No. 85-568
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
ROGER DVORAK,
VS.
MATADOR SERVICE, INC. a foreign corporation;
and KOCH INDUSTRIES, INC., a foreign
corporation,
APPEAL FROM: District Court of the Thirteenth Judicial District,
in and for the County of Yellowstone,
The Honorable Diane ~ a r z ,Judge presiding.
COUNSEL OF RECORD:
For Appellant/Plaintiff:
GOETZ, MADDEN and DUNN, P.C.; James P. Molloy,
Bozeman, Montana, Argued,
Jeffrey T. Renz, Billings, Montana,
For Respondents/Defe dant :
&C.LqB n&- s h m o a - ; Charles R. Cashmore,
Billings, ~ontana,Argued
Submitted: July 8, 1986
Decided: August 28, 1986
Filed:
2 8 1986
elLC -#*
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
The plaintiff-appellant brought this action to recover
for injuries which he sustained when he was overcome by
hydrogen sulfide gas as he was preparing a vacuum tank for
welding repairs. The District Court granted the defendants1
second motion for summary judgment. From that order and
judgment the plaintiff appeals. We affirm.
In March of 1981, the plaintiff-appellant, Roger Dvorak
,
("Dvorak") was employed as a journeyman welder at Beall,
Inc. of Billings, Montana. Beall repairs and fabricates
truck tanks used for hauling commodities such as gas and oil.
On March 4, 1981, defendant-respondent Matador Services
Company, a subsidiary of defendant-respondent Koch
Industries, Inc., delivered a vacuum tank truck to Beall for
repairs. The truck at one time or other had hauled oil
production water, salt water, and bottom sediment, all
contaminated with hydrogen sulfide, a highly toxic substance.
Beall officials were aware that all trucks from the Williston
Basin, including this truck, could be expected to have hauled
hydrogen sulfide contaminated matter. The record is also
undisputed that Beall officials were generally aware of the
serious dangers associated with hydrogen sulfide.
When Beall received the truck from Matador, it followed
its standard procedures for readying tanks for repair. It
placed the truck on a steam rack where it was steam cleaned.
It was then left outside to cool overnight. The following
morning, March 5, Beall1s foreman, Israel Sanchez, tested the
tank with an explosimeter to determine whether any explosive
gases were present. After determining that the tank was
safe, Sanchez assigned Dvorak and an assistant to do the
necessary welding repairs.
When Dvorak entered the tank to begin his work, he
discovered that it still contained a considerable amount of
tar-like material and sediment, and was generally still
dirty. Fearing that an explosion would occur if he began
welding, Dvorak left the tank and complained about its
condition to Sanchez. Sanchez entered the tank himself to
inspect it. He noticed no unusual smells or any other
indications that the tank was unsafe so he "ordered" Dvorak
and his assistant to reenter the tank and scoop the sediment
from the bottom before welding. Sanchez told Dvorak and his
assistant to either reenter the tank or "go down the road."
As Dvorak began shoveling the sludge out of the tank,
he collapsed. Dvorak's assistant and several other workers
reached into the tank and pulled Dvorak out. It was later
learned that Dvorak had been exposed to hydrogen sulfide.
Dvorak received serious injuries as a result of his exposure
to the hydrogen sulfide.
On March 4, 1983, Dvorak filed suit against Beall,
Matador and Koch. Dvorak alleged that Beall was liable under
the intentional tort exception to the exclusivity provisions
of Montana's Workers' Compensation laws. Beall's motion for
summary judgment was granted on January 16, 1984. Dvorak's
subsequent appeal from that judgment was dismissed with
prejudice as fully settled on the merits.
Dvorak stated two claims for relief against Matador and
Koch (hereinafter defendants or "Matador"). The first claim
for relief alleged that the defendants were strictly liable
for engaging in an abnormally dangerous activity. Dvorak's
second claim for relief was based on the several theories of
negligence. First, Dvorak contended that the defendants
generally negligent conduct was responsible for his injuries
(primarily that the defendants were under a duty to warn or
advise Beall that special precuations were necessary when
dealing with hydrogen sulfide). Second, Dvorak contended
that the peculiar risks associated with hydrogen sulfide make
it an inherently or intrinsically dangerous activity, thus
making the defendants' vicariously liable for Beall's
wrongful conduct.
