NO. 89-602
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
WILLIAM E. KEMP,
Plaintiff and Appellant,
BIG HORN COUNTY ELECTRIC COOPERATIVE, INC.,
a Montana Corporation,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Big Horn,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert C. Kelleher, Sr. ; Kelleher Law Office; Butte,
Montana
For Respondent:
James E. Torske; Kronmiller & Torske; Hardin,
Montana
Submitted on Briefs: May 3, 1990
Decided: September 18, 1990
Justice Fred J. Weber delivered the Opinion of the Court.
This appeal arises from an order of the District Court,
Thirteenth Judicial ~istrict,
Yellowstone County, Montana, granting
defendant's motion for summary judgment. Plaintiff appeals. We
affirm.
The sole issue on appeal is whether the District Court erred
in granting summary judgment in favor of defendant.
Big Horn County Electric Cooperative Inc. (Big Horn)
contracted with Swain and Morris Construction Company (S & W) for
construction of a 69 KV line between Lodge Grass, Montana, and
Hardin, Montana.
Plaintiff, ~illiamKemp, was an employee and foreman for S &
W on this project. On August 28, 1986, plaintiff was injured when
the cables broke on a High Ranger bucket lift in which plaintiff
was riding. The bucket turned upside down and plaintiff fell ten
to twelve feet to the ground. Plaintiff had a safety belt but was
not wearing it at the time of the accident.
Plaintiff filed a complaint against Big Horn alleging breach
of a duty to furnish a safe place of employment; breach of a duty
to furnish and require safety practices; and breach of a duty to
comply with various safety codes. Plaintiff later amended the
complaint to allege a breach of a non-delegable duty to comply with
the Montana Scaffolding Act. Defendant filed a motion for summary
judgment . After consideration of memoranda, depositions and
exhibits, the District Court granted summary judgment in favor of
defendant, concluding that Big Horn did not retain control over the
manner of work performed by S & W and had no duty in respect to
plaintiff. It is from this order that plaintiff appeals.
Summary judgment is appropriate only if there are no genuine
issues of material fact. See, Kelly v. Widner (1989), 236 Mont.
. . . a summary judgment is proper when it appears "that
there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a
matter of law." 10 Wright, Miller and Kane, Federal
Practice and Procedure, section 2716, P. 643.
Initially the burden of proof must be carried by the
moving party seeking summary judgment . . .However,
where the record discloses no genuine issue of material
fact, the burden of proof shifts to the party opposing
the motion . . . Once the burden has shifted in this
fashion, the party opposing the motion is held to a
standard of proof about equal to that initially imposed
upon the moving party under Rule 56 (c), M.R.Civ.P. .
.
The general rule of contractor liability is that an employer
is not liable for the negligence of an independent contractor or
its employees. Micheletto v. State (Mont. 1990), No. 89-452,
slip.op., - P.2d I , 47 St.Rep. -, ; Kemp v. Bechtel
Constr. Co. (1986), 221 Mont. 519, 524, 720 P.2d 270, 274; Dvorak
v. Matador S e w . Inc. (1986), 223 Mont. 98, 102, 727 P.2d 1306,
1308; Restatement (Second) of Torts 5 409.
On appeal, plaintiff contends that three exceptions to this
general rule apply in his case. First, plaintiff contends that Big
Horn had non-delegable duties in respect to safety. Second,
plaintiff contends Big Horn retained control over the performance
of work, creating a duty to S & W employees. Third, plaintiff
contends the work was inherently dangerous, creating vicarious
liability on the part of Big Horn. We will discuss each contention
separately.
In Stepanek v. Kober Constr. (1981), 191 Mont. 430, 434, 625
P.2d 51, 53, we recognized that non-delegable duties may be created
by contract. In addressing plaintiff's contention on this issue,
we begin by examining relevant contractual language. The District
Court found, and we agree, that the contract between Big Horn, the
general contractor, and S & W, the subcontractor, placed no duty
on ~ i g
Horn in regard to safety. The relevant sections of the
contract pursuant to Article IV, "Particular Undertakings of the
Bidder,'I provide:
Section 1, Protection to Persons and Property. The
Bidder [S & W] shall at all times take all reasonable
precautions for the safety of employees on the work and
of the public, and shall comply with all applicable
provisions of Federal, State, and Municipal safety laws
and building and construction codes, as well as the
safety rules and regulations of the Owner [Big Horn].
All machinery and equipment and other physical hazards
shall be guarded in accordance with the "Manual of
Accident Prevention in Construction1'of the Associated
General Contractors of American unless such instructions
are incompatible with Federal, State, or Municipal laws
or regulations.
