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No. 99-010
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 112
299 Mont. 389
1 P. 3d 348
ROY BECKMAN,
Plaintiff/Appellant,
v.
BUTTE-SILVER BOW COUNTY,
Defendant/Respondent.
APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
William P. Joyce, Joyce & Starin; Butte, Montana
For Respondent:
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William M. O'Leary, Corette, Pohlman & Kebe; Butte, Montana
Submitted and Argued: September 7, 1999
Decided: May 2, 2000
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the opinion of the Court.
¶1 Roy Beckman filed an action against Butte-Silver Bow County in the Second Judicial
District Court, Silver Bow County, seeking damages for personal injuries he received
when a trench he was working in collapsed. The District Court granted summary judgment
in favor of Butte-Silver Bow. Beckman appeals. We reverse.
¶2 Beckman raises the following issues on appeal:
¶3 1. Whether the District Court erred in concluding that as a matter of law trenching is
not an inherently dangerous activity?
¶4 2. Whether the District Court erred in concluding that Butte-Silver Bow did not retain
sufficient control over Simpson's trenching operations such that it owed a duty of
reasonable care to Beckman?
FACTUAL BACKGROUND
¶5 On May 10, 1995, the trench Roy Beckman was working in collapsed. At the time of
the cave-in, Beckman was employed by Simpson Excavating. Simpson Excavating had
been hired by Vince Quinlan as part of Quinlan's plan to develop property located on the
1800 block of Arizona Street in Butte, Montana. As there was no existing water service to
Quinlan's property, Quinlan contacted the operations manager of Butte-Silver Bow's
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Water Utility Division, Mike Patterson. At that time, Butte-Silver Bow's emphasis was to
have developers install extensions because Butte-Silver Bow crews were busy with
improvements to other parts of the system. Patterson informed Quinlan of Butte-Silver
Bow's requirements and specifications for the installation of new water service lines.
These requirements and specifications are contained in a document promulgated by Butte-
Silver Bow entitled "Water Main Extensions."
¶6 Patterson informed Quinlan that Butte-Silver Bow required water line extensions which
served residential areas to be six inches or larger in diameter and that its water main along
Taft Street, from which Quinlan was seeking an extension, was a two-inch water line.
Butte-Silver Bow would not allow Quinlan to attach a six-inch extension to its two-inch
main. Patterson informed Quinlan that because Butte-Silver Bow's crews were busy, Butte-
Silver Bow would not be able to replace its two-inch main on Taft Street until the fall of
1995. Quinlan wished to proceed on a faster timetable and reached an agreement with
Butte-Silver Bow: Quinlan agreed to dig the trench to replace Butte-Silver Bow's old two-
inch water line along Taft Street, between Oregon Avenue and Arizona Street, with six-
inch pipe and dig the trench necessary to install Butte-Silver Bow's new six-inch extension
to service his property on Arizona Street; Butte-Silver Bow would supply the pipe,
fittings, and fire hydrant. After its main was replaced and the extension built, Butte-Silver
Bow was to reimburse Quinlan for his costs. Beckman was injured in the trench dug along
Taft Street in order to update Butte-Silver Bow's two-inch main.
¶7 The Water Main Extension procedures required Quinlan to obtain approval of his
construction plan from the city. Complying with these procedures, Quinlan hired a
professional engineer, Gary Swanson of MSE, Inc., to prepare construction diagrams for
the project. Butte Silver-Bow approved the plans. Quinlan hired Simpson Excavating to
dig the trench and install the water lines.
¶8 On May 9, 1995, Simpson applied for a construction right of way and received
permission to begin excavating. That same day, Beckman, one of Simpson's employees,
cut the asphalt along Taft Street for a trench four feet wide. On May 10, 1995, Beckman
used a backhoe to remove the asphalt cut the previous day. Shortly thereafter, three county
employees arrived at the site and began digging a separate trench on Taft Street, east of
Oregon Avenue, in order to install a new T-valve connection to allow the hookup of the
six-inch replacement line to Butte-Silver Bow's existing water main. While Rick
Svejkovsky, one of the county employees, was in the county trench, it partially collapsed
and the county employees were forced to widen it. The county employees did not inform
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Simpson or his employees about the collapse of their trench. There is an issue of fact
concerning whether any county supervisory employees were on site.