The defendants moved for summary judgment in February
of 1984 based on the argument that the sole proximate cause
of Dvorak's injuries was Beall's negligence in failing to
properly clean the subject tank and in requiring Dvorak to
reenter the tank even with actual knowledge of its unclean
condition. The District Court found that a material issue of
fact existed, relating to whether Beall was aware of the
gravity of the danger presented by the presence of hydrogen
sulfide in the subject tank. On that basis, the court denied
the defendants' first motion for summary judgment.
Following further discovery, the defendants renewed
their motion for summary judgment based on information which
showed that Beall had actual knowledge of the serious dangers
associated with hydrogen sulfide. The District Court
thereafter granted the defendants' motion for summary
judgment and concluded that Beall's knowledge of hydrogen
sulfide's potential dangers rendered its conduct the sole
proximate cause of Dvorak's injuries.
It is from the granting of summary judgment in favor of
the defendants that Dvorak appeals.
Dvorak now presents the following issues for review by
this Court:
I. Did the District Court erroneously impose summary
judgment on plaintiff's negligence claims?
A. Did the District Court err in holding as a matter
of law that the peculiar risk (inherently dangerous
activity) exception to the independent contractor rule
does not apply to this case?
1. Does Montana recognize the peculiar risk
exception?
2. Are employees of an independent contractor
protected under the peculiar risk exception?
B. Did the District Court erroneously impose summary
judgment on the plaintiff's general negligence claim
when the record reflected disputed issues of fact
regarding foreseeability and causation?
11. Did the District Court erroneously impose summary
judgment on plaintiff's strict liability claim for an
abnormally dangerous activity?
I. Dvorak's negligence claims
Dvorak begins his argument under this issue by noting
that at the time he was injured, he was an employee of Beall,
Inc. Dvorak further notes that Beall was in turn an
independent contractor employed by defendant Matador. The
general common law rule, which Montana follows, is that an
employer is not liable for the negligence or wrongdoing of an
independent contractor. See, Storrusten v. Harrison (1976),
169 Mont. 525, 549 P.2d 464. However, there are some very
important exceptions to this general rule. Dvorak argues
that Matador falls under two common exceptions to the
independent contractor rule: (1) the peculiar risk or
inherently dangerous activity doctrine; and (2) the
employer's liability for his own negligence. Dvorak asserts
the District Court, in imposing summary judgment, held that
Montana does not recognize the "inherently dangerous
activity" exception and that, in any event, the exception
would not apply to the facts of this case. With regard to
the employer's own negligence exception, the trial court
apparently recognized the exception but held that Matador
could not be liable on that basis. Dvorak argues the trial
court erred in its conclusions.
First, with regard to the inherently dangerous activity
exception, Dvorak argues that Montana has long recognized
this doctrine. This doctrine basically provides that where
the acts to be performed by an independent contractor are of
an inherently dangerous nature, the employer will be held
vicariously liable for any resultant injury caused by the
negligence or wrongdoing of the independent contractor. To
establish that Montana has adopted the peculiar risk or
inherently dangerous activity exception, Dvorak directs this
Court's attention to the recent cases of Kemp v. Bechtel
Construction Co., et al. (Mont. 1986), P.2d I 43
St.Rep. 1022 and Cash v. Otis Elevator Co. (Mont. 1984), 684
P.2d 1041, 41 St.Rep. 1077.
It is also important to note, Dvorak argues, that
employees of independent contractors are protected under the
inherently dangerous activity exception. In other words, the
exception extends not only to third persons, but also to
employees of an independent contractor. Therefore, an
employer (i.e. Matador) who hires an independent contractor
(i.e. Beall) to engage in an inherently dangerous activity
will be liable for negligent acts which injure the
contractors own employees (i.e. Dvorak) . See, Kemp, supra,
and Stepanek v. Kober Construction (Mont. 1981), 625 P.2d 51,
38 St.Rep. 385.
In light of Montana's clear recognition of the
inherently dangerous activity exception, Dvorak argues, the
only remaining issue is whether the exception applies to this
case. In other words, whether the repairing and fabrication
by Beall of tanks which contain hydrogen sulfide contaminated
matter is an inherently dangerous activity thereby making
Matador vicariously liable for Beall's negligence or
wrongdoing. Dvorak argues this issue is a question of fact
which can only be determined by a jury. Consequently, Dvorak
asserts, this case must be reversed and remanded for trial.
