NO. 93-541
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
DOUGLAS J. PIERCE,
Plaintiff and Appellant,
v.
ALSC ARCHITECTS, P.S., a Washington
Professional Service Corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Michael H. Keedy, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Roger M. Sullivan, McGarvey, Heberling,
Sullivan & McGarvey, Kalispell, Montana
For Respondent:
I. James Heckathorn, Murphy, Robinson,
Heckathorn & Phillips, Kalispell, Montana
Submitted on Briefs: August 12, 1994
Decided: February 23, 1995
Filed:
Clelfk
Justice Terry N. Trieweiler delivered the opinion of the Court.
The plaintiff, Douglas J. Pierce, filed a complaint in the
District Court for the Eleventh Judicial District in Flathead
County in which ALSC Architects, P.S., was named as the defendant.
Pierce sought to recover damages for personal injuries which he
alleged were caused by the professional negligence of Steven
Hindley, one of ALSC's principles. Following trial, the jury
returned a verdict in favor of ALSC. Pierce moved for judgment
notwithstanding the verdict pursuant to Rule 50(b), M.R.Civ.P., or
in the alternative, for a new trial pursuant to Rule 59, M.R.Civ.P.
However, due to the District Court's failure to rule on those
motions within 45 days, they were deemed denied. Judgment was
entered in favor of the defendant. Pierce filed a notice of
appeal. We reverse the judgment of the District Court and remand
for further proceedings.
The following issues are raised by Pierce's appeal:
1. Was the defendant negligent as a matter of law?
2. Was the plaintiff free from contributory negligence as a
matter of law?
3. Is the plaintiff entitled to an order dismissing the
defendant's affirmative defense which was based on the accepted
work doctrine?
FACTUAL BACKGROUND
In March 1987, ALSC Architects, P.S., entered into a written
agreement with Rosauers Supermarkets, Inc., to provide
architectural services related to a remodeling project at Rosauers
2
Supermarket in Kalispell, Montana. In addition to other services,
ALSC agreed to act as the owner's representative during the
construction phase of the project for the purpose of communicating
instructions to the contractor. The architect also agreed to
assure that the project progressed in a manner consistent with the
contract plans and other documents. Toward that end, ALSC agreed
that its representative would periodically visit the site of the
construction work and "endeavor to guard the owner against defects
and deficiencies in the work of the contractor."
Richard Salsbury is the vice president of Rosauers and acted
as the owner's representative for the remodeling project. He is
also a licensed architect.
Steven Hindley is a partner in ALSC Architects, and served as
ALSC's project architect during the remodeling of Rosauers'
Kalispell store.
Stewart and Meredith, Inc., was the contractor which performed
the remodeling services on Rosauers' Kalispell store. Roy Beckman
was their foreman and construction supervisor for the project.
The store manager's office is located on the second floor of
Rosauers' Kalispell store. Prior to the remodeling project, there
was a door in the manager's office which provided access to an
observation and storage room. The room included a security
walkway, windows from which the store could be observed, and areas
where surplus material and decorations were stored.
Prior to the remodeling project, the store also had a walk-in
cooler located on the main floor immediately below the observation
3
and storage room. The roof of the cooler was even with the
security walkway and provided a floor for the storage room, and a
place for storage of seasonal displays used in the store.
During the remodeling project, the large walk-in cooler was
removed and replaced with a smaller walk-in freezer. A suspended
ceiling was installed in the space between the new walk-in freezer
and the observation walkway. The plans which led to these changes
were developed by Hindley and ALSC.
As part of the remodeling project, closed circuit televisions
were installed, and the walkway and observation windows were no
longer necessary. The observation room was redesigned as a
security room which housed the closed circuit televisions.
As a result of these changes, Salsbury discussed with Hindley
the options of developing the walkway as accessible space, or
abandoning it and sealing it off. They agreed that if it was going
to be accessible, in order to make it safe and satisfy the
requirements of the Uniform Building Code, it would be necessary
that they install guardrails in the area of the drop ceiling,
provide lighting, and improve the walkway surface. However, they
agreed that it would not be necessary to use the space, and
therefore, to seal off access to the drop ceiling by removing the
access door, covering the opening with drywall, and moving the
access door to another location in the store manager's office to
provide access to the new security room.
The first step toward accomplishing the changes agreed upon
was the preparation of a change order which illustrated the
4
relocation of the access door. The contractor agreed to make the
change for the amount of $1647, which was in fact paid by Rosauers
to the contractor. However, the change was never made.
Roy Beekman testified that when he did the work on the
security room, he had an extra door, and that rather than relocate
the door from the storage area, he simply left it in place and used
the extra door for the new security room. Beekman testified that
he did not have Salsbury's authorization to leave the storage area
access door in place, but that he did discuss it with Hindley. He
was not advised by Hindley that Salsbury wanted to abandon the
space and that the door was supposed to be removed; nor was he
advised that if the door was going to remain, a guardrail would
have to be installed, and lighting and an improved walking surface
would have to be provided. He was aware that the access door had
been used in the past and assumed it would be used in the future.
Hindley recalled a discussion with Salsbury during which
removal of the access door was discussed. Pursuant to that
discussion, on November 18, 1987, he prepared a change order which
required that the access to the storage area be sealed off with
sheetrock. During a subsequent visit to the store for inspection,
he became aware that the removal of the door, as required by that
change order, had not been accomplished, but did not inform
Salsbury that the door had been left in place. In fact, prior to
final payment by Rosauers to the contractor, Hindley conveyed
drawings to Salsbury which indicated that the removal of the access
5
door, as required by the November 18, 1987, change order, had in
fact been accomplished.
