DAVID L. KEMP,
Plaintiff and Appellant,
BECHTEL CONSTRUCTION COMPANY;
BECHTEL POWER CORPORATION; CHRISTIAN
SPRING, SIELBACH AND ASSOCIATES,
a corporation, et al.
Defendants and Respondents.
APPEAL FROM: District Court of the Sixteenth judicial District,
In and for the County of Rosebud,
The Honorable A. B. Martin, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Kelly & Halverson, P.C.; Billings, Montana
Patrick Prindle argued
For Respondents:
Anderson, Brown, Gerhase, Cebull & Jones; James L .
Jones argued for Bechtel & Montana Power, Billings,
Montana
Crowley, Haughey, Hanson, Toole & Dietrich; William
0 Bronson argued for Christian, Spring, Sielbach &
.
Associates, Billings, Montana
Sidney R. Thomas, Billings, Montana
Submitted: January 23, 1986
Decided: June 6, 1986
Filed:
Mr. Chief Justice 2. A. Turnage delivered the Opinion of the
Court.
This is an appeal from District Court's granting of
surrunary judgment in favor of defendants in a personal injury
case. Christian, Spring, Sielbach & Associates (Christian)
have litigated this matter separate from the other defen-
dants. Bechtel Construction Company was dismissed from the
lawsuit by stipulation. Bechtel Power Corporation, Montana
Power Company, Puget Sound Power and Light Company, Portland
General Electric Company, Washington Water Power Company and
Pacific Power and Light Compa-ny have litigated this matter
together as one party which will be referred to collectively
as "companies" except where the individual dealings of the
entities are important.
We affirm the District Court on all issues.
The significant issue involving the companies is wheth-
er the companies, as general contractor and owner, had a
nondelegable or reserved duty rendering them liable to an
employee of a subcontractor. The issue we considered involv-
ing Christian is whether Christian's status as project engi-
neer encompassed a duty of safety to the other
subcontractors. If there was no duty owed or breached, there
can be no issues of material fact and granting of summary
judgment was appropriate. Rennick v. Hoover (1980), 186
Mont. 167, 170, 606 P.2d 1079, 1081; see also Scott v. Robson
(1979), 182 Mont. 528, 597 P.2d 1150.
The relevant facts concern the contractual. arrangement
of parties on a construction project and the details of a
trenching accident. The contractual arrangements are pre-
scribed by Bechtel's contract with Montana Power Company
(MPC), Christian's contract with MPC, and COP Construction
Company's (COP) contract with Bechtel. Bechtel contracted
with F4PC for development and expansion of a townsite on some
of MPC's property at Colstrip, Monta.na. Christian was
employed by MPC as project engineer. COP subsequently
subcontracted with Bechtel for work which included putting in
a sewer line for the townsite.
No provision in the contract between MPC and Bechtel
addresses safety. Section GC-25 of COP'S contract with
Bechtel sets out these parties' safety duties:
GC-25 SAFETY
Subcontractor shal-1 at all times conduct
all operations under the Subcontract in
a manner to avoid the risk of bodily
harm to persons or risk of damage to any
property. Subcontractor shall. promptly
take all precautions which are necessary
and adequate against any conditions
which involve a risk of bodily harm to
persons or a risk of damage to any
property. Subcontractor shall continu-
ously inspect all work, materials and
equipment to discover and determine any
such conditions and shall be solely
responsible for discovery, determination
and correction of any such conditions.
Contractor will establish a Project
Safety Program. Subcontractor shall
comply with all applicable laws, regula-
tions and standards and the Project
Safety Program. Subcontractor shall
coordinate with other subcontractors on
safety matters and shall promptly comply
with any specific safety instructions or
directions given to Subcontractor by
Contractor.
Subcontractor shall submit written
Safety Program, with detail commensurate
with the work to be performed, for
Contractor's review. Such review and
approval shall. not relieve Subcontractor
of its responsibility for Safety, nor
shal.1 such approval be construed as
in any manner Subcontractor's
obligation to undertake any action which
may be necessary or required to estab-
lish and maintain safe working condi-
tions at the site.