¶9 Toward the end of the day, Svejkovsky joined Beckman in the Simpson trench in order
to assist Beckman in connecting the pipe fittings for each 20-foot section of pipe. While
Beckman and Svejkovsky were in the Simpson trench, Simpson employees began
backfilling the county trench. Svejkovsky was in the process of exiting the trench when it
collapsed on Beckman.
¶10 On April 17, 1997, Beckman filed a complaint against the City and County of Butte-
Silver Bow seeking damages for personal injuries sustained as a result of the trench
collapse. Butte-Silver Bow filed a motion for summary judgment. The motion was briefed
by both sides. The District Court heard oral argument on September 16, 1998. On
November 4, 1998, the court granted summary judgment in favor of Butte-Silver Bow.
Beckman appeals from the District Court's Order Granting Summary Judgment.
STANDARD OF REVIEW
¶11 Our standard of review in appeals from summary judgment rulings is de novo. See
Motarie v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242,
907 P.2d 154, 156. When we review a district court's grant of summary judgment, we
apply the same evaluation as the district court based on Rule 56, M.R.Civ.P. See Bruner v.
Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903. In Bruner, we set
forth our inquiry:
The movant must demonstrate that no genuine issues of material fact exist. Once
this has been accomplished, the burden then shifts to the non-moving party to prove,
by more than mere denial and speculation, that a genuine issue does exist. Having
determined that genuine issues of material fact do not exist, the court must then
determine whether the moving party is entitled to judgment as a matter of law.
Bruner, 900 P.2d at 903 (citations omitted).
DISCUSSION
¶12 Employers are generally not liable for the torts of their independent contractors. See
Umbs v. Sherrodd, Inc. (1991), 246 Mont. 373, 376, 805 P.2d 519, 520 (citing Shannon v.
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Howard S. Wright Constr. Co. (1979), 181 Mont. 269, 275, 593 P.2d 438, 441). However,
this rule is subject to certain exceptions which include: (1) where there is a nondelegable
duty based on a contract; (2) where the activity is inherently or intrinsically dangerous;
and (3) where the general contractor negligently exercises control reserved over a
subcontractor's work. See Umbs, 246 Mont. at 376, 805 P.2d at 520. The District Court
ruled that none of the exceptions applied to the facts presented and therefore granted Butte
Silver Bow's motion for summary judgment.
¶13 On appeal Beckman contends that the District Court erred in two aspects. First,
Beckman argues that the trenching operations were inherently or intrinsically dangerous
and thus came under one of the exceptions to nonliability. Second, Beckman argues that
Butte-Silver Bow retained sufficient control over the project and failed to carefully
exercise that control and, consequently, its conduct falls under another exception to
nonliability. Under both theories Beckman maintains that his suit against Butte-Silver
Bow should have withstood summary judgment. Beckman does not appeal from the
District Court's ruling that Butte-Silver Bow did not assume a nondelegable duty by
contract.
ISSUE ONE
¶14 Whether the District Court erred in concluding that as a matter of law trenching is not
an inherently dangerous activity?
¶15 We have previously held employers liable for the torts of subcontractors arising out of
work that is inherently dangerous or hazardous. See Ulmen v. Schwieger (1932), 92 Mont.
331, 12 P.2d 856. In determining whether employers should be held liable for the torts of
subcontractors arising out of work that is inherently dangerous, we have looked to the
Restatement (Second) of Torts for guidance. See, e.g., Kemp v. Bechtel Constr. Co.
(1986), 221 Mont. 519, 525, 720 P.2d 270, 274 (hereinafter Bechtel). On this issue, the
Restatement (Second) of Torts provides:
§ 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 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
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precautions, even though the employer has provided for such precautions in the
contract or otherwise.
§ 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 [the employer] 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.