Doug Pierce was working as a stock clerk at Rosauers on
May 21, 1988, when a customer asked to borrow some of the store's
Hawaiian Day posters. Pierce conveyed the request to his
supervisor, Lynn Sterling, who approved the request and advised
Pierce that the posters would either be located in the new security
room or the old storage area.
Prior to that date, Pierce's duties required that he
occasionally visit the storeroom to retrieve store decorations. He
estimated that he had been there once or twice a year and at least
a dozen times altogether. He testified that the door to the store
manager's office was normally open and that to recover the displays
he would normally enter the storage area through the access door;
proceed down a walkway for several feet; make a turn to the left;
and then step down on the roof of the freezer where items were
often stored, or from where access could be gained to another area
where items were stored. There was a light switch accessible from
the roof of the freezer which illuminated the storage area.
On the date of his accident, Pierce opened the door to the
storage area, noticed there was no light switch in the area of the
doorway, and proceeded down the walkway. He turned to his left to
step down on what he thought would be the freezer, but instead,
stepped onto the drop ceiling and crashed to the floor ten feet
below. As a result of his fall, Pierce sustained serious physical
injuries.
6
Although Pierce had often entered the storage area prior to
the remodeling project, the date of his injury was the first
occasion he had to enter that area after the remodeling project was
completed. He stated that there was nothing different about the
appearance of the access door on the date of his accident. Neither
did the plywood walkway look any different, and because there was
no light in the area, there was no way to tell that a drop ceiling
had been substituted for the former walk-in cooler. No warning had
been placed outside the door and there was no lock on the door.
Sterling is the grocery department manager at the Kalispell
Rosauers and was Pierce's supervisor on the date of his injury. He
was the one who advised Pierce that the decorations were most
likely in the storage room behind the manager's office because that
is where they had been located in the past. Sterling testified
that he had entered the storage area himself as often as six times
a year prior to the remodeling project and he presumed it was still
okay to use the storage area because the door was still there. He
expressed his surprise at learning of Pierce's fall. He explained,
"The door was still there, I mean, it could have been me."
On September 8, 1989, Pierce filed this complaint against ALSC
based on his allegation that Hindley negligently failed to guard
against the inherent danger presented by the suspended ceiling by
failing to warn of the hazard, provide adequate lighting in the
area, or provide a guardrail. ALSC answered by denying negligence,
and alleged as affirmative defenses that Pierce was contributorily
negligent and that his claim was barred by the accepted work
doctrine.
Prior to trial, ALSC moved for summary judgment on the basis
that, since the remodeling project was substantially complete by
January 15, 1988, and Pierce's injury did not occur until May 21,
1988, his claim was barred by the accepted work doctrine.
Pierce also moved for an order striking ALSC's affirmative
defense based on the accepted work doctrine, and holding that ALSC
was negligent as a matter of law based on violations of the Uniform
Building Code.
Both motions were denied. With regard to the accepted work
doctrine, the District Court held that there were issues of fact
related to whether the work was actually complete at the time of
Pierce's injury, and whether the defect, if any, was hidden. With
regard to the Uniform Building Code, the District Court held that
there were factual issues about whether the code had been violated,
and furthermore, that violations were only evidence of negligence.
A jury trial commenced on October 28, 1991, and on November 1
the jury returned its verdict that ALSC was not negligent.
Prior to the jury's deliberations, it was instructed that an
architect is not liable to third parties for injuries which occur
after work has been completed and accepted by the owner for whom
the work was done. It was also instructed that a violation of the
Uniform Building Code is negligence per se.
On November 7, 1991, Pierce moved for judgment notwithstanding
the verdict, or in the alternative, for a new trial. On
8
January 17, 1992, the District Court issued an order granting
judgment notwithstanding the verdict on the issue of ALSC's
negligence, and ordered a retrial of the remaining issues.
However, we held in Pierce v. ALSCArchitects (1993), 259 Mont. 379, 856
P.2d 969, that because the District Court's order had not been
entered within 45 days after Pierce's motion, the motion had been
denied by operation by law pursuant to Rule 59, M.R.Civ.P. We also
held that because of this case's unique procedural history, the
plaintiff was not to blame for previously withdrawing his notice of
appeal, and the plaintiff would have an additional 30 days within
which to file a notice of appeal after the case was remanded to the
District Court.
After remittitur was received by the District Court, judgment
was entered for ALSC and a notice of appeal was filed by Pierce.
ISSUE 1
Was the defendant negligent as a matter of law?
The standard of review of a denial of a motion for judgment
notwithstanding the verdict made pursuant to Rule 50 (b) ,
M.R.Civ.P.,
is the same as that for review of a motion for a directed
verdict, and . . _ may be granted only when it appears as
a matter of law that the non-moving party could not
recover upon any view of the evidence, including the
legitimate inferences to be drawn from it.
Hashv. State (1991), 247 Mont. 497, 500, 807 P.2d 1363, 1365 (citing
Wilkersonv. School District No. 1.5,Glacier County ( 198 5 ) , 2 16 Mont 2 03 , 2 11,
700 P.2d 617, 622).
9
Pierce argues that there was insufficient evidence to support
the jury's verdict because, based on the undisputed evidence, ALSC
violated the Uniform Building Code, and therefore, was negligent as
a matter of law.
In Herbstv. Miller (19921, 252 Mont. 503, 830 P.2d 1268, we held
that when the Uniform Building Code is adopted by local ordinance,
failure to comply with the U.B.C. is a violation of a city
ordinance, and therefore, is negligent per se. It is undisputed
that on March 17, 1986, the City of Kalispell adopted the 1985
edition of the Uniform Building Code as Kalispell City Ordinance
No. 1078 and that the provisions of the code were in effect at the
time that Hindley's services were performed on the Rosauers
remodeling project, and were applicable to that project. The
provisions of the code upon which Pierce relies are the following:
sec. 104. . . . .