Subcontractor shall appoint a qualified
Safety Representative who, unless other-
wise provided herein, shall have no
other duties. Such Safety Representa-
tive shall attend all project Safety
meetings and participate fully in all
activities outlined in the Project
Safety Program.
Subcontractor shall maintain accurate
accident and injury reports and shall
furnish Contractor a monthly summary of
injuries and manhours lost due to
injuries.
Subcontractor shall hold regular sched-
uled meetings to instruct its personnel
on Safety practices and the requirements
of the Project Safety Program. Subcon-
tractor shall furnish Safety equipment
and enforce the use of such equipment by
its employees.
Provisions 2.h. and 2.i. in the contract between Chris-
tian and Bechtel set out Christian's responsibilities during
the construction phase of the project:
(2.h. ) surveying and staking of
construction layout; and
(2.i.) administration, coordination,
observation and inspection of construc-
tion for the purposes of quality assur-
ance and cost monitoring with the
obligation of promptly informing the
Owner [MPC] of all failures on the part
of construction contractors to perform
work in accordance with applicable plans
and specifications or to accomplish work
in accordance with contract schedules,
a s well as informing the Owner of
.
apparent conflicts or omissions in the
plans and specifications as they are
discovered in the course of a
contractor's work.
No provision in this contract addresses safety.
Plaintiff was employed by COP as a 1.aborer at the
Colstrip project on November 21, 1979. He was working with
Ron Nikula, a backhoe operator, digging a ditch for placement
of a sewer line for a trailer court. The ditch was dug in an
area that had been previously trenched for other purposes.
COP personnel supervised the operations. Nikula was digging
the ditch with a backhoe. Kemp followed the backhoe with a
shovel, cleaning the bottom of the ditch and checking to see
that the ditch was being dug on grade. To check the grade,
Kemp compared the level of a mark on his shovel handle with a
laser beam set by a COP supervisor. There were also stakes
set at regular intervals along the ditch with specifications
by which the diggers could double check the laser.
Kemp and Nikula began digging about 8:30 a.m. They had
dug 150 to 200 feet of 4%-foot-deep ditch over flat ground
when the grade of the terrain began to rise abruptly. The
plans specified a ditch that never exceeded 4%-feet-deep.
However, no one from COP had changed the setting of the laser
to adjust for the changing terrain as was their
responsibility. The diggers continued to follow the laser so
the trench deepened rapidly. By 10:30 a.m. the trench had
been dug another 50 to 75 feet in length and was 9-feet deep.
During this time the diggers realized that the trench was
becoming dangerously deep. They also knew that a trench box
(a "cage" that is put in trenches to protect digger from
cave-ins) was available on the job site. However, they chose
to continue digging without the trench box.
In the meantime, Nikula back-tracked over a portion of
the ditch to dig it deeper to conform with the laser guide.
Nikula believes this back-tracking may have fractured the
dirt and contributed to the eventual cave-in. At the point
where the backhoe had back-tracked, the dirt caved in,
burying Kemp to his neck and causing the injury upon which
this action is based.
Plaintiff sued the companies and Christian. Discovery
was commenced by all the parties. The companies filed a
motion for summary judgment in May 1984. Appellant filed a
brief in opposition to the companies' motion. Christian
filed its motion for summary judgment in September 1984. No
briefs or affidavits in opposition to Christian's motion were
filed. The District Court granted both motions for summary
judgment without hearing in December 1984, and this appeal
ensued.
Appellant contends the companies are liable to him
based upon (1) nondelegable duties in the contract, (2)
nondelegable duties arising from the inherently dangerous
nature of or peculiar risk created by the work, (3) the
control over the subcontractor's work that contractor re-
served in the subcontract, and (4) the "Safe Place to Work
Statute," S 50-71-201, MCA. We will follow this general
format in our discussion of the issues involving the compa-
nies. A discussion involving Christian's duty will follow.