Dvorak argues the second exception to the general rule
that an employer is not liable for the tortious acts of an
independent contractor is that if the employer is himself
negligent in his own dealings with the independent
contractor, this can give rise to employer liability. In the
instant case, Dvorak primarily argues that Matador's conduct
falls under this exception because Matador negligently failed
to advise or warn Beall that special precautions were
necessary when dealing with hydrogen sulfide. Dvorak
contends that Beall was ignorant of the reasonable particular
protections necessary against hydrogen sulfide's dangers and
that Matador knew of Beall's ignorance. Thus, it was
reasonably foreseeable to Matador that a Beall employee (i.e.
Dvorak) would be injured. Dvorak bases his theory of
negligence on 5 413 of the Restatement (Second) of Torts.
In response to Dvorak's contentions under this :ssue,
Matador argues it is not vicariously liable for Beall's
wrongful conduct. Matador acknowledges there appears to be
several exceptions to the general rule that an employer is
not vicariously liable for the tortious acts of his agent if
the latter is an independent contractor. The exceptions
relied on by Dvorak are: (1) the inherently dangerous
activity exception; and (2) the employer's liability for his
own negligence exception. Dvorak's objective, Matador notes,
is to establish that Beall was an independent contractor
employed by Matador thereby making Matador vicariously liable
for Beall's tortious conduct under the exceptions noted
above. However, Matador argues, this whole line of argument
by Dvorak simply begs the question and entirely misses the
point. We agree.
We agree with Matador that Beall is simply not its
agent in the sense in which the proferred doctrines apply and
vicarious liability simply does not attach to the instant
case. Working through the exceptions to the independent
contractor rule is, therefore, to no avail since the
underlying agency relationship upon which vicarious liability
rests does not exist.
Matador points out the independent contractor rule
provides that a principal (employer) will not be liable for
the tortious acts of his agent (employee) if the latter is an
independent contractor, with certain limited exceptions. In
the instant case, however, Matador argues that Beall is not
its agent in the first place. Matador did not engage Beall
to undertake activities on behalf of Matador in Matador's
relations with third parties or the public generally.
Rather, Matador engaged Beall to perform tasks for Matador,
not tasks which Matador had undertaken to perform for others
and was delegating to Beall. This is simply not an agency
case and no principle of vicarious liability can be applied.
We agree with Matador that Dvorak simply attempts to
stretch to the point of misapplication the cases which do
properly apply exceptions to the independent contractor rule.
For example, such doctrines (i.e. the inherently dangerous
activity exception) are especially prevalent in construction
cases because clearly a subcontractor is an agent of the
contractor (principal) for purposes of performing work which
the contractor had agreed to perform for the owner (third
party) . See, Kemp, supra (although the inherently dangerous
activity exception was ultimately held not to apply to this
fact situation). In such an arrangement, there may very well
be a situation in which the contractor is vicariously liable
for the acts of the subcontractor, even though an independent
contractor relationship exists. In the present case,
however, the agency relationships which form the framework of
the doctrines are absent. Therefore, Matador can not be
vicariously liable for Beall's wrongful conduct.
It is also important to note, Matador argues, that it
is not liable to Dvorak under any general negligence theory,
whether associated with an exception to the independent
contractor rule or not, because Beall's conduct was the sole
proximate cause of Dvorak's injuries. Matador asserts that
since Beall knew of the presence and dangers of hydrogen
sulfide in the subject tank, had the responsibility to clean
the tank prior to employee entry, failed to adequately do so,
and then ordered Dvorak into the tank despite his protests
that the tank was unc1ea.n and unsafe, Beall, and not Matador,
is liable for Dvorak's injuries. Matador notes the District
Court came to this same conclusion and granted its motion for
summary judgment. We agree.
Matador points out that Dvorak under a general
negligence theory, is basically arguing that the defendants
are liable for his injuries because Matador failed to
exercise reasonable care in advising or warning Beall that
special precautions were necessary when dealing with hydrogen
sulfide. Even assuming Matador owed such a duty to Beall at
all (which is highly questionable), and then breached such a
duty, the law and facts clearly establish that Beall's
conduct, and not Matador's conduct, was the proximate cause
of Dvorak's injuries.