Because the two rules are essentially duplicative of each other, we have considered their
application together. See Bechtel, 221 Mont. at 525, 720 P.2d at 274-75 (citing
Restatement (Second) of Torts § 416 cmt. a).
The District Court ruled as a matter of law, citing our Bechtel decision, that the trenching
activities in which Beckman was engaged did not fall under the inherently dangerous
exception to the general rule of nonliability. In Bechtel, we held that an employer was not
liable for injuries to a subcontractor's employee when the peculiar risk or inherent danger
of the activity engaged in by the subcontractor could have been avoided by standard
precautions. Bechtel, 221 Mont. at 526, 720 P.2d at 275. Kemp, the plaintiff in Bechtel,
brought an action against the project owner, the general contractor, and the project
engineer after he was injured in a trench cave-in. We observed that OSHA regulations, the
project safety manual, and the deposition of a backhoe operator established that either
sloping the trench's banks or using a trench box was a standard safety procedure when
trenching. We noted that these precautions were not taken, even though Kemp knew a
trench box was available.
¶16 In ascertaining whether the defendants were liable for injuries sustained by Kemp, we
cited with approval the North Dakota Supreme Court's analysis of §§ 416 and 427 in
Peterson v. City of Golden Valley (N.D. 1981), 308 N.W.2d 550. In Peterson, the North
Dakota Supreme Court held that the City of Golden Valley was not vicariously liable for
injuries sustained by the plaintiff/employee in a trench cave-in caused by the
subcontractor's failure to slope or use a trench box because "this type of excavation when
done with standard precautions, presents no extraordinary risk of caving in." Peterson, 308
N.W.2d at 554. Following the analysis in Peterson, we held that the defendants were not
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vicariously liable for the injuries sustained by Kemp. In doing so, we stated:
In order for Sec. 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.
Bechtel, 221 Mont. at 526, 720 P.2d at 275 (emphasis added).
¶17 In dissent, Justice Hunt, joined by Justice Morrison, argued that the majority's holding
was a misinterpretation of the Restatement. Justice Hunt asserted that by excluding
standard precautions from the scope of §§ 416 and 427, the majority had essentially
stripped these sections of any purpose. See Bechtel, 221 Mont. at 528, 720 P.2d at 277.
Justice Hunt contended that whether an employer remains liable for the torts of its
subcontractors turns on the nature of the activity engaged in and not on the existence of
"standard" as opposed to "special" precautions for avoiding the risks associated with that
activity. Bechtel, 221 Mont. at 530-31, 720 P.2d at 278. Referring to the illustrations to §§
416 and 427, the dissent noted that many of the accidents for which general contractors
would be liable under the Restatement could be avoided by using "standard" precautions-e.
g., installing a fence around an excavation site or restraining a paint bucket so that it does
not fall from scaffolding. Bechtel, 221 Mont. at 531, 720 P.2d at 278. The only thing
"special" about these precautions, observed Justice Hunt, is that they were necessary to
counter inherent risks arising out of particular work situations. Bechtel, 221 Mont. at 531,
720 P.2d at 278.
¶18 We affirmed the holding of Bechtel in two subsequent opinions. In Kemp v. Bighorn
County Elec. Co-op, Inc. (1990), 244 Mont. 437, 798 P.2d 999 (hereinafter Bighorn), we
held that Big Horn was not liable for injuries sustained by Kemp, an employee of Big
Horn's subcontractor, when Kemp fell 15 feet to the ground from a High Ranger bucket
lift. We observed that the reason the activity in question was dangerous to the plaintiff was
because the plaintiff had not taken standard precautions-i.e., wearing a safety belt.
Bighorn, 244 Mont. at 444, 798 P.2d at 1004. Similarly, in Micheletto v. State (1990), 244
Mont. 483, 798 P.2d 989, we held that the State, in its capacity as a general contractor,
was not liable for injuries suffered by the plaintiff, an employee of a subcontractor, as a
result of a trench cave-in because standard precautions such as sloping or a shoring system
were not taken. Micheletto, 244 Mont. at 490, 798 P.2d at 994.
