Bear Medicine v. U.S.
| Decision Date | 21 April 1999 |
| Docket Number | No. CV-95-100-GF-PGH.,CV-95-100-GF-PGH. |
| Parties | Marlys BEAR MEDICINE and Delores Iron Shirt, as Co-Personal Representatives of the Estate of Leland Kicking Woman, George Kicking Woman, Molly Kicking Woman, Marlys Bear Medicine, individually and as guardian of Tanielle Kicking Woman and George Lee Kicking Woman, II, and Dana Murray, as guardian of Brandi Kicking Woman, Susan Kicking Woman, Lissa Kicking Woman, and Leland Kicking Woman, Jr., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Montana |
Joe R. Bottomly, Bottomly Law Offices, Kalispell, MT, Monte D. Beck, Beck Law Office, Bozeman, MT, for plaintiffs.
George F. Darragh, Jr., Office of the U.S. Attorney, Great Falls, MT, for The United States, acting by and through the Secretary of the Department of Interior, Bureau of Indian Affairs, defendant.
George F. Darragh, Jr., Office of the U.S. Attorney, Great Falls, MT, for U.S. Dept. of Interior.
William J. Gregoire, Stephanie A. Reinhardt, Smith, Walsh, Clarke & Gregoire, Great Falls, MT, for Bailey Peterson, Lone Bear Logging, third-party defendant.
The present action has its genesis in a logging accident on the Blackfeet Indian Reservation which ultimately resulted in the death of Leland Kicking Woman. Plaintiffs Marlys Bear Medicine and Delores Iron Shirt, as co-personal representatives of the Estate of Leland Kicking Woman, and Marlys Bear Medicine and Dana Murray, as guardians of Kicking Woman's minor children, and Molly and George Kicking Woman, as Kicking Woman's parents, bring this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671 et seq. ("FTCA"), seeking monetary compensation based upon the negligence of the defendant United States, acting through the Bureau of Indian Affairs ("BIA"). Plaintiffs allege, inter alia, that the BIA negligently failed to manage and supervise the safety aspects of logging operations conducted by Bailey Peterson, d/b/a as Lone Bear Logging ("Lone Bear").1
Presently before the court are defendant's motion to dismiss, or, in the alternative, motion for summary judgment, and plaintiffs' cross-motion for summary judgment. Having reviewed the record, the court is prepared to rule.
The accident giving rise to this action occurred on October 6, 1993. Lone Bear was cutting timber at the Valentine Logging Unit on the Blackfeet Indian Reservation pursuant to a timber contract executed between Lone Bear and the Blackfeet Tribe.2 The BIA approved the contract in accordance with its duties as manager of the Indian forest land on the Blackfeet Indian Reservation.3 See, 25 C.F.R. §§ 163.10; 163.20(a).
At the time of the accident, Lone Bear's logging crew consisted of three sawyers: Malcolm New Robe, Quentin New Robe and Dwayne Mittens. Leland Kicking Woman was at the logging site for a "try out" to replace Malcolm New Robe, who had been injured in an automobile accident.4 While Kicking Woman and Malcolm New Robe were walking around the job site, they stopped to watch Quentin New Robe fell a tree. As the tree began to fall, a gust of wind pushed the tree off its intended course, and in the direction of Kicking Woman and Malcolm New Robe. Although Malcolm thought he and Kicking Woman were more than one tree length away from Quentin, he was wrong. The upper branches of the tree struck Kicking Woman, knocking him to the ground. Kicking Woman was subsequently transported to the hospital in Browning, Montana, where he was diagnosed with a spinal cord injury rendering him a quadriplegic. Following nine months of hospitalization, Kicking Woman died of complications from his injuries and hospitalization. The present action followed.
Relying upon the FTCA, plaintiffs assert a number of negligence claims against the government. First, plaintiffs allege the BIA, through its employees, acted negligently when it entrusted timber cutting to Lone Bear. Second, plaintiffs allege the BIA negligently failed to supervise and manage the safety aspects of Lone Bear's logging operation. Third, plaintiffs allege the BIA violated a non-delegable duty to ensure that Lone Bear utilized appropriate safety precautions to protect its employees and business invitees while conducting logging operations in an area notorious for unpredictable winds. Fourth, plaintiffs allege the BIA negligently failed in its duty to require that Lone Bear purchase liability insurance and workers compensation insurance for the benefit of its employees and others.