NONDELEGABLE DUTY BASED ON CONTRACT
Montana follows the general rule that "absent some form
of control over the subcontractor's method of operation, the
general contractor and owner of the construction project are
not liable for injuries to the subcontractor's employees."
Shannon v. Howard S. Wright Construction Co. (1979), 181
Mont. 269, 275, 593 P.2d 438, 441. However, we recognized
one of several exceptions to this general rule where
nondelegable duties are created by contract. Stepanek v.
Kober (Mont. 1981), 625 P.2d 51, 38 St.Rep. 385. Appellant
argues that nondelegable duties were created by contract here
so as to render the companies liable.
In Stepanek, the nondelegable duty which subjected the
general contractor to liability to an employee of a subcon-
tractor was created by a provision in the general contract
between the general contractor and. Yellowstone County.
Specifically, that provision required the general contractor
to be "responsible for initiating, maintaining, and supervis-
ing all safety precautions and programs" connected with
construction. We held that this provision resulted in a duty
that could not be delegated to the subcontractor by a
provision in the subcontract which purports to shift safety
responsibilities to the subcontractor. There is no similar
provision in the general contract between MPC a.nd Bechtel in
the instant case. In fact, there is no safety provision in
the general contract. Therefore, nondelegable duty based on
contract does not apply.
NONDELEGABLE DUTY BASED ON INHERENTLY DANGEROUS NATURE OF THE
A general contractor may also owe the employee of a
subcontractor a nondelegable duty of safety where the work is
"inherently dangerous." See Ulmen v. Schwieger (1932), 92
Mont. 331, 12 P.2d 856. On this issue appellant requests us
to adopt §§ 416 and 427, Restatement of Torts, 2d:
5 416. Work Dangerous in Absence of
Special Precautions
One who empl-oys an independent
contractor to do work which the employer
should recognize as likely to create
during its progress a peculiar risk of
physical harm to others unless special
precautions are taken, is subject to
liability for physical harm caused to
them by the failure of the contractor to
exercise reasonable care to take such
precautions, even though the employer
has provided for such precautions in the
contract or otherwise.
t 427.
j Negligence as to Danger Inherent
in the Work
One who employs an independent
contractor to do work involving a
special danger to others which the
employer knows or has reason to know to
be inherent in or normal to the work, or
which he contemplates or has reason to
contemplate when making the contract, is
subject to liability for physical harm
caused to such others by the
contractor's failure to take reasonable
precautions against such danger.
We note Comment a to 5 416 in the Restatement, which states:
"The two rules [§ 416 and S 4271 represent different forms of
the same general rules . . ." We will thus consider their
application together.
The Supreme Court of North Da.k.otahas interpreted S 416
and S 427 with respect to a sewer trench dug to a depth of
six feet in sandy soil. See Peterson v. City of Golden
Valley, North Dakota (N.D. 1981), 308 N.W.2d 550. In Peter-
- an employee of a contractor with the city was killed
son,
when the banks of the trench in which he was working caved
in. The trench was not dug according to Occupa.tiona1 Safety
and Health Administration (OSHA) regulations or standard
protective practices which call for sloping or use of a
trench box whenever a trench exceeds five feet in depth. The
court held that S 4 1 6 and S 427 did not operate to make the
City vicariously liable for the omission of the contractor,
because "this type of excavation when done with standard
precautions, presents no extraordinary risk of caving in."
Peterson, 308 N.W.2d at 5 5 4 . Peterson is on point with the
instant case, and we adopt the North Dakota Supreme Court's
analysis.
In order for S 416 to apply the work must present "a
peculiar risk . . . unless special precautions are taken."
Section 427 is only applicable to work "involving a special
danger ... inherent in . . . the work." Here, the type of
trenching contemplated in the subcontract presented no
peculiar risk or inherent danger. Rather, the risk or danger
arose out of a failure to use standard precautions.
The OSHA regulations, project safety manual and
deposition of the backhoe operator establish that sloping or
using a trench box during trenching is standard procedure.