The following provisions shall not limit the generality
of the above requirements:
f . The Project, from the commencement
of work to completion, or to such
earlier date or dates when the Owner
[Big Horn] may take possession and
control in whole or in part as
hereinafter provided shall be under
the charge and control of the Bidder
[S & W] and during such period of
control by the Bidder [S & W] all
risks in connection with the
construction of the Project and the
materials to be used therein shall
be borne by the Bidder [S & W]. The
Bidder [S & W] shall make good and
fully repair all injuries and
damages to the Project or any
portion thereof under the control of
the Bidder [S & W] by reason of any
Act of God or other casualty or
cause whether or not the same shall
have occurred by reason of the
Bidder's [S & W] negligence. The
Bidder [S & W] shall hold the Owner
[Big Horn] harmless from any and all
claims for injuries to persons or
for damage to property happening by
reason of any negligence on the part
of the Bidder [S & W] or any of the
Bidder's [S & W] agents or employees
during the control by the Bidder [S
& W] of the Project or any part
thereof.
Further, construction Specifications, which were incorporated
into the Contract at page CS-4, stated:
4. Construction Safety Procedures
The Contractor [S & W] will adhere to all
safety practices as described by O.S.H.A.
standards. Hard hat protection, eye, and hand
protection are recommended. Any fines or
requirements imposed by O.S.H.A.,. Workmen's
Compensation, or any other authorized safety
agency will be strictly the responsibility of
the Contractor [S & W]. Construction safety
is exclusively the responsibility of the
Contractor [S & W]. The Contractor [S &
Wlshall develop and maintain for the duration
of this contract a safety program that will
effectively incorporate and implement all
safety provisions. The Contractor [S & W]
shall appoint an employee who is qualified and
authorized to supervise and enforce compliance
with the safety program.
Based on the language of the contract, the District Court
concluded that the contract placed the responsibility for
implementation of the safety program and job safety on S & W.
Although plaintiff contends that certain written policies of Big
Horn imposed safety duties upon Big Horn, we agree with the
District Court that these policies are irrelevant since they are
not a part of the contract. Plaintiff's contention that the
Montana Scaffolding Act placed duties upon Big Horn is likewise
misplaced since S & W assumed the safety duties.
Plaintiff also contends that Big Horn had a non-delegable duty
to provide him a safe place to work, citing the "Safe Place to Work
Statute,It 5 50-71-201, MCA. This statute requires the general
contractor to exercise reasonable care in its establishment of the
safety program. Kemp v. Bechtel Constr. Co, 720 P.2d at 276. In
the present case the contract provided for safety precautions
which, pursuant to the above analysis were totally assumed by S &
W. Further, exhibits and deposition testimony demonstrated that
at the preconstruction conference S & W t s safety program was
discussed. Plaintiff has failed to present any facts indicating
that Big Horn failed in its duty to establish a safety program.
The contract provisions in the present case are directly
comparable to the contract provisions regarding safety
responsibilities in Micheletto. In that case as well as in the
present case, the contract did not contain any provisions requiring
the general contractor to be responsible for either initiating,
maintaining or supervising safety programs as was present in
Stepanek. As a result, in Micheletto, this Court agreed that a
non-delegable duty based on contract was not assumed by the State
and held that the District Court correctly concluded that the State
as a general contractor did not have a non-delegable contractual
duty to supervise the safety of the trenching operations by the
Telephone Company. In a similar manner, in the present case, we
conclude that the plaintiff has failed to present any genuine
issues of material fact to support his contention that Big Horn had
a non-delegable contractual duty to the plaintiff to supervise the
operation of S & W, or that Big Horn breached a duty under § 50-
71-201, MCA.
As a second contention, plaintiff urges that Big Horn retained
control of the work performed by S & W, triggering an exception to
the general rule of non-liability. Plaintiff's contention in
regard to control is premised upon Restatement (Second) of Torts
414, which provides:
8 414. 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.
In support of his contention that Big Horn reserved control of S
& W t s work, plaintiff relies on a contract provision from Article
11, "Constr~ction,~~
Section 6, llSupervision
and Inspection," which
provides :
c. The manner of construction of the Project, and all
materials and equipment therein, shall be subject to the
inspection, tests, and approval of the Owner .
. .
However, the contract language stating that the "manner of
construction is subject to approval by the owner1!does not create
control of that part of the work. Comment (c) of § 414 describes
the type of control contemplated by 3 414:
c. In order for the rule stated in this Section to
apply, the employer must have retained at least some
degree of control over the manner in which the work is
done. It is not enough that he has merely a general
right to order the work stopped or resumed, to inspect
its progress or to receive reports, to make suggestions
or recommendations which need not necessarily be
followed, or to prescribe alterations and deviations.
Such a general right is usually reserved to employers,
but it does not mean that the contractor is controlled
as to his methods of work, or as to operative detail.
There must be such a retention of a right of supervision
that the contractor is not entirely free to do the work
in his own way.