Matador strongly relies on the case of Rost v. C.F.I.
Steel Corp. (Mont. 1980), 616 P.2d 383, 37 St.Rep. 1657, to
establish tha.t Beall's conduct was the proximate cause of
Dvorak's injuries. The Rost case was a products liability
action against the manufacturer of an elevator cable for
injuries sustained when the frayed and torn cable broke and
the elevator fell. The plaintiffs in the Rost case settled
their dispute against the store owner and proceeded to trial
against the cable manufacturer on the theory that the
defendant failed to warn the store owner of the dangerous use
of the cable. In affirming a jury verdict in favor of the
cable manufacturer, this Court found that the proximate cause
of the accident was the negligent conduct of the store owner
in failing to properly maintain and inspect the cable and not
any failure to warn on the part of the manufacturer. ' The
Court characterized the store owner's conduct, as a matter of
law, as the superseding intervening force or "operative
conduct" leading to the plaintiff's injuries.
We find the circumstances of the Rost case are
analogous to the circumstances of the instant case. Dvorak's
injuries occurred because Beall did not clean the tank, as it
was expected and required to do, and then forced Dvorak to
enter the tank even after the unclean conditions had been
brought to the attention of Dvorak's foreman. We find
without Beall's grossly negligent conduct the accident would
not have occurred and, therefore, Beall's conduct was the
"operative conduct" or superseding force which intervened as
the proximate cause of Dvorak's injuries. A warning from
Matador to Beall as to the risks of hydrogen sulfide (if such
a duty existed at all) would have been to no avail, and
consequently, a failure to warn could not have been the
proximate cause of the accident.
11. Dvorak's strict liability claim
In addition to the negligence claims mentioned above,
Dvorak's complaint also included a claim against Matador
based upon strict liability for engaging in an abnormally
dangerous activity. Dvorak points out this Court in Matkovic
v. Shell Oil Co. (Mont. 1985), 707 P.2d 2, 42 St.Rep. 1482,
recently addressed the theory of strict liability in cases
involving an abnormally dangerous activity. In Matkovic this
Court adopted 5 519 of the Restatement (Second) of Torts
which basically holds that ''[olne who carries on an
abnormally dangerous activity is subject to liability for
harm to the person . . . of another resulting from the
activity, although he has exercised the utmost care to
prevent the harm." Matkovic, 707 P. 2d at 3-4. In addition,
this Court listed numerous factors adopted from S 520 of the
Restatement (Second) of Torts to determine whether a
particular activity is abnormally dangerous.
Dvorak now argues, consistent with the law embodied in
Matkovic, that the transport and storage of hydrogen sulfide
contaminated materials by Matador is an abnormally dangerous
activity, thereby making Matador strictly liable for his
injuries. Dvorak further asserts this issue of whether the
handling and storage of hydrogen sulfide contaminated matter
is an abnormally dangerous activity is a question of fact for
the jury.
We acknowledge that Dvorak's allegations under this
issue create a superficial factual issue as to whether the
handling of hydrogen sulfide contaminated materials is an
abnormally dangerous activity. However, we find, as did the
District Court, that even if a jury could have found that
Matador's activities were abnormally dangerous, Matador can
not be liable in any event because it was not the proximate
cause of Dvorak's injuries.
This Court has previously established that a showing of
proximate cause is a necessary element for any plaintiff's
recovery in strict liability. Brown v. North American
Manufacturing Co. (1978), 176 Mont. 98, 576 P.2d 711.
Therefore, in order for Dvorak to establish a prima facie
case for strict liability, it must be proven that Matador's
conduct was the proximate cause of his injuries. Further,
contrary to Dvorak's belief, the showing of proximate cause
under strict liability is identical to that required for a
prima facie showing of negligence. In other words, a
defendant's liability can be cut off by a superseding
intervening force.
As we have already explained under issue I, we find
that Beall's conduct, and not Matador's conduct, was the
proximate cause of Dvorak's injuries. Therefore, Matador can
not be stictly liable for Dvorak's injuries.