(b) Additions, Alterations or Repairs. Additions,
alterations or repairs may be made to any building or
structure without requiring the existing building or
structure to comply with all the requirements of this
code, provided the addition, alteration or repair
conforms to that required for a new building or
structure. Additions or alterations shall not be made to
an existing building or structure which will cause the
existing building or structure to be in violation of any
of the provisions of this code nor shall such additions
or alterations cause the existing buildins or structure
to become unsafe. An unsafe condition shall be deemed to
have been created if an addition or alteration will cause
the existing building or structure to become structurally
unsafe or overloaded . . . or will otherwise create
conditions dangerous to human life.
. .
10
Guardrails
Sec. 1711. All unenclosed floor and roof openings
which are more than 30 inches above grade or floor
bei0k . . shall be protected by a guardrail.
Guardrails shall not be less than 42 inches in height.
U.B.C. §§ 104(b) and 1711 (1985) (emphasis added).
Salsbury, who is himself an architect, testified that he first
learned that the access door, which we have discussed, had not been
removed, and that access to the storage area had not been sealed
off, when he learned of Pierce's injury. He also testified that it
had been Hindley's responsibility as the project architect to
assure that the door was removed in conformity with the project
specifications, or to advise the owner of the contractor's failure
to do so. He testified that, because of the changes made during
the remodeling project, the door to the storage room provided
access to a hazard which had not previously existed, and that
Pierce was injured because of a condition inside the storage area
which was "unsafe to human life" in violation of U.B.C. 5 104(b)
(1985). He agreed that if the area was accessible following the
remodeling project, guardrails were necessary pursuant to U.B.C.
§ 1711 (19851, and that lighting and an improved walkway would also
have to have been added to comply with acceptable architectural
standards.
In sum, Salsbury conceded that at the time of Pierce's injury
the area where he was injured did not conform to the requirements
of the Uniform Building Code and that those requirements were only
minimum standards.
11
Pierce also called Clark Llewellyn as a witness. Llewellyn is
a professor of architecture at Montana State University and
practices architecture in the Three Forks area. Based on his
review of the accident scene and the relevant standards, he
concluded that the U.B.C. was applicable and that it required that
the access door to the storage area either be removed and the
opening sealed, or in the alternative, that the storage area be
brought up to code by the installation of an improved walkway,
lighting, and guardrails. He described the ceiling area through
which Pierce fell as a hidden defect which cannot be seen until a
person is on top of it.
He testified that if a door is provided to an area and access
allowed, an architect cannot assume that the area will not be used,
and that if the area is accessible, then the Uniform Building Code
is applicable. In response to cross-examination by ALSC's
attorney, he specifically denied that the U.B.C. is only applicable
if the owner expresses an intention to use the area.
The only witness called by ALSC to controvert the testimony of
Salsbury and Llewellyn was Hindley. He agreed that based on
removal of the walk-in cooler and changes made during the
remodeling project, the area behind the store manager's office,
which had formerly been used for storage, was no longer safe for
use without the installation of lighting, an improved walking
surface, and guardrails. He also agreed that it was his duty to
assure the store owner that the contractor's performance conformed
12
to the contract documents, and that the change order requiring
removal of the storage room access door was one of those documents.
However, Hindley contended that because he had been told the
storage room would not be used, it was neither necessary to make
improvements inside the area, nor eliminate access to the area.
He admitted that if the area was going to be used, it was in
violation of the U.E.C. requirements, but did nothing to assure
that it would not be used. He also acknowledged that because the
door was allowed to remain, it would not have been apparent to Doug
Pierce, Lynn Sterling, or any other employee, that the room had no
obvious use.
During an inspection of the building in January 1989 following
Pierce's accident, when Hindley observed that the room was still
being used for storage, he recommended that a lock and hasp be
installed to prevent access to the area.
We conclude, after a thorough review of the trial court
record, that there was not substantial evidence to support the
jury's verdict, and that the uncontroverted evidence established
that ALSC's performance related to the remodeling project of
Rosauers in Kalispell, violated §§ 104(b) and 1711 of the 1985
edition of the Uniform Building Code.
The area through which Pierce fell was clearly an unenclosed
floor opening which was more than 30 inches above the floor below,
and was unprotected by a guardrail. There is no exception provided
in § 1711 based on an architect's belief that the area will not be
used, or will only be used infrequently. Furthermore, the record
13
establishes that when Hindley certified that the contractor's
performance was complete, the access door remained as it had always
been with no warning of the hazard to which it provided access, and
no lock with which to preclude access. It was unreasonable to
presume that employees who had frequently used this area in the
past would not continue to do so in the future, absent any
preventative or protective measures.
We conclude that the second floor storage area which had been
frequently used by employees in the past, but which, because of
remodeling alterations, now included of a false floor ten feet
above the floor below, and which was without any form of lighting,
was an "unsafe condition . . dangerous to human life" in
violation of U.B.C. 5 104(b) (1985).
Hindley admitted that, if used in its altered condition, the
storage room was unsafe. Yet, he did nothing to assure that it
would not be used, nor did he warn potential users of the hazard
which existed. As Professor Llewellyn pointed out, when a
functional door is provided, future use has to be presumed.
The fact that Salsbury advised Hindley that the door could be
removed and the entryway sealed because future use was not planned
cannot now serve as the excuse for failure to either make the area
safe, or to prevent access by those who were unaware of the danger
that it posed.
For these reasons, we conclude that ALSC was negligent as a
matter of law and the District Court erred when, due to the passage
14
of time, Pierce's motion for a judgment notwithstanding the verdict
was deemed denied.
ISSUE 2
Was the plaintiff free from contributory negligence as a
matter of law?