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¶19 In its decision granting summary judgment to Butte-Silver Bow the District Court
respectfully but clearly nudged us to reconsider our decisions in Bechtel, Bighorn, and
Micheletto. Characterizing Justice Hunt's dissent as "well reasoned and well supported"
the District Court acknowledged that his analysis was compelling but properly deferred to
our recent precedent set forth in Bechtel. Taking the District Court's cue, Beckman
requests on appeal that we overturn Bechtel, Bighorn, and Micheletto to the extent we
have held that an employer is not liable for the torts of its subcontractor arising out of the
performance of an inherently dangerous activity when standard precautions could have
been taken to reduce its inherent dangerousness. Beckman argues that this line of cases is
founded upon a misinterpretation of §§ 416 and 427 of the Restatement (Second) of Torts.
We agree.
¶20 In response, Butte Silver-Bow asserts that the doctrine of stare decisis alone requires
us to affirm the Bechtel line of cases. We have held that "stare decisis is a fundamental
doctrine which reflects our concerns for stability, predictability and equal treatment."
Formicove, Inc. v. Burlington N., Inc. (1983), 207 Mont. 189, 194, 673 P.2d 469, 472.
However, stare decisis is "not a mechanical formula of adherence to the latest decision."
State v. Gatts (1996), 279 Mont. 42, 51, 928 P.2d 114, 119 (quoting Patterson v. McLean
Credit Union (1989), 491 U.S. 164, 172, 109 S. Ct. 2363, 2370). Indeed, we have held that
stare decisis does not require us to follow a manifestly wrong decision. See Formicove,
207 Mont. at 194, 673 P.2d at 472. We now believe that the analysis of the inherently
dangerous activity exception contained in the Bechtel line of cases is manifestly wrong.
¶21 Prior to the Bechtel line of cases, we held that the vicarious liability of an employer of
a subcontractor was contingent upon the nature of the work performed and not on the
existence of standard precautions. See Ulmen, 92 Mont. at 346, 12 P.2d at 859. In Ulmen,
we affirmed a jury verdict against a general contractor for injuries suffered by a motorist
that were caused by the subcontractor's failure to properly warn, by adequate barriers and
detour signs, of the existence of a five-foot deep excavation extending across the full
width of the highway. As in Bechtel, we noted that the erection and maintenance of
adequate barriers and detour signs were "the very thing that would prevent the work from
being intrinsically dangerous." Ulmen, 92 Mont. at 346, 12 P.2d at 859. However, unlike
Bechtel, we affirmed the liability of the general contractor despite the fact that the
precautions not taken by the subcontractor-adequate barriers and detour signs-were
without a doubt "standard" precautions for highway excavations. In Bechtel, without
specifically overruling Ulmen, we shifted our focus from the nature of the work performed
to the existence of standard precautions.
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¶22 In retrospect our decisions in Bechtel, Bighorn, and Micheletto misinterpreted the
interplay of "ordinary" or standard and "special precautions." The distinction described in
the Restatement between "ordinary" or standard and "special" precautions depends on
whether the precaution is meant to counter a common or a peculiar risk. Employers are not
liable for every tort committed by a subcontractor who is engaged in an inherently
dangerous or hazardous activity. Rather, an employer is only vicariously liable for those
torts which arise from the unreasonable risks caused by engaging in that activity.
Restatement (Second) of Torts § 416 cmt. d illustrates the distinction. If a contractor is
employed to transport giant logs over the highway, the contractor's employer is not liable
for torts caused by the contractor driving in excess of the speed limit. Speeding is not an
unreasonable risk particular to transporting logs, but is an ordinary form of negligence
which is usual in the community and the prevention of which requires ordinary or standard
precautions. However, an employer will be vicariously liable for the contractor's failure to
take special precautions to anchor the logs to the contractor's truck. This is because
transporting giant logs creates an uncommon hazard that the logs will become disengaged,
a hazard not ordinarily encountered in the community which calls for particular
precautions to prevent its occurrence.