Moreover, the subcontract specifically required the
subcontractor to use standard precautions and follow
regulations. The injury occurred after the diggers failed to
use a trench box that they knew was available. Sections 416
and 427 are thus not applicable. We hold that the companies
had no nondelegable duty under the inherent danger or
peculiar risk exception to the nonliability rule.
CONTROL RESERVED IN THE SUBCONTRACT
Appellant a1 so contends that the companies ' control
over the subcontractor renders the companies liable. Section
414, Restatement of Torts, 2d, defines the duty of a general
contractor or owner when control over the subcontractor is
retained:
5 414. Negligence in Exercising Control
Retained by Employer
One who entrusts work to an independent
contractor, but who retains the control
of any part of the work, is subject to
liability for physical harm to others
for whose safety the employer owes a
duty to exercise reasonable care, which
is caused by his failure to exercise his
control with reasonable care.
Thus, the general contractor's duty is one of reasonable
care. He is not vicariously liable for the subcontractor's
negligence under this control exception to nonliability of
general contractors and owners.
Here, by the subcontract the companies were to
establish a project safety program. However, no control over
the day-to-day implementation of the safety program was
reserved by the companies. The subcontract places the
responsibility for on-site implementation of the safety
program and job safety on the subcontractor, COP. Thus, the
companies' duty under 5414 extended only to the
establishment of the safety program. There is no evidence
that this duty was breached.
The companies' duty to exercise reasonable care in its
establishment of the safety program is more specifically
defined within the Montana Safe Place to Work Statute,
§ 50-71-201, MCA, which states:
Every employer shall furnish a place of
employment which is safe for employees
therein and shall furnish and use and
require the use of such safety devices
and safeguards and shall adopt and use
such practices, means, methods, opera-
tions, and processes as are reasonably
adequate to render the place of employ-
ment safe and shall do every other thing
reasonably necessary to protect the life
and safety of employees.
In applying the statute to the instant case, we find
that the companies had a duty to require COP to use safe
procedures and to take reasonable steps to ensure those
procedures were followed. Such a duty does not require a
general contractor to constantly oversee each individual task
of the subcontractor. Only constant supervision could have
prevented this accident.
The record is clear and undisputed that the companies
required COP to use safety preca-utions and comply with regn-
lations. The companies utilized daily spot checks and moni-
tored injury reports to make sure the construction was
proceeding safely. We find that the companies complied with
their duty of reasonable care.
In summary, appellant has failed to establish vicarious
liability based on nondelegable duty or breach of a duty
based on control. F e therefore affirm the District Court's
J
order of summary judgment in favor of the companies.
PROJECT ENGINEER'S DUTY
We will now consider Christian's summary judgment.
Appellant, despite ample opportunity at the District Court
level and here on appeal, has presented no legal arguments or
factual evidence to counter the District Court's conclusion
that Christian had no duty of safety. Christian's contract.
with MPC is in the record and does not address safety.
The District Court's conclusion is supported by this
Court's decision in Wells v. Stanley J. Thill and,Associates,
Inc. (1969), 153 Mont. 28, 452 P.2d 1015. In Wells, the City
of Belt contracted with Thill, an engineering company, to
design a. sewer project for the city. Thill's contract with
the city included only engineering and not safety
responsibilities. The city then contracted with Fedco, Inc.,
to construct the project. Wells was employed by Fedco. He
was injured in a trench cave-in when safety precautions were
not taken. We held that summary judgment in favor of Thill
was proper because the duty of the engineer did not include
safety and ran to the city and not other contractors.
Our holding regarding project engineers in Wells has
not been altered by subsequent changes in Montana law on
contractor duties to employees of subcontractors. See
Stepanek, supra. We will not alter the holding now. Because
the District Court's conclusion is supported by substantial
evidence z.nd Montana law, we affirm.
The District Court's order granting summary judgment in
favor of Christian and the companies is affirmed.