Pierce contends that based on the evidence set forth above, he
was entitled to a directed verdict dismissing ALSC's affirmative
defense of contributory negligence. Pierce contends that based on
our decision in Greenv. Hagele (1979), 182 Mont. 155, 595 P.2d 1159,
he had a right to assume that others would act with reasonable care
and was not negligent for failing to anticipate an injury that
could only have resulted from another's negligence.
ALSC responds that Pierce entered a dark room without using a
flashlight or otherwise attempting to see where he was going, and
if he had paid attention, he would have noted changes in the
storage area which would have alerted him to the possibility of
danger. ALSC also contends that Pierce was aware that the walk-in
cooler had been removed prior to the date of his accident, and that
he should have associated the cooler's removal with the changed
condition of the floor in the storage area.
We have held that a motion for a directed verdict is proper
only in the complete absence of any evidence which would justify
submitting an issue to the jury, and all inferences which can be
drawn from evidence must be considered in the light most favorable
to the opposing party. Jacquesv.MontanaNationalGuavd (1982), 199 Mont.
15
493, 649 P.2d 1319. We have also held that even when a defendant
is negligent as a matter of law, the issue of contributory
negligence on the part of the plaintiff and the degree of
comparative negligence, if any, is normally an issue for the jury
or fact finder to resolve. Uklandv. Wolf (1993), 258 Mont. 35, 850
P.2d 302.
Based on our review of the record, we conclude that construing
all inferences from the evidence in a manner most favorable to the
defendant, there was sufficient evidence to submit the issue of
contributory negligence to the jury, and we conclude that the
District Court did not err when it refused to dismiss ALSC's
affirmative defense of contributory negligence.
ISSUE 3
Is the plaintiff entitled to an order dismissing the
defendant's affirmative defense which was based on the accepted
work doctrine?
Pierce contends that he was entitled to summary judgment
dismissing ALSC's affirmative defense based on the accepted work
doctrine. We review a district court's disposition of motions for
summary judgment de novo. Spain-MorrowRanch,Inc. v. West (1994) , 264 Mont.
441, 444, 872 P.2d 330, 331 (citing Mnniev. CityofRoundup (1993), 257
Mont. 429, 431, 849 P.2d 212, 214). Summary judgment is proper
only when there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. Rule 56(c),
M.R.Civ.P.; &“ain-Morrow, 872 P.2d at 331-32.
16
Pierce contends that he was entitled to summary judgment on
this issue for several reasons. First, he contends that ALSC
assumed the duty to assure that the remodeling project was done in
a safe manner and that, pursuant to our decision in Stepanekv. Kober
Construction (1981), 191 Mont. 430, 625 P.2d 51, that duty was
nondelegable, but that the accepted work doctrine would permit
delegation of that duty.
Second, Pierce contends that we should follow the lead of the
Supreme Court of Arizona and conclude that the accepted work
doctrine applies only to contractors, and not to architects. See
L. H. BeN&Assoc., Inc. v. Granger (Ariz. 1975), 543 P.2d 428.
Third, Pierce contends that based on the undisputed facts in
this case, there was insufficient evidence to justify instructing
the jury on this defense because the construction project was not
complete at the time of Pierce's injury and the defect which caused
his injury was hidden.
Finally, Pierce contends that the accepted work doctrine is
inconsistent with the principles of modern tort law and should no
longer be followed. Because we agree, we will not address the
previous issues, but conclude that the District Court erred when it
denied Pierce's motion to dismiss ALSC's affirmative defense based
on the accepted work doctrine.
The accepted work doctrine was first discussed, although not
applied, in Ulmen x Schwieger (19321, 92 Mont. 331, 12 P.2d 856.
However, in that case, the doctrine was not discussed in the
17
context of relieving a contractor of liability, but rather, for the
purpose of imposing liability on a subcontractor who worked on a
highway construction project during that period of time when the
subcontractor was actually in control of the premises. We held
that the cases cited in support of this doctrine
are of that class wherein an owner or contractor employs
an independent contractor to work upon premises the
possession of, and control over, which is surrendered to
him, and consequently the independent contractor is not
relieved of responsibility until his work has been
accepted and the premises revert to the control of the
owner or original contractor.
Ulmen , 12 P.2d at 862.
We held that in that case the general contractor had never
surrendered control of the project, and therefore, the
subcontractor had never assumed any liability from which to be
relieved based on the accepted work doctrine. However, we did not
discuss the accepted work doctrine in that case under circumstances
where a contractor or a subcontractor was seeking relief from
liability for a condition actually created by the contractor's act
of negligence.
We affirmed and applied Ulmen in Harm@ v. Cahill-Mooney Construction
co., hzc. (1972), 159 Mont. 413, 498 P.2d 1214. However, in that
case, the contractor from whom damages were sought worked under the
direction of the owner of the property regarding the nature and
extent of work to be done. We held that where the contractor had
left the job and had no control over the premises for some two
months and twenty days preceding the accident, that it was the
18
owner of the property, rather than the contractor, who was
responsible for maintaining it in a reasonably safe condition.
Again, in HanniJin, the issue related to maintaining premises in a
reasonably safe condition, rather than responsibility for actively
creating a hazard through negligent acts or omissions.
We again cited Ulmen in Olsonv. Kayser (1973), 161 Mont. 241, 505
P.2d 394. In that case, the defendant, a plumbing contractor, had
done excavation for the installation of a sewer service, which was
refilled to the owner's satisfaction, but which subsequently
settled naturally. The owner was aware of the fact that the
excavated area would subsequently settle, and intended to fill it
with gravel. However, before he was able to do so, the plaintiff,
a passerby, tripped and fell in the recessed area. We held that
since the contractor had committed no act of negligence from the
time his job was complete and accepted by the property owner, that
he was relieved of liability by the doctrine articulated in Ulmen.