We conclude that the issue of control on the part of Big Horn is
actually determined and controlled under our cases of Kemp v.
Bechtel Constr. Co., and Micheletto. As we pointed out in
Micheletto, with regard control by the general contractor:
In general we conclude that before liability is found on
the basis of control by the general contractor, there
must be a clear contractual provision which establishes
that the general contractor has assumed the
responsibility for initiating, maintaining and
supervising safety precautions as was present in the
Ste~anekcontract.
Micheletto, s1ip.o~. at 11. In a manner similar to both K e m ~v.
Bechtel Constr. Co. and Micheletto, we conclude that in the present
case, Big Horn had properly provided appropriate safety precautions
in its contract with S & W. We further emphasize that the
contractual provisions in this case contain no specific provision
which obligates Big Horn to be responsible in any manner for
initiating, maintaining or supervising safety precautions and
programs as was contained in Stepanek and referred to in both of
the companion cases. We conclude here that Big Horn complied with
its duty of reasonable care with regard to safety procedures. We
hold that Big Horn complied with all contractual duties of
reasonable care required under the contract and statutes, and that
Big Horn did not negligently exercise control over the operations
of S & W in the course of which the plaintiff was injured.
Plaintiff next contends that in the present case the work was
inherently dangerous, creating vicarious liability on the part of
Big Horn. We discussed the inherently dangerous exception at
length in Kemp v. Bechtel Constr. Co, noting 5 416 and 5 427,
Restatement (Second) of Torts, which provide:
5 416. 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 precautions in the contract or
otherwise.
5 427. 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
contractorfs failure to take reasonable precautions
against such danger.
In Kemp v. Bechtel Constr. Co. , trenching was performed
without the use of a trench box. The trench caved in, resulting
in serious injury to a digger. In discussing plaintiff's
contention that trenching is inherently dangerous, we stated:
In order for § 416 to apply the work must present
Ifa peculiar risk . . . unless special precautions are
taken. " Section 427 is only applicable to work
ffinvolving special danger
a ... 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.
Kemp, 720 P.2d at 275.
In the recent case of Micheletto, also a case of a trench
cave-in, this Court followed the analysis and holding of Kemp v.
Bechtel Constr. Co. and concluded that trenching is not an
inherently dangerous activity. Micheletto,
a similar manner, in the present case, the use of the bucket on
the High Ranger bucket lift was dangerous to the plaintiff
because a safety belt was not used. Had this standard
precaution been used, there would have been no extraordinary risk
as the result of the use of the High Ranger bucket lift. In
this case, the failure to attach the safety belt in the use of the
equipment is comparable to the failure to use trench box or other
safety precautions in both Kemp v. Bechtel Constr. Co. and
Micheletto. We conclude that under the facts in the present case,
the work was not inherently dangerous.
We conclude that plaintiff failed to present any facts which
would create a genuine issue of material fact in regard to the
liability of Big Horn. Accordingly, we affirm the District Court's
grant of summary judgment in favor of Big Horn.
Af f irmed.
We Concur: '3
/'/;Lq-IL
Chief Justice //
<-
SittF for Justice Sheehy
Justice R. C. McDonough concurs in the result of the foregoing
opinion.
Justice
,
Justice William E. Hunt, Sr., concurring in part and dissenting in
part:
I concur with the portions of the Majority Opinion dealing
with nondelegable duties based on contract and control. However,
I dissent from the Majority's analysis regarding inherently
dangerous activity.
The Majority holds t.hat the use of an aerial lift bucket is
not an inherently dangerous activity because standard precautions
may be implemented to prevent the risks involved in using the
bucket. However, for the reasons I pointed out in my dissents to
Kemp v. Bechtel Constr. Co., 221 Mont. 519, 528-34, 720 P.2d 270,
276-80 (1986) and Micheletto v. State, No. 89-452, slip op. at 23-
24 (Mont. Sept. 14, 1990), I disagree. The ability to lessen the
dangers normally found in inherently dangerous activity through the
use of ordinary safeguards does not change the basic character of
the activity. If the nature of the activity is inherently
dangerous, it remains inherently dangerous whether or not standard
precautions may be taken to lessen the dangers normal to the
activity.
Because the use of the aerial lift bucket constituted an
inherently dangerous activity, defendant, as employer of the
contracting firm, retained a nondelegable duty to furnish plaintiff
with a safe place to work. Restatement (Second) of Torts §§ 416
and 427 (1977). Plaintiff, in his complaint and in his deposition,
maintained that defendant failed to provide a safe place to work
because the aerial lift bucket was not equipped with standard
safety devices to which he could attach his safety belt. By so
alleging and testifying, plaintiff raised a material question of
fact. He should be allowed to take his case to the jury.
I would reverse the District Court/on this issue.
Justice