¶23 Under the Restatement analysis, Butte-Silver Bow would not be liable to Beckman if
one of his coemployees negligently operated a pickup truck in the course and scope of his
employment, resulting in injuries to Beckman. The careful operation of a motor vehicle
requires ordinary and standard precautions. In contrast, trenching, where workers are
exposed to the risk of being buried if the operations are not safely conducted, requires the
implementation of special precautions. These precautions may include sloping the banks
of a trench, mechanically shoring a trench bank, or using a trench box. Such precautions,
although arguably standard with regard to the risk posed, are special in that they are
designed to protect workers from the unreasonable, extraordinary, and unusual risks
associated with trenching operations.
¶24 Accordingly, we overrule Bechtel, Bighorn, and Micheletto and reaffirm our holding
in Ulmen that an employer is vicariously liable for injuries to others caused by a
subcontractor's failure to take precautions to reduce the unreasonable risks associated with
engaging in an inherently dangerous activity. Consequently, we hold that the District
Court erred to the extent it concluded that the trenching at issue did not fall within the
inherently dangerous activity exception solely because Beckman's injury could have been
avoided through the use of "standard" precautions. The risks associated with people
working in trenches where a cave-in can cause death or serious bodily injury are well
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recognized in the construction industry. Trenching operations of this nature are
intrinsically or inherently dangerous as a matter of law.
¶25This is not to say that every activity on a construction site which may result in death or
serious bodily injury is inherently dangerous for purposes of our analysis under the
Restatement. Much of the activity that occurs on a construction site, although potentially
dangerous, is quite safe when simple, easy to follow safety precautions are taken. We
conclude, however, that requiring workers to enter a trench where they could be buried if a
cave-in resulted, requires special precautions. Often, the precautions must be tailored to
the particular situation. For example, the site in question may not allow for sloping and
therefore, other precautions such as shoring, bracing or trench boxes must be used. The
proper use of such precautions requires special knowledge and, when not followed or
properly applied, may result in instantaneous death to the workers. Thus, we consider such
trenching activities inherently dangerous. However, we note that the rules provided in the
Restatement (Second) of Torts §§ 416 and 427 are exceptions to the general rule that
employers are not liable for the torts of their independent contractors. Therefore, we will
apply this exception narrowly.
¶26 Beckman raises another species of the inherently dangerous exception. At the District
Court level, Beckman argued that Butte-Silver Bow had a duty to contractually require its
contractor, in this instance Simpson, to provide for certain precautions in its trenching
activities. An employer of an independent contractor has a duty to provide for precautions
when the employer knows or should know that the work engaged in by the independent
contractor is inherently dangerous. See Bechtel, 221 Mont. at 531-32, 720 P.2d at 278
(Hunt, J., dissenting); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts §
71, at 510 (5th ed. 1984). This is a rule of personal or individual liability separate and
distinct from an employer's vicarious liability under §§ 416 and 427. See Prosser and
Keeton, supra, § 71, at 510.
¶27 The Restatement (Second) of Torts describes this common-law rule as follows:
§ 413. Duty to Provide for Taking of Precautions Against Dangers Involved in
Work Entrusted to Contractor
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
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caused to them by the absence of such precautions if the employer
(a) fails to provide in the contract that the contractor shall take such precautions, or
(b) fails to exercise reasonable care to provide in some other manner for the taking
of such precautions.
¶28 In his complaint, Beckman raised a claim based on Butte-Silver Bow's "duty to
require Simpson to use a trench box for the safety of Simpson's employees." The District
Court did not reach this issue in its Order Granting Summary Judgment. However, the
court necessarily decided this issue when it determined that as a matter of law trenching is
not an inherently dangerous activity. Since we have concluded that the District Court erred
when it determined that trenching was not an inherently dangerous activity, we further
conclude that Beckman should have been allowed to proceed on this theory as well.
ISSUE TWO
¶29 Whether the District Court erred in concluding that Butte-Silver Bow did not retain
sufficient control over Simpson's trenching operations such that it owed a duty of
reasonable care to Beckman?