Our first occasion to reconsider this defense in the context
of modern tort law was our decision in Harringtonv. LaBelle’s ofColorado, Inc.
(1988), 235 Mont. 80, 765 P.Zd 732. In that case, a department
store in Billings was sued by a bicyclist who was injured when he
struck a speed bump in the store's parking lot. The property owner
filed a third-party complaint against the contractor who installed
the speed bump. However, the complaint was dismissed based upon
the accepted work doctrine. On appeal from dismissal of its
third-party complaint, the property owner asked that we reconsider
19
that doctrine in light of more contemporary decisions from other
jurisdictions which have rejected it. The majority of the court
declined to do so. However, Justice Weber, in a dissent joined by
Justice Hunt, questioned the rationale for this defense in light of
general rules of negligence in Montana. Justice Weber pointed out
that:
Other jurisdictions have held that the principles
supporting the rule of contractor nonliability do not
mesh with modern theories of negligence. The leading
case in which the District of Columbia Circuit refuted
these justifications for contractor nonliability is
Hannah v. Fletcher (D.C.Cir.1956), 231 F.2d 469. The court
reasoned that the antiquated justifications based on lack
of privity had no place in modern theories of liability
as set forth in MacPhersonv. BuickMotor Co. (1916), 217 N.Y.
382, 111 N.E. 1050.
. . .
This Court has followed MacPherson and allowed
recovery for negligence asserted against the
manufacturers of automobiles [see Rix v. General Motors Corp.
(Mont. 1986), 1222 Mont. 318,] 723 P.2d 195, 43 St.Rep.
12961, and manufacturers of farm machinery [see Brownv.
North AmericanManufacturing Co. ( 19 78 ) , 176 Mont . 9 8, 5 76 P .2d
7111. We concluded in those cases that it was no longer
appropriate to bar recovery on theories such as those
identified in connection with the accepted work doctrine,
that is a lack of contractual privity, or that there
would be excessive litigation, or similar theories.
Given our rules of liability in cases where negligent
construction by a manufacturer may cause injury, I see no
reason why we should not extend that reasoning to apply
to negligent construction by a contractor. Certainly the
potential for injury due to negligent construction by a
contractor is just as great as with the negligent
manufacturing of a consumer good.
Harrington , 765 P.2d at 735-36 (alterations in original).
Our most recent discussion of this defense is found in Nichols
v. Corntassel (1993), 258 Mont. 173, 852 P.2d 583. In that case, the
20
majority noted a gradual trend away from nonliability for
contractor negligence and observed that, u [aluthors of the
Restatement (Second) of Torts at § 385 recommended that contractors
should be placed on the same footing as manufacturers for
negligence liability." Nichols, 862 P.2d at 585
The majority also observed that:
A number of courts have expressed dissatisfaction
with the rule, favoring a more direct approach such as
that of the Texas court in Strakos. 13 Am. Jur .2d Building and
ConstructionContracts § 140 (1964 ) . Instead of applying the
nonliability rule, these courts have established a rule
that a contractor is liable for injuries to or death of
third persons after acceptance by the contractee where
the work is reasonably certain to endanger third persons
if negligently completed. Id. This view adopts a
rationale that there are no sufficient grounds to
differentiate between liability of a manufacturer of
goods and that of a building or construction contractor.
Id. The building contractor's liability under this
reasoning is not absolute, but predicated upon
negligence. Thus, a contractor following plans or
specifications given to him will not be liable if a
reasonable person would have followed them. Id. See,e.g.,
Menendezv.PaddockPoolConst.Co. (Ariz.App.1991), 836 P.2d 968
(nonliability rule applies only when contractor has no
discretion and is merely following plans and
specifications provided by the employer); and Hannah v.
Fletcher (D.C.Cir.19561, 231 F.2d 469 (the leading case
rejecting the "accepted work" doctrine).
Nichols, 852 P.2d at 585.
However, after a review of the record in Nichols, the majority
concluded that there was an insufficient factual record with which
to apply the doctrine or its exceptions, and therefore, reversed
summary judgment in favor of defendant and remanded that case to
the district court for further development of the record. Justice
Trieweiler, however, in a dissent joined by Justice Hunt, stated
21
that the doctrine had no place among modern theories of liability
and stated that the defense should no longer be applied in Montana.
We are now squarely faced with the issue which we declined to
consider in Nichols, and upon further consideration, conclude that
the accepted work doctrine should no longer be followed in Montana.
This defense, as previously applied, has the undesirable
effect of shifting responsibility for negligent acts or omissions
from the negligent party to an innocent person who paid for the
negligent party's services. Furthermore, the shifting of
responsibility is based on the legal fiction that by accepting a
contractor's work, the owner of property fully appreciates the
nature of any defect or dangerous condition and assumes
responsibility for it. In reality, the opposite is usually true.
Contractors, whether they be building contractors, or architects,
are hired for their expertise and knowledge. The reason they are
paid for their services is that the average property owner does not
have sufficient knowledge or expertise to design or construct real
property improvements safely and soundly. The mere fact that
expert testimony is required to establish professional negligence
makes it clear that nonexperts are incapable of recognizing
substandard performance on their own. How then can we logically
conclude that simply because the professional has completed his or
her services and the contractee has paid for those services,
liability for the contractor's negligence should shift to the
innocent and uninformed contractee? We cannot. That is why the
22
Supreme Court for the State of Texas held in Strukosv. Gehring (Tex.
19621, 360 S.W.Zd 787, 791, that elimination of the accepted work
doctrine would restore logic and simplicity to the law of
liability.
