E. Erdmann dissenting.
The majority, in construing the 1991 version of the Scaffold
Act as set forth in § 50-77-101, MCA, has determined that the
ladder used by Wilson was a scaffold for purposes of this Act.
While I agree with that determination, the majority's conclusion
that Wilson, as an independent contractor, was within the ambit of
the Act's coverage extends the Act beyond any of our previous
interpretations.
Wilson is an independent insurance adjuster who contracts with
insurance companies to provide claims adjusting services. In this
case, Vukasin's insurer, Austin Mutual, contracted with Wilson
through Erickson-Baldwin, an independent insurance agency in Havre,
to readjust a hail damage claim to Vukasin's property. While
inspecting Vukasin's property, Wilson fell from a ladder that had
been provided by Vukasin. There was no employment or contractual
relationship between Wilson and Vukasin, and Vukasin had no
authority to control, direct, or supervise Wilson's performance.
We discussed the language of the Scaffolding Act in State
ex rel. Great Falls National Bank v. District Court (1969), 154
Mont. 336, 463 P.2d 326. In that case, it was necessary to
determine what persons owed the duty that was imposed by the
Scaffolding Act because the language employed to describe the duty
was expressed in passive voice and failed to specify what persons
owed the duty. We held that it was clear the Legislature did not
intend to grant multiple remedies or damages to injured workmen by
allowing one recovery against the landowner, another against the
general contractor, a third against the subcontractor, and so
forth. We further held that the Legislature intended only to make

injured workmen whole by granting them relief against the person,

firm, or corporation having direct and immediate control of the

work involving the use of scaffolding.
We specifically overruled our dictum in Pollard v. Todd

(1966), 148 Mont. 171, 418 P.2d 869, and Joki v. McBride (1967),

150 Mont. 378, 436 P.2d 78, which suggested that a landowner not in

control of the work being completed owed an absolute, nondelegable

statutory duty to a scaffold worker or others. Great Falls Nat'1

Bank
-I 154 Mont. at 344. The individual who was injured in Great

Falls Nat'1 Bank was the employee of an independent contractor who

had been hired to complete the project under the contractor's own

guidance and supervision. We held that the bank, being simply the

owner of the property and not the employer of the injured

individual, had no direct control over the work performed and

therefore was not liable under the Scaffolding Act.

The direct and immediate control analysis has since been

consistently utilized by this Court to determine whether the

Scaffolding Act applies. In Mydlarz v. Palmer/Duncan Construction

co. (1984), 209 Mont. 325, 339, 682 P.2d 695, 703, we noted that

both defendants were acting as general contractors in control of

the work area and, without reaching the question of which party was

immediately responsible for failing to provide adequate

scaffolding, held that the failure invoked the Scaffolding Act's

applicability. This determination of direct and immediate control

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Wilson was using the ladder as a "working place" to inspect damage
on the roof which would ultimately facilitate the repair of the
roof, he was therefore within the scope of the Act,. The majority
however failed to complete the required analysis and determine
whether Vukasin was an individual who owed a duty to Wilson under
the Act.
Wilson, as an independent contractor, was contracted by
Vukasin's insurance agency to readjust the hail damage to Vukasin's
property. Vukasin did not contact Wilson personally nor was his
presence necessary for this inspection. The "person, firm, or
corporation having direct and immediate control of the work
involving the use of scaffolding" was either Wilson himself as an
independent contractor, or arguably the insurance company. What is
clear is that Vukasin had no direct and immed~iate control of
Wilson.
I would therefore hold that the Montana Scaffolding Act does
not apply and that the judgment of the District Court finding the
plaintiff and the defendant equally at fault under comparative
negligence principles should be affirmed.

Justice
Chief Justice Jean A. Turnage and Justice Karla M. Gray join in the
foregoing dissenting opinion.