Beckman v. Butte-Silver Bow County, 99-010.

CourtUnited States State Supreme Court of Montana
Citation1 P.3d 348,299 Mont. 389,2000 MT 112
Docket NumberNo. 99-010.,99-010.
PartiesRoy BECKMAN, Plaintiff/Appellant, v. BUTTE-SILVER BOW COUNTY, Defendant/Respondent.
Decision Date02 May 2000

William P. Joyce, Joyce & Starin; Butte, Montana, For Appellant.

William M. O'Leary, Corette, Pohlman & Kebe; Butte, Montana, For Respondent.

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?


¶ 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 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 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.


¶ 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).


¶ 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. 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.


¶ 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 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...

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