We conclude that, for the reasons first noted in Justice
Weber's dissent to the opinion in Harrington, for those further
reasons set forth, but not applied, by the majority in Nichols, and
for the additional reasons set forth in this opinion, elimination
of the accepted work doctrine is more consistent with modern
principles of tort liability and is more likely to place liability
for negligent conduct on the appropriate party. To the extent that
prior opinions discussed herein are inconsistent with this
conclusion, they are reversed.
Therefore, we conclude that the District Court erred when it
denied Pierce's motion to dismiss that defense by summary judgment,
and the District Court erred when it instructed the jury that the
accepted work doctrine was a defense to Pierce's claim.
We reverse the judgment for ALSC. We remand this case to the
District Court for entry of judgment in favor of Pierce on the
issue of ALSC's negligence, and for further proceedings consistent
with this opinion.
We concur:
Justices
24
Justice Fred J. Weber dissents as follows:
I concur in the majority opinion on Issues II and III and
dissent from Issue I of the majority's opinion. I do not agree
with the conclusion that § 104(b) of the Uniform Building Code
(UBC) applies to establish negligence per se in this case and the
conclusion that negligence was established as a matter of law.
Section 104(b) of the UBC provides in pertinent part:
Additions or alterations shall not be made to an existing
building or structure which will cause the existing
building or structure to be in violation of any of the
provisions of this code nor shall such additions or
alterations cause the existing building or structure to
become unsafe. An unsafe condition shall be deemed to
have been created if an addition or alteration will cause
the existing building or structure to become structurally
unsafe or overloaded . . . or will otherwise create
conditions dangerous to human life.
Section 1711, provides:
All unenclosed floor and roof openings, open and glazed
sides of landings and ramps, balconies or porches, which
are more than 30" above grade or floor below, and roofs
used for other than service of the building shall be
protected by a guardrail. . . .
I do not agree that § 1711 mandates that the area where Pierce fell
through the ceiling tile to the floor below was an area for which
a guardrail was required according to the UPC. Nor do I agree with
the majority’s conclusion that, as a matter of law, a condition was
created that was dangerous to human life.
The question whether ALSC violated the UBC was presented to
the jury by means of the following instruction:
Kalispell City Ordinance No. 1078, adopted as law
the 1985 edition of the [UBCI. If you find that the
defendant violated any provision of the RJBCI relating to
human safety, such violation is negligence. You should
then determine whether that negligence was a cause of the
25
plaintiff's injury.
According to this instruction, the jury could find that ALSC
violated the UBC and, in that event, negligence is established.
The court refused to instruct the jury that ALSC was negligent as
a matter of law, leaving the question of whether ALSC violated the
UBC--and, therefore, was negligent--to be determined by the jury
pursuant to expert testimony presented at trial. The jury heard
the evidence presented by the experts and had the opportunity to
observe the witnesses and determine their credibility firsthand.
The District Court correctly presented the question whether
the UBC was violated to the jury. The jury listened to the
evidence presented and determined that there was no violation of
the UBC. The evidence on this issue consisted of expert testimony
from architects Hindley, Salsbury and Llewellyn. Whether the UBC
had been violated was properly a question to be determined by the
trier of fact based on expert testimony.
Some of that expert testimony, as emphasized in the majority
opinion, was presented by the plaintiff's expert, Professor Clark
Llewellyn. Llewellyn was the only architect who testified
unequivocally that the area where Pierce fell through had to be
brought up to code by installing a new walking surface, lighting
and guardrails even if it was not going to be used and even if the
owner insisted upon leaving the area accessible without
improvements. There was testimony from the other architects that
such an area is up to code without improvements if no use is
planned for the area.
26
Architect Hindley testified that the use to be made of a room
determines how the UBC requirements for improvements are to be
applied, specifically stating that "it is up to code if it's not
being used." He testified that his understanding was that the use
of that space was to be discontinued and that people would not be
allowed in the space. He considered it as dead ceiling space,
which does not require improvement. After he learned that the
store manager and Roy Beekman agreed to leave the door in place and
that access was possible to the area, he was assured again that the
area was not going to be used for any purpose. Based upon that
assurance, he determined that the space did not require improvement
nor did it need to be closed in by sheetrock.
The plan to close off the space was part of a change order
primarily intended to provide access to the new security room.
Sealing off the access by sheetrocking over the door opening was
planned so that the door could be used for the new security room.
Hindley and Salsbury agreed to move the door to the new security
room in order to save on costs. They agreed that if the area where
Pierce later fell through was going to be & by Rosauer's, it
would need improvements, including a guardrail, in order to conform
to the UBC. Salsbury assured Hindley that the area was not going
to be used for any purpose. Removal of the door was never a main
concern; it was planned in order to provide access to the new room,
not primarily to conform to the UBC. Based on Salsbury's decision
to abandon any use of the area, Hindley did not insist on closing
off the space with sheetrock when he learned that, instead of
2-l
closing off the room, a new door was provided by the contractor for
the new room at no extra cost to Rosauer's.
Richard Salsbury, owner-representative for Rosauer's and an
architect himself, testified extensively about the requirements for
the abandoned area. As emphasized by the majority, some of his
testimony was to the effect that the area did not conform to the
UBC. However, his testimony equivocated--he also testified that
the space was like attic space and did not need improvements unless
it was going to be used. He told Hindley that Rosauer's intended
to abandon the area. Salsbury did not concede, as the majority
opinion states, that the area where Pierce was injured did not
conform to the UBC. What Salsbury agreed to was the statement that
if the area were to be used bv humans for any ournose, it did not
conform to the UBC. He testified that he thought Hindley had
violated the regulations of the AIA (American Institute of
Architects), a professional organization for architects. Violation
of an AIA regulation or ideal of conduct does not have the same
significance as a violation of the UBC. The UBC is a set of
minimum standards adopted as a city ordinance by the City of
Kalispell.