Finally, we agree with Matador that the ultimate reason
strict liability does not apply in this case is that Dvorak's
injury did not occur while Matador was conducting any
activity at all. Rather, the injury occurred during the
conduct of an activity by Beall. Matador was not carrying on
an abnormally dangerous activity which resulted in harm to
Dvorak. Matador had delivered the tank to Beall and it was
Beall, not Matador, who was carrying on the activity involved
in Dvorak's injury. In other words, Matador was carrying on
no activity, abnormally dangerous or otherwise, which
resulted in Dvorak's injuries.
In conclusion, we hold the District Court properly
granted summary judgment in favor of Matador. This Court has
repeatedly stated "that a plaintiff is subject to summary
judgment if he fails in establishing certain material
elements in a negligence action" (or any cause of action for
that matter). Scott v. Robson (1979), 182 Mont. 528, 535,
597 P.2d 1150, 1154; see also Pickett v. Kyger (1968), 151
Mont. 87, 439 P.2d 57. This general rule applies to the
instant case.
With regard to his negligence claims under issue I,
Dvorak failed to establish the basic principles of agency law
necessary to hold Matador vicariously liable for Beall's
wrongful conduct. Further, even under a general negligence
theory Matador can not be held liable to Dvorak because
Dvorak failed to establish that Matador was the proximate
cause of his injuries. (This is even assuming Matador owed a
duty to Beall and Dvorak in the first place.)
Finally, with regard to his strict liability claim
under issue 11, Dvorak failed to establish a prima facie case
for this cause of action. As explained in the opinion above,
Dvorak failed, once again, to show that there was a proximate
causal connection between Matador's conduct and his injuries.
We hold because Dvorak failed to establish the
necessary elements of his stated causes of action, summary
judgment was appropriately granted in favor of Matador.
The order of the District Court granting summary
judgment is affirmed.
We concur
Justices
Mr. Justice Frank B. Morrison, Jr., concurring in part and
dissenting in part.
I specially concur in part and dissent in part.
Plaintiff presents three theories: 1. Matador and
Koch, as owners who employed the services of an independent
contractor, should be liable to persons injured by the
negligence of the independent contractor on the basis of
nondelegable duty because the activity to be performed was
inherently dangerous. 2. Matador and Koch were engaged in
conducting an ultra hazardous activity, transporting and
storing hydrogen sulfide, and should be liable for injury
resulting therefrom on the basis of strict liability.
3. Matador and Koch were negligent in failing to warn the
independent contractor, Beall and its employees, of the
dangerous propensities of hydrogen sulfide and in delivering
the truck to Beall in a highly dangerous condition exposing
Beall's employees to unreasonable risk of harm.
I would affirm summary judgment on the first two
theories and remand for trial on the third issue involving
defendants' direct negligence.
In the recent case of Kemp v. Bechtel Construction Co.
(Mont. 1986), 720 P.2d 270, 43 St.Rep. 1022, we recognized
that an owner can be liable for the negligence of an
independent contractor where the owner employees an
independent contractor to engage in an inherently dangerous
activity. In Kemp the majority found that trenching was not
inherently dangerous under the circumstances of that case.
The rule in Kemp is premised upon the fact that the
owner controls the work place in general and cannot delegate
safety responsibility to a subcontractor thereby effectively
insulating the owner from liability. However, in this case,
Matador is not in control of the work place. Matador owns
personalty, in the form of a truck, which is taken to an
independent contractor for servicing. Matador has no right
to enter the work place nor control the way work is performed
on the premises. Therefore, it would make no sense to extend
the Kemp rationale to the Matador circumstance. I would
affirm summary judgment in favor of Matador and Koch on the
non-delegable duty theory.
In the recent case of Matkovic v. Shell Oil Co. (Mont.
1985), 707 P.2d 2, 42 St.Rep. 1482, we held that strict
liability attached for conducting an ultra hazardous
activity. I believe that the Matkovic rule is not applicable
here. The activity at issue was being conducted by Beall and
not by the defendants. Again, I would affirm summary
judgment on this count.
Plaintiff alleges direct negligence on behalf of Matador
and Koch in failure to warn of the dangerous propensities of
hydrogen sulfide and in delivering for cleaning a truck which
presented an unreasonable risk of harm to those working
inside the truck's tank. This claim should go forward for
factual resolution. Apparently the majority feels there is
an issue on negligence but finds the action of Beall,
plaintiff's employer, to be a superseding cause. The
majority alludes to "proximate cause".