We concur:
Mr. Justice William E. Hunt, concurring in part and
dissenting in part:
I concur with the portion of the majority's opinion
dealing with nondelegable duties based in reserved control.
However, for the reasons stated below I would reverse the
District Court and remand for trial.
The majority's construction of S$ 416 and 427,
Restatement (Second) of Torts (1981) renders those sections
aimless. The majority notes that OSHA regulations call for
sloping or support to the sides of trenches to prevent the
trench walls from caving in and causing injury to workers.
From this the majority concludes that trench digging is not
inherently dangerous because trench boxes or sloping usually
prevent injury. If the precautions necessary to avoid injury
were excluded from the scope of §§ 416 and 427, what would be
left? On this kind of interpretation no employer of an
independent contractor would ever be liable for any act of
negligence in failing to take precautions against inherent
risks. This reading of those sections strips them of any
purpose. We may as well rely on the common law general rule
that employers of independent contractors are not liable for
injury caused by the contractors' negligence, without need to
analyze the exceptions to that general rule embodied in S §
416 and 427.
The majority relies on the decision of the North Dakota
Supreme Court in Peterson v. City of Golden Valley (N.D.
1981), 308 N.W.2d 550, to ground its interpretation of those
sections. However, that interpretation is contrary to the
comments to the Restatement and to the interpretation given
those sections by the majority of state courts, and by this
Court in previous cases.
Section 408, Restatement (Second) of Torts states the
general common law rule that the employer of an independent
contractor is not liable for the harm caused by the
independent contractor. The first of many departures from
that rule was taken in Bower v. Peate (1876), 1 Q.B.D. 321.
The exceptions to the rule have multiplied so that " [ilndeed
it would be proper to say that the rule is now primarily
important as a preamble to the catalog of its exceptions."
Shannon v. Wright (1977), 181 Mont. 269, 275, 593 P.2d 438,
441. Pacific Fire Ins. Co. v. Kenny Boiler & Mfg. Co.
(1937), 201 Minn. 500, 277 N.W. 226.
The Restatement notes that the exceptions fall into
three categories. Sections 416 and 417 belong to the
categories of "nondelegable duties of the employer, arising
out of some relation toward the public or the particular
plaintiff;" and " [w]ork which is specially, peculiarly, or
'inherently' dangerous." Restatement (Second) of Torts
(1981), at 371, 394; Ulmen v. Schweiger (1932), 92 Mont. 331,
247, 12 P.2d 856, 859; A. M. Holter Co. v. Western Mtge. &
Warranty Co. (1915), 51 Mont. 94, 99, 149 P. 489, 490.
Chesapeake & Potomac Tel. v. Chesapeake Util. el. Super.
1981), 436 A.2d 314, 324, 325 n. 11.
Sections 416 and 427 involve duties which for policy
reasons may not be delegated by the employer of independent
contractors to those contractors. Castro v. State (1981),
114 Cal.App.3d 503, 510, 170 Cal.Rptr. 734, 737; Heath v.
Huth Engineers (Pa. Super. 1980), 420 A.2d 758, 760; Smith v.
Inter-County Telephone Co. (Mo. 1977), 559 S.W.2d 518. "If
the circumstances [of the case] fall within this rule a
primary, nondelegable duty is imposed upon the employer
. . ." Smith, 559 S.W.2d at 521 (Emphasis added.)
Attention must be turned to the language of those
sections:
Section 416. Work Dangerous in Absence of Special
Precautions. One who employs an independent
contractor to do work which the employer should
recognize as likely to create during its progress a
peculiar risk of physical harm to others unless
special precautions are taken, is subject to
liability for physical harm caused to them by the
failure of the contractor to exercise reasonable
care to take such precautions, even though the
employer has provided for such preca.utions in the
contract or otherwise.
Section 427. Negligence as to Danger Inherent in
the Work. One who employs an independent
contractor to do work involving a special danger to
others which the employer knows or has reason to
know to be inherent in or normal to the work, or
which he contemplates or has reason to contemplate
when making the contract, is subject to liability
for physical harm caused to such others by the
contractor's failure to take reasonable precautions
against such danger.