Salsbury also testified that the area was to be abandoned. He
testified that unused attic space, even if there is an access door
to it, does not require sealing off access to comply with the UBC.
He further testified that, although there is no UBC requirement
that a space has to be sealed off or improved, he decided, at the
time of his initial discussion with Hindley about the space, that
28
it be sealed off because it was going to be abandoned and not used
for any purpose. Instead of closing the area by means of
sheetrocking over it, the door could have been nailed shut or kept
locked to prohibit access. Salsbury testified that Hindley was
justified under the circumstances in accepting his statement that
it would not be used. Furthermore, if Rosauer's had not decided to
have a security room built at the last stages of the project, the
area would have been left as it was with no improvements. This
area was only accessible by going through the manager's office.
According to the testimony as discussed above, there was an
actual dispute among the architects as to whether the facts
demonstrated a violation of the UBC. Llewellyn testified that
access to the area had to be closed off even if usage for any
purpose was to be abandoned. Hindley testified that the UBC
required that it be closed off or improved & if there was an
intent to use the space. Salsbury's testimony on direct
examination was that the UBC was violated if the area was to be
used; on cross-examination he testified the area was like unused
attic space which did not need improvements. All three architects
agreed that the area had to be improved to conform to the UBC if it
was going to be used; only Llewellyn testified unequivocally that
the area here did not conform to the UBC requirements even if all
use was abandoned. Although Salsbury testified that if he had
known the door was left in place, he would have insisted it be
locked or otherwise closed off, he did not testify that it did not
conform to UBC standards. His testimony was that it did not comply
29
with AIA standards, which are different from and more exacting that
the minimal requirements of the USC.
We have held in numerous cases that expert testimony is
required in order to establish the standard of care for
professionals because such standards of care are outside the common
experience and knowledge of lay jurors and expert testimony is
required to assist them in resolving professional negligence cases.
That requirement has been extended to negligence actions in Montana
against veterinarians, medical doctors, lawyers, dentists,
orthodontists, manufacturers of pharmaceuticals, and abstracters of
title. Zimmerman v. Robertson (1993), 259 Mont. 105, 107, 854 P.2d
338, 339. Most recently, we held that expert testimony was
required to establish the standard of care of professional
counselors. See Newville v. Department of Family Services (Mont.
19941, 883 P.2d 793, 805, 51 St.Rep. 758, 767-68. Architects are
included in the group of professional fields requiring expert
testimony to establish the standard of care. See Presser and
Keeton, The Law of Torts, § 32 (5th ed. 1984); Zimmerman, 854 P.2d
at 339.
After admitting evidence of expert testimony to assist the lay
jurors in this case in making their determination on the issue of
the professional architect's negligence, the District court
submitted the issue of ALSC's negligence to the jury. The majority
has disregarded that expert testimony from architects Hindley and
Salsbury and has concluded that there was not substantial evidence
to support the jury's verdict and that the uncontroverted evidence
30
established that ALSC's performance of the Rosauer's contract
violated §§ 104(b) and 1711 of the 1985 edition of the Uniform
Building Code. I emphasize that the evidence was not
uncontroverted and there was substantial evidence from which the
jury could determine either that the UBC was violated or that the
UBC was not violated. The majority has usurped the jury's role and
made that determination as a matter of law. Even assuming that
Hindley's testimony was self-serving, however, that does not
explain the following expert testimony from Salsbury, which I
conclude constitutes substantial evidence that the UBC was not
violated:
Q [by Mr. Sullivan] Would the improvements of lighting and
guard rail have been required under the Uniform Building Code
if the area accessed by the door, which was left, was going to
be continued to be used for any purposes?
A Yes.
Salsbury testified that an area not used did not have to
conform to the UBC requirement for a guardrail and likened the
space to unused attic space. His testimony was as follows:
Q [by Mr. Heckathornl And if attic or if an attic space is
going to be abandoned, and not used, there is no requirement,
under the [UBCI to do something with the attic, is there?
A NO.
Q And there is no problem, even if you have an access door
to that unused space, you still don't have to do anything to
it, do you?
A No.
Q If you don't use it?
A That is true.
Q But, what does the [UBC] say as to when something like
31
that attic space must be developed and --
A When there is a use?
Q Well, what kind of a use?
A Use by humans.
. .
Q . . . Under the facts that you have given us, that you
had told Steve that the attic space was going to be abandoned,
you don't contend that there was some duty on the part of
Steve to do something to comply with the [UBC], do you?
A I do not, as long as the space was sealed off.
Q Yeah. Well, no -- As long as you had told him that it
was going to be abandoned and not used?
A Well, the alternatives that I discussed with Steve were
that we either had to improve that area where the accident
happened, so that it would be safe, or that we would have to
seal it off.
Q I think that Steve asked you, did he not, whether you
would like to have that developed for storage?
A Yes, that's true.
Q And you told him that you would not, that you were going
to abandon it?
A That's true.
Q Now, the [UBCI does not require, and I think that we have
already said that, does not require work to be done in an
unused attic space, even if there is an access door to it?
A That's true.
Q And so, it isn't a requirement that it be sealed off?
A That was my decision, however, and direction.
Q That was by direction of the UBC now?
A Yes.
Q There is no UBC requirement that a space has to be sealed
off, and if it isn't sealed off it has to have work done on
it?
32
A That's true.
Q And the only knowledge that Steve had again, was that you
had said it was going to be abandoned?
A Yes.
Q And not used?
A Not used.
Q And he was justified under those circumstances in
accepting your statement that it wouldn't be used?
A That's true.
. . .