This case involves multiple causes. Therefore, the
pertinent inquiry is whether the defendants' conduct was a
substantial factor in producing plaintiff's injuries. Legal
cause, not proximate cause, is the test. Kyriss v. State of
Montana (Mont. 1985), 707 P.2d 5, 42 St.Rep. 1487.
Beall, acting through its supervisory personnel, may
well have been negligent in directing plaintiff to enter the
subject tank containing hydrogen sulfide. However, if
Matador and Koch were negligent in failing to advise of the
extreme danger, given the amount of sediment they knew was in
the tank, that negligence may have concurred with the
negligence of Beall. The question of causation, under proper
legal cause instructions, is for a jury.
This case should be reversed and remanded for trial on
the direct negligence claim.
Justice William E. Hunt, Sr., dissenting:
This cause of action should be reversed and remanded for
trial in the District Court. Appellant Dvorak has stated a
claim for which relief may be granted and questions of fact
exist which can only be resolved by trial.
Appellant asserts three legal theories by which
respondents Matador and Koch may be held liable for his
injuries. All three theories rely on recognized exceptions
to the general rule that employers of independent contractors
are not liable for injury caused by those independent
contractors. Before discussing each theory of liability, it
is necessary to examine the relationship between Beall and
Matador, the subsidiary of Koch.
I agree with the majority that Beall was not acting as
an agent of Matador. An agency relationship "results from
the manifestation of consent by one person to another that
the other shall act on his behalf and subject - - control,
to his
and consent by the other to act. State v. Holdren (1963),
143 Mont. 103, 109, 387 P.2d 446, 449, citing 1 Restatement,
Agency, 5 1 (emphasis in Holdren). No where in the record is
it alleged that Matador employed Beall to act on its behalf
or subject to Matador's control. Rather, Matador did not
have any right to control the details of Beall's operation.
Therefore Beall must be considered an independent contractor.
- Sharp v. Hoerner Waldorf Corporation (1978), 178 Plont.
See
419, 424, 584 P.2d 1298, 1302; State - -
ex rel. Ferguson v.
District Court (1974), 164 P l n . 84, 88, 519 P.2d 151, 153.
iot
I now turn to the three theories of liability asserted
by the appellant. First appellant argues that Matador and
Koch are liable beca.use Beall's work in cleaning trucks,
which are often contaminated with hydrogen sulfide, is
abnormally dangerous. In Matkovic v. Shell Oil Company
(Mont. 1985), 707 P.2d 2, 4, 42 St.Rep. 1482, 1484, we
replied to a certified question from the Federal District
Court for Montana. We stated that strict liability
principles apply in an abnormally dangerous situation. In so
holding, we adopted the standard set forth in Restatement
(Second) of Torts 5 519 (1976). The Restatement also treats
the issue of abnormally dangerous activities carried on by an
independent contractor. Section 427 A. of the Restatement
states:
One who employs an independent contractor to do
work which the employer knows or has reason to know
to involve an abnormally dangerous activity, is
subject to liability - - -
to the same extent as the
contractor for physical harm to others caused by
the activity.
Comment a to 5 427A refers to the reader to 5 5 419-524A
"to determine the liability of both the employer and the
independent contractor." The rationale for this rule of
employer liability is stated in 5 427A comment b. An
employer who meets the criteria of 5 427A "cannot be
permitted to escape the responsibility for the abnormal
danger created by the activity which [the employer] has set
in motion, and so cannot delegate the responsibility for harm
resulting to others to the contractor." This language
harmonizes well with our longstanding rule that an employer
may not "set in opera.tion causes dangerous to the person or
property of others . . . [and then] divest himself of the
primary duty he owes to other members of the community by
contracting with others for the performance of work, the
necessary and probable result of which is injury to third
persons." A. M. Holter Co. v. Western Mtge. & Warranty Co.
(1915), 51 Mont. 94, 99, 149 P. 489, 490.
I disagree with the majority's conclusion that "Matador
cannot be liable in any event because it has not the
proximate cause of Dvorak's injuries. " Proximate causation
is applicable only in a direct negligence action, not in the
area of strict liability.