Along with the majority, I note Comment a to S 416 which
states: "The two rules [§ 416 and § 4271 represent different
forms of the same general rules . . ." I will also consider
them together, although I also note:
The Rule stated in [S 4161 is more commonly stated
and applied where the employer should anticipate
the need for some specific precaution [while] ...
. ..$ 427 is more commonly applied where the
danger involved in the work calls for a number of
possible hazards, as in the case of blasting, or
repainting carried on upon a scaffold above the
highway.
Chesapeake & Potomac Tel. v. Chesapeake Util. (Del. Super.
1981), 436 A.2d 314, 326, quotinq Restatement (Second) of
Torts (19811, at 395.
The terms "peculiar risk" and "special precautions" may
lead the reader to believe the subject of these sections is
an atypical or heightened risk which would necessitate
extraordinary precautions. However the comments to the
Restatement point out, " ' [pleculiar' does not mean that the
risk must be one which is abnormal to the type of work done,
or that it must mean an abnormally great risk. It has
reference only to a special, recognizable danger arising out
of the work itself . . . arising out of the particular
situation created, and calling for special precautions."
Restatement (Second) of Torts (1981), at 396, Comment b and
385-86, Comment b. -
See also Castro v. State (1981), 114
Cal.App.3d 503, 510-511, 170 Cal.Rptr. 734, 738; Griesel v.
Dart Industries (1979), 153 Cal.Rptr. 213, 217, 591 P.2d 503,
507; Aceves v. Regal Pale Brew. Co. (1979), 156 Cal.Rptr. 41,
44, 595 P.2d 619, 622; Smith v. Inter-County Telephone Co.
(Mo. 1977), 559 S.W.2d 518, 522.
The illustrations to S S 416 and 427 clearly indicate
"special precautions" means precautions specially designed to
counter the risk, not extraordinary precautions. Among those
special precautions necessitated by the inherent risks of
work situations portrayed in the illustrations are a fence
around an excavation, shoring up a common wall between two
houses when one house is being demolished, and restraining a
paint bucket so that it does not fall from scaffolding.
These precautions are ordinary in the sense that a reasonably
cautious contractor would take them. What is "special" about
them is that the particular situation arising out of the work
itself calls for precautions specially designed to counter
inherent risks.
There are two kinds of negligence by a contractor which
will not be ascribed to the employer under S S 416 and 417.
First, a risk created by negligently undertaking a "normal,
routine matter of customary human activity" is not a risk
peculiar to, that is "arising out of the particular
situations created" by, the work itself. Restatement
(Second) of Torts (1981), at 385; Griesel v. Dart ~ndustries,
Inc. (1979), 3-53 Cal.Rptr. 213, 217, 591 P.2d at 507.
Second, risks collateral, or foreign to the normal or
contemplated risks of doing the work are not a.ttributable to
the employer of an independent contractor. Restatement
(Second) of Torts (1981), at 414; Aceves v. Regal Pale Brew.
Co. (1979), 156 Cal.Rptr. 41, 45, 595 P.2d at 623; Shope v.
City of Billings (1929), 85 Mont. 302, 309, 278 P. 826, 828.
Therefore, the kind of risk left within the scope of 5 5 416
and 427 is one that is inherent in the situation created by
the work, "recogniz[able] in advance as requiring special
precautions." Chesapeake and Potomac x.(Del. Super.
1981), 436 A.2d at 330 (referring to the comments to 5 426,
the "mirror rule" to § 427).
Finally, there is one more section in the Restatement
which deserves attention. Section 413 falls in the first
category of exceptions to the general rule of employer
nonl.iability. That category of exceptions are those relating
to the "[nlegligence of the employer in selecting,
instructing, or supervising the contractor." Restatement
(Second) of Torts (1981), at 371. Section 413 places a duty
upon the employer to provide for the taking of precautions
against the dangers involved in work entrusted to a
contractor. The comments to that section indicate that one
way the employer may provide for the taking of precautions is
by requiring in the contract between the employer and
contractor that such precautions be taken. While 5 413 is
similar to § 416, they are based on different policy grounds.