Q [by Mr. Heckathornl NOW, Mr. Salsbury, we saw a lot of
exhibits about the AIA and a lot of requirements and those are
some of the requirements and there are a lot more, aren't
there? I mean there is a lot of requirements on an architect,
you have a lot of professional responsibilities and you go to
school for a long time to learn them, don't you?
A Yes, that's true
Q What relevance, or what did you think that all of these
exhibits had to do with the issues that we have defined?
A Well, my thinking is that these exhibits define roles,
define paths of communication, define authorities and
obligations.
Q Do you think that Steve violated any of those ideals,
regulation of AIA in this contract?
A Of the AIA?
Q Yes.
A Yes.
The requirement of the AIA which Salsbury thought Hindley
violated was the failure to recognize that there was a contract
requirement that had not been completed--removing the door and
sealing off the opening. That requirement was one which the
contractor and the store manager agreed should be left as is with
33
the contractor providing a new door for the security room for the
same price. Violation of the AIA is not equivalent to violation of
the UBC.
The majority has concluded that there was not substantial
evidence to support the jury's verdict and that uncontroverted
evidence established that ALSC's performance related to the
remodeling project violated §§ 104(b) and 1711 of the UBC. I do
not agree that the evidence was uncontroverted and I do not agree
that ALSC's performance violated the UBC sections. Moreover, there
was substantial evidence to support the jury's finding of no
negligence on ALSC's part.
Our role is not to reweigh the evidence when there is
substantial evidence to support the jury verdict. This is not the
sort of unenclosed floor opening contemplated by 5 1711 which
needed to be protected by a guardrail. It was an abandoned space
accessible only through the manager's office which Hindley and
Salsbury testified did not need improvement according to the UBC.
Clearly this is substantial evidence to controvert other testimony
provided by Llewellyn.
In addition, I do not agree that this was an unsafe condition
according to § 104(b). This was an unused area and, as such,
needed no improvements, according to the testimony of Salsbury and
Hindley. The testimony indicated that there were many changes
within the area, including the installation of conduit and other
ductwork which to some extent blocked access to the area where the
cooler had previously provided the floor and that this should have
34
alerted Pierce to changes within the space. Although the access
door remained where it had always been, the area inside the space
behind the door was substantially changed. I do not agree with the
statement of the majority that "when a functional door is provided,
future use has to be presumed."
Because of the conflicts in the evidence, I conclude the
District Court properly submitted the issue of architectural
negligence to the jury. I further conclude there clearly was
substantial evidence presented upon which the jury could base its
finding that ALSC was not negligent.
I would affirm the District Court on this issue.
35
Justice Karla M. Gray, specially concurring.
I concur in the Court's opinion in all regards and specially
concur here on issue 1 in order to respond to the dissent's
presentation of Mr. Salsbury's testimony in this case.
Issue 1 is whether defendant was negligent as a matter of law
by virtue of its violation of the Uniform Building Code. The Court
recounts the clear and uncontroverted evidence--including that of
Mr. Salsbury--that the UBC was violated and determines, on that
basis, that the District Court erred in not granting plaintiff's
motion for judgment notwithstanding the verdict. The dissent
presents a picture of Mr. Salsbury's testimony suggesting that Mr.
Salsbury equivocated and, thus, created a jury question regarding
whether the UBC was violated. Because it is my view that the
dissent takes the Salsbury testimony out of the context which is
relevant here, I set forth Mr. Salsbury's unequivocal testimony
that the altered portion of the store at issue here violated the
UBC:
Q At the time that Doug was injured, did the area
accessed through the door, off of the store manager's
office, and in particular the area where Doug Pierce fell
through the suspended ceiling, conform to the minimum
safety standards of the Uniform Building Code?
A No
Q If the door would have been removed and the
opening patched over with sheet rock and studs, as was
called for in the clarification drawing R17, would the
building at that point have conformed to the provisions
of the Uniform Building Code?
A I believe that it would, that space would have
been made non-accessible.
36
. . . .
Q Do you consider this door, in and of itself, to
be a hazard, Mr. Salsbury, or does it gain access to a
hazard?
A It gains access to a hazard.
Q So the real -- Let me ask you this, did the
same hazard exist that claimed Mr. Pierce as its first
victim prior to the remodelling project?
A No.
Q AS the owner's representative, what is the
owner's attitude as to that door being left there?
A We preferred that it be sealed off
Q Because it creates a dangerous situation?
A Yes.
. . . .
Q The real part of this case, Mr. Salsbury, would
you agree, is that there was a condition inside of this
storage area which was unsafe to human life at the time
that Mr. Pierce was using that space and at the time that
he was injured on May 21, 1988?
A Yes.
. . . .
Q Let's assume for a minute that under section
104(B) that leaving the door here as it was at the time
of the accident, unlocked, no warning signs, no warning
signs inside the area, no barricade around the area, but
as it existed at the time of the accident, and under
section 104(B), did that constitute a condition which was
a hazard to human health and safety?
A Yes, in my opinion it did.
Q so, in other words, under any of the scenarios
that we have discussed, that area, at the time of the
accident, had to conform to the minimum requirements of
the Uniform Building Code?
A I believe so, yes.
37
. .
Q In other words, the real hazard that this whole
lawsuit is about isn't simply the fact that a door was
left in the contravention of your order and the
contravention of the contract documents, in contravention
of the architect's duty, but the real gut of the lawsuit
is, is that door allowed access to a hidden hazard that
claimed Mr. Pierce as its first victim, correct?
A Yes.
Nothing in this testimony equivocates on whether the
requirements of the UK were met. Mr. Salsbury's testimony
establishes without question a violation of section 104(b), which
prohibits alterations to an existing building from causing the
building to become unsafe or dangerous to human life.
Justice James C. Nelson:
I join in the special concurring opinion of Justice Gray.
38
Pierce v. ALSC Architects, P.S.
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