Appellant states a cause of action for which relief may
be granted. On this theory, a jury should determine whether
Beall's a-ctivities were abnormally dangerous and whether
Matador knew or had reason to know about the abnormal danger.
Our opinion in Matkovic sets forth the factors to be
considered by the jury in determining whether an activity is
abnormally dangerous. Matkovic, 707 P.2d at 4, 42 St.Rep. at
148, citing Restatement (Second) of Torts 5 520 (1976).
Next, appellant asserts that another exception to the general
rule of non-liability of employers of independent contractors
applies to the facts of this case. Again, appellant relies
on Montana cases which reflect the exception found in §§ 416
and 427, Restatement (Second) of Torts (1976) . Montana has
long recognized that those who employ independent contractors
to undertake "inherently dangerous" activity, or activity
involving "peculiar risks" are primarily liable for harm
growing out of the inherent dangers. See Kemp v. Bechtel
(Mont. 1986), - P.2d -, 43 St.Rep. 1022, 1029-1034
(Morrison, Hunt. JJ dissenting) Ulmen v. Schweiger (1932),
92 Mont. 331, 247, 12 P.2d 856, 857; Shope v. City of
Billings (1929), 85 Mont. 302, 278 P. 826; A. M. Holter Co.
v. Western Mtge. & Warranty Co. (1915), 51 Mont. 94, 99, 149
P. 489, 490.
This rule imposes liability upon employers for "the
failure of the contractor to exercise reasonable care."
Restatement (Second) of Torts 5 416 at 395. Therefore, the
contractor's negligence cannot be held to cut off the
employer's liability simply because that negligence is the
sole proximate cause of the injury. It is the very
negligence of the contractor which makes the employer liable.
Again this vicarious liability exists because Montana's
policy is not to let those who set in motion dangerous
activities escape liability. And again, this theory calls
for jury determination of the factual issue of whether
shoveling sediment from trucks used in the Williston Basin is
inherently dangerous or involves peculiar risks.
Finally appellant also relies upon a direct negligence
theory to hold Matador and Koch liable for his injuries. The
first two theories would hold Matador and Koch liable despite
the absence of any negligence upon their part. In his third
argument, appellant contends that Matador was directly
negligent in not exercising reasonable care to provide that
Beall take precautions necessary to avoid peculiar and
unreasonable risks inherent in the work. Again this theory
reflects the Restatement (Second) of Torts, this time 5 413.
That section recognizes that employers of independent
contractors do not have the right to control the details of
the contractor's work. However, where the employers, by
knowledge and experience, realize that the work is inherently
d-angerous, the employers have a duty of due care in setting
that work in motion. The simplest way to exercise that care
is to provide for preventative precautions in the contract
with the independent contractor. Section 413 (a) Restatement
(Second) of Torts (1976) . The employer who realizes, after
forming the contract, that dangers have arisen should act to
prevent those dangerous from causing injury. -
See 5 413
comment d. Again, a jury should determine the extent of
Matador's experience, knowledge, and awareness of
unreasonable danger and evaluate the acts of Matador against
that standard of due care. For appellant to prevail on this
third theory, a negligence action, the jury must, of course,
find Matador's actions, or failure to act, proximately caused
appellant's injury.
Finally, I must disagree with the majority position that
the Restatement exceptions to the general rule of employer
non-liability apply only in the construction context. I
simply cite a sampling of cases where these sections have
been applied outside the construction area. Sun Pipeline Co.
v. Kirkpatrick (Tex.App. 1974), 514 S.W.2d 789 (spraying
defoliant along an easement); Jrexler v. Tug Raven (E.D.Va.
1968) 290 F.Supp. 429, 444 (gasoline being discharged into
storage tanks from a barge); McDonald v. Oakland (Cal.App.
1967) 255 Cal.App.2d 816, 63 Cal.Rptr. 593 (painting a water
tank with volatile paint).
As long as the policy behind the sections 413, 416, 427,
427A is remembered, employers will not be suddenly liable for
every negligent act of independent contractors employed by
them. These theories apply only where employers set in
motion activities which are inherently dangerous and where
Montana's long-standing policy is to hold the initiator of
dangerous activities liable for any resulting injury.
I would reverse and remand for trial.