¶30 Beckman contends that the District Court erred in awarding summary judgment in
favor of Butte-Silver Bow because material issues of fact exist concerning the extent to
which Butte-Silver Bow retained control over the trenching project. In particular,
Beckman contends that Butte-Silver Bow's Water Main Extensions guidelines are
evidence that Butte-Silver Bow retained sufficient control to create a duty of care. Butte-
Silver Bow asserts that the District Court's award of summary judgment in its favor was
proper because there is no evidence that Butte-Silver Bow assumed any contractual
responsibility for safety.
¶31 In addition to the inherently dangerous activity exception, an employer can also be
liable for the torts of an independent contractor "where there is a nondelegable duty based
on contract" or where the employer "negligently exercises control reserved over a
subcontractor's work." Umbs, 246 Mont. at 376, 805 P.2d at 520. In regard to the
nondelegable duty exception, we have held that a general contractor who had assumed
contractual obligations to maintain and supervise job safety had assumed such a
nondelegable duty which extended to employees of the subcontractor. See Stepanek v.
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Kober Constr. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53.
¶32 An employer or general contractor may also be liable for the injuries suffered by a
subcontractor's employees if it negligently exercises control reserved over a
subcontractor's work. See Shannon, 181 Mont. at 276-77, 593 P.2d at 442; Bechtel, 221
Mont. at 526, 720 P.2d at 275; see also Prosser and Keeton, supra, § 71, at 510. We have
looked to the Restatement (Second) of Torts § 414 for guidance in defining the control
necessary to establish such a duty. See Bechtel, 221 Mont. at 526, 720 P.2d at 275. The
Restatement (Second) of Torts § 414 provides:
§ 414. Negligence in Exercising Control Retained by Employer
One who entrusts work to an independent contractor, but who retains the control
over 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 [the employer's] failure to exercise [its] control with reasonable care.
¶ 33 The comments to § 414 indicate two factors which may be particularly relevant to a
determination of whether an employer retained control sufficient to create a duty of safety:
if the employer knows or should know that the independent contractor is performing work
in an unreasonably dangerous manner, and if the employer retains the authority to direct
the manner in which work is to be performed. Restatement (Second) of Torts § 414 cmt. b
provides:
The rule stated in this section is usually, though not exclusively, applicable when a
principal contractor entrusts a part of the work to subcontractors, but . . .
superintends the entire job. In such a situation, the principal contractor is subject to
liability if it fails to prevent the subcontractors from doing even the details of the
work in a way unreasonably dangerous to others, if [it] knows or by the exercise of
reasonable care should know that the subcontractors' work is being so done, and
has the opportunity to prevent it by exercising the power of control which [the
employer] has retained . . . .
(Emphasis added.)
¶ 34 The District Court concluded that Butte-Silver Bow never agreed to supervise the
safety of the trenching operations, and therefore did not assume a nondelegable duty based
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on contract that extended to Beckman. The District Court cited our decision in Micheletto
for the proposition that "before liability is found on the basis of control by the general
contractor, there must be a contractual provision which establishes that a general
contractor has assumed responsibility for initiating, maintaining and supervising safety
precautions as was present in the Stepanek contract." Micheletto, 244 Mont. at 492, 798
P.2d at 995; see also Bighorn, 244 Mont. at 443, 798 P.2d at 1003.
¶35 We agree with the District Court's conclusion that Butte-Silver Bow did not assume a
nondelegable duty of safety by contract. However, we believe that Micheletto and Bighorn
provide an incorrect statement of the doctrine of retained control. A contract provision
which establishes that the general contractor assumes sole responsibility for initiating,
maintaining, and supervising safety precautions might be necessary in order to conclude
that a general contractor assumed a nondelegable duty of safety. See Stepanek, 191 Mont.
at 434, 625 P.2d at 53; Ulmen, 92 Mont. at 347, 12 P.2d at 859. However, evidence of
such a provision is not necessary to establish that a general contractor or employer had a
duty based on a theory of retained control. See Micheletto, 244 Mont. at 495, 798 P.2d at
997 (McDonough, J., dissenting) ("[R]egardless of whether the general contractor has
assumed safety duties contractually, if the general contractor retains control over any part
of an independent contractor's work the general contractor has a duty of reasonable care to
third parties in exercising such control."); Umbs, 246 Mont. at 377, 805 P.2d at 521
(reversing summary judgment in favor of a general contractor because the general
contractor knew of the dangerous condition and ordered its subcontractor's employee to
continue working).