Section 413 places a duty on the employer to exercise
reasonable care in selecting a contractor and in drafting the
contractual requirements placed on that contractor in his
discharge of the work. Section 416 is based on the existence
of a duty of care owed the public or the particular
plaintiff. Castro v. State (1981), 114 Cal.App.3d 503, 510,
170 Cal.Rptr. 734, 737. Comment f to S 413 points out the
"fact that the contract under which work is done provides
that the contractor shall take the necessary special
precautions does not necessarily relieve the employer from
liability, since he may be liable under the rule stated in §
416." Restatement (Second) of Torts (1981), at 386. - .
~ f
Ulmen (1932), 92 Mont. 331, 347, 12 P.2d 856, 860. Comment c
to 416 spells out the crucial difference in the two
sections:
Section 416 deals with the liability of one who
employs a contractor to do such work, even though
he stipulates in his contract or in a contract with
another independent contractor that the precautions
shall he taken, for bodily harm caused by the
negligent failure of either contractor to take such
precautions.
Montana has long recognized that an employer may not
"set in operation causes dangerous to the person and 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 Monte
94, 99, 149 P. 489, 490. -- Fagan v. Silver (1920), 5 7
See also
Mont. 427, 432, 188 P. 900, 901. In such a case the party
authorizing the work is justly regarded as the author of the
mischief resulting from it, whether he does the work himself
or lets it out by contract." Shope, 85 Mont. at 309, 278
In the case at hand, Montana Power Company contracted
with Bechtel, who contracted with COP, for the work. The
contract between Bechtel and COP did include safety
provisions. Clearly then Montana Power Company and Bechtel
are not liable under the rule of 5 413. However, they may
not escape liability if the rules of 5 s 416 or 427 apply.
The majority opinion characterizes sloping or using a trench
box when digging a trench as "standard procedures." I agree
with that characterization as far as it goes. What the
majority fails to see is that these standard procedures are
specially designed to guard against dangers inherent in, or
peculiar to, trenching.
In A. M. Holter Co. v. Western Pltge. and Warranty Co.
(1915), 51 Mont. 94, 149 P. 489, a contractor hired by
Western Mortgage to repair a roof negligently left roofing
materials atop the building. The wind blew these materials
off the roof and caused damage to a nearby building. The
jury found, and this Court affirmed, that Western Mortgage
was liable for "failing to anticipate and guard against the
probable consequences" of not taking precautions necessary to
prevent the materials from being blown off the roof. --
A. M.
Halter, 51 Mont. 94, 99, 149 P. 489, 491.
Similarly in Ulmen v. Schweiger (1932), 92 Mont. 331, 12
P.2d 856, the jury found work involving digging and cementing
a culvert across a highway inherently dangerous. In that
case the subcontractor negligently failed to place detour
signs and barriers and Ulmen was injured by driving over the
culvert at a speed reasonable for highway travel. In
affirming the judgment against the general contractor who
employed the negligent subcontractor this Court noted, "The
erection and maintenance of adequate barriers and detour
signs to warn the traveling public was the very thing that
would prevent the work from being intrinsically dangerous."
Ulmen, 92 Mont. at 346, 1.2 P.2d at 859. It is my position
that a jury could well find that the use of sloping or a
trench box, as well as frequent checks on the laser marking
the grade of the trench, were the very things that would have
prevented the risks inherent in trench digging. See Barron
v. United States (D. Hawa.ii 1979), 473 F.Supp. 1077, Aff'd.
- relevant part; Barron v. United States (9th Cir. 1981),
in
654 F.2d 644; Smith v. Inter-County Telephone Co. (MO. 1977),
559 S.W.2d 518; Griesel v. Dart Industries, Inc. (1979), 153
Cal.Rptr. 213, 591 P.2d 503; Heath v. Huth Engineers, Inc.