The government argues the FTCA claims advanced by the plaintiffs should be dismissed for three reasons. First, some of the claims are barred because there is no analogous state liability under similar circumstances, which is a prerequisite to the imposition of liability under the FTCA. Second, some of the claims are barred by the "discretionary function exception" to the FTCA. See, 28 U.S.C. § 2680(a). Third, some of the claims are barred because they are premised upon the purported negligence of persons other than government employees, and the government cannot be held vicariously liable for the negligent acts of third parties.
Plaintiffs contend the BIA, as the governmental agency approving the timber sale, had a nondelegable duty under Montana law to ensure Lone Bear used appropriate safety precautions in carrying out its logging operation, and breached the duty when it failed to ensure that Lone Bear complied with safety standards applicable to the logging industry.
The FTCA provides the United States may be held liable in tort when a federal employee is negligent in the scope of his employment "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." See, 28 U.S.C. §§ 1346(b), 2674. Accordingly, liability may be imposed under the FTCA only if analogous liability exists under Montana law. See, 28 U.S.C. § 1346(b); Gardner v. United States, 780 F.2d 835, 837 (9th Cir.1986). The duty which arises from the trust relationship extant between an Indian tribe and the United States is unique with no analogous duty under Montana law. Therefore, the FTCA is inapplicable.
Assuming, arguendo, that an analogous duty exists under Montana law, the court, after appropriate analysis, concludes the United States would not be liable under Montana law. In Montana, a project owner or general contractor is ordinarily not liable for injuries incurred by the employees of a subcontractor or independent contractor. See, Kemp v. Bechtel Construction Company, 221 Mont. 519, 720 P.2d 270, 274 (1986). One exception to this rule, commonly referred to as the "inherently dangerous" exception, applies where a subcontractor is performing inherently dangerous work, and the project owner or general contractor should reasonably have known of the inherent danger. See, Kemp, 720 P.2d at 274-75. Under such circumstances, the project owner or general contractor has a nondelegable duty to ensure the independent contractor employs proper safety precautions.5 See McCall v. United States Dep't of Energy Through Bonneville Power Administration, 914 F.2d 191, 193-95 (9th Cir.1990). If a government agency is the general contractor or project owner and an independent contractor is conducting an inherently dangerous activity, the United States may be liable under the FTCA for violating a nondelegable duty to ensure the independent contractor employs the proper safety precautions. See, McMillan v. United States, 112 F.3d 1040 (9th Cir. 1997).6
In order for the inherently dangerous exception to apply, the work undertaken by the independent contractor must present a peculiar risk of harm which requires "special" safety precautions, rather than "standard" safety precautions. See, Crane, supra, 41 F.3d at 552 (9th Cir. 1994). Restated, if the risk of harm presented by the independent contractor's work or activity presents "no peculiar risk or inherent danger when standard safety precautions are taken", the work or activity in question is not inherently dangerous. McMillan, supra, 112 F.3d at 1043 (9th Cir.1997), citing, Micheletto v. State, 244 Mont. 483, 798 P.2d 989, 993-94 (1990); Kemp v. Big Horn County Elec. Coop., 244 Mont. 437, 798 P.2d 999, 1003-04 (1990).7
In the case sub judice, the pertinent facts are undisputed. Kicking Woman was observing the felling of a tree by a fellow sawyer, Quentin New Robe. As the tree began to fall, a gust of wind blew the tree off its intended course, causing it to strike Kicking Woman. Kicking Woman was standing less than one tree length from Quentin New Robe when he was struck by the tree. Plaintiffs contend the logging operations at issue were inherently dangerous because Lone Bear was logging in an area known to have gusty and unpredictable winds, and the loggers employed by Lone Bear were inexperienced and lacked appropriate safety training.
While the court agrees that all logging activities involve an element of danger, and that cutting timber in the Valentine Logging Unit on a windy day, with inexperienced sawyers, increases the risk a tree could fall in an unintended direction and strike an observer, the court does not agree the logging activity at issue in this case was inherently dangerous. The logging activity contemplated in the timber contract presented no peculiar risk or inherent danger which required "special" safety precautions. Rather, the risk of danger arose out of the failure to use standard safety precautions. If Kicking Woman would have been standing more than one tree length from Quentin New Robe when New Robe felled the tree, Kicking Woman would not have been injured, despite the effects of the wind or New Robe's lack of experience and safety training. Accordi...
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