¶36 In Umbs, the president of a company which had leased a truck to the plaintiff's
employer ordered the plaintiff to make a delivery despite the fact that the plaintiff had
informed him that the truck needed repairs. The plaintiff was subsequently injured when a
train hit the truck he was driving after the brakes on the truck failed on a downhill grade
approaching a railroad crossing. The trial court granted summary judgment in favor of the
defendant, holding that the defendant did not owe the plaintiff a duty, in part, because the
lease agreement between the defendant and the plaintiff's employer did not create any
duties. We reversed, observing that the facts as set forth in the plaintiff's affidavit when
viewed in a light most favorable to him established that the defendant, knowing that the
truck's brakes were failing, ordered Umbs to deliver the load. We held that the plaintiff's
affidavit raised an issue of material fact concerning whether the defendant negligently
exercised retained control such that it was liable for the injuries to its subcontractor's
employee.
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¶37 Despite seemingly contradictory language in Big Horn and Micheletto that before
liability is found on the basis of control by the general contractor, there must be a
contractual provision which establishes that a general contractor has assumed
responsibility for initiating, maintaining, and supervising safety precautions, the District
Court correctly recognized the distinction between a nondelegable contractual duty and a
duty based on the negligent exercise of retained control and went on to analyze Beckman's
claim under Umbs. The court granted summary judgment in favor of Butte-Silver Bow on
the issue of retained control because, unlike Umbs, Beckman did not allege that a Butte-
Silver Bow employee ordered him into the trench knowing that the trench was unsafe.
Also, the court observed that no one from Butte-Silver Bow supervised Simpson's
excavating operations.
¶38 We conclude that based on all the documents before the District Court, when viewed
in a light most favorable to the Plaintiff, there are genuine issues of material fact
concerning whether Butte-Silver Bow negligently exercised control it retained over
Simpson's work. Butte-Silver Bow did not enter into a written contract with Quinlan.
Furthermore, we have not been presented with any evidence that would indicate that the
oral agreement between Butte Silver-Bow and Quinlan concerning the construction project
addressed such issues as supervision and control. Therefore, the only possible evidence
that Butte-Silver Bow retained control must be contained in the Water Main Extensions
document or in Simpson's street opening permit. Several provisions of the Water Main
Extensions document are particularly relevant to a determination of whether Butte-Silver
Bow retained control over Simpson's activities. Importantly, this document states that
Butte-Silver "may provide supervision over a water extension project." The document
further provides, "It shall be Butte-Silver Bow's responsibility to furnish a qualified
construction inspector for monitoring all construction work performed during the
installation of the extension to the water supply system." In this regard, we note that both
parties agree that Butte-Silver Bow employees were present at the job site. Moreover, the
Water Main Extensions document states that "the materials and methods of
construction . . . shall conform to the requirements of Butte-Silver Bow."
¶39 When viewed in a light most favorable to the Plaintiff, the facts listed above establish
that Butte-Silver Bow retained the means with which to both discover and cure any
unreasonably dangerous conditions created by Simpson's work. Accordingly, we conclude
that the terms of the Water Main Extensions document, combined with the fact that Butte
Silver-Bow employees were present during the Taft Street trenching operation, are
sufficient to preclude awarding summary judgment in favor of Butte-Silver Bow.
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¶40 The District Court Order Granting Summary Judgment in favor of Butte-Silver Bow is
reversed and remanded for proceedings consistent with this opinion.
/S/ JIM REGNIER
We Concur:
/S/ J. A. TURNAGE
/S/ JAMES C. NELSON
/S/ WILLIAM E. HUNT, SR.
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
Justice Karla M. Gray, specially concurring.