(Pa. Super. 1980), 420 A.2d 758 (all cases where
trench-digging under the circumstances of each case was found
to be inherently dangerous). Because it is a factual
question whether particular work is inherently dangerous
under the circumstances, summary judgment is inappropriate.
Chesapeake, (Del. Super. 1981), 436 A.2d at 329; Castro
(1981), 170 Cal.Rptr. 738; Smith (Mo. 1977), 559 S.W.2d at
524.
Yet there is one question of law which would have to be
answered before the case could be remanded for trial. Case
law prior to the adoption of the 1972 Montana Constitution
held that nondelegable duties ran only to third parties and
not to employees of a contractor or subcontractor. State ex
rel. Great Falls Nat'l Bank v. District Court (1969), 154
Mont. 336, 463 P.2d 326. However, Art. 11, 9 16 of the
Montana Constitution guarantees full legal redress, with a
workers' compensation exception for the liability of fellow
employees and immediate employers. In Stepanek v. Kober
Constr. (Mont. 1981), 625 P.2d 51, 55, 38 St.Rep. 385, 396,
we held that this constitutional. provision mandated that a
nondelegable duty based in contract did run from an employer
of an independent contractor to that contractor's employees.
I can see no language in the Montana Constitution creating an
exception to the right of full legal redress riding on a
distinction between a nondelegable duty based on inherent
rislcs and a nondelegable duty based in contract.
Therefore I would hold that the Montana Power Company
and Bechtel have nondelegable duties running to the appellant
Kemp if, on remand, the jury would find that inherent risks
were present. Mydlarz v. Palmer/Duncan Construction Co.
(Mont. 1984), 582 P.2d 695, 707, 41 St.Rep. 738, 751
(Morrison, J. dissenting) . I would remand for jury
determination of whether inherent risks were present and
whether a duty to take precautions was breached. This
determination would necessarily include whether, on the facts
involved, COP violated the Montana Safe Place to Work
Statute, 50-71-201-, MCA. Any violation of this statute
wou1.d be attributable to Bechtel and Montana Power Company,
if the jury also finds the trenching in previously trenched
ground, conducted in the manner it was, inherently dangerous.
The Hon. Joseph B. Gary joins in the dissent of
Mr. Justice William E. Hunt, Sr.
Mr. Justice Frank B. Morrison, Jr. dissents as follows:
I concur in the very learned discussion of Mr. Justice
Hunt contained in his dissent filed to the majority opinion.
I add these comments.
Trenching in soft ground, as was done here, involves
inherent risk unless certain precautions are taken. The fact
that those precautions are necessary to eliminate the risk
does not avoid application of "nondelegable duty".
Trenching involves inherent risk imposing a nondelegable
duty upon the owner and general contractor. The principals
then become liable for the negligence of COP, including the
foreman. Any negligence on the part of the plaintiff should
be submitted to the jury under the comparative negligence
statute.
The majority opinion, in light of Ulmen v. Schweiger
(1932), 92 Mont. 331, 12 P.2d 856, would be bound to come to
the same conclusion except the majority opinion finds
trenching to not be "work dangerous absent special
precautions." Trenching is obviously dangerous in the
absence of special precautions and that is why special
precautions were to be taken. I am at a loss to understand
how the majority comes to its conclusion except to follow the
North Dakota Supreme Court. The Montana position as
articulated by the majority runs contrary to the Restatement
illustrations and the decisions of nearly every other
jurisdiction which has treated trenching cases.
This case should be remanded for trial under an
instruction which submits nondelegable duty as defined in
section 416, Restatement (Second) of Torts (1981) . The jury
might find that the plaintiff and COP'S foreman were equally
negligent and equally responsible for the plaintiff's
injuries. The negligence of the foreman would become the
negligence of Bechtel and Montana Power Company. Under these
circumstances the plaintiff's recovery would be reduced by
50% but the plaintiff would still recover the remaining 50%
of his total damages.
With these comments, I concur in the dissent of Mr.
Justice Hunt.