¶41 I concur in the results reached by the Court and in most of the analysis used to reach
those results. I write separately primarily to clarify the reasons for my concurrence, since I
am not persuaded those reasons are clear from the Court's opinion.
¶42 In reviewing the various Restatement sections at issue in this case, it is apparent that
liability can attach only to an owner or general contractor--that is, one who employs an
independent contractor to perform work. In this case, Butte-Silver Bow did not "employ"
either Quinlan or Simpson in the usual sense of the word. However, Butte-Silver Bow and
Quinlan reached an oral agreement pursuant to which Quinlan agreed to dig the trench to
replace Butte-Silver Bow's old two-inch water line along Taft Street with six-inch pipe.
Moreover, comment a. to Restatement § 409 defines independent contractor as "any
person who does work for another under conditions which are not sufficient to make him a
servant of the other. It is immaterial whether the work is done gratuitously or is done for
pay. . . ." Under the circumstances present in this case, therefore, I conclude that Butte-
Silver Bow was the employer of Quinlan, who filled the "general contractor" role in
Restatement parlance, and, in turn, that Simpson--Beckman's employer--was the
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subcontractor. Finally, as the Court observes, "Beckman was injured in the trench dug
along Taft Street [by Simpson] in order to update Butte-Silver Bow's two-inch main."
Thus, the accident and injury occurred on the Butte-Silver Bow portion of the project,
thereby bringing Butte-Silver Bow into the picture as a potential tortfeasor.
¶43 With regard to Butte-Silver Bow's primary argument that the Bechtel, Bighorn and
Micheletto Trilogy should be retained on stare decisis grounds, I would agree if it were
not so clear that those cases were "manifestly wrong." After close study of Beckman's
analyses pointing out the error therein, the inherently dangerous activity exception set
forth in those cases simply does not withstand scrutiny. It appears that those decisions
were based on only a surface look at the Restatement and not on any substantive review of
the related discussions and comments which are intended to further illuminate the black-
letter law set forth in the various sections.
¶44 Nor does Butte-Silver Bow advance any substantive argument under which those
decisions are legally supportable. It merely points out that federal courts applying
Montana law have followed our rulings. To say so, however, is merely to state the
obvious--that federal courts applying Montana law are bound by this Court's precedents on
questions of Montana law. That the federal courts have well and truly discharged their
obligation does not add weight or authority to the legal soundness of the decisions.
¶45 In addition, Butte-Silver Bow's contention at oral argument that, in the event we
overrule the Trilogy, our decision should be prospective because Butte-Silver Bow was
entitled to rely on settled Montana law, must be rejected. While the contention has surface
appeal on fairness grounds, and while it is asserted with some frequency in cases which
might involve a change in controlling law, the fact is that the "prospective application"
argument would result in this Court issuing an entirely advisory opinion which would not
settle the law in the case before us on appeal. Such an approach or any permutation thereof
would obliterate our raison d'etre.
¶46 Having agreed with the Court's analysis of Butte-Silver Bow's potential tort liability
under various Restatement sections and, specifically, under §§ 416 and 427--the
exceptions to the general rule that employers are not liable for the torts of their
independent contractors-- I must express concern about where this decision will take both
this Court and those subject to it. Under § 409, the general rule remains that employers are
not liable for the torts of their independent contractors or subcontractors. Thus, it is
incumbent on us to apply the exceptions narrowly, as the Court expressly undertakes to
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do, lest we allow the exceptions to swallow the general rule.
¶47 Finally, I do not agree with one portion of the language used by the Court in its
discussion of negligent exercise of retained control. I do not think liability can be
premised on the language in Butte-Silver Bow's Water Main Extensions document which
says Butte-Silver Bow "may provide supervision" over a water extension project. The fact
that supervision may be provided is, in my view, insufficient to either require supervision
or ground liability on any failure to provide supervision. I do agree, however, that the
provision making Butte-Silver Bow responsible for furnishing a qualified construction
inspector "for monitoring all construction work" performed pursuant to the Water Main
Extensions document is sufficient to establish potential liability for Butte-Silver Bow in
this case.
/S/ KARLA M. GRAY
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